Jharkhand High Court
Pathak Tribhuvan Singh And Ors. vs Kameshwar Singh And Ors. on 7 August, 2003
Equivalent citations: [2003(3)JCR562(JHR)]
Author: Vishnudeo Narayan
Bench: Vishnudeo Narayan
JUDGMENT Vishnudeo Narayan, J.
1. This appeal at the instance of defendants-appellant is directed against the judgment and decree dated 26.7.1988 and 6.8.1988 respectively passed in title appeal No. 17 of 1983 by Shri Satyendra Singh 4th Additional District and Sessions Judge, Palamau at Daltonganj whereby and whereunder the appeal was allowed and the judgment and decree dated 11.3.1983 and 24.3.1983 respectively passed in title suit No. 47 of 1979 by Additional Munsif, Palamau at Daltonganj was reversed.
2. The plaintiffs-respondent had filed the aforementioned suit for declaration of their title and recovery of possession along with mesne profits in respect of the suit land fully detailed in Schedule of the plaint which is eastern 27 1/3 decimals of land of plot No. 369, khata No. 28 situate in village Marang, P.S. Panki, District Palamau.
3. The case of the plaintiff-respondent is that plot No. 369 aforesaid appertaining to khata No. 28 having an area of 82 decimals is the raiyati land jointly recorded in the name of Jhari Teli and Bhagal Teli sons of Ramu Teli having equal share in the Survey Record of Rights (Ext. 4), It is alleged that Jhari Teli was in separate and exclusive possession of the eastern half of the said plot and Bhagal Teli was also in separate and exclusive possession of the western half of the said plot by virtue of amicable metes and bounds partition between them in respect of the said plot. It is alleged that besides the land of plot No. 369 of khata No. 28 of village Marang, Jhari Teli was also exclusively recorded as raiyat in respect of the lands of different khatas situate in village Dandar Kalian and Dandar Khurd and Jhari Teli remained in exclusive possession of the lands aforesaid and paid rent to the ex-landlord. Jhari Teli. aforesaid died on Purnmasi day of the month of Magh in the year 1959 leaving behind his widow Most Bhagi Sahun and three daughters, namely, Chutuwa, Mankuri and Kasida as his heirs and they succeeded the land left by Jhari Teli on his death including the suit land and came in possession thereof. Bhagi Sahun, the widow of Jhari Teli also died in the year 1961 leaving behind her three daughters aforesaid and after her death all her daughters exclusively cultivated the land including the suit land in equal shares and paid rent and water rates in respect thereof contributing the same in equal shares through Padarath Mahto son of Bhagal Teli aforesaid. The three daughters of Jhari Teli after the demise of their mother Bhagi Sahun, amicably partitioned the eastern 41 decimals of plot No. 369 among themselves and defendant No. 9 Kasida got 13-2/3 decimals in the eastern portion of the said plot, Ghutuwa got 13-2/3 in the middle and Mankuri got the western 13-2/3 decimals and they were, accordingly, separately cultivating the suit land allotted to them in the said amicable partition. Chutuwa and Mankuri died soon after the said amicable partition and their sons succeeded the suit property on their death and there was an arrangement amongst defendant No. 7 Sedu Sao and defendant No. 8 Prabhau Sao who are the sons of Chutuwa by virtue of which 13-2/3 decimals of land in the middle allotted to Chutuwa was exclusively given to defendant No. 7 Sedu Sao. The case of the plaintiffs respondent further is that defendant No. 9 Kasida Sahu and defendant No, 7 Sedu Sao aforesaid executed the sale deed dated 15.1.1973 (Ext. 1) for valuable consideration of Rs. 1500/-in respect of 27-1/3 decimals of land aforesaid in favour of the plaintiffs respondent and put them in possession thereon and the plaintiffs respondent came in cultivating possession over the same. The case of the plaintiffs respondent further is that Pathak Mosaheb Singh, a co-sharer ex-landlord of khata No. 28 aforesaid, had a greedy eye over the suit land and with a view to grab the said land he got a sham and fraudulent sale deed dated 17.3.1973 executed in respect of the entire 82 decimals of plot No. 369 executed by defendant Nos. 3 to 6 without consideration in favour of defendants appellant Nos. 1 and 2 and, thereafter, there was a proceeding under Section 144 of the Code of Civil