Patna High Court
Sabir Ali Khan And Ors vs Anwari Begam on 26 May, 2025
Author: Khatim Reza
Bench: Khatim Reza
IN THE HIGH COURT OF JUDICATURE AT PATNA
SECOND APPEAL No.283 of 2015
======================================================
1. Sabir Ali Khan
2. Haidar Ali Khan
3. Ashraf Ali Khan
Nos. 1 to 3 sons of Late Indal Khan
4. Zinat Khatoon wife of Qamruz Zama Khan @ Kamru Zama, D/o Late Indal
Khan
All resident of Village Madhubani Tola Dariyapur, P.O. Dariyapur, P.S.
Sangrampur, District East Champaran.
5. Aziza Khatoon wife of Hasnain Khan @ Hussnain Khan, D/o Late Indal
Khan resident of Village Pandari, P.O. Jamua, Via Dhaka, P.S. Dhaka,
District- East Champaran.
6. Saifullah Khan
7. Md. Abdullah Khan
8. Zakaullah Khan
9. Nabiullah Khan
10. Hamidullah Khan
Nos. 6 to 10 sons of Late Ziaullah Khan, resident of Mohalla- Chhawani,
P.O. and P.S. Bettiah, District- West Champaran.
11. Shabina Khatoon @ Sakina Khatoon @ Sabina Khatoon D/o Late Ziaullah
Khan, resident of Mohalla Chawani, P.O. and P.S. Bettiah, District- West
Champaran.
12. Firoza Khatoon Wife of Ainul Haque Khan, D/o Late Ziaullah Khan,
resident of Village Kotwa, P.O. Manguraha, P.S. Paharpur, District East
Champaran.
13. Aayesha Khatoon wife of Wadood , D/o Late Indal Khan
14. Juhi Khatoon wife of Anzar Khan @ Izahar Khan, D/o Late Indal Khan Both
resident of Qasba Bettiah Mohalla- Kalibagh, P.O. Kalibagh, P.S. Town
Bettiah, District West Champaran.
15. Mohiuddin Khan son of Late Sandal Khan
16. Samiuddin Khan son of Late Sandal Khan
17. Liyaquat Khan @ Liyakat Ali Khan son of Late Indal Khan
18. Shama Khatoon D/o Late Sandal Khan
19. Salma Khatoon S/o Late Sandal Khan
20. Bibi Khatoon D/o Late Sandal Khan
21. Faizuddin Khan S/o Late Sandal Khan
22. Raquibuddin Khan S/o Late Sandal Khan All resident of Village Madhubani,
Tola-Dariyapur, P.O.-Dariyapur, P.S. Sangrampur, District- East Champaran.
... ... Appellant/s
Versus
1.1. Mohmood Sani son of Late Md. Quasim Khan x
1.2. Mahboob Rabbani Khan son of Late Quasim Khan (as son) x
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1.3. Maqsood Sani son of late Md. Quasim Khan (as son), x
1.4. Aamir Subhani, son of Late Mahboob Subhani Khan (as grandson), x
1.5. Aamir Usmani S/o Late Mahmood Sani (Grandson) x
1.6. Sayam Mahmood Khan son of Mahmood Sani (as grandson), x
1.7. Sarim Mahmud Khan son of Mahmud Sani (as granson), x
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Shabbir Ahmad, Adv.
For the Respondent/s : Mr. Vinod Kr. Singh, Adv. With
Mr. Asit Kumar Jha, Adv.
======================================================
CORAM: HONOURABLE MR. JUSTICE KHATIM REZA
CAV JUDGMENT
Date : 26-05-2025
Heard Mr. Shabbir Ahmad, learned counsel for the
appellants and Mr. Vinod Kr. Singh, learned counsel assisted by
Mr. Asit Kumar Jha, learned counsel for the respondents.
2. This Second Appeal has been filed against the
judgment of reversal dated 10.06.2015 passed in Title Appeal No.
62 of 2012 by the learned Additional District Judge-VI, Motihari,
East Champaran whereby the learned Appellate Court set aside the
judgment and decree dated 25.09.2012 passed in Title Suit No. 313
of 1994 by the learned Munsif Sadar, Motihari and decreed the
suit.
