Patna High Court
Ram Jiwan Rai And Ors. vs Deoki Nandan Rai And Ors. on 13 April, 2004
Equivalent citations: AIR2005PAT23, 2004(2)BLJR1062, AIR 2005 PATNA 23, (2004) 22 ALLINDCAS 255 (PAT), 2004 (22) ALLINDCAS 255, 2004 (2) BLJR 1062, (2004) 3 PAT LJR 31, (2004) 2 BLJ 479
Author: S.K. Katriar
Bench: S.K. Katriar
JUDGMENT S.K. Katriar, J.
1. The defendant is the appellant against the judgment of affirmance. This appeal is directed against the judgment and decree dated 4.6.1987, passed by the learned 1st Additional District Judge, Vaishali at Hajipur, in Title Appeal No. 36 of 1984/2 of 1986 Ram Lagan Rai alias Lakhan Rai v. Deokinandan Rai and Ors., whereby he has affirmed the judgment and decree dated 5.6.1984, passed by the learned 2nd Additional Sub-Judge, Vaishali at Hajipur, in Title Suit No. 35 of 1976/7 of 1984 Deoki Nandan Rai v. Ram Lagan Rai and Anr.. The learned trial Court had decreed the suit for declaration of title and recovery of possession with respect to plot No. 47. We shall go by the description of the parties occurring in the plaint.
2. The case of the plaintiff (respondent) as per the plaint is that one Birjoo Mahto son of Akloo Mahto, owned and possessed one block of one and half bighas of land in village Harbanshpur. He transferred ten kathas of land from the northern extremity of the aforesaid block of land, being plot No. 46, to a defendant No. 1 (appellant), by a registered sale deed dated 8.4.1953. He subsequently transferred ten kathas of land from the southern extremity of the aforesaid block of land bearing plot No. 48, by a registered sale deed dated 11.7.1962, to defendant No. 1 (the appellant). Defendant No. 1 (appellant) came in possession of the vended portions of the block of land measuring twenty kathas. The remaining 10 kathas of land in the middle remained in possession of Birjoo Mahto, On his death, the defendant second set (heirs of Birjoo Mahto) came in possession of the middle portion of the land, bearing plot No. 47, who transferred the same to the plaintiff by a registered sale deed dated 22.12.1969 and he came in possession of the land which is the suit property. The plaintiff (respondent) subsequently discovered that there was already a sale deed dated 19.8.1966 (Exhibit-B), in favour of defendant No. 1 (appellant), with respect to the suit land. Defendant No. 1 got his name mutated over the suit land. Hence the suit for declaration of title and consequential reliefs.
3. Defendant No. 1 (appellant) filed written statement challenging the suit. According to the written statement, Birjoo Mahto, the rightful owner, had already vended the remaining portion of the block of land by a registered sale-deed dated 19.8.1966, the defendant second set did not acquire any right, title and interest to transfer the same to the plaintiff. Defendant No. 1 (appellant) has amalgamated the suit land with rest of his lands acquired in the aforesaid manner. The defendant has also perfected his title by adverse possession. The plaintiff (respondent), therefore, acquired no title by his sale deed and hence the suit is fit to be dismissed.
3.1. The defendant second set (the heirs of Birjoo Mahto) did not contest the suit, rather supported the plaintiff's case.
4. The learned trial Court framed the following issues for adjudication :--
(1) Whether the suit as framed is maintainable?
(2) Whether the plaintiff has got cause of action to bring the suit?
(3) Whether the sale deed dated 19.8.1966, allegedly executed by Birjoo Mahto in favour of defendant No. 1, is genuine and valid?
(4) Whether the plaintiff has proved his title over the suit property?
(5) To what relief or reliefs, if any, is the plaintiff entitled?