Procedure between the parties in respect of entire land of plot No. 369 which was dropped on 25.8.1973 and, thereafter again a proceeding under Section 144 of the Code of Civil Procedure took place between them in respect of suit land only which was converted into a proceeding under Section 145 of the Code of Civil Procedure wherein possession of the defendants appellant Nos. 1 and 2 over the suit land was declared in their favour and a revision preferred by the plaintiffs respondent was dismissed on 14.12.1978 in respect thereof and the defendants appellant Nos. 1 and 2 dispossessed the plaintiff from the suit land on 15.3.1979. It is alleged that Bhagal Teli or his descendants including defendants No. 3 to 6 have no right, title or possession over the eastern 41 decimals of plot No. 369 which include the suit land and they have no right to execute the sale deed in respect of the suit land in favour of defendants appellant Nos, 1 and 2 and the defendants 2 to 6 to can get no advantage whatsoever of the rent receipts and water rate receipts standing in the name of their father Padarath Mahto.
4. The case of the defendants appellant Nos. 1 and 2 and their vendor 3 to 6 inter alia is that the land of khata No. 28 was recorded jointly in the name of Jhari Teli and Bhagal Teli both sons of Ramu Teli in the Survey Record of Rights and they were the member of Hindu Mitakshara joint family and they were in joint cultivation of plot No. 369 till the life time of Jhari Teli who died in the year 1934 and it is false to say that Jhari Teli and Bhagal Teli had separate cultivation half and half and Jhari Teli cultivating the land towards east and Bhagal Teli cultivating the land in the west of the said plot and the case of separate cultivation as alleged by the plaintiffs respondent is totally false. Their case further is that Jhari Teli had two wives, namely, Bhago Sahun and Jathai Sahun and he had four daughters born of Bhago Sahun and one daughter born of Jathai Sahun and Chutuwa Sahun had died in the life time of Jhari Teli and his remaining four daughters were alive at the time of his death and both the wives of Jhari Teli had predeceased him. The specific case of the defendants appellant in that Jhari Teli was a man of advance age and there was nobody to look after his affairs and take care of him so Jhari Teli reunited with his brother Bhagal Teli and put all his land and other properties in possession of Bhagal Teli about 12 years before his death and since then the entire property became the joint family property of Jhari Teli and Bhagal Teli under the management of Bhagal Teli. It is alleged that Jhari Teli died in the year 1934 in the state of jointness with Bhagal Teli and the entire joint properties including the lands recorded in the name of Jhari Teli has developed upon Bhagal Teli by the principle of survivorship and Bhagal Teli came in possession thereof including the land of plot No. 369 and after his death it was inherited by the descendants. The further case of the defendants-appellant is that defendant Nos. 3 to 6 for their personal necessity executed a sale-deed dated 17.3.1973 for Rs. 5500/- in respect of 82 decimals of plot No. 369 of khata No. 28 besides 22 decimals of land of village Dan-dar Khurd, of khata No. 35 in favour of defendants appellant Nos. 1 and 2 and put them in possession thereof and since then defendant Nos. 1 and 2 are coming in peaceful cultivating possession over the same. The defendants appellant have also denied that the widow and daughter of Jhari Teli had ever paid rent or water rates through Padarath Mahto rather it was Padarath Mahto and, thereafter, his sons are paying the entire rent of the land of khata No. 28 and the daughters of Jhari Teli are never the co-owners with Padarath Mahto or his sons. It has further been stated that the daughters of Jhari Teli had neither right, title or interest nor possession over the suit land and they have no right to execute the sale-deed in favour of plaintiffs-respondent. Lastly it has been alleged that the defendants of Bhagal Teli has executed several sale-deeds in respect of the land of village Dandar Khurd and Dandar Kalian recorded in the name of Jhari Teli in favour of several other persons who are in cultivating possession in respect thereof as per Schedule B of the written statement.