3. In the present Second Appeal, the following
substantial questions of law have been framed for determination:-
(I). Whether it was incumbent upon the Trial Court to
have framed the issue in respect of date/year of the death of said
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Kaniza Khatoon and non-framing of the issue materially
prejudiced the case of the parties?
(II). Whether the findings recorded by the first Appellate
Court decreeing the suit in favour of the plaintiff/respondents is
perverse in the absence of any finding with reasons in respect of
date/year of the death of said Kaniza Khatoon?
4. The defendants are appellants in the instant Second
Appeal. The plaintiff/respondents filed Title Suit No. 313 of 1994
for declaration of title and confirmation of possession over the suit
land and for permanent injunction.
5. The plaintiff had filed the Title Suit No. 313 of 1994
with respect to the suit land situated in Mauza-Madhubani, Tola-
Dariyapur, Thana No. 176, Anchal- Areraj, Dist.-East Champaran
bearing Khata No. 1072, Plot No. 9211 Area 5 katha 7 dhur for
declaration of her title and confirmation of her possession over the
suit land and for restraining the defendants to enter on the said
land.
6. The case of the plaintiff, is that one Ismail Khan had
five sons, namely, Rahmatullahh Khan, Karamtullahh Khan, Md.
Taqi Khan, Khurshid Khan and Imam Khan. Rahmatullahh Khan
had one son, namely, Shibgatullah Khan and three daughters,
namely, Ummul Khatoon, Monazirun and Umeman Khatoon. Wife
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of Karamtullah Khan was Bibi Kaniza Khatoon and he had two
sons, namely, Mazharuddin Khan and Zafir Khan. The said
Mazharuddin Khan died leaving behind a widow Monazirun. Taqi
Khan died issueless soon after survey. The land in suit was under
cultivating possession of bataidar, namely, Sadakat Khan and his
name was entered as sikmidar in the Khatiyan published on
02.04.1917
. During survey operation on 03.02.1916, Karamtullah
Khan mortgaged the said land to Babar Ali Khan for a loan of Rs.
34/- and the said fact is noted in the Khatiyan and later on
05.12.1918 said Karamtullah returned the said amount to Babar
Ali Khan and got back his land. After the survey, the said Sadakat
Khan left the cultivation as bataidar and the said land came in
cultivating possession of the Khatiyani Raiyats. Taqi Khan died 3-
4 years after the survey and other four brothers partitioned the said
land orally.
7. It is further case of the plaintiff that Rahmatullah
Khan and Khurshid Khan orally sold their 1 bigha land to Bibi
Kaniza Khatoon wife of Karamtullah Khan on consideration
amount of Rs. 95/- and also put her in possession of the same and
in proof of the same executed a deed on the stamp paper with
respect to their lands which were in separate possession of the
vendors and since Kaniza Khatoon was a member of the same
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family, both the vendors executed a single deed by both the
vendors and Kaniza Khatoon also consented to it. Both the
vendors received their half-half share of the consideration amount.
The said Kaniza Khatoon died in the year 1933 and her husband
died one year prior to her death. After the death of Kaniza Khatoon
her two sons, namely, Mazharuddin Khan and Zafir Khan came in
possession over the suit land and partitioned the suit land as such 2
katha 13 ½ dhur from south fell in the share of Zafir Khan. It is
further pleaded that Mazaruddin Khan executed Bai Moquasa deed
in respect of 16 katha 2 dhur land including 2 katha 14 dhur of the
disputed Plot No. 9211 in favour of his wife in lieu of dower debt.
