Patna High Court - Orders
Smt. Premlata Devi & Ors vs Smt.Radha Devi & Ors on 20 March, 2009
IN THE HIGH COURT OF JUDICATURE AT PATNA
SA No.41 of 1989
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1. Smt. Premlata Devi, widow of late Krishna Kant Prasad
2. Rakesh Bhushan Prasad alias Rakesh Prasad
3. Shasi Bhushan Prasad alias Kamlesh
4. Nilesh Prasad alias Gublu alias Nilesh Kumar
5. Rajesh Prasad alias Bablu alias Rajesh Kumar
All sons of late Krishna Kant Prasad, all resident of village Parihar,
P.S. Parihar, District Sitamarhi.
6. Smt. Banita Devi alias Banita Srivastava alias Banita Prasad, wife
of (sic) Srivastava @ Ram Naranjan Prasad Srivastava, resident of
Parihar, P.S. Parihar, District Sitamarhi.
7. Sunita Devi @ Sunita Srivastava, wife of Krishna Kumar Pd.
Srivastava, resident of Parihar, P.S. Parihar, District Sitamarhi
8. Parinita Kumari @ Amita Devi, D/o late Dr. Krishna Kant Prasad,
resident of Vill.+P.O.Parihar, P.S. Parihar, District Sitamarhi.
....Defendants-Respondents- Appellants..
versus
1. Smt. Radha Devi, widow of late Banarsi Pd. Sah.
2. Vijay Kumar Prasad
3. Vinod Kumar Prasad
4. Vikal Kumar Prasad alias Vimal Kumar
5. Vinay Kumar Prasad
6. Ajay Kumar Prasad
Nos. 2 to 6 sons of late Banarsi Pd. Sah.
7. Sanjai Kumar Prasad, son of late Banarsi Prasad Sah
8. Ranjit Kumar Prasad, son of late Banarsi Prasad Sah,
Minor under the guardianship of Vijay Kumar, brother.
All resident of village Sirsia Bazar, Nariharpur, P.S. Bela,
District Sitamarhi.
9. Smt. Madhuri Devi, wife of Ramchandra Prasad Sah,
Resident of Farbeshganj, Mohalla Kalitola Pakki, Chauraha, P.S.
Farbeshganj, District Purnea.
10. Smt. Saraj Devi, wife of Dr. Birendra Kumar, resident of village
Mahshkhut, P.S. Maheshkhut, District Begusarai.
11. Smt. Kiran Kumari Devi wife of Janardan Prasad, resident of village
Harla Bazar, P.S. Purnea, District Purnea.
12. Smt. Mala Kumari, wife of Shuvash Prasad, resident of village
Ratanganj, P.O. Suharia Bazar, P.S. Gosalpur, District Bhagalpur.
13. Smt. Shiv Kumari Devi, wife of Rama Shankar Prasad, resident of
village & P.O. Jawgaon, District Jalpaiguri (West Bengal).
14. Balrita Kumari, minor daughter of late Banarsi Prasad Sah, minor
under the guardianship of Vijay Kumar Prasad, brother, resident of
village Sirsia Bazar, P.S. Bela, District Sitamarhi.
... Plaintiffs-Appellants-Respondents Ist Set.
15. Smt. Shivrati Devi, wife of late Nageshwar Sah.
16. Jagarnath Sahu
17. Jangbahadur Sahu
18. Chandeshwar Sahu, sons of late Nageshwar Sah,
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resident of village Sirsia, Makta, P.S. Bela, District Sitamarhi.
19. Sarjug Devi, daughter of late Nageshwar Sah, wife of Raghunath
Sah, resident of village Saurabbhar, P.S. Bela, District Sitamarhi.
20. Dhana Devi, daughter of late Nageshwar Sah, wife of late Sheo
Prasad Sah, resident of village Sirsia, P.S. Bela, District Sitamarhi.
21. Sumitra Devi, daughter of late Nageshwar Sah, wife of Rajendra
Prasad Sah, resident of village Sirsia, P.S. Bela, Distt. Sitamarhi.
22. Pulkit Sah
23. Ram Ekbal Sah
Both sons of late Birendra Sah.
24. Most. Nirmala Devi, widow of late Birendra Sah.
25. Sanjit Kumar
26. Rajiv Kumar
27. Ranjit Kumar
28. Mukesh Kumar
29. Renu Kumari
Minor sons and daughter of late Birendra Sah, Minors under the
guardianship of his mother Nirmala Devi.
30. Kamta Prasad Sah
31. Satya Narain Prasad Sah.
Both sons Bharat Prasad, residents of village Sirsia, P.s. Bela,
District Sitamarhi.