5. In view of the pleadings of the parties, the trial Court framed the following issues for adjudication in the case :--
(i) Is the suit as framed, maintainable and have the plaintiffs cause of action for the suit?
(ii) Is the suit had for defect of parties?
(iii) Is the suit barred by limitation?
(iv) Is the suit barred by various parties of CNT Act?
(v) Is the suit properly valued and the court-fee paid is sufficient?
(vi) Is the suit bed for vague description of the suit lands?
(vii) When did Jhari died whether in 1959 as alleged by the plaintiffs or in 1934 as alleged by the defendants?
(viii) Whether there was any partition of plot No. 369 between Jhari and Bhagal?
(ix) Was their any re-union of both the brothers subsequently and what is the effect of such re-union?
(x) Have the plaintiffs got valid title over the suit land?
(xi) Are the plaintiffs entitled to any relief?
(xii) To what relief or reliefs, are the plaintiffs entitled?
6. The learned trial Court while deciding issue Nos. 7, 8 and 9 aforesaid had held that Jhari Teli died in the, year 1934 in the State of jointness with his brother Bhagal Teli who came in possession of all the lands held by Jhari Teli by way of survivorship and the land of Jhari Teli did not pass to his daughters as his heirs and the suit plot was never partitioned between Jhari Teli and Bhagal Teli and there was also re-union of Jhari Teli and Bhagal Teli and the plaintiffs respondents have acquired no right and title in respect of the suit land by virtue of the sale-deed executed by defendant Nos. 7 and 9 and the plaintiffs respondent are also not in possession over the same and in view of the findings aforesaid the learned trial Court dismissed the suit.
7. Aggrieved by the judgment and decree of the trial Court the plaintiffs-respondent preferred title appeal No. 17 of 1983. The lower Appellate Court on reappraisal and reappreciation of the evidence oral and documentary on the record reversed the judgment and decree of the trial Court and allowed the appeal as per the impugned judgment and decreed the suit. The appellate Court below came to the finding of fact that Jhari Teli died two to three years after vesting of the zamandari i.e. in the year 1958 or 1959 and not in the year 1934. The case of re-union between Jhari Teli and Bhagal Teli as set up by the defendants appellant has not been proved and the properties left by Jhari were succeeded by his widow Bhagi Sahun and his daughters and the sale-deed executed by defendant Nos. 7 and 9 who are the heirs of Jhari Teli in favour of the plaintiffs-respondent is legal and valid.
8. This Court while admitting the appeal for hearing formulated the substantial question which runs thus :--
(i) Whether the finding of the Court below that Jhari died in the year 1959 can be sustained, as it has discarded Ext. A/1, Ext. G and Ext. E.