5. I would first of all like to specify the area of dispute. Birjoo Mahto, the owner, had alienated plot No. 46 and plot No. 48 by registered deeds of absolute sale dated 8.4.1953 (Exhibit-3), and 11.7.1962 (Exhibit-3/b), respectively in favour of defendant No. 1 (the appellant). The suit relates to declaration of title with respect to plot No. 47 which is situate between plot Nos. 46 and 48. Defendant No. 1 (appellant) claims title to plot No. 47 by means of a registered sale deed dated 19.8.1966 (Exhibit-B), executed by the said Birjoo Mahto, in favour of defendant No. 1, whereas the plaintiff (respondent) claims title to the same plot No. 47 by means of a registered deed of absolute sale dated 22.12.1969 (Exhibit-3/a) from the heirs of Birjoo Mahto. Hence the suit for declaration that the sale deed dated 19.8.1966 (Exhibit-B) is a forged and fabricated document, and for the further declaration that the sale deed dated 22.12.1969 (Exhibit-3/a) is a valid document of title. The basis of the plaint was that the deed writer had, while preparing the sale deed dated 22.12.1969 (Exhibit-3/a), inadvertently mentioned plot No. 48, instead of plot No. 47. It must at this stage be clarified that there was some confusion, particularly before the trial Court, that on account of an amendment of the plaint before the learned trial Court, plot No. 48 had also been entered as the area of dispute. Let it be clarified at the outset that the suit is confined to declaration with respect to plot No. 47 alone.
6. The trial Court on contest decreed the suit. It decided issue No. 3 against defendant No. 1 (appellant), and issue No. 4 in favour of the plaintiff (respondent), and decreed the suit. Defendant No. 1 (appellant) challenged the findings of the learned trial Court before the learned Court of appeal below that the learned Subordinate Judge did not frame an issue relating to adverse possession which defendant No. 1 (the appellant) had taken as a defence in the written statement. The learned Subordinate Judge in his judgment held that the defendant's plea of coming into possession of the suit land depended on his sale deed dated 19.8.1966, and the suit was filed on 4th May 1976. The question of adverse possession obviously did not arise. The learned Court of appeal below has upheld this finding and held that no issue regarding adverse possession was required to be framed.
7. Defendant No. 1 appealed which has been dismissed by the learned Court of appeal below, He has found that the question of adverse possession does not arise from the pleadings of the parties and, therefore, the learned trial Court did not rightly frame an issue in that respect. He has further found that the registered deed of absolute sale dated 19.8.1966 (Exhibit-B), claimed to have been executed by Birjoo Mahto in favour of the defendant No. 1 (the appellant), is a forged and fabricated document. He has granted the declaration in favour of the plaintiff.
8. While assailing the validity of the impugned judgment, learned counsel for the defendant (appellant) submits that there is no sale deed in favour of the plaintiff with respect to plot No. 47. The plaintiff claims title on the basis of the registered deed of absolute sale dated 22.12.1969 (Exhibit-3/a) which mentions plot No. 48. The plaintiff must succeed or fail on the basis of his own case. He cannot succeed because the defendant has not been able to prove his title. He relies on the judgment of the Supreme Court reported in Moran Mar Bassellos Catholicos and Anr. v. Most. Rev. Mar Poulose Athanasius and Ors., AIR 1954 SC 526. Putting the same submission in different words, he contends that both the Courts below have wrongly gone by the consideration that the sale deed dated 19.8.1966 (Exhibit-B) is a fraud and, therefore, the suit must be decreed. He lastly submits that the suit was originally for declaration of title with respect to plot No. 48, but plot no. 47 was later on included by means of an amendment of the plaint, as a result of which the suit has been decreed with respect to plot Nos. 47 and 48.
9. Learned counsel for the plaintiff (respondents) submits that the issues are concluded by concurrent findings of facts. He next submits that the plaintiff has been able to prove his case on both the counts, namely, Exhibit-B in favour of the defendant (appellant) is an invalid document, and he has also been able to prove that the registered deed of absolute sale dated 22.12.1969 (Exhibit-3/a), in favour of the plaintiff (respondent), is a valid document of title. He lastly submits that in case of doubt or difficulty of the present nature, misdescription of plot number is of no consequence, and the plaintiff is entitled to prove his title on the basis of the description of the boundaries, area etc. in the document of title. He relies on the judgment of the Supreme Court reported in Sheodhyan Singh and Ors. v. Sanichara Kuer and Ors., 1962 BLJR 273 SC.
