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2018 DIGILAW 463 (JHR)

Chandra Mouleshwar Singh v. Malti Devi

2018-02-22

ANIL KUMAR CHOUDHARY

body2018
JUDGMENT : Heard learned counsel for the parties. 2. This Second Appeal has been preferred under section 100 of the Code of Civil Procedure, against the judgment and decree passed by Additional District Judge-V (FTC) dated 27.11.2009 in Title Appeal No. 68 of 1976- Title Appeal No. 01 of 2009 whereby and whereunder, learned Additional District Judge-V upheld the judgment and decree passed by 2nd Additional Sub-Judge Deoghar, dated 21.06.1976 in Title Suit No. 165 of 1967 and dismissed the appeal of the plaintiffs-appellants. 3. The plaintiffs, filed Title suit No. 165 of 1967 for partition of the suit land and the properties described in Schedule I, IIA, IID and III of the plaint by allotting legal and legitimate share of the plaintiffs and carving out separate takhta of the plaintiff by deputation of the Amin Commissioner and for final decree in accordance with the preliminary decree. 4. The case of the plaintiffs was that the parties to the suit are the progeny of common ancestor of Khudan Singh. The suit property described in schedule I of plaint was initially recorded in the names of Ishwari Singh and Girja Singh. The suit schedule II (A, B, C and D) land stood recorded as Bakast Malik and had been in the joint possession of the brothers-Ishwari Singh and Girja Singh. However, the suit schedule IIB and IIC property were not made subject matter of the suit. The suit property of schedule III of the plaint stood recorded as Kamat Malik and the land mentioned in schedule IIA, IID and III according to the plaintiffs’ case, had been in the joint possession of plaintiffs and the defendant and after the enforcement of Bihar Land Reform Act, the land remained as raiyati land. The further case of the defendants is that there is no partition by metes and bounds. For an amicable division of the joint property, plaintiffs put the demand but the same was refused by the defendant which gave rise to the cause of action for filing of the suit. 5. The case of the defendants, on the other hand, is that the schedule IIB, IIC, IID and III are exclusive property of the Ghatwal of Kajara Ghatwali Estate by virtue of office. 5. The case of the defendants, on the other hand, is that the schedule IIB, IIC, IID and III are exclusive property of the Ghatwal of Kajara Ghatwali Estate by virtue of office. The schedule II land was exclusively recorded in the name of Ishwari Singh as Bakast Malik and schedule III was recorded as Khas Kamat in last survey and in respect of these property bar under Section 25A of Regulation III 1872 is applicable. The case of the defendants was further that there had been separation between the parties and neither Ishwari Singh nor his son Okil Singh was Karta of the joint family. After the death of Ghatwalin Sahadara Kumari in 1928-29, Ishwari Singh was appointed Ghatwal and the Jamabandi land was being cultivated separately by Ishwari Singh and Giraja Singh and after them, their decedents are in respective possession of their share. It is also the case of the defendants that the land of the suit schedule IIA, IIB, IIC, IID had never been in joint possession of the plaintiffs and these are exclusive property of the defendants being given to Ishwari Singh by virtue of office as Ghatwal and Ishwari Singh was in exclusive possession of the same. In 1934, Ishwari Singh died and his son Okil Singh was appointed as Ghatwal of the Kajara Ghatwali Estate on 31.10.34. However, a small portion of land had been in possession of the plaintiffs for the residential purpose, which was given on request of Girja Singh and Girja Singh was also permitted to construct house over it out of safety consideration. According to the case of the defendants, the possession of Girja Singh was only permissive over the small portion of the Ghatwali land. It is further the case of the defendants that at the time of the vesting the estate under Bihar Land Reforms Act, Okil Singh was alone the intermediary in the Khas cultivating possession and as such he alone became the raiyat under section 6 of the said Act. 6. The learned trial court altogether framed five issues. It is further the case of the defendants that at the time of the vesting the estate under Bihar Land Reforms Act, Okil Singh was alone the intermediary in the Khas cultivating possession and as such he alone became the raiyat under section 6 of the said Act. 6. The learned trial court altogether framed five issues. In support of their respective case, both the plaintiffs and the defendants adduced, oral as well as documentary evidences and by its said judgment in Title Suit No. 165 of 1967, learned Sub Judge allowed the plaintiffs suit in part by declaring half share and separate takhata to be carved out in the suit property in schedule-I of the plaint as only the said property is the joint property of the parties to the suit but rejected the prayer for partition regarding schedule IIA, IID and III suit property of the plaint as there was no unity of title and possession in respect of the parties to the suit. 7. Being aggrieved by the said judgment and decree of the trial court the appellants preferred an appeal before the District Judge, Jamtara and the same was registered as Title Appeal No. 68 of 1976 and later on renumbered as Title Appeal No. 01 of 2009 and ultimately heard and decided by the Additional District Judge-V (FTC) Jamtara. 8. During pendency of the appeal, it appears that original record of the suit became traceless while the same was pending in the court of 1st Additional District Judge, Dumka and records had been reconstructed by the orders of District Judge, Dumka but learned lower appellate court below in the impugned judgment mentioned that the re-constructed record is a paper book of photocopies and it does not have the copies of exhibited documents of the original suit record, but as these exhibits have been referred in the judgment of 2nd Additional Sub-Judge, Deoghar, learned lower appellate court also relied upon the contents of the exhibits as mentioned in the said judgment of 2nd Additional Sub-Judge, Deoghar. 