Patna High Court - Orders
Kapildeo Singh & Ors vs Sri Umesh Pd. Singh & Ors on 23 June, 2014
Author: Kishore Kumar Mandal
Bench: Kishore Kumar Mandal
IN THE HIGH COURT OF JUDICATURE AT PATNA
Second Appeal No.173 of 2012
======================================================
1. Kapildeo Singh S/O Late Sarjug Singh Resident Of Village- Maldah,
P.S- Barbigha, District- Sheikhpura.
2. Arjum Singh S/O Late Sarjug Singh Resident Of Village- Maldah, P.S-
Barbigha, District- Sheikhpura.
3. Sukhdeo Singh S/O Late Ambika Singh Resident Of Village- Maldah,
P.S- Barbigha, District- Sheikhpura.
.... .... Appellant/s
Versus
1. Sri Umesh Pd. Singh S/O Late Mathura Singh Resident Of Village-
Maldah, P.S- Barbigha, District- Sheikhpura.
2. Smt. Sunita Devi @ Sunita Devi @ Sumitra Devi W/O Sri Umesh Prasad
Singh Resident Of Village- Maldah, P.S- Barbigha, District- Sheikhpura.
3. Smt. Bimla Devi D/O Late Mathura Singh Resident Of Village- Maldah,
P.S- Barbigha, District- Sheikhpura.
4. Kamla Devi D/O Late Mathura Singh Resident Of Village- Maldah, P.S-
Barbigha, District- Sheikhpura.
5. Parmila Devi D/O Late Mathura Singh Resident Of Village- Maldah, P.S-
Barbigha, District- Sheikhpura.
6. Smt. Chanda Kumari W/O Sri Basdeo Singh Resident Of Village-
Bhadokhar, P.S And District- Nawadah.
.... .... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Rana Ishwar Chandra
======================================================
CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR
MANDAL
ORAL ORDER
8 23-06-2014This appeal is directed against the judgment dated 31.01.2012 and decree dated 14.02.2012 passed by the learned Additional District Judge, F.T.C. III, Sheikhpura in Munsifi Title Appeal No. 03/2000 whereby the judgment dated 01.02.2000 and decree dated 15.02.2000 passed in Title Suit No. 22/93 by the learned Munsif Sheikhpura was affirmed.
The plaintiffs are the appellants herein. For the sake of 2 Patna High Court SA No.173 of 2012 (8) dt.23-06-2014 2 / 10 convenience, this court would refer the parties as they stood before the trial court.
The case of the plaintiffs(appellants herein), in brief, is that they had filed Title Suit No. 116/03 of 1973/1977 in the court of Subordinate Judge, Munger for partition of joint family property claiming 2/3rd share. A preliminary decree was passed therein on 29.06.1978 and the partition was directed to be effected by a survey knowing Pleading Commissioner. One Subash Prasad Singh was appointed as Advocate Commissioner for effecting partition of the suit property in accordance with the preliminary decree. The Advocate Commissioner while making enquiry, notes and physical feature of two plots nos. 6453 (area 08 decimals) and 6453/10439 (area 36 decimals) correctly mentioned in the field book but by mistake in the allotment chart in place of those two plots it was mentioned as plot nos. 6553 and 6553/10439 and accordingly final decree was prepared, signed and sealed. The defendant(s) did not file any appeal against the final decree inasmuch as no objection against the allotment chart was filed. The plaintiffs took steps for delivery of possession which was effected by the learned court as per the decree. Subsequently the mistake in recoding the two plot numbers was detected. An application for correction of typographical mistakes in recording 3 Patna High Court SA No.173 of 2012 (8) dt.23-06-2014 3 / 10 the two plots was filed by the plaintiffs which was rejected by order dated 28.11.1984. Since the judgment in suit was in favour of the plaintiffs, therefore no appeal was filed thereagainst. The cause of action arose on 01.09.1983 when the plaintiff detected the mistake in the number of two plots in the final decree and also on 28.11.1984 when the prayer for clerical correction was rejected by the learned 2nd Additional Subordinate Judge, Munger. In such circumstances, the plaintiffs filed the present suit seeking, inter alia, the following relief(s):-
"A. It is to be declared that the plaintiffs are the absolute owner of the suit property as detail in schedule A. B. The cost of the suit."