10. I have perused the materials on record and considered the submissions of learned counsel for the parties. It is concluded by concurrent finding of facts that the sale deed dated 19.8.1966 (Exhibit-B) is a forged and fabricated document. No argument has been advanced before me assailing the validity of this finding. In fact, learned counsel for the defendant (appellant) has proceeded on the footing that he accepts this finding. In my view, this concludes matters, the defendant (appellant) is out of the contest and, therefore, whether or not the plaintiff is able to prove the validity of his own document cannot be the business of the defendant. However, the matter does not end there. The correct position on the basis of the materials on record and the findings is that the plaintiff has in fact been able to prove his title with respect to plot No. 47 conveyed to him by registered deed of absolute sale dated 22.12.1969 (Exhibit-3/a). There has never been any doubt about the genuineness or validity of the sale deed dated 22.12.1969. The confusion was created because the deed writer had, instead of mentioning plot No. 47, inadvertently mentioned plot No. 48, and the suit was for correction to that effect. This position is manifest from the averment made in paragraph 11 of the plaint, the relevant portion of which is set out hereinbelow for the facility of quick reference :--
^^cSlqy ik, x, oks ,jkthl; rdjkjh ij fQ-
eqn~nbZ dks ogSfl;r [kkfjnkj ds dkfct&nkf[ky xjnkuk oks tkfgj gksrk gS ds rkfro ds xrrh ls vUnj dsokyk eqn~nnZ [ksljk ua- 47 fy[kuk NwV x;k tks tkfgjk xyrh gS gkykds tks tehu okjlku fojtq egrks us fQ- eqn~nbZ dks cspk Fkk] mlesa u;k [kljk ua- 47 dk Hkh fgLlk Fkk oks pkSgnh oks jdok lgh eqUnjt ik;kA** The suit was, therefore, in substance for the clarification which the plaintiff has been able to prove by leading adequate evidence, including the boundaries and the description of the property indicated in the sale deed.
11. The plaintiff had in addition sought for the declaration that the said registered deed of sale dated 19.8.1966 (Exhibit-B) is a forged and fabricated document. This position is manifest from the averments made in paragraph 14 of the plaint, and is set out hereinbelow for the facility of quick reference :--
^^;g ds tSlk fd vc tkfgjk gksrk gS ds eqnk- ua-
1 dks [kkfgl gkfly dj ysus ,jkth l; rdjkh ds gq;h oks fdlh l[l vtuc dks ykgdks foLrq pkS/kjh tkfgj djds fdls dsoyk okfldk] dsoyk odfll dsoyk crk- 19-8-66 bZ-
vtuke [kqn ckStqn esa yk j[kk gS gkykds fcjtq pkS/kjh ftudk dsokyk fy[kuk tkfgj fd;k djrs gSa mudk tkr cjbZ vUnj dsckyk eqUnjt gS ftlls Hkh lkQ tkfgj gS ds dsoyk ekStsgh eqnk- ua- 1 rekerj tkyhck Qjsch oks fcyk nknflnr ds oks ftyk gd ufoflu ds djrk vk;k gS nk dsokyk Qjsch etdqj ds eqnk- ua- 1 dks vUnj ,jkth BsL;
rdjkjh u dksbZ gfd;r gkfly gqvk oksu n[ky gkfly gqvkA**
12. Both the Courts below have by concurrent findings of facts granted the declaration that the registered deed of absolute sale dated 19.8.1966 (Exhibit-B) is a forged and fabricated document and does not convey any right, title and interest with respect to plot No. 47 in favour of the defendant (appellant). Learned counsel for defendant No. 1 (appellant) has relied on the following portion of the judgment of the Supreme Court in Moran Mar Basselilos Catholicos and Anr. v. Most. Rev. Mar Poulose Athanastus and Ors., (supra) in support of his submission that the plaintiff must prove his own case and should not rely on the vulnerability of the defendant's case :--
"Here again the suit being one in ejectment it is more important for the plaintiffs to establish their own title by getting issues 19 and 20 decided in their favour than to destroy the defendants' title by getting issues 14 and 15 decided against the defendants, for a mere destruction of the defendants' title, in the absence of establishments of their own title carries the plaintiffs nowhere. It is to be remembered that this is a suit by the plaintiffs as the validly constituted trustees and not a suit under the section analogous to Section 92, CPC, for removal of defendants from trusteeship or for the framing of a scheme."
In view of the findings hereinabove, the proposition of law is inapplicable to the facts and circumstances of the present case.
13. Relying on the following portion (paragraph 10) of the judgment of the Supreme Court reported in Keshavlal Lallubhai Patel and Ors. v. Lalbhai Trikumlal Mills Ltd., AIR 1958 SC 512, learned counsel for the defendant (appellant) has submitted that vagueness in the document cannot be permitted to be removed by any extrinsic evidence.