9. Assailing the impugned judgment it has been submitted by the learned counsel for the defendants appellant that the learned appellate Court below has committed a manifest error in coming to the finding of the fact that Jhari Teli died in the year 1959 discarding Ext. A-2, Ext. G and Ext. E taken together and these three documents have not been properly considered in proper perspective by the learned Appellate Court below thereby miscarriage of justice has been caused in this case. It has also been submitted that Ext. A/1 appearing in the substantial question framed by this Court is a typographical error whereas it ought to have been A/2 which is a sale-deed dated 7.5.1953 executed by Padarath Sao son of Bhagal Sao in favour of Jasoda Kaur and others with is in respect of plot Nos. 166 and 167 of khata No. 45, plot No. 159 of khata No. 35 and plot No. 72 of khata No. 101 and lands of khata Nos. 35 and 101 stand exclusively recorded in the name of Jhari Teli in the Survey Record of Rights which is borne out by Exts. 1 and 1/3. Ext. E is a notice dated 10.1.1958 of case No. 3 of 1957-58 of -the Court of Circle Officer, Panki, Palamau in the name of Padarath Sao son of Bhagal Sao of village Dandar Kalian in respect of release of the land of plot No. 1776 of khata No. 180 from batai and the said plot stands recorded exclusively in the name of Jhari Teli in the Survey Record of Rights as per Ext. 1/2 and Ext. G is the certified copy of the annual demand in respect of the suit land in the name of Padarath Sao aforesaid and these documents clearly establish the fact that Jhari Teli was definitely no longer alive in the year 1959 and in view of these documents the finding of the learned Court below regarding the death of Jhari Teli in the year 1959 is palpably incorrect and perverse and thus the case set up by the defendants appellant regarding the death of Jhari Teli in the year 1934 has to be accepted. It has been contended further that where the findings of the Court on facts are vitiated for non- consideration of relevant evidence or by essentially erroneous approach to the matter, this Court is not precluded from interfering and in this case the finding of the lower appellate Court is based on misreading of Ext. A/2, Ext. G and Ext E and as such it is a substantial question of law. In support his contention reliance has been placed upon the ratio of the case of Neelakantan and Ors. v. Mallika Begum, 2002 (2) JCR 63 (SC) : AIR 2002 SC 827, in which it has been observed by the Apex Court which runs hereunder :
"....It is well settled that the High Courts while considering the matter in exercise of its jurisdiction in Second Appeal or Civil Revision would not reverse the finding of fact as recorded by the Courts below. But it is not an absolute proposition. In a case where the finding is recorded without any legal evidence on the record, or on misreading of evidence or suffers from any legal infirmity, which materially prejudices the case of one of the parties or the finding is perverse, it would be open for the High Court to set aside such a finding and to take a different view."
Lastly it has been contended that the finding of fact arrived at by the lower appellate Court ignoring important relevant evidence i.e. Ext. A/2, Ext. G and Ext. E is bad in law and the same is based on misreading of the evidence, misapplication of law and viewed thus the said finding regarding the death of Jhari Teli in the year 1959 arrived at by the learned Appellate Court below cannot be sustained.
10. Refuting the contention aforesaid learned counsel for the respondents has submitted that the appellate Court below on proper appreciation and reappraisal of the evidence came to the finding that Jhari Teli had died in the year 1959 and had negatived the case of the defendant appellants of the death of Jhari Teli taking place in the year 1934 and has also disbelieved the case of reunion as set up by the defendant appellants. Relying upon the ratio of the case of Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and Ors., (1999) 3 SCC 722, it has been submitted that ft is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last Court of fact, being the first appellate Court. It is true that the lower Appellate Court ordinarily should not reject witnesses accepted by the trial Court in respect of credibility but even where it has rejected the witnesses accepted by the trial Court, the same is no ground for interference in Second Appeal when it is found that the appellate Court has given satisfactory reasons for doing do. