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2016 DIGILAW 1198 (PAT)

Nagdu Gond v. Ramsundari Devi

2016-09-08

VIJAYENDRA NATH

body2016
JUDGMENT : Vijayendra Nath, J. 1. Heard Mr. Nagendra Rai, learned counsel appearing on behalf of the appellants. The defendants are the appellants in this appeal against the judgment and decree of affirmance granting the decree to the plaintiffs, as prayed. 2. The plaintiffs filed the suit for declaration of title and possession over the suit land described in the schedule of the plaint. The plaintiffs claimed their title and possession of the suit land on the basis of inheritance as heirs of the recorded tenant Bachu Sonar in the recent survey khatiyan with regard to the suit land. It would be pertinent to mention here that the suit land as described in the plaint comprise an area of 8 katha 12 dhurs of recent survey plot No. 348. However, the defendants in their written statement disputed the claim of the plaintiffs over 2 katha 5 dhurs only out of the suit land and claimed their own right, title and interest over the said land on the basis of the assertion that the said 2 katha 5 dhurs was sold by the predecessor of the plaintiffs in favour of the predecessor of the defendants. The defendants also averred that the original sale deed was stolen away from their house and on inquiry from the registry office it was discovered that the entries in the register of the year 1924-25 stood defaced and was not legible. The defendants further claimed that the Ex-landlord submitted return for the said 2 katha 5 dhurs of land in their favour and their names were also entered in Register-2 of the State of Bihar. The defendants further also claimed their title over the said land by way of adverse possession. 3. The trial court returned the findings on the material issues against the defendants and decreed the suit. In appeal by the defendants, the appellate court below on reappraisal of evidence has concurred with the findings of the trial court and dismissed the appeal by the impugned judgment and decree. 4. While criticizing the impugned judgments, Mr. Rai, learned counsel for the appellants at the outset has submitted that the claim of acquisition of title by adverse possession over 2 katha and 5 dhurs of land by the defendant-appellant is not being pressed. 4. While criticizing the impugned judgments, Mr. Rai, learned counsel for the appellants at the outset has submitted that the claim of acquisition of title by adverse possession over 2 katha and 5 dhurs of land by the defendant-appellant is not being pressed. It has, however, been submitted that during the pendency of the appeal in the court below the defendants-appellants filed a petition under Order 41 Rule 27 C.P.C. seeking to adduce documents by way of additional evidence but no order was passed by the appellate court below on the said petition. It has been submitted that those documents related to the filing of Jamabandi and preparation of Register-2 in the names of the defendants and were crucial for the just decision in the case. It has been next contended that the learned courts below have not properly considered the evidence on behalf of the parties and the entire attitude of the trial court was to anyhow discard the evidence of the defendants but the appellate court below has also failed to decipher the said attitude and has wrongly affirmed the findings. It has lastly been submitted that substantial questions of law arise in this appeal for consideration as valuable right of the defendants-appellants in the suit property is involved. 5. After perusal of the judgments of both the courts below and considering the submissions, it is evident that the suit was filed by the plaintiffs for declaration of title and confirmation of possession over 8 katha 12 dhurs of land in recent survey plot No. 348. The defendants did not dispute the title of the plaintiffs or their predecessors over the suit land except 2 katha 5 dhurs of the same which they claimed to have purchased from the predecessor of the plaintiffs by registered sale deed in the year 1924-25. The original sale deed was not produced by the defendants on the plea that the same had been stolen away. However, no other documentary evidence relating to the execution and registration of the said sale deed was also produced. The original sale deed was not produced by the defendants on the plea that the same had been stolen away. However, no other documentary evidence relating to the execution and registration of the said sale deed was also produced. Though the defendants had claimed that the entries in relevant register of the year 1924-25 as maintained in the registration office stood defaced and not legible but it does not appear in the judgments of both the courts below nor it is the case of the defendants-appellants that any prayer was made before the court for calling for even the said register from the registration office. The plea of the defendants in this regard has also been disbelieved by both the courts below after taking into notice the deposition of Defendant No. 4 examined as Defendant No. 10 in the suit, wherein, he has stated that the sale deed was executed 10 years before the filing of the suit which on calculation has been found by the courts below to be of the year 1977. It has also been noticed by the courts below that the defendant No. 4 has made the statements in the deposition which are quite inconsistent with the case as made out in the written statement according to which the registration of the sale deed appears to have been made in 1924-25. The courts below after scrutiny of evidence adduced on behalf of the parties have come to the conclusion that the case as set up by the defendants was not believable as the claim of the defendants regarding title and possession over 2 katha 5 dhurs has not been substantiated by cogent evidence. 6. Though the learned counsel for the appellants has submitted that the petition filed under Order 41 Rule 27 by the defendants has not been considered by the appellate court below and the same remained pending but it does not appear from the memo of appeal that such a ground has been raised herein or it has anywhere been disclosed that said petition was ever pressed by the defendants-appellants before the appellate court below. 7. It is manifest from the judgment of the appellate court below that the court was alive to the issues arising between the parties and the material evidence on record. 7. It is manifest from the judgment of the appellate court below that the court was alive to the issues arising between the parties and the material evidence on record. It is well settled that while passing the judgment of affirmance the appellate court below is not required to restate or reiterate the reasons as laid down by the Apex Court in the case of Girijanandini Devi v. Bijendra Narain Choudhary AIR 1967 S.C. 1124 and also in the case of Santosh Hazari v. Purushottam Tiwari AIR 2001 S.C. 965 . During the course of submission, this Court has not been persuaded to hold that the findings by the courts below are perverse or unreasonable in any manner and on behalf of the appellants no such evidence could be pointed out which has been omitted from consideration by the courts below but which if considered would have turned the table in favour of the appellants. The findings of fact on the issue arising between the parties have been recorded by both the courts below on the basis of evidence which are acceptable and could have been relied. Ex consequenti, this Court does not find any substantial question of law arising for consideration in this appeal, which is accordingly, dismissed. Appeal Dismissed.