Patna High Court
Most. Panchola @ Parmila Devi vs Sri Krishna Kumar on 6 August, 2024
Author: Sunil Dutta Mishra
Bench: Sunil Dutta Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
SECOND APPEAL No.172 of 2019
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Most. Panchola @ Parmila Devi wife of Late Vinay Prasad, resident of
Mohallah- Bakarganj, Bajaja Gali, Police Station- Pirbahore, Post office-
Bankipur, District- Patna.
... ... Appellant/s
Versus
Sri Krishna Kumar son of Sri Munna Sao, resident of Mohallah- Bakarganj
Gola Road, Police Station Pirbahore, Post office- Bankipur, District- Patna.
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Rajendra Prasad Singh, Advocate
For the Respondent/s : Md. Jubair Ansari, Advocate
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CORAM: HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA
C.A.V. JUDGMENT
Date : 06-08-2024
Heard learned counsel for the appellant under Order 41
Rule 11 of the Code of Civil Procedure.
2. The defendant, who is appellant herein, has filed this
Second Appeal under Section 100 of the Code of Civil
Procedure against the judgment and decree dated 11.03.2019
passed by learned Additional District Judge VI, Patna in Title
Appeal No.18 of 2006 whereby the learned appellate court has
affirmed the judgment and decree dated 03.01.2006 passed by
Munsif IIIrd, Patna in Title Suit No.51 of 1999.
3. The brief facts of this case is that the suit property was
purchased by Smt. Ganga Devi through registered sale deed
Patna High Court SA No.172 of 2019 dt.06-08-2024
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who sold the same to the plaintiff by registered sale deed dated
01.11.1998
. The plaintiff filed the suit being Title Suit No.51 of
1999 for declaration of title and recovery of possession against
the defendant (daughter-in-law of Smt. Ganga Devi) by evicting
her from the suit property claiming that she was in permissive
possession over the same. In written statement, the defendant
claimed that the suit property was not under the exclusive
possession of Ganga Devi as the same was purchased out of
joint family fund by her husband in her name. The defendant
has been in possession over the suit property in her own right as
co-sharer. It is further claimed that on reference made by joint
family members to the panches/arbitrators for partition of the
suit property on 27.05.1988 who passed the award on the same
day wherein the defendant was allotted the suit property in her
share.
4. The learned trial court vide judgment dated 03.01.2006
held that the award in question was forged and fabricated
document and no right in the suit property could be claimed by
the defendant on that basis. The suit was, accordingly, decreed.
5. Earlier in first appeal, the appellate court reversed the
finding of the trial court, allowed the appeal and set aside the
judgment and decree of the trial court against which Second
Patna High Court SA No.172 of 2019 dt.06-08-2024
Appeal has been preferred by the respondent before this Court.
6. In the said earlier Second Appeal being Second Appeal
No.242 of 2009 this court had formulated the substantial
questions of law, heard the parties and after considering the rival
submissions on behalf of parties the said Second Appeal was
allowed and impugned judgment and decree of appellate court
below was set aside and the matter was remitted back to the
appellate court for decision afresh on the basis of material on
record.
7. It has been observed to the effect that :
(i) The principle of law is no more res-integra that
the property standing in the name of a person shall be
presumed to be his/her exclusive property until the
contrary is established. This principle is based upon
the celebrated doctrine that the apparent state of
affairs would be accepted to be the real state of
affairs until the contrary is established.
(ii) It is evident that the sale deed in the name of
Ganga Devi for the suit property and its subsequent
transfer by her to the plaintiff through sale deed have
not been denied, and in fact the real contest is not
over the title of Ganga Devi but the acquisition of
title by defendant over the suit property as a co-
sharer of Ganga Devi on the strength of award.
(iii) It was the defendant who has come out with the
case of award as the basis of her title over the suit
property. The said award has admittedly been not
made the rule of court nor has been registered.
(iv) The conclusion that the trial court had no
jurisdiction to go into the genuineness of award as it
was not challenged as required by the Arbitration Act
Patna High Court SA No.172 of 2019 dt.06-08-2024
is not legally sustainable in the facts of the present
case. The appellate court was required to reconsider
the said finding of the trial court upon the basis of
appraisal of evidence.
(v) As the genuineness of the award is the fulcrum of
the claim of the defendant in the suit property and the
appellate court has not at all touched the finding of
fact as recorded by the trial court holding that the
award to be forged and fabricated document.