32. Most. Ramdulari Devi, widow of late Binda Pd. Sah, resident of
village Shivhar, P.S. Shivhar, District Sitamarhi.
33. Smt. Krishna Devi, wife of Radha Prasad, resident of village Birpur,
P.S. Chniraiya, District East Champaran.
....(Defendants)-(Respondents)-Respondents 2nd set..
34. The State Bank of India Branch Office, Parihar, through Manager
Branch Officer Parihar, P.S. Bela, District Sitamarhi.
...(Defendants)-(Respdondents)-Respondents 3rd set.
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For the Appellants M/s Uma Kant Verma, Shashi
Bhushan Prasad, Sunil Kumar and
Mukul Prasad, Advocates.
For the Respondents: M/s T. N. Maitin, Sr. Advocate N.K. Sinha,
Jitendra Prasad Singh, Braj Bhushan
Singh, Kaushal Kumar and Bindeshwar
Prasad Singh,Advocates.
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18/ 20.03.2009This second appeal has been filed by the defendants-
respondents-appellants challenging the judgment and decree of the learned court of appeal below.
2. The matter arises out of Title Suit No. 73 of 1967, which was filed by the plaintiffs-appellants-respondents first set for -3- declaration of their title and for recovery of possession of the suit land detailed in Schedules I and II of the plaint as well as for other ancillary reliefs.
3. The said title suit was dismissed on contest with cost by the learned Subordinate Judge, Sitamarhi vide his judgment and decree dated 31.05.1986. Against the aforesaid judgment and decree of the trial court, the plaintiffs filed Title Appeal No.19 of 1986, which was allowed on contest with cost by the learned Additional District Judge-I, Sitamarhi, vide his judgment and decree dated 07.12.1988 setting aside the judgment and decree of the trial court and decreeing the claim and suit of the plaintiffs with respect to the suit property and directing the defendants to deliver vacant possession of the suit land and house to the plaintiffs-respondents free from all encumbrances, failing which, the same would be done through process of the Court at their cost.
4. Against the aforesaid judgment and decree of the learned court of appeal below, the defendants filed the instant second appeal, which was heard on 25.05.1989 under Order XLI Rule 11 of the Code of Civil Procedure (hereinafter referred to as `the Code' for the sake of brevity) by Hon'ble Mr. Justice B. N. Agrawal, who was then a Judge of this Court and his Lordship dismissed the second appeal after arriving at the following finding :-
"In my view, this appeal is concluded by findings of facts, recorded by the lower appellate court, which is final court of fact and no substantial question of law arises therein." -4-
5. It transpires that against the aforesaid order passed by this Court in the second appeal, the defendants moved the Hon'ble Apex Court in Civil Appeal No. 4154 of 1989, which was allowed by the Hon'ble Supreme Court vide order dated 23.02.2000 and after setting aside the impugned judgment of the High Court, the matter was remanded for being decided de novo by the High Court with the following observation :-
" Without making any observations with regard to the merits of the case, we are of the opinion that the High Court was not correct in dismissing the appeal in limine. There was serious dispute with regard to the title of the land. The trial court had dismissed the suit and the High Court was hearing an appeal from a judgment of reversal. The case involved interpretation of various documents which had been tendered in evidence and questions of law did arise. "
6. After the remand, the instant second appeal was taken up by this Court on 20.07.2000 when notices were directed to be issued to the respondents to appear before this Court, whereafter the respondents duly appeared and contested the second appeal.
7. From the averments of the parties and the specific order of the Hon'ble Apex Court, dated 23.02.2000 passed in Civil Appeal No.4154 of 1989, it is quite apparent that the learned Apex Court has not made any observation with regard to the merits of the case nor it formulated any substantial question of law to be decided in the instant second appeal, rather the opinion of the Apex Court was that the -5- second appeal should not have been dismissed in limine without considering the dispute regarding title and interpretation of various documents, which were tendered in evidence. In the said circumstances, learned counsel for both the parties were given full opportunity to raise their submissions on the said points.
8. From the arguments of learned counsel for both the parties as well as from the materials on record including the impugned judgments and decree of the learned courts below, it is quite apparent that the trial court had dismissed the suit only on two grounds; namely, (i) that the plaintiffs had failed to prove their title over the suit land on the assumption that it belonged to Bharat Sah and (ii) that the title suit was time barred as the possession of the defendants was since 1948-50, but the suit was filed in the year 1967.
