Patna High Court - Orders
Sheo Lal Prasad & Ors vs Madan Sonar & Ors on 24 August, 2011
Author: V. Nath
Bench: V. Nath
IN THE HIGH COURT OF JUDICATURE AT PATNA
Second Appeal No.88 of 2009
Sheo Lal Prasad & Ors
Versus
Madan Sonar & Ors
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9 24-8-2011Heard Mr. Sandeep Sahi, learned counsel appearing on behalf of the appellants in support of this appeal.
This second appeal has been filed against the judgment and decree dated 18th November, 2008, passed by the Additional District Judge, F.T.C. III, Gopalganj in T.A.No. 182 of 2006/ 43 of 2007 affirming the judgment and decree dated 25-9-2006 passed by the Subordinate Judge I, Gopalganj, in T.S.No. 286 of 1995.
The plaintiffs had filed T.S.No. 286 of 1995 for declaration of their title and for recovery of possession in case of finding of dispossession from the suit land. In short, the plaintiffs have come out with the case that the suit land is their ancestral land and their predecessor, namely, Bahor Halkhor, mortgaged the suit land to Bhawani Mishra by mortgage deed dated 18-3-1897. The said mortgage, according to the plaintiffs, had been redeemed in the year 1921 and thereafter the plaintiffs came in possession of the suit land. It is further case of the plaintiffs that Bhawani 2 Mishra had settled the defendants' predecessor, Sheodhari Sonar as Sikmidar over the suit land and he had been recorded in the recent survey also as Sikmidar. It has further been the case of the plaintiffs that Sheodhari Sonar in the year 1936 and thereafter the plaintiff- appellants came in possession over the suit land. However, due to interference in their possession by the defendants, who are the heirs of Sheodhari Sonar the cause of action for filing the suit had arisen. However, the defendants have stated in their written statement that Sheodhari Sonar was not the Sikmidar of Bhwani Mishra rather he was Sikmidar of Bahor Halkar and after the mortgage by Bahor Halkar he started paying rent to Bhawani Mishra and he continued in possession of the suit land as Sikmidar. It has also been the case of the defendants that Sheodhari Sonar died in the year 1954 after the amendment in the Bihar Tenancy Act making Sikmi rights heritable and after further amendment in the said Act their status has been enhanced to Kastkar In view of the rival cases of the parties, the crucial issue was the redemption of mortgage which had admittedly been made by Bahor Halkar, the original owner, in favour of Bhawani Mishra. The case of the plaintiffs is 3 that it has been redeemed in the year 1921 and the mortgage deed evidencing the redemption had been lost in the earthquake of 1934. However, in view of the entry in the recent survey Khatiyan of the name of Bhawani Mishra as mortgagee and Sheodhari Sonar as Sikmidar, the burden of proof was heavy upon the plaintiffs to rebut that evidence and establish their case. The trial court has examined the evidence of the parties and came to the finding that the plaintiffs have failed to establish the redemption, as claimed by them. The appellate court, in appeal, has also examined the evidence of the parties and their submissions and reached to the conclusion that the redemption as claimed by the plaintiffs could not be established. In view of this concurrent finding of fact based on evidence, it is now difficult to accept the contention of the learned counsel appearing on behalf of the appellants who has strenuously tried to establish that there was misappreciation of evidence by both the courts below and the finding against them has not been recorded in accordance with the evidence. From the perusal of the impugned judgments and considering the submissions of the learned counsel appearing on behalf of the appellants, it appears that the name of Bhawani Mishra 4 as well as Sheodhari Sonar continued to be recorded even in the recent survey Khatiyan which fact is inconsistent with the case of the plaintiffs regarding redemption of mortgage in the year 1921 itself. Both the courts below have also refused to believe the story of loss of document in the earthquake in the year 1934. As such, there is no scope for interfering in the findings of the courts below. No substantial question of law arises for consideration in this appeal.
This appeal is, accordingly, dismissed.
( V. Nath, J.) roy