Mahadeo Sah vs Shambhu Sah

Mr. V. Nath, J.(Oral)—Heard Mr. Ganpati Trivedi, learned Counsel appearing for the appellants.

The defendants in the suit are the appellants in this appeal against the judgment and decree of affirmance.

The plaintiffs filed the suit for declaration of title and recovery of possession over the suit land comprising of 7 dhurs of land of Plot No. 721. The factual expose are that Munshi Amar Prasad was the admitted owner of Plot Nos. 720 and 721 besides other plots. It is not in dispute between the parties that on 27.5.1955 said Munshi Amar Prasad executed two sale deeds one in favour of predecessor of the plaintiffs and another in favour of predecessor of the defendant. The sale deed executed in favour of the plaintiffs has been brought on record as Ext. 1 comprising, besides other lands, 18 dhurs of Plot No. 720 and 9 dhurs of Plot No. 721. The sale deed of the same date in favour of the defendants comprises besides other plots, the lands of Plot No. 720. Subsequently, the said Munshi Amar Prasad, according to the case of the defendants, executed another sale deed on 2.5.1962 in favour of the defendants with regard to 6� dhurs of Plot No. 721.

The plaintiffs filed the suit for aforesaid reliefs with regard to 7 dhurs of plot No. 721 out of 9 dhurs of the said plot purchased by him by the sale deed (Ext. 1). The defendants in substance resisted the relief prayed by the plaintiff on the basis that the suit land i.e. 7 dhurs of Plot No. 721 was the purchased land of the defendants on the basis of sale deed dated 2.5.1962 on the assertion that 9 dhurs of Plot No. 721 as shown in the sale deed (Ext. 1) of the plaintiffs was in fact due to mistake of the scribe and no land was purchased or transferred in favour of the plaintiff by sale deed (Ext. 1) out of Plot No. 721. It was the definite case of the defendants that by sale deed dated 27.5.1955 (Ext. 1) the plaintiff had purchased the land only out of Plot No. 720.

Both the courts below have returned the concurrent finding on fact that the plaintiffs have got title over the suit property and are entitled to recovery of possession over the same. The suit was decreed and thereafter the appeal of the defendants has been dismissed by the appellate Court below by the impugned judgment and decree.

Mr. Trivedi, the learned Senior Counsel appearing for the appellants, at the out set has submitted that the learned appellate Court below has not applied its independent mind to the facts and evidence on record and has simply reproduced the findings of the trial court. It has been argued that the appellate court was required to independently reappraise the pleadings and evidence of the parties being the first appellate court and having failed to do so the impugned judgment is vulnerable. The learned Senior Counsel, however, has accepted that there has been no steps taken by the vendor of the defendants for correction of the mistake in the sale deed (Ext. 1) of the plaintiffs by filing a suit in that regard or any proceeding permissible in law.

After perusal of the judgments of both the courts below and considering the submissions it is manifest that the tile of Munshi Amar Prasad over the suit land has not been in dispute between the parties. The sale deed dated 27.5.1955 (Ext. 1) has been executed by Munshi Amar Prasad in favour of the plaintiffs for his lands including 18 dhurs of Plot No. 720 and 9 dhurs of Plot No. 721. The land measuring 7 dhurs out of this 9 dhurs of Plot No. 721 is the suit land. The defendant has claimed his title over the suit land i.e. 7 dhurs of plot No. 721 on the basis of subsequent sale deed dated 2.5.1962 executed by the same vendor namely Munshi Amar Prasad. It is admitted position that though the defendant has questioned the purchase of the suit plot by the plaintiff by the sale deed (Ext. 1) but no counter claim has been made by the defendant in the suit nor there is any pleading or evidence aliunde to show that the registered sale deed (Ext. 1) in favour of the plaintiffs with regard to 9 dhurs of Plot No. 721 has ever been challenged or set aside or declared to be invalid in accordance with law. In that view of the matter, the plaintiffs� title over the suit land comprising 7 dhurs out of 9 dhurs of Plot No. 721 as purchased by the plaintiffs is an accomplished fact entitling the plaintiff for the relief as prayed. The defendants, though have pleaded perfection of their title on the basis of adverse possession also, but learned Senior Counsel for the defendant-appellants has accepted that the consideration of adverse possession is out of question in view of the claim of title over the suit land by the defendant. This takes us to the next limb of argument by the learned Senior Counsel for the appellants that the judgment of the appellate court below is only reproduction of the findings of the trial court. Without going into that question and accepting even the said fact to be true, the learned Counsel has not been able to persuade this Court to find that the findings of both the courts below are vitiated in any manner in law in view of the facts which are apparent from the pleadings of the parties. The principle of law is settled by the Apex Court in the case of Gujarati Sterel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha, AIR 1980 SC 1896, that in an appeal the impugned judgment cannot be interferred only because it is not right and the occasion to interfere arises only when it has been shown or established that the impugned judgment is clearly wrong.

After considering the aforesaid facts and circumstances including the pleadings of the parties this Court does not find that the courts below have committed any error in granting the relief to the plaintiff. Consequently, it is held that there is no substantial question of law arising for consideration in this appeal, which is accordingly dismissed.