Patna High Court - Orders
Ram Briksha Mahto vs Gopi Singh & Ors on 20 June, 2013
Author: Mungeshwar Sahoo
Bench: Mungeshwar Sahoo
IN THE HIGH COURT OF JUDICATURE AT PATNA
Second Appeal No.110 of 2004
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Ram Briksha Mahto
.... .... Appellant/s
Versus
Gopi Singh & Ors
.... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. D.N.Pandey
Mr. Surendra Kumar Singh
Mr. Satyendra Krishna Prasad
Mr. K.N.Gupta
For the Respondent/s : Mr.
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CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR
SAHOO
ORAL ORDER
11 20-06-2013Heard learned counsel Mr. Surendra Kumar Singh on behalf of the appellant under order 41 Rule 11 C.P.C.
2. The defendant appellant has filed this second appeal against the judgment and decree dated 21.2.2004 passed by the learned 4th Additional District Judge Nawadah in Title Appeal no. 1 of 2004 whereby the Lower Appellate Court dismissed the appeal and confirmed the judgment and decree dated 4.5.2001 passed by the learned Additional Munsif-III Nawadah in Title suit no. 35 of 1995.
3. The plaintiff respondent filed the aforesaid suit for declaration of title over cadastral survey plot no. 984 measuring 6 ½ decimals corresponding to part of plot number 1559 on the Patna High Court SA No.110 of 2004 (11) dt.20-06-2013 -2- ground that the suit property belong originally to the three brothers namly Ramswaroop Singh, Gopi Singh and Chando Singh. They had soled 6 ½ decimals of land of plot no.1095 and three decimals of plot no. 985 to the defendant appellants by registered sale deed dated 10.6.1965. Subsequently there was partition between the three brothers. R.S plot no 1559 was allotted to Gopi Singh and Chando Singh. The remaining eight decimals of plot no 985 was soled by Gopi Singh and others to one Gobardhan Singh and thereafter the same was purchased by Savitri Devi wife of Chando Singh. Subsequently the defendant appellant started claiming more than three decimals of plot no. 985 and also 6 ½ decimals of plot no. 1559. According to the plaintiff defendant has purchased 6 ½ decimals out of plot no. 1095 and three decimals of plot no. 985 only.
4. The defendant appellant filed written statement alleging that infact he has purchased 6 ½ decimals out of plot no. 984 and three decimals of plot no. 985 but by mistake in the registered sale deed instead of plot no. 984 wrongly plot no. 1095 has been mentioned.
5. After trial the learned trial court recorded a finding that defendant appellant has purchased 6 ½ decimals of C.S plot no. 1095 and not of C.S plot no. 984 and C.S plot no. Patna High Court SA No.110 of 2004 (11) dt.20-06-2013 -3- 1095 have been rightly entered in the sale deed. The trial court so recorded a finding that the plaintiff respondent has been able to prove title and possession over the suit land that is C.S plot no. 1559. Accordingly decreed the plaintiff respondent suit.
6. On appeal the Lower Appellate Court recorded the same finding and dismissed the appeal.
7. The learned counsel appearing on behalf of the appellant submitted that the court below have wrongly recorded the finding that the defendant appellant has not purchased 6 ½ decimals out of plot no. 984. It is mistake on the part of the scribe who has wrongly mentioned the plot number in the sale deed. While recording the finding the court below have not considered the boundary and also Exhibit-E produced by the defendant appellant in its right perspective.
8. Admittedly the sale deed of the defendant appellant is of the year 1965. The plaintiff has filed this suit in the year 1995 therefore, from the year 1965 to 1995 the defendant appellant did not take any step to make necessary correction in the sale deed. It may be mentioned here that the defendant appellant is claiming title through the plaintiff respondent on the basis of the aforesaid sale deed. The finding of the court below is that there is no mistake in the sale deed and in fact the defendant appellant has Patna High Court SA No.110 of 2004 (11) dt.20-06-2013 -4- not purchased plot no. 984 is concerned is a pure finding of fact. It is settled principles of law that while exercising jurisdiction under Section 100 of the code of Civil Procedure, the High Court cannot substitute its own finding of fact after reappreciating the evidence unless it is shown that the finding recorded by the court below is perverse. So far none consideration of the boundary is concerned it may be mentioned here that as stated above for 30 years no steps were taken by the defendant and moreover this finding that defendant has purchased the land mentioned in the sale deed is also a finding of fact which is recorded after perusal of the sale deed of the year 1965.
9. In the case of Hero Vinoth (Minor) v.
Seshammal 2006 (5) S.C.C. 545 the Hon'ble Supreme Court has held that inference or appreciations of fact from recitals or contents of a documents are question of fact. Here after appreciation of the sale deed of the year 1965 both the court below recorded the concurrent finding of fact that defendant has not purchased 6 ½ decimals of plot no. 984 and it is not the mistake committed in the sale deed. Therefore in my opinion this finding cannot be inferred under Section 100 of the Civil Procedure Code.
10. In view of the facts and circumstances of the Patna High Court SA No.110 of 2004 (11) dt.20-06-2013 -5- case and the settled proposition of law, in my opinion, no substantial question of law is involved in this second appeal. Accordingly this Second Appeal is dismissed at the admission stage itself.
(Mungeshwar Sahoo, J) Namita/-