Thereafter, Monazirun came in possession over the land
transferred in her favour. She sold 6 katha 13 dhur of land of Plot
No. 9094 out of transferred land in favour of Zamirullah Khan on
08.01.1974 and put him in possession. Zamirullah Khan later on
sold 3 katha out of the said purchased land to Najma Khatoon wife
of Anisuzzama Khan through sale deed dated 11.10.1983 with
respect to 2 katha 13 ½ dhur from southern side of disputed Plot
No. 9211. A sale deed was executed by Zafir Khan on 03.03.1967
in favour of Qasim Khan and for the remaining 2 katha 13 ½ dhur
a sale deed was executed by Monazirun on 17.03.1967 in faovur of
said Qasim Khan, thereafter, the said Qasim Khan came in
Patna High Court SA No.283 of 2015 dt.26-05-2025
possession of the entire disputed Plot No. 9211. On 25.09.1980 the
said Qasim Khan transferred 5 katha 7 dhur of Plot No. 9211 in
favour of his wife Anwari Begum through Bai Moquasa in lieu of
dower debt and since then the plaintiff is coming in peaceful
possession over the same and has full right, title and interest in the
suit property. Jamabandi No. 1903 was also created in the name of
plaintiff with respect to the suit land. It is further case of the
plaintiff that defendant nos. 3 and 4 initiated a proceeding under
Section 144 Cr.P.C. vide Case No. 396/M/1994 wherein Qasim
Khan was made first party and Faizuddin Khan was the second
party. The S.D.M., Areraj passed an order against the said Qasim
Khan. However, the plaintiff was not a party in the said
proceedings and in the said proceeding the defendant nos. 3 and 4
filed a sale deed in favour of defendant nos. 1 and 2 which is
illegal. However, the plaintiff remained in possession over the suit
land despite the order of S.D.M., Areraj. It is further contended
that the Ceiling Case No. 31 of 1973-74 was also initiated against
Qasim Khan with respect to the said land and the gazette
publication was made in favour of Qasim Khan on 14.07.1982
much after execution of Bai Moquasa deed in favour of the
plaintiff. A Certificate Case No. 4/15 O.D.62-63 was also initiated
against the father of the said Qasim Khan for the default in
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payment of loan amount taken by him by Oriental Bank and after
the death of his father Qasim Khan was made party in the said case
and the suit land was also under subject in the said certificate case.
It is further contended that after the order passed in proceeding
under Section 144 Cr.P.C., the defendant started attempts to take
possession over the suit land and on 27.11.1994, the defendants
threatened the plaintiff to dispossess forcefully and hence, the
plaintiff filed an instant suit for declaration of her title and
possession over the suit land.
8. On summons, the defendants appeared and filed their
written statement and denied the assertion of the plaintiff pleaded
in the plaint and contested the suit denying the claim of the
plaintiff. It is contended that the plaintiff has not given the full
genealogy and it is false to say that Taqi Khan died issueless and
without any heirs. In fact, Taqi Khan died leaving behind his four
brothers whereas Karamtullah Khan died in the year 1925 and his
wife Bibi Kaniza Khatoon died in the year 1926. Imam Khan died
in the year 1948 leaving behind his heirs as three sons, namely,
Mahiuddin Khan, Amin Khan and Kadir Khan and one daughter
Akbari Begum. Khurshid Alam Khan died in the year 1993 and his
wife died in the year 1985-86. The defendants have admitted that
the Khatiyan of Khata No. 1072 was prepared in the name of
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Rahmatullah Khan, Karamtullah Khan, Imam Khan and Taqi Khan
respectively and area of disputed Plot No. 9211 is 5 katha 7 dhur
and also after the death of Taqi Khan his property was partitioned
amongst his four brothers. The defendants have denied that
Rahmatullah Khan and Khurshid Khan had orally sold 1 bigha
land in favour of Bibi Kaniza Khatoon for a consideration amount
of Rs. 95/- on 01.07.1930 and put her in possession of the same.
