Allahabad High Court
Om Prakash vs Hari Om Prakash And Another on 21 January, 2020
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 6 Case :- SECOND APPEAL No. - 499 of 2017 Appellant :- Om Prakash Respondent :- Hari Om Prakash And Another Counsel for Appellant :- Suresh Chandra Srivastava,Chandra Bhan Pandey Counsel for Respondent :- K.P.Pandey,Arvind Kumar Verma,G C Verma,Pt. S. Chandra Hon'ble Jaspreet Singh,J.
Heard Sri B.C. Pandey, learned counsel for the appellant and Sri G.C. Verma, learned counsel appearing for the respondents.
The instant appeal has been preferred against the judgment and decree dated 23.01.2017 passed by the Civil Judge, Senior Division, Fast Track Court, Sultanpur passed in Criminal Misc. Case No. 15 of 2008 which was initiated for preparation of final decree in a partition suit bearing No. R.S. No. 632 of 2000.
The judgment and decree passed in the final decree proceedings dated 13.01.2017 was assailed in the First Appeal before the District Judge Sultanpur in Regular Civil Appeal No. 15 of 2017 which was heard by the Court of ADJ, Court No. 6, Sultanpur and thereafter dismissed the appeal by means of the judgment and decree dated 30.08.2017.
The learned counsel for the appellant has assailed the aforesaid judgment decree on a solitary question. It is the case of the appellant that a suit for partition was instituted bearing R.S. No. 632 of 2000 by the plaintiff-appellant wherein there were 8 defendants. The suit property was House No. 274 situate in Gram Mahmoodpur Semari, Pargana Barausa, Tehsil Sadar, District Sultanpur. In the plaint in suit, the said house was mentioned in the schedule along with its boundaries and measurement indicating that it was 75 feet East-West and 33 feet North-South. It is also the admitted stand of the parties that the plaintiff Om Prakash and his two other brothers Hari Om and Mishri Lal who were the defendants no. 1 and 2 each has 1/3rd share in the aforesaid property. As far as the defendants nos. 3 to 8 are concerned, they had got various other properties in the family settlement and as such for the said reason they did not contest or participate in the Regular Suit No. 632 of 2000.
The said suit came to be decreed by means of judgment and decree dated 30.01.2006. The Trial Court by decreeing the suit directed that each of the plaintiff and defendant nos. 1 and 2 have 1/3rd share in the disputed house bearing house No. 274 situate in Gram Mahmoodpur Semari, Pargana Barausa, Tehsil Sadar, District Sultanpur. Since the share of the parties was not in dispute, accordingly, none of the parties filed any regular civil appeal rather the defendant nos. 1 and 2 who are the respondents before this Court made an application before the Trial Court for preparation of final decree which was registered as Misc. Case No. 15 of 2008. In the aforesaid application the respondents herein made a prayer that in terms of the judgment and decree dated 30.01.2006, the final decree may be prepared and while making the aforesaid application, the respondents herein also made a schedule of property which is verbatim to the one mentioned in the plaint including the measurement from 75 feet to East to West and 33 feet from North to South.
It is in furtherance of the aforesaid application for preparation of final decree that the Trial Court appointed a Court Commissioner who went and inspected the site and thereafter drew a map for partition. In the aforesaid map prepared by the Court Commissioner, he made 3 separate shares within the boundaries as mentioned in the plaint as well as in the application for final decree.
It is at this stage, the plaintiff-appellant herein, raised an objection that the report filed by the Commissioner was incorrect, inasmuch as, the suit property which was described by boundaries and in the area mentioned as 75 feet x 33 feet was measuring 2475 square feet only whereas the Court Commissioner has demarcated the property in terms of the boundary and the area therein exceeds 2475 square feet three times over and as such in light thereof it has been submitted that the final decree cannot be passed in light of the Court Commissioner's report.
The Trial Court after hearing the parties at length by means of its judgment and decree dated 23.01.2017 dismissed the objections of the plaintiff-appellant herein and confirmed the Commissioner's report along with its map. The First Appellate Court also considering the material and evidence on record with a detailed judgment affirmed the finding of the Trial Court and dismissed the appeal and as indicated above the appellant has challenged the same before this Court.
Sri C.B. Pandey learned counsel for the appellant has primarily submitted that in the suit the property was mentioned both by boundaries and measurement of 75x33 square feet, thus, totaling 2475 square feet. The basis for the application for preparation of final decree was also the same boundaries. Whereas the respondents herein had also made an application for preparation of the final decree wherein the same boundaries and area was given, therefore, if at all there had to be a partition it ought to be in terms of the decree as well as the area which is mentioned in the plaint as well as in the application of the respondents herein for preparation of final decree. It has been submitted that since the Commissioner's report has drawn a map which is only by boundary as a result large area has been included which cannot be done and as such the two courts have committed an error in ignoring this aspect of the matter.
