Patna High Court - Orders
Bihar State Board Of Religious Trust vs Md. Haroon & Ors on 12 September, 2014
Author: Kishore Kumar Mandal
Bench: Kishore Kumar Mandal
IN THE HIGH COURT OF JUDICATURE AT PATNA
Second Appeal No.257 of 2008
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Bihar State Board of Religious Trust through its Administrator, Vidyapati
Marg.
.... .... Appellant/s
Versus
1. Md. Haroon son of Liyakat Hussain, village Bhimpur, P.S.- Madhepur,
Distt- Madhubani.
2. Jagdamba Devi wife of Late Dukhan Mandal
3. Ashok Mandal
4. Kali Mandal
5. Trilok Mandal
All sons of Late Dukhan Mandal
6. Ram Kumari, wife of Mahesh Purvey.
7. Muni Devi, wife Ashok Gupta
8. Mamta Devi, wife of Ashok Mahto
All daughters of Late Dukhan Mandal
All residents of village Madhepur, P.S.- Madheput, Distt-Madhubani.
.... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. Shekhar Singh
For the Respondent/s : Mr. Prabhas Ranjan
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CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL
ORAL ORDER
14 12-09-2014The appeal has been filed by Bihar State Board of Religious Trust through its Administrator (for short " the Trust") aggrieved by the judgment and decree dated 25.04.2008 passed by the Additional District Judge-F.T.C.-I, Madhubani in T.A. No. 10 of 2006 reversing the judgment and decree dated 09.01.2006 and 18.01.2006 respectively passed by Sub-Judge-II, Jhanjharpur in T.S. No. 02 of 2001.
The plaintiff-respondent filed the suit for quashing the notice dated 08.12.1999 (Ext.1) issued by the defendant Trust. It was claimed that the notice (Ext.1) was illegal, vague, void and Patna High Court SA No.257 of 2008 (14) dt.12-09-2014 2 without jurisdiction inasmuch as the plaintiff had not purchased suit land which was ever endowed in favour of the defendant Trust. According to the plaintiff, Most. Sansaro Mandarine dedicated her entire property to the deity through a registered deed of dedication (Samarpannama) dated 11.10.1923 and the deity came in possession thereof. After death of Sansaro Mandarine, Bhagwat Mandal became the Manager. Bhagwat Mandal in his life time appointed his son Dukhan Mandal (Defendant no. 2) as Muntazimkar in which the suit plot bearing plot no. 7749 was wrongly included although the same was never gifted in favour of the deity. The plaintiff purchased part of plot no. 7749. The notice (Ext.1) did not contain any detail of the land. The defendants- appellants appeared in the said suit and filed a written statement stating therein that although the suit plot is not mentioned in the deed of endowment but in the deed of appointment of Manager, the same has been incorporated. In substance, the case of the defendant is that plot no. 7766 which appeared in the deed of endowment was reduced and added in plot no. 7749. The defendant thereafter did not adduce any evidence either oral or documentary. The plaintiff adduced oral evidence and exhibited diverse documents. The Trial Court on the basis of the pleadings of the parties framed the following nine issues: Patna High Court SA No.257 of 2008 (14) dt.12-09-2014 3
"I. Is the suit as framed and filed maintainable?
II. Has the plaintiff any valid right and cause of action to bring this suit?
III. Is the suit any wise barred under section 77 and 78 of the Bihar Hindu Religious Trust Act?
IV. Is the suit barred by principles of estoppel, waiver and acquiescence?
V. Is the suit any wise barred under the provisions of section 34 of the specific relief Act 1963?
VI. Is the notice date 08.12.1999 issued by the defendant No. I first party is illegal, void and without jurisdiction?
VII. Has the plaintiff purchased the land of B.S.R.T. Board (defendant No. 1) from defendant second party?
VIII. Has the plaintiff got any valid, title, right and possession over the suit land?
IX. Whether the plaintiff is entitled to any relief, if so to what relief or reliefs?
Issue No. VIII as per the case of the parties was redundant. Issue Nos. II, III and IX were decided against the plaintiff and it was held that the suit was premature in view of Section 78 of Bihar Hindu Religious Trust Act, 1950. Issue Nos. III and IX were decided against the plaintiff-respondent. The remaining issues, on a consideration of the evidence on record, were decided in favour of the plaintiff. Aggrieved by the judgment and decree passed by the learned Trial Court, the plaintiff filed appeal vide T.A. No. 10 of 2006 challenging the findings recorded against the plaintiff. The defendant Trust did not file any appeal and/or cross-objection in the said appeal to challenge the findings Patna High Court SA No.257 of 2008 (14) dt.12-09-2014 4 recorded against the defendant Trust against the remaining issues. The Appellate Court on reappraisal of the evidence and the materials reflecting from the record held that the suit was not filed within 23 days of service of notice impugned (Ext.1). There was apparent mistake committed by the learned Trial Court in deciding the said issue. Having held so, the Appellate Court answered all the three issues namely Issue Nos. II, III and IX as framed by the learned Trial Court in favour of the plaintiff. Considering the fact that Issue No. I relating to maintainability of the case was already decided in favour of the plaintiff by the learned Trial Court, the Appellate Court on a consideration of the evidence on record affirmed the findings recorded by the learned Trial Court on other issues except Issue nos. II, III, VIII and IX and allowed the appeal. The suit of the plaintiff was decreed. The notice dated 8.12.1999 (Ext.1) issued by the defendant Trust was declared as illegal, void and without jurisdiction. The Appellate Court also held that the plaintiffs had not purchased the land of the Bihar State Religious Trust Board. Aggrieved thereby, the present appeal has been preferred by the defendant Trust.
