Patna High Court - Orders
Kuldip Mandal vs Mostt. Geeta Devi & Ors. on 6 December, 2012
Author: Mungeshwar Sahoo
Bench: Mungeshwar Sahoo
Patna High Court SA No.500 of 2009 (10) dt.06-12-2012
1
IN THE HIGH COURT OF JUDICATURE AT PATNA
Second Appeal No.500 of 2009
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Kuldip Mandal
.... .... Appellant/s
Versus
Mostt. Geeta Devi & Ors.
.... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. Shabbir Ahmad
Mr. Shamshed Alam
For the Respondent/s : Mr.
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CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR
SAHOO
ORAL ORDER
10 06-12-2012Heard the learned counsel, Mr. Sabbir Ahmad appearing on behalf of the appellant under Order 41 Rule 11 C.P.C.
(2) The plaintiff-appellant-appellant has filed this Second Appeal against the judgment and decree dated 24.08.2009 passed by learned Additional District Judge I, Purnea in Title Appeal No.74 of 1995 whereby the Lower Appellate Court dismissed the appeal and thereby confirmed the judgment and decree dated 14.11.1995 passed by the learned Subordinate Judge IV, Purnea in Title Suit No.334 of 1974.
(3) The plaintiff-appellant filed the aforesaid title suit for declaration of title over the suit land. The plaintiff claimed the aforesaid relief of declaration of title on the allegation that Bansi Mandal was recorded in the cadastral survey record of right. He Patna High Court SA No.500 of 2009 (10) dt.06-12-2012 2 died leaving behind 5 sons who came in possession of the suit property after the death of said Bansi Mandal. In amicable settlement between 5 sons, the suit land fell in the share of the plaintiff. The defendants have no title to the property and are claiming the land falsely and threatened to dispossess the plaintiff, therefore, the plaintiff filed the aforesaid suit.
(4) The defendants filed contesting written statement alleging that the property originally belonged to Babu Baldeo Ram and the defendants have acquired the said property by settlement. The defendants also pleaded that there was rent suit filed by the defendants against the Sikmidar in the year 1969 wherein the present plaintiff also was party who filed written statement but the suit was decreed and the defendant's possession was declared. The present plaintiff also filed Title Suit No.140 of 1971 which was dismissed and the title appeal filed by the plaintiff before the Appellate Court being Title Appeal No.10 of 1989 was also dismissed wherein it was found that the plaintiff was not in possession of the suit property.
(5) The trial court after considering the evidences and materials available on record recorded the finding that the plaintiff failed to prove his title and possession both and accordingly, dismissed the plaintiff's suit. The plaintiff filed the title appeal. Patna High Court SA No.500 of 2009 (10) dt.06-12-2012 3 The Lower Appellate Court considering all these facts recorded the same finding and dismissed the title appeal.
(6) The learned counsel, Mr. Sabbir Ahmad appearing on behalf of the appellant submitted that while dismissing the appeal, the Lower Appellate Court has not at all considered Exhibit 13 series i.e. Exhibit 13 to 13/F which are cadastral survey record of right and also the Lower Appellate Court has not considered the various receipts like Patwan receipts, Rent receipts, Irrigation receipts etc. and recorded the finding of possession against the plaintiff.
(7) From perusal of the judgment of the Lower Appellate Court, it appears that the Lower Appellate Court has considered all the documentary evidences available on record. Exhibit H is a certified copy of auction order which shows that the lands of khata no.20, a part of suit land which is also claimed by the plaintiff which was recorded in the name of Bansi Mandal was auction sold in the year 1935. Exhibit I is the revisional survey khatiyan which shows that the suit land has been recorded in the name of defendants. Exhibit L series are the judgments of Rent Suit No.137 of 1969 and 139 of 1969 filed by the defendants against the Sikmidars in respect of portion of the suit land. The Lower Appellate Court also considered the admission of the Patna High Court SA No.500 of 2009 (10) dt.06-12-2012 4 plaintiff that he had filed Title Suit No.140 of 1971 and the Title Appeal No.10 of 1989 which was with respect to the ancestral property and this suit also relates to ancestral property. In the earlier suit filed by the plaintiff, the plaintiff was not found in possession. Considering all these aspects of the matter, the Lower Appellate Court recorded the finding that the plaintiff failed to prove his title and possession over the suit property.
(8) So far the submission of the learned counsel for the appellant that the Lower Appellate Court has not considered Exhibit 13 series i.e. Exhibit 13 to 13/F is concerned, it may be mentioned here that those are the cadastral survey khatiyan which shows that Bansi Mandal was recorded tenant. From perusal of the judgment of the Lower Appellate Court, it appears that the Lower Appellate Court has noted this fact that these are the khatiyans of cadastral survey but the Lower Appellate Court considered the intervening position from the date of cadastral survey and the entry made in the revisional survey record of right. It is settled law that if there is conflict in the entry in cadastral survey record of right and revisional survey record of right, the entry in the revisional survey record of right will prevail, as has been held by the Apex Court in the case of Raja Durga Singh of Solon v. Tholu, AIR 1963 Supreme Court 361.
Patna High Court SA No.500 of 2009 (10) dt.06-12-20125
(9) So far the possession is concerned, it may be mentioned here that the Lower Appellate Court considered the admission of the plaintiff itself that he was not found in possession in the earlier suits filed by him. Therefore, this finding recorded in the earlier suit will be binding on the plaintiff. The Lower Appellate Court also observed that the plaintiff is in habit of filing the suits. The learned counsel for the appellant submitted that the earlier suit filed by the plaintiff was with respect to a portion of the suit land is concerned, it may be mentioned here that this fact is being raised before this court for the first time. There is neither such pleading in the plaint nor such evidence nor there is any finding recorded by the trial court or Appellate Court nor it is mentioned in the memo of appeal. Now, therefore, merely on the submission of the learned counsel, at this stage, it cannot be said that the Title Suit No.140 of 1971 filed by the plaintiff related to only a part of the suit land and this suit relates to the whole of the ancestral land of the plaintiff.
(10) It further appears that the plaintiff has filed simple suit for declaration of title. There is no further prayer in terms of Section 34 of the Specific Relief Act. Both the courts below recorded the finding that the plaintiff is not in possession of the suit property. Now, therefore, in such circumstances, the Patna High Court SA No.500 of 2009 (10) dt.06-12-2012 6 plaintiff's suit is also barred under Section 34 of the Specific Relief Act.
(11) Considering the above facts and circumstances of the case, I find that none of the grounds raised by the learned counsel for the appellant is a substantial question of law. Therefore, this Second Appeal is dismissed at the admission stage itself because no substantial question of law is involved for consideration.
(Mungeshwar Sahoo, J) Saurabh/-