Phool Bai vs Mehattar

This second appeal preferred by the appellant / plaintiff was admitted for hearing on 27.8.2020 by formulating the following substantial question of

law for determination:Â​

“Whether both the Courts below are justified in partially dismissing the suit of the plaintiff holding that the defendant No.1 did not have the title of

the suit land at the time of selling it to the plaintiff, by recording a finding which is perverse and contrary to the record?â€​

[For the sake of convenience, the parties would be referred hereinafter as per their status shown and nomenclature in the suit before the trial Court].

It is the case of the plaintiff that she has purchased the suit land bearing Khasra No.636/1 area 0.538 hectare from defendant No.1 by registered

sale deed dated 15.3.2000 (Ex.PÂ1), from which she was dispossessed by defendant No.1 leading to filing of the suit for declaration of title and

recovery of possession.

Resisting the suit, defendant No.1 filed his written statement and denied the averments made in the plaint.

The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment and decree dated 22.9.2007, partly

decreeing the suit held that defendant No.1ÂMahettar was only having 0.186 hectare of land out of Khasra No.636/1 and therefore, the plaintiff is

entitled for decree to that extent only. On appeal being preferred, the first appellate Court affirmed the judgment and decree of the trial Court, against

which, against which, the appellant / plaintiff preferred this second appeal under Section 100 of the CPC, in which one substantial question of law has

been formulated by this Court, which has been setÂ​out in opening paragraph of this judgment for sake of completeness.

Mr.Anurag Singh, learned counsel for the appellant / plaintiff, would submit that both the Courts below concurrently erred in disbelieving the

document (Ex.PÂ4), which is copy of khasra panchshala for the year 1996Â97 in which Mahettar got the land bearing Khasra No.636/1 area 0.538

hectare and therefore, alienation made by Mahettar of the said land, the plaintiff has acquired title and therefore, both the Courts below ought to have

decreed the suit in toto.

On the other hand, Mr.Uday Pratap Singh Sahu, learned counsel for respondents No. 5, 6, 8, 9 and 10, would submit that the judgment and decree

of both the Courts below are based on material available on record, which is neither perverse nor contrary to record.

I have heard learned counsel appearing for the parties and considered their rival submissions made hereinabove and also went through the records

with utmost circumspection.

Admittedly, the plaintiff has purchased the suit land bearing Khasra No.636/1 area 0.538 hectare from defendant No.1 by registered sale deed

dated 15.3.2000 (Ex.PÂ1). In a suit filed, the trial Court partly decreed the suit holding that defendant No.1ÂMahettar was only having 0.186 hectare

of land out of Khasra No.636/1 and Mahettar did not have title over entire 0.538 hectare of land and relied upon Ex.PÂ2 where the concerned

revenue officer has certified that in Khasra No.636/1 only 0.186 hectare of land is left in the name of Mahettar and her name to be recorded in

revenue records. Thereafter, the plaintiff filed an application before the Additional Tahsildar, Bhatgaon for recording her name in the entire land

bearing Khasra No.636/1 area 0.538 hectare. The Additional Tahsildar after enquiry has held that the plaintiff has purchased the suit land without

measurement of the actual suit land on the spot as during joint khata part of Khasra No.636/1 has already alienated to some other persons, but

revenue records have not been certified and the plaintiff got the suit land purchased bearing Khasra No.636/1 area 0.538 hectare on the basis of rin

pustika, whereas other persons are in possession of the suit land. While rejecting the application, the Additional Tahsildar has clearly held that the

plaintiff is only entitled for certification of revenue records in Khasra No.636/1 area 0.186 hectare.

Reliance of the plaintiff on Ex.PÂ4 is not helpful to her. By that document, it has only been held on 21.06.97 that Khasra No.636/1 area 0.626

hectare is now on partition owned by defendant No.1ÂMahettar from whom the plaintiff has purchased. It has been explained by the Additional

Tahsildar, Bhatgaon in its order dated 15.10.2003 (Ex.PÂ3) that the land bearing Khasra No.636/1 was jointly held by other coÂowners, some part of

suit land has already been sold and it has not been certified and even partition made vide Ex.PÂ4 is defective, as such, there is no evidence on record

that defendant No.1 was title and possessionÂholder of the suit land bearing Khasra No.636/1 area 0.538 hectare, whereas there is overwhelming

evidence on record that defendant No.1 was owner of the land bearing Khasra No.636/1 area 0.186 hectare, which has rightly been decreed by both

the Courts below.

The finding recorded by two Courts below that defendant NO.1ÂMahettar was owner of the land bearing Khasra No.636/1 area 0.186 hectare is

finding of fact based on evidence available on record, which is neither perverse nor contrary to record. I do not find any illegality or perversity in said

finding. The substantial question of law is answered in favour of the defendants and against the plaintiff.

Accordingly, the second appeal deserves to be and is hereby dismissed leaving the parties to bear their own cost(s).

Appellate decree be drawnÂ​up accordingly.