Patna High Court
Ram Vali Yadav vs Krishna Mohan Yadav & Ors on 30 March, 2012
Equivalent citations: AIR 2012 (NOC) 246 (PAT.)
Author: Shailesh Kumar Sinha
Bench: Shailesh Kumar Sinha
IN THE HIGH COURT OF JUDICATURE AT PATNA
First Appeal No.210 of 2007
(Against the judgement and decree dated 27.07.2007 passed by 3rd
Sub-ordinate Judge, Aurangabad in Title Suit No. 206 of 2004/107
of 2004/374 of 2006)
===========================================================
Ram Vali Yadav, son of Late Doman Yadav resident of Village - Kajara, Post
Office - Pogar, Police Station - Rafiganj, District - Aurangabad
.... .... Plaintiff- Appellant/s
Versus
1. Krishna Mohan Prasad
2. Shyam Kumar Jamuar
3. Hemant Kumar Sinha.
All sons of Late Mungeshwar Prasad Jamuar.
All residents of village and post office office - Pogar, Police Station -
Rafiganj, District Aurangabad.
4. Mahatha Gopi Kishore @ Gaya Prasad son of Late Sadho Lal.
5. Sajal Kumar Sinha
6. Sanjay Kumar Sinha
Both sons of late Vijayanand Prasad
All residents of Mohalla-Ramdaspur Lane, Post Office and District - Gaya.
.... .... Defendants-Respondent/s
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Appearance :
For the Appellant/s : Mr. Ray Shivaji Nath, Sr. Advocate
Mr. Shambhu Nath, Advocate
For the Respondent/s : Mr. Umesh Prasad Singh, Sr. Advocate
Mr. Rajeev Ranjan Prasad, Advocate
Mr. Amod Kumar, Advocate
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CORAM: HONOURABLE MR. JUSTICE SHAILESH KUMAR SINHA
C.A.V. JUDGMENT
Date : 30.03.2012
The judgement and decree dated 27.07.2007
passed by 3rd Sub-ordinate Judge, Aurangabad in Title
Patna High Court FA No.210 of 2007
-2-
Suit No. 206 of 2004/107 of 2004/374 of 2006 decreeing
the plaintiff‟s suit for declaration of title over the suit land
is under challenge in this appeal by the defendant nos.4,
the purchaser of the suit land from defendant no.1 of the
said suit.
2. The plaintiff (Respondent No.1) filed the suit for
declaration of his title on the suit land alleging that a
cloud is cast upon their title on the execution of a
registered sale deed dated 3rd of March, 2004 (Exhibit-6)
executed by the defendant no. 1 (respondent no. 4). The
plaintiff claimed title over the suit land by virtue of a Will
dated 10.10.1961 in favour of their father and since then
coming in peaceful possession. Those defendants 1 to 3
(Respondent Nos. 4 to 6) contested the suit by filing a
common written statement. The appellant also filed his
separate written statement. However, taking a common
stand that the suit land had fallen into the share of the
defendant nos. 1, 2 & 3 by virtue of a compromise in a
previous Title Suit No. 50 of 1970/ 16 of 1974 in the
Court of 3rd Sub-Ordinate Judge, Gaya, as such, the
defendant no. 1 was within his right to execute the
aforesaid sale deed sought for dismissing the suit as well
as on some other grounds to be dealt with later.
Patna High Court FA No.210 of 2007
-3-
3. Before appreciating the facts it would be fruitful
to reproduce the admitted genealogical table of the
plaintiff and the defendant nos. 1, 2 & 3 which is given
below :
Schedule-I (Genealogical Table)
Munshi Umedi Lal
________________|_______________________
| | |
Kunj Bihari Uday Bhan Lal Gopal Lal
| | |
Jai Lal | Anup Lal
_________|________ | ________|___________
| | | | |
Adit Pd. Raghunath Sahay | Mathura Prasad Janki Prasad
____________|________ |______________________________
| | | | |
Jageshwar Bindeshwar Mungeshwar Jaishree Lal Ramdhari Lal
Prasad Prasad Pd. Jamuar | _________|______
___________________| Jugal | | |
| | | | Ramjee Pd. Tetar Rampyari
Krishna Swayam Kr. Hemant Laljee | |
Mohan Jamuar Kr. Sinha Vijyanand Pd. |
_____|____ |
| | |
Sajal Kr. Sanjay Kr. |
|
___________________________|________
| | |
Gopi Kishore Nand Kishore Braj Kishore
Schedule-II (Suit Land)
Khata no. 500/242, plot no. 373/77, area 1.70
acres, situated at village Pogar, Police Station Rafiganj,
District- Aurangabad.
