Gulabo Devi, Smt. Prabhawati Devi, Dharamnath Prasad and Arun Kumar Minor, Under The Guardianship of His Mother Smt. Parwati Devi, Guardian and Well Wisher vs Ramjhari Devi and Others

S.N. Hussain, J.—This second appeal has been filed by the Plaintiffs-Respondents-Appellants challenging judgment and decree dated 23.04.1988 passed by Additional District Judge II, Patna allowing Title Appeal No. 78 of 1980 and reversing the judgment and decree dated 28.03.1980 by which the Additional Munsif Dinapur decreed Title Suit No. 118 of 1971/02 of 1979 filed by the Appellants.

The aforesaid title suit No. 118 of 1971 was filed by the Appellants with respect to property detailed in schedule-1 of the plaint, namely, 2 3/4 decimals of plot No. 332, khata No. 31, thana No. 33, tauzi No. 3085 situated in village Sarai Maner within the District of Patna for the following relief''s:

(i) Adjudication of Plaintiffs title over the suit land shown as A, B, C, and D in the sketch map attached to the plaint and for eviction of Defendants there from.

(ii) Decree for recovery of possession with respect to suit land in favour of Plaintiffs, ordering Defendants to remove their construction etc. from the land.

(iii) Decree of permanent injunction against Defendants from making any construction or encroachment over the suit land in any manner and from changing its physical features.

(iv) Cost of suit be awarded to the Plaintiffs.

(v) Any other relief or relief''s to which Plaintiffs are found entitled.

The claim of the Plaintiffs was that the Parti suit plot totally measuring 21 decimals originally belonged to one Manki Sao and on its west there was a road for widening of which a portion of six decimals of suit plot was acquired from the western side by land Acquisition Department in the year 1944. It was also claimed by the Plaintiffs that they purchased six decimals of southern part of the said plot from the said owner by registered sale deed dated 24.04.1952, whereas, the Respondents also acquired six decimals adjoining north to the land purchased by the Respondents by sale deed of the same date and they came in possession thereof.

The Plaintiffs also claimed that the remaining two decimals on the northern most corner of the said plot was orally purchased by them from Manki Sao and they constructed a small house containing shop and room on the northern side of the plot, but when they wanted to construct a new shop, the Defendants raised objection and tried to create breach of peace which attracted police and ultimately a proceeding u/s 144 Code of Criminal Procedure was initiated leading to another proceeding u/s 145 Code of Criminal Procedure but the Magistrate without properly appreciating the case of the parties declared possession of the Defendants over the suit land by order dated 13.07.1971 and the Defendants on the same date dispossessed the Plaintiffs by making construction over the disputed land and hence, the Plaintiffs had to file the suit.

On the other hand, Defendants admitted purchase of six decimals by each of the parties from the original owner Manki Sao by two registered sale deeds on the same date on 24.04.1952. However, they further claimed that the suit plot No. 332 measured 21 decimals in which the Government acquired nine decimals from the western side for widening the road and out of the remaining 12 decimals the said original owner sold six decimals of land each to both the parties by registered deeds dated 24.04.1952 and hence there was no land left in the plot in question. They further claimed that Manki Sao never orally sold two decimals of plot towards north to the Plaintiffs and in fact the Plaintiffs on the plea of oral purchase were trying to usurp the land of the Defendants due to which proceedings u/s 144 and 145 Code of Criminal Procedure were intiated and were rightly decided in favour of the Defendants. Hence it was asserted that the Plaintiffs had no manner of right, title or possession over the suit land in question.

Considering the aforesaid pleadings of the parties the trial court formulated the following issues for deciding the suit:

(i) Is the suit as framed maintainable ?

(ii) Have the Plaintiffs any cause of action for the suit ?

(iii) Is the suit barred by law of limitation ?

(iv) Have the Plaintiffs title over the suit land ?

Are they entitled for recovery of possession and permanent injunction ?