"10. There is one more point which must be considered. It was strongly urged before us by the appellants that, in the trial Court, no plea had been taken by the respondent that the agreement for the extension of time was vague and uncertain. No such plea appears to have been taken even in the grounds of appeal preferred by the respondent in the High Court at Bombay; but apparently the plea was allowed to be raised in the High Court and the appellants took no objection to it at that stage. It cannot be said that it was not open to the High Court to allow such a plea to be raised even for the first time in appeal. After all, the plea raised is a plea of law based solely upon the construction of the letter which is the basis of the case for the extension of time for the performance of the contract and so it was competent for the appeal Court to allow such a plea to be raised under Order XLI, Rule 2, Civil P.C. If, on a fair construction, the condition mentioned in the document is held to be vague or uncertain, no evidence can be admitted to remove the said vagueness or uncertainty. The provisions of Section 93, Evidence Act are clear on this point. It is the language of the document alone that will decide the question. It would not be open to the parties or to the Court to attempt to remove the defect of vagueness or uncertainty by relying upon any extrinsic evidence. Such an attempt would really mean the making of a new contract between the parties. That is why we do not think that the appellants can now effectively raise the point that the plea of vagueness should not have been entertained in the High Court."
The proposition is inapplicable to the facts and circumstances of the present case, inter alia, for the reason that the plaintiff has been able to prove that the sale deed dated 22.12.1969 (Exhibit-3/a) was intended to convey title of plot No. 47 to him, the misdescription of plot No. 48 was inadvertent, and the plaintiff has been able to prove primarily on the basis of intrinsic evidence and supported by other evidence on record. Description of the boundaries and other relevant details of the vended plot delineated in the sale deed, being intrinsic evidence, makes it abundantly clear that the vendor had intended to convey the right, title and interest with respect to plot No. 47 in favour of the plaintiff. Learned counsel for the plaintiff has rightly relied on the judgment of the Supreme Court reported in Sheodhyan Singh and Ors. v. Sanichara Kuer and Ors., (supra) wherein it was held that it was a case of misdescription only and identity of the property sold was well established, namely, that it was plot number 1060. The matter may have been different if no boundaries had been given in the final decree for sale as well as in the sale certificate and only the plot number was mentioned. But where both the boundaries and the plot number are given as in this case, the judgment goes on, the mistake in the plot number must be treated as a mere misdescription which does not affect the identity of the property sold. The contention advanced on behalf of the defendant (appellant) is accordingly rejected.
14. Learned counsel for the plaintiff (respondent) has rightly submitted that the issues are concluded by concurrent findings of facts which bind this Court in second appellate jurisdiction. Reliance may be placed on the judgment of the Supreme Court reported in Hari Sinha v. Kanhaiya Lal, AIR 1999 SC 3325. The following portion of paragraph 16 of the judgment may be usefully quoted :--
"Similarly, the High Court interfered with the concurrent finding of facts that nuisance was created by the respondent by obstructing the passage leading to the appellant's house by keeping onion bags leaving out of space of 11 feet to 3 feet only. The fact of this obstruction is also supported by the Commissioner's report submitted in the present proceedings. The finding recorded on sub-letting and nuisance by both the Courts below being based on evidence on record its setting aside by reappraisal of evidence, and in any case without framing any substantial question of law by the High Court cannot be sustained and further we also do not find any substantial question of law arising therein. Learned counsel for the respondent tried to submit with force by attempting to take us to the evidence of the witnesses to show their unworthiness for reliance. It is neither a case of no evidence nor perverse finding. All these submissions are within the realm of appreciation of evidence which should not have been interfered by the High Court far less for us to examine."
14.1. Reference may also be made to the judgment of the Supreme Court reported in Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, (1999) 3 SCC 722, paragraph 5 of which is set out hereinbelow for the facility of quick reference :--
"5. It 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 should not ordinarily 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 so. 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. Adopting 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."
15. It is manifest from the foregoing discussion that no substantial question of law arises in this appeal. The issues which may be taken to be a substantial question of law in second appellate jurisdiction fell for the consideration of the Supreme Court in its judgment reported in Santosh Hazari v. Purushottam Tiwari, AIR 2001 SC 965, the relevant portion of which is set out hereinbelow for the facility of quick reference."
"A point of law which admits of no two opinions may be proposition of law but cannot be a substantial question of law. To be 'substantial' a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law 'involving in the case' there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of facts arrived at by Court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not, the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any list."
I had the occasion to apply the same in my judgment reported in Sheo Chand Choudhary alias Sheochan Choudhary v. Adalat Hussain and Ors., 2003 (3) PLJR 100. The judgment of the Supreme Court in Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and Ors., (1999) 3 SCC 722, is illuminating and is to the same effect.
16. In the result, the appeal fails and is dismissed with costs.