4. Plaintiffs case in short is that the land of plot no.
77 measuring about 2.37 acres, a Gairmazarua land was
settled in the name of Late Ramjee Prasad as per Parwana
No. 46 dated 18.10.1919 a fact not in dispute. Ramjee
Prasad, was issueless and father of plaintiff Late
Patna High Court FA No.210 of 2007
-4-
Mungeshwar Prasad Jamuar used to look after him as
well as his landed property. Late Ramjee Prasad had
executed a will dated 10.10.1961 in favour of his wife
Bhagwati Kuer, Deota Charan, Vijyanand Prasad (father of
the defendant nos. 2 & 3) and Mungeshwar Prasad
Jamuar (father of the plaintiffs). Ramjee Prasad died on
25.02.1962(Mungeshwar Prasad Jamuar also died in the year 1995). The further case is that the father of the plaintiffs obtained the Letter of Administration with respect to the aforesaid will property vide Letter of Administration Case No. 3 of 1971. The father of plaintiffs and got his name mutated in the revenue records of the State as per the order dated 16.04.1964 in Mutation Case No. 17 of 1963-64 (Exhibit-3/C). Accordingly, rent receipts were issued in his favour vide Exhibit-1 (series). The State of Bihar had acquired a small part of the said land, the compensation for such acquisition vide Land Acquisition Case No. 45/1972-73 was paid to the plaintiff‟s father. Further case is that a Title Suit No. 50 of 1970/16 of 1974 filed by the defendant no. 1 and others in the Court of Sub-Judge, III, Gaya in the said suit a compromise petition dated 13.05.1975 was filed whereby the suit land was included in the share of the defendants 1 to 4 of the Patna High Court FA No.210 of 2007 -5- aforesaid suit. The defendants sought mutation of their name vide Mutation Case No. 84 of 1977-78, however, the same was not allowed and on the report of the Halka Karmachari an encroachment case vide Case No. 16 of 1981-82 was initiated with respect to the suit land for being recorded as Gairmazarua Aam. The said compromise petition dated 13.05.1975 (Exhibit-E) was however not accepted as nobody appeared in the suit on the said date accepting the compromise. In other words, neither the suit was decreed as per the compromise nor the parties acted upon such compromise. The Encroachment Case No. 16 of 1981-82 was contested only by the father of the plaintiff and same was ultimately dropped in his favour vide order dated 22.03.1982 (Exhibit-3). The further case of the plaintiffs is that defendant no.4, the appellant, in collusion wrongfully got the sale deed executed in respect of the suit land for an area of 1.87 acres as per sale deed no. 2444 dated 03.03.2004 (Exhibit-6) by the defendant no.1, Mahatha Gopi Kishoe although had neither title nor the possession.
5. The case of the defendant nos. 1, 2 & 3 is that in the said Title Suit No. 50 of 1970/16 of 1974 a compromise petition (Exhibit-E) was filed on 13.05.1975 Patna High Court FA No.210 of 2007 -6- in which schedule „A‟ property was allotted to the father of the plaintiff and schedule „B‟ property of the suit land i.e. Khata No. 242, Plot No. 77 was allotted in their favour. The said petition for compromise was rejected as none of the parties appeared in the Court on the date fixed to accept the compromise. Later on another compromise petition dated 10.12.1976 filed with verbatim reproduction of the previous compromise petition dated 13.05.1975 (Exhibit-E). The aforesaid Title Suit No. 50 of 1970 was decreed by order dated 10.12.1976 (Exhibit-D), and as such, the defendant nos. 1, 2 & 3 got title over the suit land by virtue of the said compromise. The defendants denied the genuineness of the will dated 10.10.1961 as also the claim of the plaintiff of getting the compensation in the land acquisition case besides the encroachment case decided in favour of their father. Besides the above, the suit was sought to be dismissed on the ground that the same is hit by the provisions of section 34 of the Specific Relief Act as the plaintiff did not seek the consequential relief either of confirmation of possession or its recovery while claiming the declaration of his title. The further stand of the defendant nos. 1, 2 & 3 is that they were in need of money, and as such, sold the Patna High Court FA No.210 of 2007 -7- suit land validly by defendant no. 1 in favour of the defendant no.4, the appellant of this appeal, for a just consideration.
