Patna High Court - Orders
Bacha Pandey & Ors. vs Nawal Kishore Pandey on 27 August, 2014
Author: Kishore Kumar Mandal
Bench: Kishore Kumar Mandal
IN THE HIGH COURT OF JUDICATURE AT PATNA
Second Appeal No.347 of 2010
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1. Bacha Pandey S/O Late Ram Waran Pandey Resident Of Village P.O.
Bela, P.S. Ramgarhwa, District East Champaran.
2. Dhrub Pandey S/O Late Ram Waran Pandey Resident Of Village P.O.
Bela, P.S. Ramgarhwa, District East Champaran.
3. Braj Kishore Pandey S/O Late Ram Waran Pandey Resident Of Village
P.O. Bela, P.S. Ramgarhwa, District East Champaran.
4. Raja Pandey S/O Late Ram Waran Pandey Resident Of Village P.O.
Bela, P.S. Ramgarhwa, District East Champaran.
.... .... Appellant/s
Versus
1. Nawal Kishore Pandey S/O Late Ram Chandra Pandey Resident Of
Village P.O. Bela, P.S. Ramgarhwa, District East Champaran.
.... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. Sangeeta Sharma
Mr. Rajiv Shankar Dvivedi
Mr. Rakesh Chandra
Mr. Ranjan Kr. Dubey
For the Respondent/s : Mr. Birendra Kunwar
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CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL
ORAL ORDER
8 27-08-2014The defendants-appellants have filed the present appeal aggrieved by the judgment and decree dated 03.05.2010 passed by learned Additional District Judge-cum-F.T.C.-IV, Motihari in T.A. No. 25 of 2007 reversing the judgment and decree dated 15.6.2007 passed by learned Munsif, Sikrahana, Motihari in T.S. No. 28 of 2004/2 of 2006.
For the sake of convenience, this Court would refer the parties by their status at the trial.
The plaintiff filed the suit for declaration of title and recovery of possession, mesne profit and permanent injunction. Patna High Court SA No.347 of 2010 (8) dt.27-08-2014 2 They also prayed for setting aside the order passed under Section 145 of the Cr.P.C. The dispute pertains to 03 decimals of land appertaining to Plot no. 1153/11 under Khata no. 10. According to the plaintiff, Plot no. 1153/11 measuring a total area of 50 decimals was recorded in R.S. Khatiyan as Gair Majarua Malik land which was parti. North to this plot, there was plot no. 1174 over which the plaintiff has his house and dwelling structures. The land of plot nos. 1153 and 1174 was amalgamated by the plaintiff for dwelling purposes. In the year 1970-71, the suit land being the Gair Majarua Malik land was settled in favour of the plaintiff by the State of Bihar. The plaintiff started paying rent against rent receipts under Jamabandi No. 1518 and 1348. The defendants, in order to grab the suit land, dug the plinth forcibly and dispossessed the plaintiff by constructing wall roofed by „karkat‟. A proceeding under Section 144 Cr.P.C. ensued which was converted into Section 145 Cr.P.C. proceeding which was arbitrarily decided in favour of the defendants, hence the suit.
The defendants (appellants herein) contested the suit. In the written statement, they did not deny the fact that plot no. 1153 was recorded in R.S. Khatiyan as Gair Majarua Mallik land which was parti. The defendants contended that contiguous east of plot no. 1153, they had land in plot no. 1157 over which their Patna High Court SA No.347 of 2010 (8) dt.27-08-2014 3 ancestors had constructed a thatched roof/house. On north-east portion of plot no. 1153 (suit land), they got possession after settlement in their favour by Bettiah Estate by grant of „patta‟ followed by miscellaneous receipts in favour of Rajendra Pandey. 18 dhurs of land was settled to Rajendra Pandey in plot no. 1153/2 (9 dhurs) and 1153/4 (9 dhurs). The ancestors of defendants were thus in peaceful possession of the suit land. The Trial Court appreciating the rival pleadings formulated issues and permitted the parties to lead evidence. Having done so and on appreciation of the evidence on record, it was held that title and possession of the plaintiffs over the disputed land was doubtful. The plaintiff could not prove settlement of the suit land by the State of Bihar. Even if it is accepted, the settled land was not the actual disputed land. The suit was accordingly dismissed.
Aggrieved thereby, the plaintiff filed appeal vide T.A. No. 25 of 2007. The 1st Appellate Court considered the case of the parties and the relevant issues framed by the Trial Court for resolution of the dispute and thereafter noticed the evidence adduced by both parties on record. Having apprised itself of the findings on crucial issues rendered by the Trial Court, the Appellate Court deciphered that both parties were resting their claim(s) on the basis of settlement. The defendants claimed that Patna High Court SA No.347 of 2010 (8) dt.27-08-2014 4 ex-landlord had settled the suit land in favour of Rajendra Pandey in 1948-49 by granting patta which, however, was not proved and brought on record. The miscellaneous receipt(s) produced by them was not held adequate and convincing to demonstrate settlement of the land by the Ex-landlord in plot no. 1153 which was admittedly Gair Mazarua Malik land whereas the plaintiff was able to prove that 06 dhurs of land was settled by the State of Bihar in favour of Nawal Kishore Pandey. The Appellate Court negated the contention of the defendants that the identity of the land was not established. The map prepared by the Revenue Department was referred to hold that the identity of the settled land was established. The defendants having put up a counter version and failed to prove the same by cogent and reliable evidence and the suit land, therefore, upon vesting of intermediaries rights, became the land of the State of Bihar. The State Government was, therefore, entitled to settled the same with eligible person as claimed by the plaintiff. Having held so, the appeal was allowed and the judgment and decree of the Trial Court was set aside. Hence the appeal.