Bibi Kaniza Khatoon was never in possession of the said land and
it is wrong to say that half of the consideration amount was taken
by both of them. It is further pleaded that Rahmatullah Khan and
Karamtullah Khan had separate possession over their respective
land and there was no occasion for them to execute the said forged
deed dated 01.07.1930. It is further contended that the plaintiff has
knowingly not mentioned the same even in her plaint. The
defendants have asserted that the said deed dated 01.07.1930 is
forged and fabricated document. The said Kaniza Khatoon died in
the year 1926. The land bearing Plot No. 9187 area 4 katha 6 dhur
was in the share of Karamtullah Khan and out of the said land 3
Katha 3 dhur land from southern side was transferred by
Mazharuddin Khan in favour of his wife Monazirun in the year
1952 and rest 1 katha 3 dhur from northern side was of Zafir Khan
and Zafir Khan had sold to Shafi Ahmad Khan on 31.05.1958. The
Patna High Court SA No.283 of 2015 dt.26-05-2025
Plot No. 9094 area 1 bigha 15 katha 19 dhur and adjacent to south
east of the said Plot No. 9211 area 2 katha 8 dhur total 1 bigha 18
Katha 7 dhur was the total property in common with four brothers
of Taqi Khan and the same was partitioned between them. Each of
them have been allotted with different boundaries. It is contended
that the successor of Imam Khan sold their share of land to Bibi
Soghra Khatoon on 12.08.1952 and put her in possession,
thereafter, Mazharuddin Khan transferred 6 katha 13 dhur land of
the share of Imam Khan of Plot No. 9094 to his wife Bibi
Monazirun but she never came in possession over the same and
later on the successor of Rahamtulla Khan, Karamtullah Khan,
Bibi Soghra Khatoon and Khurshid Khan orally exchanged their
respective plots. After the said oral exchange, the share of Imam
Khan went into the possession of the successor of Karamtullah
Khan, the share of Khurshid Khan went in the possession of
Shibgatullah Khan son of Rahmatullah Khan. The share of
Rahmatullah Khan to Khurshid Alam Khan and share of
Karamtullah to Bibi Soghra Khatton and thereafter, they continued
in possession with the said oral exchange. Therefore, the Plot No.
9094 Area 10 katha 7 dhur mentioned in the plaintiff's deed dated
01.07.1930 was neither the share of Rahmatullah Khan and
Khurshid Khan nor they orally sold the said land to Kaniza
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Khatoon and as such she never got possession of the same. It is
further pleaded by the defendants that Bibi Ummul Khatoon and
Nasima Khatoon came and continued in possession over the entire
disputed Plot No. 9211 on the basis of sale deed dated 22.06.1963
and on the basis of share in the property of Rahmatullah Khan as
his daughters. So far Jamabandi No. 1903 is concerned, it has been
created from Jamabandi No. 512 which was in the name of
Shibgatullah Khan and the plaintiff never got any property from
the said Shibgatullah Khan. The sale deed in the name of
defendant nos. 1 and 2 is genuine and correct and plaintiff or her
husband or Kaniza Khatoon and her sons never came in possession
over the suit land and therefore, the plaintiff's claim is false and
baseless.
9. The learned Trial Court after considering the
pleadings, evidence adduced by the parties and materials on record
dismissed the suit on contest.
10. Being aggrieved by the judgment and decree dated
25.09.2012 passed in Title Suit No. 313 of 1994 by the learned
Munsif-Sadar, East Champaran, Motihari. The plaintiff/appellant
preferred Title Appeal No. 62 of 2012. The learned Appellate
Court after considering the pleadings of the parties and grounds of
appeal has framed the points for determination. After hearing the
Patna High Court SA No.283 of 2015 dt.26-05-2025
parties and considering the materials on record, the Additional
District Judge-VI, Motihari, East Champaran reversed the
judgment and decree of the Trial Court and allowed the appeal and
decreed the suit of the plaintiff/respondents and against the
aforesaid judgment and decree dated 10.06.2015 passed in Title
Appeal No. 62 of 2012 by the Additional District Judge-VI,
Motihari, the present Second Appeal has been filed by the
defendants/appellants.
