Kranti Thakur vs Most. Sukari Devi @ Sukhari Devi
2022 Latest Caselaw 4528 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                        SECOND APPEAL No.322 of 2018
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Kranti Thakur Son of Late Sukan Thakur Resident of Village- Behat, Tola Adalpur, PS RS Shivir, Jhanjharpur, District- Madhubani.

... ... Appellant/s Versus

1. Most. Sukari Devi @ Sukhari Devi W/o Late Sudhai Kamat Resident of Village Behat, Tola Adalpur, PS RS Shivir, Jhanjharpur, District- Madhubani.

2. Smt Gyan Devi Daughter of Late Sudhai Kamat Resident of Village Behat, Tola Adalpur, PS RS Shivir, Jhanjharpur, District- Madhubani.

3. Smt Ghuran Devi Daughter of Late Sudhai Kamat Resident of Village Behat, Tola Adalpur, PS RS Shivir, Jhanjharpur, District- Madhubani.

4. Sri Umesh Kamat Son of Late Sudhai Kamat Resident of Village Behat, Tola Adalpur, PS RS Shivir, Jhanjharpur, District- Madhubani.

5. Sri Umesh Kamat Son of Late Sudhai Kamat Resident of Village Behat, Tola Adalpur, PS RS Shivir, Jhanjharpur, District- Madhubani.

6. Sri Dinesh Kamat Son of Late Sudhai Kamat Resident of Village Behat, Tola Adalpur, PS RS Shivir, Jhanjharpur, District- Madhubani.

7. Sri Rakesh Kamat Son of Late Laxmi Kamat Resident of Village Behat, Tola Adalpur, PS RS Shivir, Jhanjharpur, District- Madhubani.

8. Sri Shiv Kamat Son of Late Laxmi Kamat Resident of Village Behat, Tola Adalpur, PS RS Shivir, Jhanjharpur, District- Madhubani.

... ... Respondent/s ====================================================== Appearance :

     For the Appellant/s    :    Mr.Sanat Kumar Mishra
     For the Respondent/s   :    Mr.

====================================================== CORAM: HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA CAV JUDGMENT Date : 17-08-2022

Heard learned counsel for the appellant under Order 41

Rule 11 of the Code of Civil Procedure.

(2) The plaintiff who is appellant herein has filed this

Second Appeal under Section 100 of the Code of Civil

Procedure against the judgment dated 05.06.2018 and decree

dated 19.06.2018 passed by Sri Om Prakash II, learned District Patna High Court SA No.322 of 2018 dt.17-08-2022

& Sessions Judge, Madhubani in Title Appeal No. 31/2016

confirming the judgment dated 24.06.2016 and decree dated

01.07.2016 passed by learned Munsif, Jhanjharpur, Madhubani

in Title Suit No. 40/1995, whereby, the learned Munsif,

Jhanjharpur dismissed the suit on contest.

(3) The plaintiff had filed the suit for declaration of title and

confirmation of possession, alternatively, for declaration of

possession on the basis of possession and permanent injunction

against the defendants. The case of the plaintiff is that he had his

house since long over suit land bearing C.S. Plot Nos.1010,

1011, 1016 and 1017 total area 18 dhur, situated at Mauza-

Adalpur, P.S.-R.S. Shivir (Jhanjharpur), District-Madhubani.

According to plaintiff he had obtained his right and title on the

basis of Basgit Parcha issued by the government of Bihar vide

Case No.34/1980-81 after due inquiry and investigation.

Jamabandi was created and revenue is being paid. Defendants

have their houses adjacent west to the suit land who tried to

disturb the suit land, in order to grab the suit land, so the

plaintiff filed a case u/s 144 Cr. P.C. in 1986 in which

compromise took place confirming the title and possession of

the plaintiff over suit land. In 1993 also the Circle Officer had

found the possession of plaintiff over the suit land. In 1994 due Patna High Court SA No.322 of 2018 dt.17-08-2022

to heavy rain, plaintiff left his house then defendants tried to

demolish the house of plaintiff, then proceding u/s 144 Cr. P.C.

initiated in which police found the possession of the plaintiff on

suit land. The plaintiff alleged that defendants in collusion with

the authority got prepared the Revisional Survey Khatiyan and

map with respect to suit land in their favour. The defendant

disclosed in proceeding under Section 144 Cr. P.C. that they

have got Parcha under Bihar Privileged Persons Homestead

Tenancy Act, 1947 (BPPHT) Act with respect to suit land which

is forged and fabricated document.