The defendants filed their written statement and contested the suit stating therein that the suit as framed was not maintainable. The plaintiffs had absolutely no cause of action and right to sue. The suit as framed was barred by general and special law of limitation and barred by Article 58 of the Limitation Act as the final decree in Title Suit No.116/03 of 1973/1977 was prepared sealed and signed on 24.06.1980 whereafter the plaintiffs applied for execution of the decree in Execution Case No.03/1980 wherein the defendants filed 4 Patna High Court SA No.173 of 2012 (8) dt.23-06-2014 4 / 10 objection under section 47 of the Code of Civil Procedure stating the illegalities and inadequacies in the final decree under execution. The plaintiffs decree holder filed a rejoinder to the said petition and supported the decree. The said petition filed by the defendants was rejected by the learned 2nd Additional Sub-Judge, Munger under order dated 17.02.1981. The defendants preferred an appeal against the order passed by the executing court before the Hon'ble High Court vide M.A. No. 52/1981. The plaintiff filed a petition in Execution Case No. 03.1980 to the effect that survey plot nos. 6553 and 6553/10439 be amended to 6453 and 6453/10439 whereto the defendants filed rejoinder. After hearing the parties the court was pleased to reject the said petition of the plaintiffs by order dated 30.11.1983. The plaintiffs thereafter filed a petition in Title Suit No. 116/1973 on 06.12.1983 under section 152 of the CPC praying therein to amend the final decree and allotment chart of the plaintiffs on the ground of mistakes committed by the Pleader Commissioner in the allotment chart on which the present suit is founded. The defendants filed their objection on 06.01.1984. The learned court after hearing the parties rejected the petition dated 06.12.1983 filed on behalf of the plaintiffs by order dated 28.01.1984. It was thus stated that the final decree having been prepared on 24.06.1980 and the present 5 Patna High Court SA No.173 of 2012 (8) dt.23-06-2014 5 / 10 suit filed in 1986 was hopelessly barred by limitation. Additionally, it was stated that the suit as framed was bad for misjoinder/non joinder of the parties. The defendants thus contended that the suit was barred by principles of res judicata and also hit by Order 2 Rule 2 of the CPC. Apart from the aforesaid contention it was also stated that the valuation of the suit land in the plaint was grossly inadequate. The defendants also pointed out that prior to filing of the suit in question the plaintiffs had filed a Title Suit No.04/1986 on the same facts seeking the same relief. The said title suit no.04/1986 was dismissed by the learned Munsif by order dated 19.04.1991 whereagainst the plaintiffs did not prefer any appeal. The defendants thus prayed for dismissal of the suit with costs.
On a consideration of the pleadings of the parties the learned trial court framed the following nine issues.
1. Whether the suit as framed is maintainable?
2. Whether the plaintiffs have cause of action to file the suit?
3. Whether the S.P.No.6453 and 6453/10439 are their suit land of T.S. NO.116/3 of 1973/1977?
4. Whether the suit land have been given in the patti of plaintiffs.
6 Patna High Court SA No.173 of 2012 (8) dt.23-06-2014
6 / 10
5. Whether the S.P. No.6553 and 6553/10439 of total area of 44 decimal wrong plots and deed to mistake has been written by the pleader commissioner in allotment chart or whether the plaintiffs have ever taken D.P. over S.P.No.6453 and 6453/10439 and whether the final decree was prepared according to report of survey knowing pleading commissioner in the suit?
6. whether the plaintiffs are entitled to get any relief?
7. Whether the suit is barred by general and special law of limitation by Article 58 of the Limitation Act 1963?
8. Is the Suit barred by the doctrine of law of estoppel, or acquiescence or by the principle of res judicata?
9. Whether the suit is gravely undervalued and the court fee paid in adequate and whether the suit can proceed without paying ad valorem court fee on the market value of the suit property?