11. Learned counsel for the appellants submits that
learned lower Appellate Court has not properly considered the
evidences of the parties and therefore, the findings are vitiated. It
is further submitted that the lower Appellate Court wrongly
disbelieved the witnesses on the point of time and date of death of
Kaniza Khatoon. There is specific case of the defendants that said
Kaniza Khatton had died in the year 1926 after one year of death
of Karamtullah Khan (husband of Kaniza Khatoon). The story of
oral sale with regard to 1 bigha land in favour of Bibi Kaniza
Khatoon for a consideration of Rs. 95/- reduced in writing on
stamp paper on 01.07.1930 is forged and fabricated. In fact the
Plot No. 9187 Area 4 katha 6 dhur was in the share of Karamtullah
Khan wife of Kaniza Khatoon and out of the said land 3 katha 3
dhur land from southern side was transferred by Mazharuddin
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Khan in faovur of his wife Monazirun in the year 1952 and rest 1
katha 3 dhur from northern side was of Zafir Khan and Zafir Khan
had sold the same to Shafi Ahmed Khan on 31.05.1958. The Plot
No. 9094 Area 1 bigha 15 katha 19 dhur and adjacent south-east of
the same Plot No. 9211 Area 2 Katha 8 dhur i.e. 1 bigha 18 katha 7
dhur was total property in common to the four brothers of Taqi
Khan and the same was partitioned between them in the manner
given in the written statement of the contesting defendants. The
successor Imam Khan sold his share of land to Soghra Khatoon on
12.08.1952 and put her in possession. Thereafter, Mazharuddin
Khan transferred 6 katha 13 dhur land of the share of Imam Khan
of Plot No. 9094 to his wife Bibi Monazirun but she never came in
possession over the said land. Later on, the successor of
Rahmatullah Khan, Karamtullah Khan, Bibi Soghra and Khurshid
Khan orally exchanged their respective plots. After the said oral
exchange the share of Imam Khan went into the possession of
successor of Karamtullah Khan. The share of Khurshid Khan went
into possession of Shibgatullah Khan son of Rahmatullah Khan.
The share of Rahmatullah Khan to Khurshid Ahmed Khan and
share of Karamtullah to Bibi Soghra. Thereafter, they continued in
possession in accordance with the said oral exchange. It is
apparent from the case of the defendants that Plot No. 9047 Area
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10 katha 7 dhur mentioned in plaintiff's unregistered deed dated
1.07.1930 was not the share of Rahmatullah Khan and Khurshid
Khan nor they orally transferred the said land to Kaniza Khatoon.
Learned counsel for the appellants submits that there was partition
prior to oral sale dated 01.07.1930 and Rahmatullah Khan and
Khurshid Khan had separate land in their share.
12. It is further submitted that learned lower Appellate
Court has completely failed to appreciate and elaborate a
reasonable finding of the Trial Court without considering the
evidences of the defendants. The plaintiff have not proved the date
of death of Kaniza Kahtoon. The plaintiff doesn't have any title
over the suit land. Moreover, one of the vendor of Kaniza
Khatoon, namely, Khurshid Alam Khan had transferred the land in
the year 1963 in the favour of Ummul Khatoon and Nasima
Khatoon and eastern part of the disputed plot was allotted to
Rahmatullah Khan after the death of Rahmatullah Khan both the
parties, namely, Ummul Khatoon and Nasima Khatoon came in
possession over the said land. It is also submitted that the learned
lower Appellate Court without any reasonable ground believed
Exhibit-3 filed by the plaintiff and wrongly discarded the
defendants' document. The entire claim of the plaintiff is based on
oral sale dated 01.07.1930 and both the lower courts did not frame
Patna High Court SA No.283 of 2015 dt.26-05-2025
the issue with regard to date of death of Kaniza Khatoon, since
Kaniza Khatoon died much before execution of unregistered sale
deed dated 01.07.1930. Kaniza Khatoon died in the year 1926, this
fact has been supported by the witnesses of the defendants, which
has not been considered by the learned lower Appellate Court.
Kaniza Khatoon had no right, title and interest over 1 bigha land of
Plot No. 9211, therefore, her predecessor in interest had no right
and title over the same.
13. On the other hand, learned counsel for the
plaintiff/respondents submits that there is admitted case of the
parties that the Khatiyan Exhibit-12 of Khata No. 1072 was
prepared in the name of Rahamtulla Khan, Karamtullah Khan,
Imam Khan, Khurshid Khan and Taqi Khan all sons of Ismail
Khan and area of disputed Plot No. 9211 is 5 katha 7 dhur and also
that after the death of one of the brother, namely, Taqi Khan, who
died issueless, the ancestral property of Ismail Khan was
partitioned between his brothers before the death of Ismail Khan.
