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2014 DIGILAW 810 (PAT)

Parmanand Yadav v. Jagdeo Yadav

2014-07-24

KISHORE KUMAR MANDAL

body2014
ORAL ORDER The plaintiffs have filed the present appeal under section 100 of the Code of Civil Procedure aggrieved by the judgment and decree dated 29.05.2012 and 07.06.2012, respectively passed by the Ad hoc Addl. District Judge, 2nd, Lakhisarai in M.T. Appeal No.16 of 2007 whereby the judgment and decree dated 21.04.2007 and 28.04.2007 respectively passed by the learned Munsif, Lakhisarai in T.S. No. 68 of 1991 was affirmed. 2. For the sake of convenience, the parties shall be referred by their status at the trial. 3. The plaintiffs filed the suit seeking a declaration that the property set out in schedule-I belongs to the share of the appellants and the defendant 2nd set has no concern with the same. They also sought that the original deed dated 20.07.1991 (Ext.B) pending registration be called for and set aside. As per the plaintiffs’ case, the original defendant no.4 (now represented by his L.R., respondent nos. 4 to 7) along with the plaintiffs and respondent no.8 constituted a joint family governed by Mitakshara School of Hindu Law. Sudama Yadav being the head of the family died on 29.05.1974 leaving behind three sons in the state of jointness but subsequently nucleus of jointness severed by family partition under a ‘Panchnama’ dated 29.08.1982 and the suit property fell in the share of the plaintiff. The plaintiffs later came to know that the original defendant no.4 by a sale deed dated 20.07.1991 sold the suit land in favour of another set of defendant who made attempts to dispossess the plaintiffs necessitating filing of the suit. 4. The defendant 1st set appeared and filed written statement admitting the genealogy as also the partition held on 29.09.1982. However, the relief was opposed on the ground that the suit being incompetent being barred under section 34 of the specific Relief Act. It was further averred that under the ‘Panchnama’ the suit property was allotted to respondent no.4 as ‘Jethans’ who after the said partition came in possession of the same being the absolute owner and under the sale deed dated 20.07.1991 (Ext.B) legally and validly sold the suit land. The original defendant no.7 filed separate written statement supporting the case of the plaintiff. 5. The trial court framed issues considering the rival claims of the parties and permitted them to lead evidence. The original defendant no.7 filed separate written statement supporting the case of the plaintiff. 5. The trial court framed issues considering the rival claims of the parties and permitted them to lead evidence. In consideration of issue no.5 the learned trial court held that it was the prime duty cast on the plaintiff to prove the note regarding giving of ‘Jethans’ by Parmanand Yadav to Sadanand Yadav was subsequently added by interpolation in ‘Panchnama’ and the plaintiffs failed to produce any cogent evidence to demonstrate the same. It was also held while considering issue nos.1, 2, 3, 4 and 6 that the plaintiff prayed for confirmation of partition but did not pay the requisite court fee inasmuch as the plaintiff assailed the sale deed but only paid the declaratory court fee and as such the suit as framed was not maintainable. Consequently, the suit was dismissed. 6. Aggrieved thereby, the plaintiffs filed appeal. Learned lower appellate court noticed the issues formulated by the learned trial court and again found issue no.5 as the core issue and on appraisal of the evidence on record held that the parties were not at variance with regard to partition in the family having taken place on 29.09.1982 between three sons of the Late Sudama Yadav. As per the plaintiffs the recitals with regard to allocation of ‘Jethans’ measuring 09 decimals being allotted to Sadanand was subsequently added by way of interpolation in ‘Batwaranama’. According to the plaintiffs, the photo copy of the ‘Panchnama’(Batwaranama) was made over to them and three original copies thereof remained with the scribe and the defendants in collusion with the scribe subsequently added in ‘Panchnama’ that 09 decimals of land was allotted to Sadanand Yadav as ‘Jethans’. Having sketched the real controversy between the parties the appellate court proceeded to examine/consider the evidence adduced by the parties in support thereof. The plaintiffs produced Exts.4 and 4/A. Ext. 4/A apparently displayed that certain part/portion thereof was etched away and thereafter photo copy thereof (Ext.4) was drawn. Similar was the deposition of the expert examined in the case. The appellate court further found that after comparing Ext.4 and Ext.4/A from the original ‘Panchnama’ it was more than evident that the original ‘Panchnama’ contained details of 09 decimals of land under khata no.129, khesra nos.1617 and 1618 whereas photo copy thereof vide Exts. Similar was the deposition of the expert examined in the case. The appellate court further found that after comparing Ext.4 and Ext.4/A from the original ‘Panchnama’ it was more than evident that the original ‘Panchnama’ contained details of 09 decimals of land under khata no.129, khesra nos.1617 and 1618 whereas photo copy thereof vide Exts. 4 and 4/A was/were interpolated and those copies did not tally with the original. The appellate court also drawn adverse inference against the plaintiffs in not filing the original copy of the ‘Panchnama’ which was admittedly prepared in triplicate. The appellate court further considered the other evidence on this point both oral and documentary in order to conclude that the case put up by the plaintiffs that allotment of 09 decimals of land as ‘Jethans’ to Sadanand Yadav was not inserted by interpolation in ‘Panchnama’. The case of the defendant(s) was also found plausible when it was asserted that the plaintiff was allowed to apply and get appointment on compassionate ground after the death of his father whereas defendant no.4 Sadanand Yadav was surviving only on agriculture and was given suit land as ‘Jethans’. . Having held so the appeal was dismissed. 7. Counsel for the appellants urged that both the courts below erred in not considering the fact that after the enforcement of the Hindu Succession Act the concept of ‘Jethans’ is not permissible in law. It has next been urged that the judgment under appeal cannot be sustained in law as no issues/points were formulated and decided giving reasons therefor. 8. The contention of the appellants that the concept of ‘Jethans’ has no legal sanctity, in my view, is not well-founded inasmuch as it does not raise substantial question of law. Neither it has been submitted nor shown to this Court that the Hindu Succession Act 1956 forbids grant of any ‘Jethans’. This Court is therefore unable to find any substantial question of law arising in appeal on this count. The next contention of the appellants is also not sustainable. Order 41, Rule 31 CPC provides guideline for the appellate court as to the manner the appeal has to be considered and decided. If upon perusal of the judgment it is evident that there has been substantial compliance of the procedure(s) contained therein then the judgment cannot be dubbed as perverse. Order 41, Rule 31 CPC provides guideline for the appellate court as to the manner the appeal has to be considered and decided. If upon perusal of the judgment it is evident that there has been substantial compliance of the procedure(s) contained therein then the judgment cannot be dubbed as perverse. It must reflect from the judgment of the appellate court that it has appreciated all the relevant facts/evidence, applied its mind and decided the point/issue considering the material on record. The aforesaid view has been expressed by the Apex Court in AIR 2011 SC 1492 . Keeping those parameters in focus this Court perused the judgment under appeal and finds that learned court below independently considered the case of the parties in the light of the evidence on record having ascertained the epicenter of dispute and came to the conclusion(s) that the finding of facts recorded on those issues by the learned trial court need not require interference. It is settled law the lower appellate court while concurring with the findings recorded by the learned trial court may not record separate reasons on each point. The said submission of the appellants, in my view, does not merit to be considered by this Court under section 100 of CPC. 9. The appeal is devoid of merit. Dismissed.