6. In the suit the following issues were settled for consideration :-
(i) Is the suit, as framed, maintainable ?
(ii) Have plaintiffs cause of action of the suit ?
(iii) Is the suit effected by mis-joinder and non-joinder of necessary party ?
(iv) Are the plaintiffs rightful owner of the suit land detailed in schedule no. 2 of the plaint ?
(v) What relief or reliefs the plaintiffs are entitled?
7. The Court below upon considering the rival evidences on record decided the issue of title over the suit land in favour of the plaintiffs. As regards the defect of the suit for non-joinder of parties, the same was also held in favour of the plaintiff. Consequently, the maintainability of the suit as also the cause of action for instituting the suit in question was decided in favour of the plaintiff. In other words, all the issues i.e. issue nos. (i) to (iv) were decided in favour of the plaintiff. Since no other reliefs were prayed, the plaintiffs were not granted any other relief as per issue no. v.
Patna High Court FA No.210 of 2007 -8-
8. Mr. Ray Shivajee Nath, learned Senior Counsel appearing on behalf of the appellant, the purchaser of the suit land (defendant no.4) submitted that the appellant validly purchased the suit land from the aforesaid defendant Mahtha Gopi Kishore defendant no. 1 for just consideration and is coming in possession since the date of purchase. Besides justifying the sale, the appellant vigorously supported the title and possession of his vendor, the defendant no.1. In support of the claim with respect to the title and possession documentary as well as oral evidences were adduced by the defendant nos. 1, 2 &
3.
9. Learned counsel for the appellant contended that perusal of Exhibit- A (series) the rent receipts in favour of the defendants as also the registered sale deeds Exhibit-B (series) would show that the lands were sold by one of the defendants namely Vijyanand Prasad in favour of different persons vide three sale deeds dated 28.11.1979 and registered sale deed dated 30.04.1982 executed by the father of the plaintiffs in favour of one Bisheshwar Singh. The other documentary evidence referred to on behalf of the appellant was Exhibit-C, the written statement filed by Jageshwar Prasad, brother of Mungeshwar Prasad Patna High Court FA No.210 of 2007 -9- Jamuar, in a previous partition suit vide Title Suit No. 50 of 1970. Learned counsel in support of the claim of title and possession of the defendants 1 to 3 over the suit land vehemently submitted that Title Suit No. 50 of 1970 was compromised by order dated 10.12.1976 vide Exhibit-D and as per the compromise the suit land was allotted to the defendants of the present suit i.e. Title Suit No. 206 of 2004 and since the date of compromise the defendants are having right, title and possession over the suit land, and accordingly, they were within their rights to sell the suit property on a just and reasonable consideration as per the sale deed dated 03.03.2004 (Exhibit-6). In addition to the above documents, it was submitted that oral evidence of the witnesses on behalf of the defendants 1 to 3 supported the claim of title and possession of the defendant, however, learned Court below discarded their evidence primarily on the ground that they were not competent witnesses for having no knowledge of the details of the suit land/adjacent land nor had any knowledge with respect to the boundary of the land with a vague assertion of possession. Learned counsel submits that the learned Court below adopted a different standard for appreciating the oral evidence on the side of the defendants whereas Patna High Court FA No.210 of 2007 -10- similar oral evidences adduced on behalf of the plaintiff were accepted, as such, the Court below committed a serious error in appreciating the oral evidences.