However, the appellants are at a dispute with respect to the manner
of partition. It is submitted that husband of Kaniza Khatoon was
full brother of Rahamtulla Khan, Imam Khan, Khurshid Khan and
Taqi Khan. The said Rahamtulla Khan and Khurshid Ahmed Khan
orally sold the suit land along with other land having total area 1
Patna High Court SA No.283 of 2015 dt.26-05-2025
bigha land to Bibi Kaniza Khatoon for a consideration of Rs. 95/-
and also executed unregistered sale deed and put Kaniza Khatoon
in possession of the suit land Exhibit-3. The said Kaniza Khatoon
died in the year 1933, thereafter, her two sons, namely,
Mazharuddin Khan and Zafir Khan came in possession over the
suit land as well as other land left by her. Both the brothers have a
share of half and half in the suit land. Mazharuddin Khan
transferred 16 katha 2 dhur land including 2 katha 14 dhur of
disputed Plot No. 9211 in favour of his wife Monazirun by way of
Bai Moquasa deed dated 14.11.1952 (Exhibit-4), who, in turn, sold
the said land to Qasim Khan vide deed dated 17.03.1967 (Exhibit-
7). Zafir Khan sold his share of 2 katha 13 ½ dhur of Plot No.
9211 in faovur of Qasim Khan (Exhibit-7A). In this way Qasim
Khan came in possession over the entire land 5 katha 7 dhur which
is the suit land. The said Qasim Khan executed registered Bai
Moquasa deed in favour of his wife Bibi Anwari Begum (plaintiff).
The plaintiff, thereafter, came in peaceful possession over the
same. It is apparent from the record that the property in suit was in
possession of Karamtullah Khan and it was mortgaged to one
Babar Ali Khan on 03.02.1942 on consideration amount of Rs.
34/- only and it was redeemed by the mortgagor on 05.12.1918. It
is further submitted that genuineness of both the deeds Exhibit 2 &
Patna High Court SA No.283 of 2015 dt.26-05-2025
3 is that the unregistered sale deed dated 01.07.1930 is duly signed
by Khurshid Khan and Rahmatullah Khan. The deed writer of both
the deeds i.e. unregistered sale deed dated 01.07.1930 and
mortgage deed dated 03.02.1916 is one and same person namely,
Saiyad Pir Bakash. PW-15 is handwriting expert. Both the deeds
are in the writing of deed writer Saiyad Pir Bakash. The
genuineness of Exhibit-6 was never challenged in court below
while it is admitted fact that deed writer of Exhibit 2 & 3 is the
same person, namely, Saiyad Pir Bakash.
14. On the point of date of death of Kaniza Khatoon,
several witnesses have been examined by the plaintiff as well as
the defendants. PW-1, namely, Zamirullah Khan, who is grandson
of Karamtullah Khan and Bibi Kaniza Khatoon in his
examination-in-chief has specifically stated in paragraph no. 3 of
the deposition that her grandmother died in the year 1933 and prior
to one year of his death his grandfather died and on this issue i.e.
