Patna High Court - Orders
Naresh Mohan Choudhary And Ors. vs Mostt. Nitya Devi on 15 February, 2019
Author: Prabhat Kumar Jha
Bench: Prabhat Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
Second Appeal No.552 of 2009
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NARESH MOHAN CHOUDHARY and ORS.
... ... Appellant/s
Versus
MOSTT. NITYA DEVI
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. S. S. Dwivedi, Sr. advocate
For the Respondent/s : Mr. Laxmi Kant Tiwary, advocate
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CORAM: HONOURABLE MR. JUSTICE PRABHAT KUMAR JHA
ORAL ORDER
14 15-02-2019Heard Mr. S. S. Dwivedi, the learned senior counsel for the appellants, and Mr. Laxmi Kant Tiwary, the learned counsel for the respondent.
The appellants are defendants/ respondents. The plaintiff filed the suit for grant of perpetual injunction against the appellants/ defendants on the foundation that the suit land belonged to one Mukharam Marwari. The husband of the plaintiff constructed house over the land with consent of Mukharam Marwari and, accordingly, plaintiff remained in possession of the house and the land appertaining to the house. After death of her husband Basgit Parcha was issued in favour of plaintiff in the year 1969 but the defendants/ appellants tried to dispossess the plaintiff and, thus, the plaintiff filed the suit. The defendants contested the suit on the ground that the plaintiff is not a Privileged person and Basgit Parcha was not issued in her favour in accordance with law. Patna High Court SA No.552 of 2009(14) dt.15-02-2019 2/4 In fact the land was settled in the name of ancestor of defendants and husband of the plaintiff by registered Kabuliyat in the year 1920 but in rent realization case the land was auctioned but the defendants filed Title Suit for declaration of title and confirmation of possession in the year 1973. The defendants stated that husband of the plaintiff, after partition from the ancestor of defendants, sold the entire land and went to a different village. After some time husband of the plaintiff came and the defendants allowed him to reside in the house on payment of nominal monthly rent of Rs.-
1. The trial court framed issue No. 6 and 7 whether the plaintiff is entitled to get perpetual injunction and Basgit Parcha granted in her favour is valid. The trial court decreed the suit. The first appellate court confirmed the findings of the trial court on all issues and dismissed the appeal.
Mr. S. S. Dwivedi, the learned senior counsel for the appellants, submits that so far findings on issue No.7 is concerned, the trial court has not considered the evidence adduced on behalf of the defendants. Similarly, the appellate court held with regard to issue No.7 that in view of Section 18 of Bihar Privileged Persons Homestead Tenancy Act the suit is not maintainable for declaration of Basgit Parcha issued in favour of a person as illegal and moreover the defendants have already filed Title Suit No. Patna High Court SA No.552 of 2009(14) dt.15-02-2019 3/4 84/1993 for declaration of Ext-G as fraudulent, illegal and without jurisdiction. It is submitted that non consideration of evidence of a party in arriving at a particular finding is a substantial question of law.
Contending the submission of learned counsel for the appellants, Mr. Laxmi Kant Tiwry, the learned counsel for the respondent, submits that both the courts below have discussed the evidence of the parties in detail and by a concurrent finding held that Basgit Parcha issued in favour of plaintiff/ respondent is legal and not without jurisdiction. The learned counsel for the respondent placed reliance upon the judgement in the case of Sarifa Devi (substituted) & Ors. v. Anna Khatoon & Ors reported in 2006(4) PLJR 397 and submitted that if there is concurrent finding of facts by both the courts below, no separate view can be taken after reappraising the evidence on record.
Having considered the submission of both sides and on perusal of the judgement of the trial court as well as of the appellate court, I find that the trial court has recorded the finding that the defendants have not been able to bring on record any document to show that Basgit Parcha issued in favour of the plaintiff is without jurisdiction or without following the procedure of law but it appears from perusal of the judgement of appellate Patna High Court SA No.552 of 2009(14) dt.15-02-2019 4/4 court that the appellate court has not considered the evidence on record and concluded the finding that the court is not competent to look into the genuineness of Basgit Parcha issued in favour of a person under Section 18 of Bihar Privileged Persons Homestead Tenancy Act.
Thus, I find that substantial question of law is involved in this Second Appeal whether the appellate court is justified in holding and recording the finding without reappraising the evidence on record, as required under Order 41 Rule 31 of the Code of Civil Procedure, that genuineness of Basgit Parcha cannot be questioned under Section 18 of Bihar Privileged Persons Homestead Tenancy Act on any ground.
This appeal is admitted for hearing.
Call for lower court records.
Since the respondent has already appeared, no appeal noticed need be issued to her.
List this appeal under the heading "for hearing" on 05.08.2019.
(Prabhat Kumar Jha, J) BKS/-
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