Smt. Panpati Devi and Others vs Rameshwar Gope and Others

Poonam Srivastav, J.—Heard learned Counsel for the Appellants at length.

The instant Second Appeal arises out of the judgment and decree dated 25.08.2008 passed by Additional District Judge, F.T.C.IV, Dhanbad, in Title Appeal No. 189 of 2006, affirming the judgment and decree of the trial court passed by Additional MunsifII, Dhanbad in Title Suit No. 54 of 1994 dated 17.05.2006. The title suit was instituted claiming the relief for a declaration that the exparte order and the decree in the title suit No. 88 of 1963 passed by MunisfII, Dhanbad dated 15.02.1966 as well as the order 13.05.1984 of M.P. Case No. 81 of 1971 passed by S.D.M., Chas, are fraudulent, illegal, void, inoperative and not binding on the Plaintiffs and the same will not adversely affect right, title, interest and possession of the Plaintiffs over the property described as Schedule "A".

The additional relief was for a declaration confirming possession of the Plaintiffs over Schedule "A" land and a decree for permanent injunction restraining the Defendants from executing the decree or order and from claiming any right forcefully over any portion of the property detailed at Schedule "A". A decree for costs of the suit was also claimed.

The facts of the case are that the Plaintiffs were the owner of the land described at the foot of the plaint and inherited the same from their father Megh Nath Ram @ Megh Lal Chamar, who died in the year 1978. The father of the Plaintiffs came over possession on the land inheriting from his fatherBhangi Chamar, who was in possession since the year 1978. Further case as detailed in the plaint is that his ancestor had erected a boundary wall and Kacha house and they were living in the same house and during Chakbandi operation in 196263, Plaintiff''s father Megh Lal @ Megh Lal Chamar was also found in possession which was the old plat No. 156 having an area of 23 decimals within Khata No. 60 of Mouza Gomoh, newly carved out as R.S. plot No. 350 and 353 corresponding to Khata No. 146.

As many as eight issues were framed by the trial court and on consideration of the oral and documentary evidence adduced by the respective parties, dismissed the suit with cost. The appeal was preferred before the court below and two points of determination were framed by the appellate court. The first question was whether the trial court had committed illegality thereby not making a separate issue i.e. issue of right, title by way of adverse possession? The second question was whether the trial court was justified in holding that the Plaintiffs have not been able to establish their possession over the suit property? Both the questions were interlinked to each other. The appellate court proceeded to decide and on perusing the evidence and going through the judgment, the appellate court also concurred with the findings recorded by the trial court.

Learned Counsel appearing for the Appellants has tried to place and raise the question that both the courts below have erred in law while assessing the oral as well as documentary evidence and the findings are perverse and constitute substantial question of law for consideration before this Court.

I have given thoughtful consideration to the arguments and also the question of law that has been raised in the instant Second Appeal. It is apparent that all questions of law are factual in nature and no interference can be made u/s 100 CPC It calls for a repraisal of the evidence whereas the last court of fact is lower appellate court. However, in spite of it, I have also tried to look into the oral evidence as well as documentary evidence as detailed in the two judgments and the findings recorded by both the courts. The emphasis is that the lower appellate court has confirmed the findings of the trial court without giving its reasons for affirming the said judgment and decree under appeal and, therefore, the lower appellate court failed to exercise its jurisdiction vested in it u/s 96 CPC I am not in agreement with the submissions made by the learned Counsel. So far the question of Ext. 4/1, judgment and decree passed in C.P. Case No. 47/67 and Ext. 5, it has properly been assailed by both the courts below and does not call for any interference. The judgment of lower appellate court is one of affirmance.

In the facts and circumstances, no substantial question of law arises for consideration. The Second Appeal lacks merit and is accordingly dismissed.