In consideration of the pleadings and evidence on record and appreciating the submissions of the parties the issue nos. 1, 2 3, 8, 9, were decided against the plaintiff. The suit was resultantly dismissed. Aggrieved by the judgment rendered by the 7 Patna High Court SA No.173 of 2012 (8) dt.23-06-2014 7 / 10 learned trial court the plaintiffs filed appeal vide Title Appeal No. 03/2000. The learned lower appellate court after hearing the parties and re-appraising the evidence on record found no merit in the appeal and dismissed the same by judgment dated 31.01.2012 and decree dated 14.02.2012. The lower appellate court held that there was nothing on record to demonstrate that plot no 6553 and 6553/10439 was the subject matter in schedule A,B.C.D. of the Title Suit No.116/03. In other words, the learned lower appellate court on the conspectus of evidence on record found that it was not proved from the evidence on record that the Pleader Commissioner had mentioned the wrong khesra/plot number(s) by mistake or in collusion of the parties. The allotment chart so prepared formed the basis of the final decree and delivery of possession was effected according to final decree and the plaintiff came over possession accordingly. The appellate court further noticed that the defence witness had consistently stated that the disputed land was ploughed by the defendant and the plaintiffs had no concern with the suit land inasmuch as the same was not delivered to the plaintiffs. The defendant had filed an appeal before the Hon'ble High Court against the preliminary decree which was still pending. Dealing with issue no. 7, as framed by the learned trial court, it was found that the plaintiffs got 8 Patna High Court SA No.173 of 2012 (8) dt.23-06-2014 8 / 10 knowledge regarding plot no. 6553 and 6553/10439 on 07.01.1981 but the suit was filed in 1986 vide Title Suit No. 04/1986 which was clearly barred by sections 58 and 113 of the Limitation Act. As per section 58 of the Limitation Act any declaratory suit must be filed within three years from final decree. The learned lower appellate court, therefore, concurred with the findings of fact recorded against the plaintiff on this issue by the learned trial court. Similarly, the finding recorded by the learned trial court on issue no.8 was, on re-appraisal, affirmed and it was held that Title Suit No. 04/1986 filed by the plaintiff having been dismissed he was precluded from filing another suit on the same cause of action. Dealing with issue no. 9, learned appellate court on a consideration of the pleadings and evidence adduced by the parties found that Title Suit No.116/1973 was filed valued at Rs. 14,000/-, whereas 2nd Title Suit No. 04/1986 was filed after about nine years against the same party regarding the same previous suit land which was valued at Rs. 1200/- only. It was thus held that the suit was not properly valued. The learned appellate court while considering the submissions of the plaintiffs appellants on issue no.6 recorded cogent reasons to hold that the plaintiffs appellants were not entitled to any relief. The said issue was also decided against the plaintiffs. 9 Patna High Court SA No.173 of 2012 (8) dt.23-06-2014
9 / 10 Heard Mr. Rana Ishwar Chandra for the appellants and perused the materials on record.
It has been submitted that the findings recorded by the learned lower appellate court are perverse and run contrary to the evidence on record. Both the courts below erred in concluding that the suit was barred by law of limitation as also the doctrine of law of estoppel and/or acquiescence In the light of the submissions made by the learned counsel for the appellants, I have carefully perused the materials on record and the findings recorded by the trial court and affirmed by the learned lower appellate court. The concurrent findings of fact on the core issue(s) recorded by the learned courts below, in my view, do not call for any interference by this Court. Law is well-settled in this regard. In Vishwa Agrawal Vs. Sarla Vishwa Agrawal (2012 7 SCC 288) the Hon'ble Apex Court relying on the earlier decision held that the High Court in a second appeal should not disturb the concurrent findings of fact unless it is shown that the findings recoded by the courts below are perverse being based on no evidence or that on the evidence on record no reasonable person could have come to that conclusion. Only because another view based on evidence on record is possible the High Court would not be entitled to exercise the jurisdiction under 10 Patna High Court SA No.173 of 2012 (8) dt.23-06-2014 10 / 10 Section 100 of the Code of Civil Procedure. The findings recorded by the learned trial court considering the evidence on record that the plaintiffs are not entitled to any relief have been affirmed by the learned lower appellate court. In my view, those concurrent findings of fact do not suffer from any patent illegality meriting interference. The plaintiffs accepting the decree passed in Title Suit No. 116/13 of 1973/1977 got the same executed and several years thereafter filed the present suit for the relief stated therein. Earlier to this a suit was filed for the similar relief by the plaintiffs which stood dismissed. The concurrent view taken in the light of the aforesaid facts by the two courts below, therefore, cannot be held to be perverse. It would, therefore, be unjust to interfere with the judgment and decree under appeal. The counsel for the appellants has not been able to show any other patent illegality in the judgment of the learned lower appellate court.
For the reasons noted above, this Court finds no merit in this appeal which is accordingly dismissed.
(Kishore Kumar Mandal, J) HR/-
U T