(4) The defendants case is that the Survey Plot Nos.1009,

1010, 1011, 1012, 1013, 1016 & 1017 were amalgamated to

each other and earlier the said land belonged to Mahanth Ram

Chandra Das and later on the said land was acquired by

Government of Bihar under the Provision of Land Ceiling Act

out of which 2 Kathas and 6 Dhurs land were allotted in the

name of Kailu Kamat, ancestor of defendants, through Parcha

Vide Case No.80/1969-70. Jamabandi is running in his name as

yet. Kailu Kamat died leaving behind his two sons namely,

Sudhayi Kamat and Lakshmi Kamat who came in possession

over the land left by Kailu Kamat by survivorship. The plaintiff

some years ago kept his cattle in the suit land with permission Patna High Court SA No.322 of 2018 dt.17-08-2022

and tried to grab the said land of defendant initiated proceeding

u/s 144 Cr. P.C. and subsequent to that a forged and fabricated

Parcha was obtained.

(5) The learned Trial Court framed 10 issues on the basis of

pleading of both parties and decided that the Basgit Parcha in

favour of plaintiffs is invalid and non-operative and on the basis

of which plaintiff has no right, title and possession over the suit

land and accordingly dismissed the suit.

(6) In appeal, the learned 1st Appellate Court after considering

the material available on records held that the Basgit Parcha in

favour of the plaintiff is not a valid and operative document and

accordingly the plaintiff has no title and possession over the suit

land and dismissed the appeal.

(7) Learned counsel for the appellant submits that the

impugned judgments of Trial Court and 1st Appellate Court are

perverse in not considering the case and evidence of the plaintiff

but went in considering the validity of Parcha of the plaintiff. It

is further submitted that entitlement/issuance of Parcha under

Bihar Privileged Persons Homestead Tenancy Act, 1947 could

be challenged only by the landlord and in this case there is no

challenge by the landlord to the issuance of Parcha to the

plaintiff and Learned Courts below wrongly took the Patna High Court SA No.322 of 2018 dt.17-08-2022

defendant's Parcha to be true which was not admissible in

evidence. It is next submitted that there are sufficient material

available on record to prove the issuance of Parcha and running

of Jamabandi and also the long possession of the plaintiff. He

has lastly submitted that there are substantial questions of law

arise in this Second Appeal accordingly, this appeal may be

admitted for hearing.

(8) Having heard the learned counsel for the appellant and on

perusal of judgments of both the Courts below i.e. Trial Court

and 1st Appellate Court, it appears that both the Courts have

held that plaintiff has no title and possession in the suit land. It

has also been held that Basgit Parcha in favour of the plaintiff is

not a valid and operative document.

9. The expression "substantial question of law" has acquired a

definite connotation through various judicial pronouncements.

In Hero Vinoth (Minor) Vs. Seshammal (2006) 5 SCC 545,

the Hon'ble Supreme Court has observed that:

"The general rule is that High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-

recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law Patna High Court SA No.322 of 2018 dt.17-08-2022

erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to "decision based on no evidence", it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."

10. The Hon'ble Supreme Court in Vijay Kumar Talwar Vs.

Commissioner of Income Tax, Delhi reported in

MANU/SC/1027/2010;[(2011) 1 SCC 673] held that:

"A finding of fact may give rise to a substantial question of law, inter alia, in the event the findings are based on no evidence and/or while arriving at the said finding, relevant evidence has not been taken into consideration or inadmissible evidence has been taken into consideration or legal principles have not been applied in appreciating the evidence, or when the evidence has been misread."

11. In the present case the findings are based upon

appreciation of evidence on record. There is no

perversity or unreasonableness in the said finding. It

need not require to restate the reasoning given by

Appellate Court which are all well discussed. The first

Appellate Court is a final fact finding authority and in

absence of demonstrated perversity in its finding,

interference by this Court is not warranted.

12. Consequently, this Court does not find any Patna High Court SA No.322 of 2018 dt.17-08-2022

substantial question of law arising in this appeal for

consideration, which is, accordingly, dismissed.

(Sunil Dutta Mishra, J) kamlesh/-

AFR/NAFR                NAFR
CAV DATE                07.07.2022
Uploading Date          22.08.2022
Transmission Date       NA