10. Mr. Umesh Prasad Singh, learned Senior counsel appearing on behalf of the plaintiffs-respondent nos. 1, 2 & 3, on the other hand, submitted that the suit land measuring 2.37 acres originally belonged to one Ramjee Prasad by virtue of settlement by the intermediary as per Parwana No. 46 dated 18.10.1919. The letters of administration with respect to the Will property vide L.A. Case No. 3 of 1971 was granted in favour of the plaintiff‟s father Mungeshwar Prasad Jamuar who got his name mutated as per the order dated 16.04.1964 (Exhibit- 3/C) in Mutation Case No. 17 of 1963-64. Rent receipts for the entire area of 2.37 acres were granted in his favour vide Exhibit-1 (series) and also continued to be issued thereafter. The appeal and revision against the order allowing Mutation both were dismissed which would appear on perusal of order passed in Mutation Appeal No. 18 of 1964-65 and order on revision by the Revisional Court. Besides, it is submitted that out of the suit land, a part of it was acquired by the State of Bihar vide Land Acquisition Case No. 45 of 1972-73. Notices were issued of Patna High Court FA No.210 of 2007 -11- the said land acquisition proceeding in favour of the father of the plaintiff vide Exhibit-8 (series) and he received the compensation for such acquisition. Besides, on an attempt being made by the defendants 1 to 3 to get their name mutated, a land encroachment case was initiated since initially the land in question was Gairmazarua Aam Land. The said Land Encroachment Case No. 16 of 1981- 82 was contested by the father of the plaintiff and the same was accordingly dropped in his favour vide order dated 22.03.1982 (Exhibit-3). It is next contended that the rent receipts as also the copy of the registered sale deed vide Exhibit-A (series) and Exhibit-B/1 to B/4 filed on behalf of the defendants in the suit were absolutely irrelevant for the reason that they did not relate to the suit land. The sale deed dated 03.03.2004 (Exhibit-6) executed by the defendant Mahatha Gopi Kishore (defendant no.1) was absolutely a concocted/collusive deed. The appellant was a set-up man of the defendants 1 to 3 who were resident of Gaya and got the sale deed executed on throwaway consideration money of Rs. 32,000/- for an area of 1.87 acres of land in the important village of Pogar in the district of Aurangabad. Besides the above, learned counsel vehemently submitted that the claim of the Patna High Court FA No.210 of 2007 -12- defendants that the suit was bad in law in view of Section 34 of the Specific Relief Act as also for non-joinder of parties as well as for the provisions of Rule 3A of the Order 23 of Code of Civil Procedure has absolutely no leg to stand. It is submitted that plaintiffs filed a simple suit for declaration of his title since possession follows title and since his other two brothers did not execute the sale deed in question, and as such, they were not required to be impleaded as a party in the suit. Consequently, the suit could not be held to be bad for non-joinder of parties. As regards the compromise, as claimed by the vendors of the appellant, it was submitted that in the Title Suit No. 50 of 1970 a compromise petition dated 13.05.1975 (Exhibit-E) was brought on record of the present suit. In the said compromise petition the suit land was wrongly included in the schedule of the plaint, and as such, the compromise failed and the aforesaid petition dated 13.05.1975 (Exhibit-E) was rejected vide order dated 15.09.1976. The case of the contesting defendant is that by order dated 10.12.1976 (Exhibit-D) the suit was later on compromised in terms of the compromise petition dated 10.12.1976 and the suit land was allotted to the defendants 1 to 3, is not based on the facts and law. Firstly, there is no Patna High Court FA No.210 of 2007 -13- compromise petition dated 10.12.1976 on record nor any compromise decree is available in the said Title Suit No. 50 of 1970 ; secondly, the compromise petition dated 13.05.1975 was admittedly was not accepted and rejected. In the result there is no compromise decree, and therefore, the question of acting on such compromise has no basis. In this connection, it was further submitted that on perusal of the order-sheet of the present suit, it would appear that the defendant made an attempt to bring on record a petition dated 10.12.1976 claiming to be a compromise petition filed in the Title Suit No. 50 of 1970 after the hearing of the suit was concluded on 18.06.2007 and the case was posted for judgement on 29.06.2007 which was delivered on 27.07.2007, therefore, the prayer of the appellant for bringing the compromise petition dated 10.12.1976 in this appeal as an additional evidence cannot be allowed in terms of the provisions of Order 41 Rule 27 of the Code of Civil Procedure to fill up the lacuna, if any, even though no such compromise was arrived between the parties. Accordingly, interlocutory application bearing I.A. No. 2797 of 2011 being devoid of any merit deserves to be dismissed. In view of the submissions, as referred to above, learned counsel Patna High Court FA No.210 of 2007 -14- submits that the appeal deserves to be dismissed with cost.