9. In view of the submissions made by the rival parties at the bar in the appeal the learned lower appellate court formulated the following point for determination. 9. In view of the submissions made by the rival parties at the bar in the appeal the learned lower appellate court formulated the following point for determination. “Whether the suit properties described in schedule IIA, IID and III are joint properties and the same are liable to be partitioned between the plaintiffs-appellants and the defendants-respondents?” The learned lower appellate court discussed and considered all the aspects and after thorough discussion and consideration of the facts and evidences on record came to the finding that properties described in schedule IIA, IID and III of the plaint are not joint properties as the properties described in schedule IIA, IID and III of the plaint having come to the Ghatwals during their service tenure, the land is non-alienable and non–heritable. The vesting of the Ghatwali land was a personal right and on the date of vesting these properties, rightly settled with Okil Singh. Hence, the plaintiffs or their predecessors in interest could not have any interest right or title and they could not be regarded as co-intermediaries of Okil Singh and since plaintiffs have no share and there was no unity of title or possession in respect of the said schedule IIA, IID and III properties of the plaint, the same being exclusive properties of the defendants held that the same cannot be partitioned between the parties to the suit and dismissed the appeal. 10. Mr. J.P. Jha, the learned senior counsel for the appellants submitted that since the learned appellate court did not have the opportunity to go through the exhibits of the case, hence, there is no proper application of mind by the learned court while passing the impugned judgment. Hence, the matter be remanded back to the 1st appellate court, to re-appreciate the entire evidence- oral and documentary being the final court of facts. The learned senior counsel for the appellants fairly submitted that he does not have the copy of the exhibits with him and he also fairly submitted that he cannot say which specific exhibit was not taken into consideration in proper perspective by the lower appellate court. 11. Mr. Arvind Kr. The learned senior counsel for the appellants fairly submitted that he does not have the copy of the exhibits with him and he also fairly submitted that he cannot say which specific exhibit was not taken into consideration in proper perspective by the lower appellate court. 11. Mr. Arvind Kr. Choudhary, the learned counsel for the respondents, on the other hand, submitted that at the time of hearing of the appeal by learned lower appellate court, appellants herein who were also the appellants in the court below, were also very much aware about the non-existence of the copies of the exhibits in the re-constructed lower court records but they did not raise any objection. It is further submitted by him that neither the appellants nor the respondents have the copies of the exhibits with them, so even if the matter is remanded back, there is no scope for the lower appellate court to look into the exhibits. So, remanding back the said matter would be a mere futile exercise. It was further submitted that there is concurrent finding of facts and no specific submission is even advanced by the appellants about any improper appreciation of the facts by the learned lower appellate court hence, this Second Appeal being without any merit be dismissed. 12. After hearing the parties and considering the material on record including the impugned judgments and decrees of the Courts below, I find that learned lower Appellate court has considered all the relevant facts, evidences and materials on record in correct perspective and has arrived at the finding of fact on the basis thereof that the properties described in schedule IIA, IID and III of the plaint are not joint properties and there is no unity of title and possession in respect of those properties between the parties to the suit. It is a settled principle of law that in exercise of power under Section 100 of the Code of Civil Procedure, the High Court cannot interfere with the finding of fact recorded by the first appellate court which is the final court of fact, unless the same is found to be perverse as has been reiterated by the Hon’ble Supreme of India, in the case of Gurvachan Kaur and Others vs. Salikram (dead) through LRS., reported in (2010) 15 SCC 530 in which it was held in paragraph 10 as under :- "10. It is settled law that in exercise of power under Section 100 of the Code of Civil Procedure, the High Court cannot interfere with the finding of fact recorded by the first appellate court which is the final court of fact, unless the same is found to be perverse. This being the position, it must be held that the High Court was not justified in reversing the finding of fact recorded by the first appellate Court on the issues of existence of landlord-tenant relationship between the plaintiff and the defendant and default committed by the latter in payment of rent." (Emphasis Supplied) 13. Learned Counsel for the appellants could not point out any illegality or error in the impugned judgment and decree of the lower Appellate Court giving rise to any substantial question of law to be framed and decided by this Court in exercise of second appellate jurisdiction. 14. Thus there being no merit in this appeal, the same is dismissed but in the circumstances, without any costs.