(v) To what relief or relief''s if any are the Plaintiffs entitled?

After considering the pleadings, evidence and arguments on behalf of learned Counsel for the parties the Additional Munsif Dinapore, decreed Title Suit No. 118 of 1971 on contest with cost vide his judgment and decree dated 28.03.1980, after arriving at the following findings:

(a) The Plaintiffs have title over the suit land and therefore they are entitled for recovery of possession and permanent injunction.

(b) Plaintiffs were in possession of the suit land within 12 years and hence Section 65 of the limitation Act does not apply to the suit which is thus not barred by law of limitation.

(c) There is no defect in the framing of the suit and hence it is maintainable.

(d) Plaintiffs have got valid cause of action for the suit.

(e) Plaintiffs are not entitled to any other relief or relief''s.

Against the aforesaid judgment and decree of the trial court the Defendants filed Title Appeal No. 78 of 1980 and after considering the pleadings of the parties the learned court of appeal below framed the following points for deciding the title appeal:

(i) Whether the Plaintiffs were entitled to a decree of title and recovery of possession in respect of suit land ?

(ii) Whether the Plaintiffs were entitled to injunction granted by the trial court ?

After considering the pleadings and evidence of the parties and the arguments of their learned Counsel the Additional District Judge-2, Patna set aside the judgment and decree of the trial court and allowed Title Appeal No. 78 of 1980 vide his judgment and decree dated 23.04.1988 after arriving at the following findings:

(a) It is for the Plaintiffs to prove that they had title over the suit land and they were dispossessed from the suit land after proceeding u/s 145 Code of Criminal Procedure in favour of the Defendants, as being Plaintiffs their claim has to stand on its own legs and they cannot derive benefit from the weakness of the Defendants'' case.

(b) From the two deeds executed by admitted original owner both dated 24.04.1952 (Ext. A and A/2) it is quite apparent that out of 21 decimals of plot in question 9 decimals of land were acquired by the Government for widening of the road and from the remaining 12 decimals the original owner sold 6 decimals each to both the parties by the aforesaid sale deeds.

(c) The Plaintiffs have claimed that by registered sale deed dated 24.04.1952 they purchased six decimals of plot No. 332 and subsequently, by oral purchase they got two decimals more from said plot and hence, they were owner in possession of 8 decimals of land, but it is not in dispute that the Plaintiffs are in possession of only six decimals of land purchased through the sale deed.

(d) The most important question is whether the Plaintiffs had orally purchased further two decimal of land of the said plot from the original owner.

(e) Original Jamabandi of Plaintiffs was over six decimals of plot No. 332, but Ext.-7 shows that vide order dated 15.10.1971 Jamabandi of Plaintiffs was changed to 8 decimals in place of six decimals, whereas Ext.-C shows that prior to the said change the name of Defendants was recorded only against six decimals of plot No. 332.

(f) The Circle Officer vide order dated 15.10.1971 (Ext. 7) passed in Misc. Case No. 4 of 1970-71 got 8 decimals of plot No. 332 recorded in the name of the Plaintiffs, as a result of which rent receipts (Ext.1-1/C) for 8 decimals were issued in favour of the Plaintiffs but subsequently the said order of the Circle Officer was set aside in appeal.

(g) The Plaintiffs have relied upon a mortgage deed dated 19.04.1965 (Ext. 2) showing that the original Plaintiff mortgaged 8 decimals land of plot No. 332 with one Bishawanath Prasad in which Appellant Hira Sao was the attesting witness, but the said Hira Saw denied that he was attesting witness and thus had no knowledge of the contents of the deed.

(h) Merely being an attesting witness cannot legally lead to the presumption that the attesting witness had knowledge of the contents of the deed as he was merely a witness who had attested only the signature of the executant.

(i) The Plaintiffs have failed to prove that they orally purchased two decimals of plot No. 332 and consequently they failed to prove their title over the disputed land.