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate Court is binding on the High Court in Second Appeal adopted any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate Court unless it is found that the conclusions drawn by the lower appellate Court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence. It has also been submitted that the appellate Court below has properly scrutinized and considered the evidence on the record and has exercised its discretion in the judicial manner and it cannot be termed to be an error either of law or of procedure requiring any interference in the Second Appeal. It has also been submitted that this Court in Second Appeal can not interfere with the judgment of the first appellate Court merely on the ground that the first appellate Court failed to advert to the reasons scribed by the trial Court and the first appellate Court can consider the evidence adduced by the parties and give its own reasons for accepting or rejecting the evidence of one party or the other party. In support of his contention reliance has been placed on the ratio of the case Arumugham and Ors. v. Sundarambal and Anr., 1999 (4) SCC 350. It has further been contended that the learned Appellate Court below in para 12 of his evidence has assigned satisfactory and cogent reasons for not accepting Ext. A/2, the sale-deed dated 7.5.1953, Ext. E, the notice dated 10.1.1958 and Ext. G, the demand register for coming to the finding regarding the death of Jhari Teli having taken place in the year 1959. It has further been contended that there are submissions of the witnesses of the defendants appellant regarding the death of Jhari Teli having taken place in the year 1959 and in that connection he has referred and testimony of DW 2, Mahabir Mochi in which he has deposed that Jhari Teli had died 30-35 years ago and in para 17 of this cross-examination he has unequivocally deposed that Jhari Teli had died 25 years ago and PW 4, Bakhauri Sao in para 6 of his evidence had deposed that Bhagal Teli had predeceased Jhari Teli. It has also been submitted that Jhari Teli used to live in Dandar Khurd whereas Bhagal Teli used to live at Dandar Kalian and there was never a reunion between them and in this connection evidence of DW 6 in para 7, DW 7 in para 9, DW 11 in para 22 have been referred to. There is also admission of the witnesses of the defendants appellant that the descendants of the daughter of Jhari Teli is still residing in village Dandar Khurd in the house of Jhari Teli. DW 1 in para 10 has stated that Jhari Teli had died In his house in village Dandar Khurd. DW 4 in concluding portion of para 1 of his evidence has stated that Bhagal Teli was never in cultivating possession of the land of Jhari Teli and in view of the evidence aforesaid on the record the learned Court below has rightly discarded Ext. A-2, Ext. G and Ext. E in coming to the finding of the death of Jhari Teli in the year 1959 and the learned appellate Court below has not committed any manifest error in view of the evidence on the record for coming to the finding of the death of Jhari Teli taking place in the year 1959 i.e. two or three years after the vesting of the estate and in view of the evidence on the record, this Court in Second Appeal cannot interfere with the judgment of the first appellate Court and substitute its opinion for the opinion of the first appellate Court because the conclusions drawn by the lower appellate Court cannot be said to be erroneous or perverse or based on no evidence and viewed that there is no illegality in the finding of the fact arrived at by the lower appellate Court even discarding Ext. A/2, Ext. G and Ext. E aforesaid.
11. It will admit of no doubt that Ramu Teli had two sons Jhari Teli and Bhagal Teli. Except the suit plot the land of village Dandar Kalian and Dandar Khurd stands exclusively recorded in the name of Jhari Teli in the Survey Record of Rights. There is evidence on the record that Bhagal Teli also stands separately recorded in respect of his land situate in village Dandar Kalian and Dandar Khurd. According to the case of the plaintiffs respondent the suit land was divided half and half in which Jhari Teli got the eastern half portion to the extent of 41 decimals. The factum of partition between Jhari Teli and Bhagal Teli in respect of the suit land is an established fact in view of the case of reunion as set up by the defendants appellant in para 12 of their written statement. It is pertinent to mention at the very outset that reunion between the members of the joint family presupposes the factum of earlier partition between them. A reunion in an estate can only take place between the persons who were parties to the original partition and the effect of a reunion is to remit the reunited members of their formal status as a members of the Joint Hindu Family and to constitute a reunion there must be an intention of the parties to reunite in estate and interest. It is implicit in the concept of a reunion that there shall be an agreement between the parties to reunite in estate with an intention to revert to their formal status and such an agreement may be expressed or may be implied for the conduct of the parties which must be of incontrovertible character and the burden lies heavily on the parlies who asserts reunion. According to the case of defendants appellant Jhari Teli due to his old age came to the house of Bhagal Teli with all his documents of his properties and had asked him to look after his cultivation and to maintain him. Therefore as per the case of the reunion, as set up by the defendants appellant, it cannot be said that there was an agreement