11. Before dealing with the rival case of the parties and their respective submissions, and in order to appreciate the interlocutory application vide I.A. No. 2797 of 2011 under the provisions of Order 41 Rule 27 of the Code of Civil Procedure for bringing on record the additional document by way of an evidence at the appellate stage and its reply, it would be fruitful to quote the provisions of Order 41 Rule 27 of the Code of Civil Procedure :
"27. Production of additional evidence in Appellate Court- (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court, But if-
(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or [(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or]
(b) the Appellate Court requires any document to be produced or any witness to be examined to Patna High Court FA No.210 of 2007 -15- enable it to pronounce judgement, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.
(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission."
12. Learned counsel in support of the interlocutory application submitted that the compromise petition dated 10.12.1976 with respect to the title was a relevant document over the suit land filed in the Court below by the defendant nos. 1 to 3. The appellant was a purchaser of the suit land under the compromise, and as such, the aboe document may be permitted to be brought on the record of this appeal as an additional evidence at the instance of the appellant.
13. Learned counsel appearing for the plaintiff- respondents vehemently opposes the petition on the ground that as a general rule the parties to the appeal shall not be entitled to produce the additional evidence in the appellate Court save and except if it falls within the ambit of the provisions of Order 41 Rule 27 1(a) & (aa). However, a document sought to be brought on the record as an additional evidence can be allowed by the appellate Patna High Court FA No.210 of 2007 -16- Court if it requires the document for pronouncing the judgement. Parties cannot be allowed to fill up its lacuna at the appellate stage even though in possession of such document if any, since long. In this connection reliance has been placed on a decision of the Apex Court in the case of State of U.P. Vs. Manbodhan Lal Srivastava, as reported in A.I.R. 1957 (SC) 912 (Paragraph 3). Moreover, the document sought to be produced claiming right, title by virtue of the compromise could be by the concerned defendants and not the purchaser. The judgement and decree under the appeal has not been challenged by the concerned defendants, and as such, the prayer of the appellant, the purchaser of the suit property, cannot be allowed.
14. Mr. Ray Shivaji Nath, learned Senior counsel submitted that the additional evidence be allowed in terms of the aforesaid provision which would be required for pronouncing the judgement in the appeal although he fairly submitted that no case could be made out for filing the additional evidence in terms of Order 41 Rule 27 1(a) & (aa) of the Code of Civil Procedure.
15. Now on considering the evidence/materials already available on the record, for pronouncing the Patna High Court FA No.210 of 2007 -17- judgement in appeal the document sought to be brought on the record as additional evidence may not be required. Moreso, the judgement and decree under the appeal is not assailed by the party who claims title by virtue of the said compromise petition dated 10.12.1976 sought to be brought as an additional evidence. The aforesaid decision of the Apex Court has held to the effect additional evidence cannot be allowed at the appellate stage to fill up the lacuna when sufficient opportunity was available to bring the document in question on record in the Court below. The Apex Court further held that additional evidence at the appellate stage cannot be allowed if judgement can be otherwise pronounced on the materials available on record. Therefore, in view of the law laid down as above, I do not find any merit in the Interlocutory Application no. 2797 of 2011 and the same is accordingly rejected.