(j) There is no material to support the Plaintiffs claim that the Defendants had ever dispossessed them from Plaintiffs allegedly oral purchased two decimals of land.

(k) On the basis of measurement done by the Commissioner, it cannot be said that the suit land was part of Plaintiffs'' land purchased by registered sale deed.

(l) The evidence clearly shows that the Plaintiffs are only in possession of their purchased six decimals of land, by registered deed.

(m) Plaintiffs have failed to prove that they had title and possession over the suit land, which according to them was their orally purchased land, or that they were ever dispossessed there from.

Against the aforesaid judgment and decree of the lower appellate court Plaintiffs filed the instant second appeal which was admitted by a Bench of this Court on 13.08.1990 after framing the following substantial question of law:

whether the court below has erred in law while dismissing the suit without considering the report of Commissioner which supported the case that the Defendants had encroached upon their lands

Learned Counsel for the Appellants argued that plot No. 332 was a triangular land out of which southern rectangular portion was purchased by Defendants and northern triangular portion was purchased by Plaintiffs vide two registered deeds both dated 24.04.1952, whereas, the suit land measuring 2 3/4 decimals was in the middle of plot No. 332. It was claimed that number of Plaintiffs'' sale deed was 1015 whereas, the number of Defendants'' sale deed was 1016 and hence the Plaintiffs'' deed was prior to Defendants'' deed. He also claimed that neither in the sale deed Ext. A nor in the other sale deed Ext. A/1 measurement of length and width of the purchased land were given and only area of six decimals were mentioned along with boundaries, whereas the consideration in both the sale deeds was the same i.e. Rs. 1500/- for six decimals.

Learned Counsel for the Appellants also averred that Defendants never claimed that they acquired more than six decimals whereas, the Plaintiffs claimed that they acquired entire plot No. 332 except the southern six decimals purchased by Defendants and excess money was given by the Plaintiff to the vendor for oral purchase of the remaining area. As per the Plaintiffs claim out of 21 decimals of plot No. 332, Government acquired six decimals of the plot in the year 1944 but after acquisition only about 14 decimals of plot No. 332 remained with the vendor outside acquisition and hence except six decimals sold to the Defendants, the entire remaining portion of plot No. 332 measuring 8 decimals remained with the Plaintiffs.

Learned Counsel further argued that there was consistent evidence of Plaintiffs that they purchased 8 decimals, out of which 6 decimals was by registered sale deed dated 24.04.1952 and 2 decimals was by oral purchase, and they came in possession thereof, which was well proved by mortgaged deed (Ext.2) and the order of Circle Officer (Ext.7) and Government rent receipts (Ext.1-1/C).

Learned Counsel for the Appellants submitted that the trial court gave clear finding regarding Plaintiffs'' possession and in the proceeding u/s 145 Code of Criminal Procedure also possession of Defendants was found on newly constructed structure, but while reversing the judgment and decree of the trial court the said finding of trial court was not reversed by the lower appellate court which did not even meet the reasoning of the trial court. In this connection he relied upon a decision of this Court in case of Jaideo Yadav and Others Vs. Raghunath Yadav and Another,

Learned Counsel for the Appellants also submitted that the lower appellate court while passing the impugned order, did not appreciate that prior possession of Plaintiffs was sufficient to show their title notwithstanding that the suit was brought more than six months after dispossession. In this connection he relied upon a decision of the Apex Court in case of Somnath Burman Vs. Dr. S.P. Raju and Another,

Learned Counsel for the Appellants stated that lower appellate court rejected the report of the Pleader Commissioner submitted before the trial court without seeking report of another Pleader Commissioner and without giving any valid reason. In this connection he relied upon two decisions of this Court in case of Sita Ram Thakur v. Nandu Jha reported in 1986 PLJR 527 and in case of Mostt. Kanti Devi and Others Vs. Narain Khawas and Gopi Krishna Neyogi

Another point raised by learned Counsel for the Appellants was that Plaintiff No. 3 Smt. Prabhawati Devi was not made party in the lower appellate court by the Defendants, who were Appellants in the lower appellate court, although, she was a necessary party for the appeal and hence the impugned decree of the title appeal was not sustainable in law.