between Jhari Teli and Bhagal Teli to reunite in estate with intention to revert to their formal status. The learned Appellate Court below has rightly disbelieved the case of reunion as set up by the defendants appellant. Furthermore there is evidence that Jhari Teli had his house in village Dandar Khurd whereas Bhagal Teli had his house in village Dandar Kalian and Jhari Teli died in his house in village Dandar Khurd and the descendants of his daughters are still residing in the house of Jhari Teli situated in village Dandar Khurd. The separate or self acquired property by a deceased Hindu governed by the Mitakshara law is inherited by succession according to the order given in Article 43 of the Muila's Hindu Law, 16th edition and not to his coparceners and there is no dispute in respect of the fact that when Jhari Teli had died he had daughters alive besides his widow who are his legal heirs on his death. Therefore, the execution of sale-deed dated 7.5.1953 executed by Padarath Sao in cultivating some of the land of Jhari Teli exclusively recorded in the Survey Record of Rights can never give an inference of the fact that Jhari Teli had died in the year 1934. Similarly Ext. E, the notice dated 10.1.1958 has also no bearing relating the fact in issue regarding the period of death of Jhari Teli Ext. G, the demand register does not show as to when it has been brought in existence Ext. G is only in respect of the suit land. There is no mention therein of the other lands of Jhari Teli situated in village Dandar Khurd and Dandar Kalian. Therefore, Ext. G also is equally irrelevant in determining the period of the death of Jhari Teli. Therefore, the learned appellate Court below has rightly discarded Ext. A/2, Ext, G and Ext. E for coming to the finding of the fact that Jhari Teli had died in the year 1959 as averred by the plaintiffs respondent. Moreover, there is the admission of the witnesses of the defendants appellant that Jhari Teli had died about 25 years ago which comes to the period that Jhari Teli had died after the vesting of the estate. Even the Returns (Ext. 3 series) filed by the landlord on the eve of vesting of the estate is in the name of Jhari Teli in respect of the suit land. Furthermore the case of reunion between Jhari Teli and Bhagal Teli as set up by defendants appellant has not been found favoured with and stands negatived by the lower appellate Court and in view of the said finding Bhagal Teli or his descendants can never inherit the properties let by Jhari Teli even if his death takes place in the year 1934, The finding against re-union recorded by the appellate Court below is not an issue in the appeal as no substantial question of law stands framed in this appeal in respect thereof. Therefore, in the facts and circumstances of this case and the evidence on the record referred to above it can never be said that the finding regarding the death of Jhari Teli in the year 1959 recorded by the learned appellate Court below is without any legal evidence on the record or on misreading of evidence or it suffers from any legal infirmity which has materially prejudiced the case of the defendants appellant. It can also be not said that the finding recorded by the lower Appellate Court below is perverse. Therefore, it is not open for this Court to set aside such a finding and to take a different view and as such the ratio of the case of Neelkantan and others (supra) is of no help to the learned counsel for the defendants appellant in this case. In the case of Kondiba Dagadu Kadaxn (supra) the Apex Court has observed that where the appellate Court below has rejected the witnesses accepted by the trial Court, the same is no ground for interference in the Second Appeal when it is found that the appellate Court has given satisfactory reasons for doing so and in a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate Court is binding on the High Court in Second Appeal and adopting any other approach is not permissible at this Court cannot substitute its opinion for the opinion of the first appellate Court unless the conclusion drawn by the lower appellate Court is erroneous and based upon inadmissible evidence or arrived at without evidence. It is, therefore, evident from the discussion above that the finding of the Appellate Court below that Jhari Teli had died in the year 1959 is correct, illegal and valid in view of the evidence on the record and the learned Court below has rightly discarded Ext. A/2, Ext. G and Ext. E in coming to the said finding. I, therefore, see substance in the contention put forward on behalf of the plaintiffs respondent.
12. The appellate Court below while reversing the finding of the trial Court has properly weighed the evidence on the record and has also assigned satisfactory reasons for doing so and there is no illegality in the finding of fact arrived at by the Appellate Court below.
13. Viewed thus, there is no merit in this appeal and it fails. The impugned judgment of the learned appellate Court below is hereby affirmed. The appeal is hereby dismissed. However, there shall be no order as to costs.