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2014 DIGILAW 254 (PAT)

Babulal Shah v. Ram Nath Bhagat

2014-02-14

CHAKRADHARI SHARAN SINGH

body2014
ORDER The second appeal under Section 100 of the Code of Civil Procedure challenges the judgment and decree dated 24.12.2009 passed by learned Additional District and Sessions Judge, IVth, Siwan in Title Appeal No. 29 of 2003, whereby he has confirmed the judgment dated 1.5.2003 passed by the learned 9th Additional Sub-Judge, Siwan in Title Suit No. 302 of 1996 by which judgment the appellant’s suit came to be dismissed. 2. The said Title Suit No. 302 of 1996 was filed by the appellant, seeking declaration that the sale deed executed on 19.9.1996 by defendant no.2 in favour of defendant no.1 was ineffective, invalid and without consideration and that it was executed by an imposter. The plaintiff further claimed for temporary and permanent injunction against the defendants. The plaintiff is the appellant herein, the defendant nos. 1 and 2 before the Court below are the respondent Nos. 1 and 2 respectively. 3. Briefly stated, as per the plaintiff’s case one Vishambhar Shah was the common ancestor of the appellant and defendant no.2 Singhasan Shah. Vishambhar Shah had two sons, Kidarat Shah and Mangaru Shah. Kidarat had one son Doma Shah, whereas Mangaru had two sons Chhakauri and Ram Raksha Shah. As per the case of the appellant, there was partition between the branches of Kidarat and Mangaru with respect to 19 Katha 18 dhur of land nearly 75 years ago from the date of institution of the suit and each branch got 9 katha 19 dhur. The branch of Kidarat i.e. the appellant’s branch was allotted southern portion of the land, whereas the branch of defendant no.2 was allotted the northern portion. The parties came in possession over respective land. Further case of the appellant is that nearly 20 years back the land falling in the share of the plaintiff was acquired by the Government under the Land Acquisition Act. In view of the acquisition, the plaintiff and defendant no.2 entered into an agreement that defendant no.2 would be taking entire compensation amount against acquisition of approximately half of the land arising out of acquisition of the land belonging to the appellant and plaintiff would remain in the remaining half portion of the land. In view of the acquisition, the plaintiff and defendant no.2 entered into an agreement that defendant no.2 would be taking entire compensation amount against acquisition of approximately half of the land arising out of acquisition of the land belonging to the appellant and plaintiff would remain in the remaining half portion of the land. His case was that defendant no.2, accordingly, received the compensation amount and he became unconcerned with the land at the spot, whereas the appellant came in possession over rest of the land remaining after acquisition under the Land Acquisition Act. The appellant asserted that he learnt on 6.10.1996 that defendant no.2 executed sale deed in favour of defendant no.1 without any consideration; where after defendant no.1 started creating disturbance to the plaintiff, which compelled the plaintiff to file the suit. 4. The defendants resisted the suit by filing a written statement on 20.8.1978. It was the common case of the defendant nos.1 and 2 that defendant was in possession over the suit land and he had title over the same and accordingly, he had right to transfer the suit property in favour of defendant no.1. They asserted that out of 19 Katha 18 dhur of the said land appertaining to Khata No.67, Plot No.470, half ( 9 Katha 19 dhurs) on the eastern side was allotted to Mangru Shah. They further claimed that Chakauri Shah the elder son of Mangaru Shah died in jointness. Defendant no.2 is the son of Ram Raksha Shah, the other son of Mangaru who, thus, inherited the share of branch of Mangaru in the said plot having area 9 katha and 19 dhurs. According to them, 3 katha 9 dhurs of land was acquired by the Government out of the said area of 9 katha 19 dhurs which defendant no.2 had inherited. He received compensation amount for acquisition of the said 3 Katha 9 dhurs of land and remained in possession over the remaining land measuring 6 katha 10 dhurs. They specifically denied the appellant’s case that entire share of the appellant was acquired by the State Government, rather some portion of the plaintiff’s land was acquired for which he received compensation from the concerned department of the State Government and remained in possession over 3 katha 19 dhurs. They specifically denied the appellant’s case that entire share of the appellant was acquired by the State Government, rather some portion of the plaintiff’s land was acquired for which he received compensation from the concerned department of the State Government and remained in possession over 3 katha 19 dhurs. They specifically denied the appellant’s case that defendant no.2 received the entire amount of compensation from the State Government against acquisition of portion of land by the State. They thus claimed that the defendant no.2 had title and possession over the suit property at the time of acquisition of the sale deed. It also appears that the defendant no.2 filed a separate written statement on 27.7.2000 with the leave of the Court and while reiterating the stand of defendant no.2 in the written statement filed on his behalf, he asserted that as a matter of fact, the grandfather of the plaintiff had executed the Zarpeshgi deed in the year 1909 in favour of one Raja Ram Singh who came in possession over the said property accordingly, and at the time of acquisition of the land, he had received the amount of compensation, since till the date of acquisition the zarpeshgi deed was not returned. He thus, claimed that in the revisional survey Khatiyan, the concerned land which was in the share of the appellant’s branch stood in the name of Raja Ram Singh. 