Lastly learned Counsel for the Appellants argued that no point was formulated in the impugned judgment by the lower appellate court for deciding the title appeal although, it was mandatory under Order XLI Rule 31 of the Code of Civil Procedure. Hence he claimed that the impugned order of lower appellate court was fit to be set aside.

On the other hand, learned Counsel for the Respondents stated that Ext. A, is the sale deed dated 24.04.1952 executed by the Manki Sao in favour of Plaintiffs whereas Ext. A/1 is the sale deed dated 24.04.1952 executed by Manki Sao in favour of Defendants and both the sale deeds were with respect to six decimals each out of plot No. 332, hence after the said sale deeds no land was left in plot No. 332 to be orally sold to the Plaintiffs regarding which neither any date nor any consideration amount of oral purchase had been mentioned by the Plaintiffs in their pleadings.

Learned Counsel for the Respondents further argued that there were two reports of Pleader Commissioners in the suit, out of which one was dated 19.12.1971 submitted by one Sri. Ram Ratan Sinha Advocate, but since the said Pleader Commissioner did not prove his report, it was not marked as an exhibit and hence the same became irrelevant. He further stated that the second report of the Pleader Commissioner was dated 08.02.1976 which was proved by Commissioner, Triveni Narayan Sinha Advocate as DW-13 and was marked as Ext.-3. The said Pleader Commissioner did not say as to in whose area the suit land had fallen, which fact would be apparent from paragraph-7 thereof.

Learned Counsel for the Respondents further argued that lower appellate court had formulated the point for consideration in title appeal in paragraph-6 of its judgment which was also elaborated in paragraph-7 thereof and hence, the plea taken by the learned Counsel for the Appellants was absolutely frivolous.

Learned Counsel for the Respondents also contested the point raised by learned Counsel for the Appellant that although Plaintiff No. 3 namely, Prabhawati Devi widow of late Prithvinath was a necessary party but she was not impleaded in the title appeal and hence the judgment and decree of the trial court was not legal and valid.

From the arguments raised by learned Counsel for the parties as well as from the pleadings and evidence on record, it is quite apparent that the instant second appeal was admitted vide order dated 13.08.1990 on the only question of law, namely whether the court below has erred in law while dismissing the suit without considering the report of Commissioner which supported the case that the Defendants have encroached their lands. Even at the stage of final hearing of the second appeal no other substantial question of law was raised by learned Counsel for the Appellants and hence this Court has to confine its consideration only on the said question.

So far the question of report of the Pleader Commissioner is concerned the only report which was considered by the appellate court was report dated 08.02.1976 submitted by Sri. Triveni Kumar Sinha Advocate who while deposing as DW-13 proved the said report as Ext. No. 3. The said report has been fully considered by the lower appellate court in paragraphs 15 and 17 of its impugned judgment. In paragraph 15 of his judgment the lower appellate court has specifically found that even if the first report dated 09.12.1971 of the Pleader Commissioner, Ramratan Singh Advocate is accepted, it cannot prove that Plaintiffs were ever in possession of the suit land as it merely stated that fresh construction was made by the Respondents. From paragraph 17 of the judgment of the lower appellate court, it is quite apparent that the report of the Pleader Commissioner dated 08.02.1976 (Ext.-3) was not rejected, rather on the basis of said report and the deposition of the Pleader Commissioner as PW-13, it was found that according to the measurement done by the Pleader Commissioner, it cannot be said that the suit land was part of Plaintiffs'' land who were already in possession of six decimals of land purchased by them by registered sale deed dated 24.04.1952 (Ext.-A).