16. Now coming to the merits of the matter, the appellant claiming to be a purchaser from the defendant nos. 1 (Respondent No.2) has filed this appeal assailing the judgement and decree whereby the suit of the plaintiff- respondent was decreed. Against the claim of the defendant nos. 1, 2 & 3 that they got the title over the suit Patna High Court FA No.210 of 2007 -18- land by virtue of a compromise in Title Suit No. 50 of 1970, however, those defendants are not assailing the judgement and decree under this appeal nor they appeared and objected the decree. The plaintiffs, on the other hand, claims the title by virtue of the will dated 10.10.1961 and the letter of administration was granted in favour of their father in Letter of Administration Case No. 3 of 1971 and continued to remain in possession over the suit land since then after getting their names mutated in the revenue records of the State and obtaining the rent receipts besides coming into physical possession openly in the knowledge of all concerned including the concerned defendants. The submissions of the learned counsel for the appellant is that the suit ought to have been dismissed in terms of the provisions of Section 34 of the Specific Relief Act as also non-joinder of parties as well as the bar under Order 23 Rule 3A of the Code of Civil Procedure. Further submission was made that the suit is barred by limitation. All the above objections will be dealt with later on.
17. Firstly, the primary point for consideration of the title over the suit land is taken up. The plaintiff seeks declaration of his title alleging that a cloud was created on Patna High Court FA No.210 of 2007 -19- account of execution of the sale deed dated 03.03.2004 (Exhibit-6) by defendant no. 1 in favour of the appellant, who was the defendant no.4 in the suit. In support of the claim for title, the grant of letter of administration with respect to the Will in question, order mutating the name of the father of the plaintiff vide Mutation Case No. 17 of 1963-64 (Exhibit-3/C), the order dated 04.03.1965 of the Land Reforms Development Commissioner in Appeal No. 18 of 1964-65 (Exhibit-3/E) dismissing the appeal preferred by the concerned defendant as also the order passed on revision affirming the appellate order in the said mutation appeal vide Case No. 2/AC/1965-66 (Exhibit-3/D) have been brought on record. The plaintiffs clarified that their father Mungeshwar Prasad Jamuar had a very clear stand in the Title Suit No. 50 of 1970 in his written statement (Exhibit-5) about the title and possession referring to the Will in question vide Exhibit- 5/E. The plaintiff also brought on the record in the suit the application filed by them for obtaining the certified copy of the final decree which was rejected since no decree was prepared in Title Suit No. 50 of 1970 and none of the parties took steps for preparation of the final decree, meaning thereby the order disposing of the Title Suit No. Patna High Court FA No.210 of 2007 -20- 50 of 1970 could not be given effect as no decree got prepared. Besides the above, plaintiff also brought on the record the order of mutation in favour of the respondent nos. 1, 2 & 3 in respect of other lands and the prayer of mutation over the suit land was rejected vide Exhibit-3/A, the order passed in Misc. Case No. 4 of 2004-05 rejecting the application of the appellant seeking mutation over the suit land vide Exhibit-3/B. The plaintiff also in order to establish his title brought on the record the certified copy of the notice issued in the Land Acquisition Case No. 45 of 1972 vide Exhibit- 8 (series) as also the award for payment of the compensation money for acquisition of the part land was prepared and paid to the father of the plaintiff Mungeshwar Prasad Jamuar.
18. As against this the defendant the vendor of the appellant could only bring on record some revenue rent receipts vide Exhibit- A (series) as also the certified copy of the three registered sale deeds dated 28.11.1979 vide Exhibit-B/1, B/2 & B/4 executed by Vijyanand Prasad, father of the defendant nos. 2 & 3 in favour of different persons, however, the lands under those sale deeds are not in respect of the suit land, as such, has no relevance. Another sale deed dated 30th April, 1982 (Exhibit-B/3) Patna High Court FA No.210 of 2007 -21- executed by Mungeshwar Prasad Jamuar was equally of no relevance as it was not in respect of the suit property. Therefore, all the above sale deeds are of no help to the defendants. The certified copy of the written statement (Exhibit-C) filed by the brother of Mungeshwar Prasad Jamuar namely, Jageshwar Prasad stating that he has no claim. This document also is of no help. Another document i.e. certified copy of the compromise petition dated 13.05.1975 (Exhibit-E) although mentioned the suit land in the schedule „B‟ of the said petition allotted in favour of the defendant nos. 1, 2 & 3, however, neither the plaintiff nor the defendant of the suit appeared in the Court to accept the compromise, accordingly, the same was rejected by order dated 15.09.1976.