Learned counsel for the appellants has criticized the judgment under appeal and submitted that the learned Lower Appellate Court did not comply with the requirement of law Patna High Court SA No.347 of 2010 (8) dt.27-08-2014 5 inasmuch as no point(s) was formulated and findings were recorded on those points in order to resolve the dispute. The reasons assigned by the learned Trial Court for negating the case of the plaintiff have not been considered while reversing those findings after recording reasons therefor. He has relied in this regard on (2010) 13 SCC 216 (Municipal Committee, Hoshiarpur vs. Punjab State Electricity Board). The learned Lower Appellate Court further committed serious/grave mistake in holding that the claim of settlement of the suit land by the Court of Wards, Bettiah Estate in respect of plot nos. 1153/2 and 1153/4 was not proved although no challenge was made by the plaintiff to those claims. It has next been contended that the identify of the suit land has not been proved by the plaintiff and the learned Lower Appellate Court erred in holding that the same was established. It has also been urged that the learned Lower Appellate Court has not taken into account the relevant evidence while considering the case of adverse possession put up by the defendants.
In order to appreciate the contention of the Counsel for the appellants, this Court minutely perused the judgment under appeal. Although, no point(s) was/were formulated for consideration and adjudication but the learned Lower Appellate Court was fully agile to the case of the parties and the relevant Patna High Court SA No.347 of 2010 (8) dt.27-08-2014 6 findings recorded on core issues by the learned Trial Court. The learned Lower Appellate Court thereafter reappraised the evidence on record and held that the case of the plaintiff regarding settlement of the suit land by the State of Bihar was never disputed by the defendants. The defendants put up a specific case in opposition that the suit land was settled by the Court of Wards, Bettiah Estate with the ancestors of the defendants. They were required to prove the same by reliable evidence. In this background, the learned Lower Appellate Court considered the evidence to find that although the defendants had put up a counter version but the patta of settlement was never produced and brought on record. The Miscellaneous receipt (Ext.B) produced by the defendants was not found sufficient to prove the said fact. The Lower Appellate Court kept in focus that the suit land was admittedly Gair Mazarua Malik land and if the same was not settled in favour of any raiyat then, on vesting, the same became the land of State of Bihar. Furthermore, the plaintiff had brought on record Ext.5 which is the original map of the suit land showing settlement of the suit land in favour of the plaintiff. The learned Lower Appellate Court was, therefore, alive to the core areas of dispute between the parties and independently assessed the evidence. The provisions under Order XLI Rule 31 provide Patna High Court SA No.347 of 2010 (8) dt.27-08-2014 7 guidelines for disposal of the appeal being the final Court of fact and law. If the judgment reflects that the learned Lower Appellate Court was aware of the case of the parties and the evidence led in support thereof and independently considered the relevant issues arising therein and pressed and recorded findings on those core issues/points and gave out reasons therefor then the Court shall accept the same as substantial compliance of the procedure contained in Order XLI Rule 31 of the C.P.C. Reliance in this regard be placed on United Engineers & Contractors vs. Secretary to Govt. A.P. and Ors. A.I.R. 2013 SC 2239.
The next contention of the appellants is that the identity of the suit land was real controversy which required consideration and adjudication. There is no such consideration by the learned Lower Appellate Court. Such contention is at the first instance would not constitute a substantial question of law. Even otherwise, the same is not well founded. The Court below specifically addressed this question and answered in favour of the plaintiff. It was held that admittedly plot no. 1174 belonged to the family of the parties in which the plaintiff had 1/3rd share. The expression „niz' in the settlement document was thus used to mean and denote the settlee i.e. the plaintiff. The learned Appellate Court further found that the case of both the parties was that on the Patna High Court SA No.347 of 2010 (8) dt.27-08-2014 8 north-east corner of plot no. 1153, the plaintiff claimed the settlement of land and the suit land was, in fact, located in the north east corner of plot no. 1153.To reach such conclusion, the Court of appeal below preferred to rely on the map (Ext.5) which unquestionably demonstrated the same. There was, thus, no vagueness about the identity of the suit land.
The next contention of the appellants is that the first Appellate Court while considering the case put up by the defendants based on adverse possession has ignored relevant evidence. The Appellate Court in paragraph 18 of the judgment has appraised oral evidence on the point of possession and dispossession and relied on the evidence of P.W. 14 being a witness from the boundary of the suit land who had deposed to support the case of the plaintiff. The specific case of the plaintiff that they continued in possession until dispossessed by the defendants was also found support from Ext.E which is the order passed in Case No. 512M/2001 wherein the defendants had admitted that in the first week of December, 2001, the wall in question was constructed by the ancestor of the defendants. The Court below thus found much credence in the case of the plaintiff that they were dispossessed in 2001. The Appellate Court thus made independent assessment of the evidence and set out Patna High Court SA No.347 of 2010 (8) dt.27-08-2014 9 reason(s) in support of the conclusions. Those findings do not suffer from any perversity. They are not mere ipse dixit of the Court or based on mere conjectures and surmises. If that be so then these findings/conclusions cannot be flawed. The Apex Court in Municipal Committee, Hoshiarpur vs. Punjab State Electricity Board (2010) 13 SCC 216 in paragraph 28 opined as under:
"28.If a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eye of the law. If the findings of the Court are based on no evidence or evidence which is thoroughly unreliable or evidence that suffers from the vice of procedural irregularity or the findings are such that no reasonable person would have arrived at those findings, then the findings may be said to be perverse. Further if the findings are either ipse dixit of the Court or based on conjecture and surmises, the judgment suffers from the additional infirmity of non- application of mind and thus, stands vitiated."
For the reasons aforesaid, this Court finds the appeal does not bring up any substantial question of law. It is accordingly dismissed.
(Kishore Kumar Mandal, J) Pankaj/-
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