The decision of this Court in case of Sitaram Thakur(supra) relied upon by learned Counsel for the Appellants is not attracted to the facts and circumstances of the case as in the instant case the report of the Pleader Commissioner had not been rejected by the lower appellate court rather on the basis of the said report as well as other materials on record the said court has arrived at specific findings in that regard. The said finding of the lower appellate court is based on full consideration of the pleadings and evidence of the parties on the said issue and the Appellants have wrongly claimed that the judgment of the lower appellate court was without considering the report of the Commissioner as in the aforesaid facts and circumstances, there is no question of encroachment by Defendants on any land which belonged to the Plaintiffs.

Hence, the Plaintiffs'' possession over his aforesaid purchased six decimals of land vide registered deed having been found and their claim of oral purchase of further two decimals of land having been found to be frivolous and not proved, the Plaintiffs cannot legally get any benefit, even if the Defendants had encroached upon any P.W.D. land which is not the land of the Plaintiffs.

So far the question of lower appellate court not reversing the findings and meeting the reasonings of trial court is concerned, it is quite apparent that the lower appellate court has fully considered the two registered deeds, one in favour of Plaintiffs and the other in favour of Defendants, in which, it was specifically mentioned that the total area of plot No. 332 was 21 decimals out of which 9 decimals of land was acquired by Land Acquisition Department and hence only 12 decimals remained with the original owner Manki Sao who sold six decimals each to the Plaintiffs and the Defendants by two separate registered sale deeds both dated 24.05.1952, where after no land was left with Manki Sao. The said fact was fully proved by the documents and record of the Government which have been thoroughly considered by the lower appellate court.

In the said circumstances, the decision of this Court in case of Jaideo Yadav (supra) has been wrongly relied upon by learned Counsel for the Appellants as in the instant case the lower appellate court had considered the reasonings of the trial court in the light of the pleadings and evidence on record and had arrived at its own finding, hence, the said case law is not applicable. Another case law namely, Most. Kanti Devi (supra) has been relied upon by learned Counsel for the Appellants but it is with respect to harping upon findings of trial court and copying them in judgment of first appellate court without independent appraisal of evidence which is not the matter in the instant case and as such it is not applicable to the facts and circumstances of this case. The other decision of Apex Court in case of Somnath Berman (supra) relied upon by learned Counsel for the Appellants is regarding prior possession of Plaintiff being sufficient for adjustment against trespasser but in the instant case, the Plaintiffs have failed to prove their prior possession over the suit land whereas, the Defendants had been able to prove that the suit land was part of the land which was purchased by them by a registered document as far back as in the year 1952 from its admitted owner and since then they had remained in continuous possession thereof as exclusive owners.

The law is well settled that High Court in second appeal u/s 100 of the CPC cannot interfere with the judgment of the first appellate court merely on the ground that the first appellate court had failed to advert to the reasons ascribed by the trial court and the first appellate court is duty bound to consider the evidence adduced by the parties and give its own reasons for accepting or rejecting the evidence of one party or the other. In this regard reference may be made to a decision of the Apex Court in case of Arumugham (Dead) By Lrs. and Others Vs. Sundarambal and Another,

So far the claim of subsequent oral purchase of two decimals of plot No. 332 by the Plaintiffs from Manki Sao is concerned, there is neither any reliable proof of the said purchase nor there is any valid materials to show that after the said purchase the Plaintiffs were ever put in possession of the said land. Admittedly, six decimals of plot No. 332 were sold for Rs. 1500/- and hence, the value of two decimals would approximately be Rs. 500/- which was much beyond the value of land which was legally permitted to be orally sold without any registered document. The Plaintiffs have not even mentioned in their pleading either the date of oral purchase of the said two decimals or the amount of consideration money paid. Hence, the aforesaid claim of Plaintiffs regarding purchase of above two decimals of land has rightly been found to be absolutely baseless and illegal.