5. On the basis of the rival pleadings, the trial Court framed altogether eight issues including issue nos. IV, VI and VII to the following effect:– “IV. Whether Ram Singhasan Shah, (father of defendant no.2) had possession over the suit property which is the subject matter of the sale deed? VI. Whether the plaintiff had possession over the suit property before execution of the sale deed? VII. Whether Ram Singashan Shah had taken compensation for acquisition of his land from the Gandak Department, Siwan?” 6. After framing of the issues the parties adduced their respective evidence, both oral and documentary. From the judgment of the trial Court, it appears that on detailed analysis of the evidence on record, both oral and documentary it came to a finding that the plaintiff himself in course of cross-examination admitted that the property was partitioned between Doma Shah and Ram Raksha Shah, ‘east-west’ contrary to the pleadings in the plaint that it was partitioned ‘north-south’. Learned trial Court came to a specific finding that the plaintiff failed to substantiate his possession and title over the suit property and further, oral and documentary evidence produced by the defendants also discredited the claim of the plaintiff’s title and possession over the suit property. On the basis of the evidence, learned trial Court held that there was no illegality in execution of sale deed dated 19.9.1996. He decided the issue nos. IV, VI and VII against the appellant/plaintiff. 7. An appeal was preferred by the present appellant thereafter which came to be adjudicated upon by the impugned judgment and decree dated 24.12.2009 by the learned Additional District Judge, IVth, Siwan. From the judgment of the learned Additional Sessions Judge, it will appear that, he, after dealing in detail the evidence on record, independently, concurred with the findings arrived at by learned trial Court. 8. Learned counsel appearing on behalf of the appellant has submitted, inter alia, that the findings arrived at by the Courts below are perverse and not sustainable in the eye of law. According to him, the findings arrived at by the Courts below are based on conjectures and surmises on the point of receipt of compensation money arising out of acquisition of land under Land Acquisition Act. He further contended that the present second appeal involves a substantial question of law as to whether in a situation when genuineness of the document dated 19.9.1996 (sale deed) is vehemently under challenge to be fraudulently and illegally obtained, onus shifted on the defendants to prove them to be genuine. 9. From the submissions advanced on behalf of the appellant, it appears that the appellant seeks to question the concurrent findings of fact by two Courts on the ground of wrong appreciation of evidence on record. It is not the case of the appellant that findings of the Courts below are contrary to the evidence available on record or without any evidence on record. A judgment or finding of fact can be held to be perverse only in these two situations. A concurrent finding of fact cannot be disturbed in an appeal under Section 100 of the Code of Civil Procedure on the ground that other view is also possible on the basis of same set of evidence. A judgment or finding of fact can be held to be perverse only in these two situations. A concurrent finding of fact cannot be disturbed in an appeal under Section 100 of the Code of Civil Procedure on the ground that other view is also possible on the basis of same set of evidence. From reading of the judgment of the Courts below, it appears that the plaintiff failed to establish his case of the alleged agreement between him or his ancestor and the defendant/his ancestor subsequent to acquisition of land by the State Government nearly 20 years before the filing of the suit. It also appears that the plaintiff, on his own showing, failed to prove that partition between the two branches was ‘north-south’, on the other hand, he himself is said to have admitted that the partition was ‘east-west’. The crucial issue which required consideration in the present dispute was as to whether the appellant was in possession over the suit property immediately before execution of the sale deed dated 19.9.1996. This is purely a question of fact which came to be adjudicated against the appellant concurrently by two Courts. Such concurrent findings of fact based on evidence does not require any interference by this Court in exercise of power under Section 100 of the Code of Civil Procedure as I do not find any perversity in such concurrent findings of fact. In my opinion, the present second appeal does not involve any substantial question of law and is, accordingly, dismissed but without cost.