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2019 DIGILAW 907 (JHR)

Ishwar Ray v. Kaushalya Devi

2019-04-23

S.N.PATHAK

body2019
ORDER : 1. This Second Appeal has been preferred against the Judgement dated 19.03.2015 and Decree sealed and signed on 01.04.2015, passed by District Judge-III, Dhanbad in Title Appeal No.18 of 2007 whereby and whereunder the Judgment dated 17.01.2007 and Decree sealed and signed on 03.02.2007, passed by Munsif-II at Dhanbad in Title Suit No.128 of 2004 has been upheld and the appeal stood dismissed. 2. The plaintiffs are the appellants and the suit was brought by them for declaration of their right, title and interest over the suit land and further for recovery of possession of suit land and for cost of the suit. 3. Learned Trial Court after leading proper evidences (oral as well as documentary) and perusing records of the case, came to a finding that plaintiffs have failed to prove their right, title and interest and even legal possession of the suit land and accordingly dismissed the suit. The first appellate court has also come to the conclusion that there is no perversity in findings of trial court and accordingly affirmed the Judgment and Decree passed by the Trial Court. The rent receipt neither creates right nor extinguishes right and it is fiscal arrangement and are issued by the concerned Halka Karmchari without prejudice. The rent receipt are of no help to pronounce Judgment or for any other substantial cause involved in the appeal. The first appellate court, in para-11 of the Judgment has rightly held as under: “11. It is pertinent to mention here that it is an admitted fact that the defendants/ respondents are in possession of the suit land and as per pleading of the plaintiffs/ appellants they have been forcibly evicted from the suit land. but in this connection it is important to note here that a question would arise as to when and how they have been dispossessed from the suit land by the defendants but there is no pleading in this regard. The plaintiffs have not brought on record any amount of evidence to show as to the steps taken by them against their forcible dispossession from the suit lands or they had filed any criminal case against the defendants/ respondents for their illegal act, which was certainly punishable under the penal law. The plaintiffs have not brought on record any amount of evidence to show as to the steps taken by them against their forcible dispossession from the suit lands or they had filed any criminal case against the defendants/ respondents for their illegal act, which was certainly punishable under the penal law. It may be mentioned here that it is well settled that an entry made in record of right finally published u/s 83(2) C.N.T. Act has presumption of its correctness until it is rebutted by cogent evidence by the parties alleging otherwise. The record of right finally published attaches a presumption of correctness and section 84(3) imposes burden of proving on parties challenging an entry in the record of right by evidence that it is incorrect. But in the instant case as noticed above there is no evidence to rebut the presumption that the entry is incorrect. It is well settled that an evidence which merely suggests a doubt as to the correctness of the entry or evidence about which is arguable that some other person might reach a conclusion different from that of settlement officer is not sufficient to rebut the presumption of correctness. Even the appellants/ plaintiffs did not take a hardihood to file objection u/s 87 CNT Act for correction of R.S. record of right prepared in the name of the plaintiffs. In this view of the matter it can safely be held that appellants/ plaintiffs have not been able to rebut the presumption of correctness so attached to the finally published record of right u/s 83(2) C.N.T. Act. Therefore, both these points are decided in favour of the respondents and against the appellants.” 4. Mr. S.N. Das, learned counsel appearing on behalf of the appellants, referring to the grounds mentioned in the memo of appeal submits that appeal may be admitted after formulating substantial question of law and appeal may be allowed. Learned counsel further submits that the learned Courts below did not take into consideration the facts and circumstances of the case. 5. From the impugned Judgments it appears that substantial compliance and justice has not suffered. Learned counsel further submits that the learned Courts below did not take into consideration the facts and circumstances of the case. 5. From the impugned Judgments it appears that substantial compliance and justice has not suffered. While coming to a conclusion, the Appellate Court has considered entire evidence on record and discussed the same in details and its finding are supported by reasons even though the point has not been framed by the appellate court there is substantial compliance and the judgment is not in any manner vitiated by the absence of point of determination. Where there is an honest endeavour on part of the lower appellate court to consider the controversy between the parties and there is proper appraisement of the respective cases and weighing and balancing of the evidence, facts and other considerations appearing on both sides is clearly manifest by perusal of the Judgment of the lower appellate court, it would be a valid Judgment even though it does not contain the points for determination. The Hon’ble Apex Court in the case of Girja Nandini Devi Vs. Bijendra Narain Choudhury reported in AIR 1967 SC 1124 has held as under: “It is not the duty of the appellate court when it agrees with the view of the trial court on the evidence either to restate the effect of the evidence or to reiterate the reasons given by the trial court. Expression of general agreement with reasons given by the Court decision of which is under appeal would ordinarily suffice.” 6. The same view was reiterated in the case of Santosh Hazari Vs. Purushottam Tiwari reported in (2001) 3 SCC 179 . 7. Admittedly the first appellate court continues, as before, to be a final court of facts, pure findings of fact remain immune from challenge before the High Court in Second Appeal. The first appellate court is also a final court of law in the sense that its decision on a question of law even if erroneous, may not be vulnerable before the High Court. It is found that the first appellate court had considered the evidence led on part of parties and has given finding to come to the conclusion arrived at. Detailed reasons have been assigned for affirming decision of the Trial Court. As there is concurrent finding of facts by both the Court, the Second Appeal is devoid of merits. 8. It is found that the first appellate court had considered the evidence led on part of parties and has given finding to come to the conclusion arrived at. Detailed reasons have been assigned for affirming decision of the Trial Court. As there is concurrent finding of facts by both the Court, the Second Appeal is devoid of merits. 8. The grounds taken by the appellant as mentioned in the memo of appeal and argued by learned counsel for the appellants is not sustainable. The first appellate court dismissed the appeal affirming the Judgment and decree passed by the trial court. There is concurrent findings of both the Courts. 9. In the circumstances, I do not find any substantial question of law to be framed. This Second Appeal is devoid of any merits and, therefore, the same stands dismissed at the stage of ‘Admission’ itself.