Sri G.C. Verma, learned counsel appearing for the respondents has submitted that the plaintiff has unnecessarily invoked the jurisdiction of this Court, inasmuch as, the second appeal has been filed mischievously. He has submitted that it is true that in the plaint the area of the property in question has been indicated as 75x33 square feet, thus, totaling 2475 square feet and even in the application moved by the respondents herein for preparation of final decree, the same boundaries and the area was given, however, while the Commissioner had gone to prepare the scheme of partition and inspection of property, he found that the boundaries which were prevalent at the time when the sale deed was executed by which the property in question was purchased till date the same boundaries exists and perhaps by inadvertence an area of 2475 is mentioned.
It has further been submitted that considering the facts and circumstances as well as the law which has been settled that, in case of any discrepancy between the boundaries and the area it is the boundary that prevail. This aspect of the matter has been considered by the two courts in great detail and thereafter have confirmed the report of the Commissioner and as such these being pure finding of fact do not require any interference from this Court.
The Court has considered the submissions of learned counsel for the parties and also perused the record.
The only question which has struck a chord with this Court which has persuaded it to examine the matter at some detail is a fact that where the area in respect of the property mentioned in the plaint and the application for preparation of final decree has been indicated as 2475 square feet then in what circumstances the two courts have confirmed the Commissioner's report wherein the area comprising of the subject matter of the property is three times over.
From the perusal of the record this Court finds that the two courts have gone into the depth of the matter. It has considered the sale deed by virtue of which the property in question was purchased in the year 1972. In the said sale deed the boundaries have been given which is not disputed between the parties. As far as the area is concerned, it has been indicated as 50 Hath, East-West and 22 Hath Norh-South.
The two courts also considered the fact that when the Commissioner had visited the property in question, the same was identified by the parties and it plotted the boundaries which matched as they were prevalent at the time when the sale deed was executed in the year 1972 and the same boundaries subsisted at the time when the suit for partition was filed as well as when it was decreed. Since the entire property which is the subject matter of partition wherein each party has 1/3rd share, the same has been demarcated by the Commissioner.
Now, in case as alleged by the appellant, the area as shown by the Commissioner was much more than was the subject matter of the suit then the question arises as to the fact that who is the owner of the excess area.
Sri C.B. Pandey, learned counsel for the appellant could not dispute that no other person has come forward to claim any right in the said area. It is also not disputed that within the boundaries concerned, there is no other land belonging to any third party. A feeble attempt has been made by Sri C.B. Pandey to indicate that some land of the Gram Sabha is involved but unfortunately he has neither been able to establish that fact nor bring any documentary evidence indicating the revenue map or the plot number to indicate that any area of the Gram Sabha is involved within the property which has been delienated by the Court Commissioner. On the other hand, the two courts have considered that even assuming if there is some excess land since it is within the boundaries as given by the sale deed and prevalent from right from the year 1972, the same is to be divided amongst the threee owners and as such the court below have relied upon the proposition that where there is a dispute between the area and the boundaries it is the boundaries that prevail.
The two courts have considered this aspect of the matter and have found that the appellant has attempted to create mischief by getting petitions filed by third person only to delay and defeat the proper partition in terms of the judgment and decree dated 30.01.2006.
Considering the aforesaid as well as the fact that the learned counsel for the appellant could not indicate or establish as to whose property was involved within the boundaries as mentioned and the fact that none has come forward including the other brothers of the plaintiff and the defendant nos. 1 and 2 and the area as mentioned in the original sale deed of 1972 is not in terms of the square feet but has been mentioned as 50/22 Hath. This is not an exact measurement. It is in view thereof that since the learned counsel for the appellant also could not dispute that the boundaries are not disputed and they are the same which existed at the time when the house in question was purchased by means of the sale deed executed in the year 1972 as well its subsisting at the time when the suit was instituted and decree, hence, considering the material and the finding on record this Court is satisfied that there is no substantial question of law which arises.
The findings given by the two courts is based on the Commissioner's report and by applying the correct principles, pure findings of fact have been recorded which does not require any interference from this Court.
The Apex Court has considered that the High Court does not get the jurisdiction to entertain a second appeal unless there are substantial questions of law involved.
The aforesaid appeal is concluded by concurrent findings of fact in the case of 2019 State of Rajasthan and Others Vs. Shiv Dayal and Another reported in 2019 (8) SCC 637 and this Court is satisfied that no substantial question of law is involved in the instant appeal consequently.
The appeal is concluded by concurrent findings and is accordingly dismissed. No order as to costs.
Order Date :- 21.1.2020 Asheesh