9. The plaintiffs having challenged the judgment and decree of the trial court in the title appeal, the learned court of appeal below considered the entire pleadings and evidence of the parties and came to specific findings that Bharat Sah and Pamreshwar Sah belonged to two branches of the same family of Ganga Bishun Sah, who left behind two sons, namely, Sheo Shankar Sah (ancestor of Parmeshwar Sah) and Gudar Sah (ancestor of Bharat Sah) and there was a partition between both the branches in the year 1921 (1328 fasli) and the suit plot was allotted to the branch of Parmeshwar Sah. This fact was apparent from the written statement filed by Bharat Sah in earlier Partition Suit No.35 of 1951 before the learned Subordinate Judge, Darbhanga. This fact was also supported by the evidence of the -6- plaintiffs; such as Exts.3 series (sale-deeds), Ext.4 (written statement of Bharat Sah), Ext.5 (order-sheet dated 11.11.1961 in a proceeding under section 103A of the B.T. Act bearing Case No.312/1960), Ext.6 (preliminary decree of Partition Suit No.35/1941 passed by the Additional Subordinate Judge, Darbhanga), Ext.7 (certified copy of judgment in the said suit), Ext. 8 (original kebala dated 22.07.1959) along with depositions of P.Ws. 13,14,15,16,20,22,23,24,25,26,27 and
33. The aforesaid evidence also proved that after partition Parmeshwar Sah constructed a house over the suit land in 1947 and gave it to Dr. K. K. Prasad in the year 1950 as a licensee because he was the family Physician of Parmeshwar Sah and others and, thereafter, Dr. K. K. Prasad opened his Dispensary in the said premises.
10. Although the defendants had produced Exts. A, O and O/1, namely, Ladavi and affidavits said to have been executed by Bharat Sah and his brother Rajendra Sah in favour of Dr. K. K. Prasad but they were all of the period during the pendency of the title suit and could not legally confer any right, title or interest in him. Furthermore, although the said Bharat Sah was a party to the title suit as defendant no.6, he did not contest the claim of the plaintiffs nor raised any objection with regard to the title of the plaintiffs. The law is also well- settled that the revenue records are not documents of title and their interpretation cannot be raised as a substantial question of law. Reference in this connection may be made to a decision of the Hon'ble Apex Court in case of Corporation of the City of Bangalore vrs. M. Papaiah and another, reported in A.I.R. 1989 S.C. 1809. -7-
11. In addition to it, Ext. D/4, which is a mutation application filed by Dr. K. K. Prasad, gives a death blow to the claim of the defendants as in the said application it was specifically stated that the applicant- Dr. K. K. Prasad had acquired disputed land from Parmeshwar Sah, a co-sharer of Akal Sah, whereas, Ext.2 the order passed in Certificate Case No.13 of 1960 filed by Bharat Sah shows that the authorities found that the disputed land belonged to Parmeshwar Sah, brother of Nageshwar Sah, who died issueless and the said land never belonged to Bharat Sah. Hence the claim of defendants that Bharat Sah had settled the suit land to Dr. K. K. Prasad is absolutely baseless as neither the said Bharat Sah had any right, title and interest left in the suit property after partition nor the defendants could produce any document of title or settlement, Zamindari receipt or even the return filed by the ex-intermediary nor even Jamabandi was created in his name with respect to the suit property, hence the entire claim of the defendants was entirely false and baseless.
12. So far question of limitation is concerned, the learned trial court completely failed to appreciate that the plaintiffs had never claimed that they were ousted by the defendants, rather their specific claim supported by valid and reliable evidence was that it was given to Dr. K. K. Prasad as a licensee for holding his Clinic as he was the family Physician of predecessor of the plaintiffs. Hence, there could neither be any question of ouster or adverse possession nor any limitation would accrue from the date of possession as the possession -8- of the licensee is legally deemed to be the possession of the licensor (owner). In the said circumstances, there was no question of the title suit being barred by law of limitation.
13. In the said circumstances, the learned court of appeal below was quite justified in allowing the title appeal and setting aside judgment and decree of the trial court after considering the pleadings as well as each and every relevant evidence adduced by the parties, whereas, on the other hand, the learned trial court had not considered the relevant evidence adduced by the parties with respect to the main issues involved in the suit and had 3decided the suit illegally and arbitrarily.
14. Thus, this Court does not find any illegality in the impugned judgment and decree passed in the title appeal and it is concluded by findings of facts recorded by the lower appellate court, which is final court of fact and no substantial question of law arises in the instant second appeal, which is, accordingly, dismissed under Order XLI Rule 11 of the Code.
MPS/ ( S. N. Hussain, J. )