8. On remitted back to the appellate court below the
matter was heard and vide impugned judgment dated 11.03.2019
the learned first appellate court dismissed the title appeal and
the judgment and decree passed by the trial court was affirmed.
Hence, being aggrieved by the same, the appellant/defendant
has preferred this Second Appeal.
9. Learned counsel for the appellant has submitted that
the learned trial court as well as the learned appellate court
failed to appreciate that the suit filed by the plaintiff/respondent
for declaration of title and recovery of possession against the
defendant/appellant in the garb of eviction suit is not
maintainable under B.B.C. Act wherein the eviction suit can
only be filed by the landlord on any of the grounds specifically
provided in Section 11 therein. It is further submitted that both
the courts below have failed to decide the matter of relationship
of landlord and tenant by framing the issue as main issue for
obtaining the decree of eviction. Learned counsel has further
Patna High Court SA No.172 of 2019 dt.06-08-2024
submitted that this court had set aside the judgment and decree
dated 21.04.2009 passed by the appellate court on the point of
validity of panchnama and remanded back the matter to the
appellate court for giving fresh decision on the basis of material
on record and after hearing the parties. The issues such as
relationship of landlord and tenant, court fee and the point that
Ganga Devi as necessary party to the suit have neither been
involved as substantial question in Second Appeal No.242 of
2009 nor the findings on the same have been set aside.
10. Learned counsel for the appellant has further
submitted that the appellate court erred in holding that the
defendant has failed to prove her case which is against the law
as the onus is on the plaintiff to plead and prove his case.
Learned counsel further submits that both the courts below
failed to consider the pleadings as well as evidence on record on
the issue whether Ganga Devi had any fund or personal income
by which the suit holding had been purchased by herself as her
self acquired property. He has lastly submitted that there are
substantial questions of law arise in this Second Appeal.
Accordingly, this appeal may be admitted for hearing.
11. Having heard learned counsel for the appellant and
on perusal of the judgment of both courts below i.e. trial court
Patna High Court SA No.172 of 2019 dt.06-08-2024
and first appellate court, it appears that both courts have held
that the plaintiff is absolute owner of the suit premises and has
got title and defendant's possession thereof is merely permissive
out of grace and sympathy and she has no right, title and
interest. The trial court held that the plaintiff has brought the
instant suit against the defendant because she is residing in the
suit premises, except defendant no other third person is required
to be evicted from the suit premises. Ganga Devi, the vendor of
plaintiff, is not a necessary party and suit is not bad for non-
joinder of Smt. Ganga Devi which has been reaffirmed in the
appeal. It is also held that the alleged award is a forged and
fabricated document and have no force in law. The appellate
court also held that the panchnama is doubtful document
regarding signature of panches and date.
12. In the present case, admittedly the
plaintiff/respondent filed Title (Eviction) Suit for declaration of
title along with eviction of appellant/defendant and it cannot be
said that the suit is purely eviction suit under B.B.C. Act which
governs the relationship of landlord and tenant. Indisputably, the
issue as regards title over a property can be decided by a Civil
Court in a regular suit.
13. The court cannot entertain a Second Appeal unless a
Patna High Court SA No.172 of 2019 dt.06-08-2024
substantial question of law is involved. The expression
"substantial question of law" has acquired definite connotation
through various judicial pronouncement.
14. Both the courts below on scrutiny of the pleading and
evidence have come to hold that plaintiff has established his title
over the suit property and defendant's possession on the suit
property is merely permissible having no right, title and interest.
This is the finding of facts which is not required to be re-
appreciated in this Second Appeal.
15. There is concurrent finding of fact stated above by
the courts below and no perversity in the findings of the courts
below could be established on behalf of the defendant/appellant.
A concurrent finding of fact based on evidence cannot be
disturbed in an appeal under Section 100 of the Civil Procedure
Code on the ground that other view is also possible on the basis
of same set of evidence. It is not the case of the appellant that
findings of the courts below are contrary to the evidence
available on record or without any evidence on record.
16. As such, there is no substantial question of law
arising for consideration in this Second Appeal, which is
accordingly, dismissed at the admission stage itself.
Patna High Court SA No.172 of 2019 dt.06-08-2024
17. The interlocutory application, if any, stands
closed/disposed of.
(Sunil Dutta Mishra, J)
Harish/-
AFR/NAFR NAFR
CAV DATE 28.06.2024
Uploading Date 06.08.2024
Transmission Date