19. From the above documentary evidence, as referred to the above, it would appear that the documents brought on the record on behalf of the plaintiff-respondent amply evidence the title over the land in question and the vendor of the appellant could not bring on record any document evidencing their title. The defendants were banking their title upon the compromise, however, as noticed above, the compromise petition dated 13.05.1975 (Exhibit-E) was rejected and the aforesaid Title Suit No. 50 Patna High Court FA No.210 of 2007 -22- of 1970 which was disposed of on 10.12.1976 (Exhibit-D) as per compromise petition datd 10.12.1976 but could not be acted upon as no party took any steps for preparation of the decree and as such no decree prepared. The parties continued with the title and possession available before the institution of the above suit.
20. Notwithstanding the above, after close of the hearing of the suit on 18.06.2007, further 29.06.2007 was fixed for the judgement. The defendant 1 to 3 wanted to bring on record the certified copy of the compromise petition dated 10.12.1976 as per the list of documents dated 26.06.2007 signed by their advocate. The list was on record but did not bear any seal of the Court to show that it was duly filed. The judgement was delivered on 27.07.2007. Therefore, in my opinion, the contention of the learned counsel for the plaintiff-respondents that the appellant or his vendor has no document to claim title has substance. The appellant being the purchaser of the suit land could not get any title since his vendor failed to establish his title in face of large number of documentary evidence, as noticed above, in favour of plaintiffs. The oral evidence on the question of possession were also adduced on behalf of the both the sides. On appraisal of their Patna High Court FA No.210 of 2007 -23- evidence it would appear that the plaintiff witnesses were more specific in their deposition having better information of the configuration of the land, whereas the defendant witnesses on the question of possession were lacking information with respect to the identity of land, its boundary even though claiming to be the occupant of the adjacent land to the suit land, and therefore, the Court below upon weighing the evidence rightly accepted the evidence of the plaintiff witnesses.
21. To summarize the evidence on the record, oral as also documentary, brought on record by the respective parties, as noticed above, the plaintiffs have successfully established their title and possession over the suit land and entitled to the declaration of title as prayed for. The contention of the learned counsel for the appellant that the suit was bad in terms of Section 34 of the Specific Relief Act as no decree for declaration of title as prayed for could had been passed in absence of further relief of possession which was required to be claimed. Reliance is placed on a decision of Supreme Court in the case of Vinay Krishna Vs Keshav Chandra & Anr., reported in A.I.R. 1993 S.C. 957. The said decision differs materially on facts since in the said case admittedly person other Patna High Court FA No.210 of 2007 -24- than the plaintiffs were in possession. Learned counsel for the respondent had submitted that the prayer of the plaintiff was for declaration of their title as he was already in possession of the suit land, and as such, further relief was not required. Reliance is placed on the decision of the Supreme Court in the case of Md. Mohammad Vs. Jagdish Kalita & Ors., reported in (2004)1 Supreme Court Cases 221 (Paragraphs 20 & 21) wherein it is held that plaintiff seeking declaration of title would succeed possession not required to be proved referring to Article 65 of the Limitation Act, 1963. I find much substance in the submission of the plaintiff-respondent. Moreover, the said issue also does not appear to have been pressed in the Court below. The plaintiff sought declaration of title over the suit land alleging that a could was created over his title on account of execution of the sale deed dated 03.03.2004 (Exhibit-6) by the defendant no. 1 only, and as such, the person who were not executants of the said deed was not required in law to be made a party. The suit as such cannot be held to be bad for non-joinder of parties. Similarly also the suit cannot be held bad in terms of Order 23 Rule 3A of the Code of Civil Procedure as the plaintiff was not challenging the compromise which Patna High Court FA No.210 of 2007 -25- according to defendants had taken place in the earlier suit. The plaintiff was seeking a declaration of his title, and as such, all the contentions of the appellant are devoid of any merit. As regards the limitation, the same also does not appear to have been pressed in the Court below. The question of limitation being mixed question of fact and law necessitates consideration of evidence to decide the issue, cannot be decided in this appeal and the submission that the suit was barred by limitation is not acceptable.
22. In the result, for the reasons and the discussions made above, I do not find any merit in this appeal. The judgement and decree of the court below is affirmed. The appeal is accordingly dismissed. No costs.
(Shailesh Kumar Sinha, J) Patna High Court NAFR/ Manish