So far the question of Plaintiffs'' possession over the aforesaid two decimals of land is concerned, they have produced only three set of documents with respect thereto out of which one is the order of C.O. (Ext.7), the other are 3 rent receipts (Ext.1-1/C) and the third is mortgage deed (Ext.2) executed by the Plaintiffs. The rent receipts were issued for 8 decimals of land in favour of the Plaintiffs only on the basis of order dated 15.10.1971 passed by the Circle Officer but thereafter no rent receipt was issued in favour of the Plaintiffs as the order of the Circle Officer was set aside by the higher authority in appeal. The mortgage deed executed by the Plaintiffs in favour of a third party with respect to 8 decimals is clearly a self serving document and mere signing of the sale deed by one of the Defendants as attesting witness does not mean that the said Defendant had knowledge about the contents of the mortgaged deed. He was merely an attesting witness to the signature of the executant and he cannot be legally expected to know the contents thereof specially when in his deposition, the said Defendant specifically denied the claim of the Plaintiffs. In the said circumstances, the Plaintiffs cannot derive any benefit from the said exhibits.

On the other hand the Defendants have been able to prove that after their purchase they remained in possession of the suit land which was part of six decimals of land purchased by him by registered sale deed dated 24.04.1952 (Ext.A/1) and were duly recorded in the Government records and were paying rent thereof. His possession was duly found by the Pleader Commissioner as well as the authorities concerned and hence their possession being on the basis of a registered sale deed by the admitted owner, it cannot be doubted on the frivolous grounds and materials raised and produced by the Plaintiffs. This aspect of the matter has been fully considered by the lower appellate court in paragraph 10 to 17 of its judgment which appears to be legal and valid.

So far the question of violation of Order XLI Rule 31 of the CPC is concerned, it is quite apparent from paragraphs 6 and 7 of the judgment of the lower appellate court that two points were raised by the parties and the said points were framed by the lower appellate court, who decided the said two points in its impugned judgment and hence, this Court finds no violation of Order XLI Rule 31 of the Code of Civil Procedure.

So far the question of non-impleadment of Plaintiff No. 3 Smt. Prabhawati Devi widow of late Sri. Prithvinath in title appeal is concerned, it is quite apparent that the claim of the Plaintiffs was on the basis of registered sale deed dated 24.04.1952 (Ext.-A) as well as the subsequent oral sale by the original owner in favour of several persons including Santa Prasad and Prithvinath etc. out of whom Prithvinath died prior to the filing of the title suit and his estate was represented in the suit by his widow Prabhawati Devi and his son Arun Kumar who were Plaintiffs No. 3 and 4 to the suit. Hence, even if Plaintiff No. 3 Prabhawati Devi was not impleaded in the title appeal or in the second appeal the estate of deceased Prithvinath was represented through his son Arun Kumar (Respondent No. 4), who had been impleaded in title appeal and second appeal both.

Furthermore, in the title appeal notice was sent to Arun Kumar who was Respondent No. 3 therein through his mother Prabhawati Devi as he was minor and hence the said Prabhawati Devi (Respondent No. 3) had notice and information of the title appeal, especially when all the Plaintiffs who were Respondents in the title appeal contested the same. It may also be noted in this connection that this objection was never raised by the Defendants during the entire proceeding of title appeal nor they raised this question at the time of admission of the instant second appeal nor they formulated any such substantial question of law thereafter. Hence, it is quite apparent that since they have no valid point to challenge the judgment and decree of the lower appellate court they have now sought to raise this point which also in view of this Court is frivolous and misconceived.

In view of the aforesaid findings of this Court as well as in view of the pleadings and evidence of the parties, it is quite apparent that the Appellants have failed to substantiate their claim and the question of law formulated at the time of admission of the second appeal as well as the points raised at the time of the final hearing of this second appeal by any valid material

Accordingly, this second appeal is dismissed on contest, but in the facts and circumstances of this case there will be no order as to costs.