Heard Mr. Shekhar Singh for the appellant and Mr. Prabhas Ranjan for the respondents.
Contention of the counsel for the appellant is that Patna High Court SA No.257 of 2008 (14) dt.12-09-2014 5 while deciding Issue Nos. II, III and IX, the Appellate Court on perusal of the pleadings and the evidence on record held that the suit was not premature. Having held so, the Appellate Court proceeded further and considered the other findings recorded by the learned Trial Court in favour of the plaintiff and affirmed them. It has been contended that in doing so, the Appellate Court being the final Court of fact and law ought to have considered all relevant evidence available on record and thereafter recorded its own finding. Even if no cross-objection or separate appeal was filed by the defendant, it was the duty cast upon the Appellate Court to reconsider the correctness of the findings recorded by the learned Trial Court on all issues except Issue Nos. II, III, VIII and IX. In not doing so, the judgment passed by the learned Lower Appellate Court stands vitiated in law. He has relied on in this regard on Order XLI Rule 31 as well as Order XLI Rule 33 of the C.P.C.
Per contra, learned counsel for the respondent has urged that there is no dispute that the learned Trial Court while considering the case of the parties under Issue No. I held that the suit was maintainable. If that be the case then the Trial Court was required to consider and answer all other issues framed by it for resolution of the dispute between the parties. The defendant Trust Patna High Court SA No.257 of 2008 (14) dt.12-09-2014 6 did not lead any evidence either oral or documentary. Only a written statement was filed stating therein that part of plot no. 7666 was wrongly merged in plot no. 7749 which is set out in the deed of appointment and the plaintiff had purchased the same through the sale deed in question for which notice was issued upon the plaintiff vide Ext.I. If there is no evidence on record contrary to the evidence adduced by the plaintiff which has been appreciated by the Trial Court and decided in favour of the plaintiff then the Appellate Court could not have further considered/evaluated the evidence of both the parties in deciding the remaining issues except Issue Nos. II, III, VIII and IX. It has further been contended that the remaining issues having been decided against the defendant Trust ought to have been appealed against by the defendant. Since there was no appeal and/or cross- objection filed in the pending appeal, it was not incumbent upon the Appellate Court to reevaluate the evidence on record and give a finding contrary to the findings recorded by the learned Trial Court. He has referred in this regard to Order XLI Rule 22 of the C.P.C.
I have considered the submissions of the parties. On perusal of the judgment under appeal as well as the judgment of the Trial Court, it appears that the defendant-appellant, in fact, Patna High Court SA No.257 of 2008 (14) dt.12-09-2014 7 conceded on all material facts/issue and the Trial Court appreciating the evidence on record decided those issues in favour of the plaintiff (respondents herein) One aspect of the matter is very obvious that according to both parties the notice (Ext. 1) was vague inasmuch as it did not disclose even the details of the land said to have been purchased by the plaintiff from the defendant 2nd set which, according to the defendant Trust, belonged to the Trust having been endowed under deed of endowment dated 11.11.1923. Counsel for the appellant has not been able to convince the Court that, in case, the deed of appointment being at variance with the deed of endowment which one would prevail or have the statutory recognition. On carefully going through the two judgments passed by the Courts below, it is more than evident that the defendant Trust having filed written statement did not further contest the suit inasmuch as no evidence contrary to the pleadings and the evidence pleaded/adduced by the plaintiff was led. The Trial Court while deciding the relevant issues in favour of the plaintiff has clearly held that the defendant Trust conceded on all materials facts. In such view of the matter, having appreciated the evidence led by the plaintiff, those issues were decided in favour of the plaintiff by the learned Trial Court and there being no appeal or cross-objection filed thereagainst, the Appellate Patna High Court SA No.257 of 2008 (14) dt.12-09-2014 8 Court considered the three issues which were decided against the plaintiff and answered them in favour of the plaintiff (appellant in the Court below) and affirmed them.
In view of the aforesaid, I am of the considered view that the appeal does not raise any substantial question of law for consideration and adjudication. The judgment and decree passed by the learned Lower Appellate Court, in the facts of the case, cannot be said to be wholly perverse or illogical meriting interference of the Court.
The appeal fails. It is accordingly dismissed. Be it noted that while passing the order, this Court has kept in focus one paramount fact that according to the defendant Trust also, the notice was completely vague inasmuch as it did not contain any detail of the land.
(Kishore Kumar Mandal, J) Pankaj/-
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