date/year of death of Kaniza Khatoon, he was not cross-examined
by the defendants/appellants. PW-8, namely, Shaukat Ali Khan,
aged approx 90 years, nephew of Kaniza Khatoon at the time of
examination has specifically stated that he has seen Rahmatullah
Khan, Khurshid Khan and Kaniza Khatoon. There is specific
averment that Kaniza Khatoon died in the year 1933 in presence of
Patna High Court SA No.283 of 2015 dt.26-05-2025
him and her husband died one year earlier before her death. This
witnesses was also not cross-examined by the
defendants/appellants. So far witnesses of defendants on the point
of date of death of Kaniza Khatton is concerned, they have not
stated about the date of death of Kaniza Khatoon. DW-2, namely,
Qamru Zama Khan aged about 70 years at the time of his
deposition in his examination-in-chief, has not given any evidence
with regard to the date/year of death of Kaniza Khatoon. Likewise,
DW-15 Faizuddin aged about 55 years is son of Sandal Khan. DW-
16 Nasima Khatoon aged about 80 years is the wife of Sandal
Khan, who are party in the present case. They also in their
examination-in-chief have not adduced any evidence on the point
of date/year of death of Kaniza Khatoon. It is further submitted
that on the point of date/year of death of Kaniza Khatoon, though,
no issue was framed by the lower courts, yet it is clear on the basis
of evidence produced by the parties that parties were well familiar
with the existence of the said issues. It is submitted that under the
facts and circumstances, neither prejudice was caused nor the
proceedings were vitiated. In this regard, reliance has been placed
in the case of Nedunuri Kameswaramma vs. Sampati Subba Rao
reported in AIR 1963 SC 884, wherein, the Hon'ble Apex Court
has held as under:-
Patna High Court SA No.283 of 2015 dt.26-05-2025
"No doubt, no issue was framed, and the one,
which was framed, could have been more
elaborate; but since the parties went to trial
fully knowing the rival case and led all the
evidence not only in support of their
contentions but in refutation of those of the
other side, it cannot be said that the absence of
an issue was fatal to the case, or that there
was that mistrial which vitiates proceedings.
We are, therefore, of opinion that the suit could
not be dismissed on this narrow ground, and
also that there is no need for a remit, as the
evidence which has been led in the case is
sufficient to reach the right conclusion.
Neither party claimed before us that it had any
further evidence to offer. We, therefore,
proceed to consider the central point in the
case, to which we have amply referred
already."
15. It is submitted that "non-framing of issue is not fatal
to the proceedings when the party went to the trial and led all the
evidences." Reliance has also been placed in paragraph 17 in the
case of Baini Prasad (Dead) Through Legal Representatives Vs.
Durga Devi reported in 2023 (6) SCC 708 and in another decision
of the Apex Court in the case of Beereddy Dasaratha Rami Reddy
Vs. Manjunath & anr. reported in AIR 2022 SC 65, wherein, the
Patna High Court SA No.283 of 2015 dt.26-05-2025
Apex Court in paragraph 11 has held that "mere omissions to
frame issued doesn't vitiate trial."
16. It is submitted that when the parties went to trial
fully knowing the rival case and led all the evidences, it cannot be
said that the absence of an issue will vitiate proceedings.
Moreover, the defendants/appellants never challenged Exhibits 4,
7, 7A and 6, which are registered documents. Neither evidence
was led by the appellants on the issue of death of Kaniza Khatoon
nor any cross-examination of PWs 1 & 8 was made by the
defendants/appellants as these witnesses have especially
mentioned in their deposition about the year of death of Kaniza
Khatoon.
17. Learned counsel for the respondents vehemently
submits that Bibi Ummul Khatoon was not examined and the
appellants did not produce any document which may show they
were dealing the suit land in any manner which may show that
they have possession over the suit land. The present appeal is
devoid of merit and have no substantial question of law involved
and is fit to be dismissed.
18. On analyzing the materials on record as well as
impugned judgments, it is admitted fact that the defendants and
husband of Kaniza Khatoon, namely, Karamtullah Khan are
Patna High Court SA No.283 of 2015 dt.26-05-2025
descendants of Ismail Khan. Karamtullah Khan, Rahmatullah
Khan, Khurshid Khan, Md. Taqi Khan and Imam Khan were full
brothers. Karamtullah Khan is the husband of Kaniza Khatoon.
Qasim Khan, husband of the plaintiff, was predecessor in interest
of Kaniza Khatoon. Qasim Khan purchased 5 katha 7 dhur of Plot
No. 9211 through registered sale deed dated 17.03.1967 (Exhibit-
7) and through Exhibit-7A registered sale deed dated 03.03.1967,
Zafir Khan sold the land in favour of Qasim Khan. Exhibit-4 Bai
Moquasa dated 14.11.1952 is in favour of Monazirun Nisa by her
husband, who in turn, executed (Exhibit-7B) sale deed in favour of
Md. Qasim Khan. All the three deeds were neither challenged
before any competent Civil Court nor any counter claim was filed
in the present suit by the defendants. There is specific pleadings by
the plaintiff with regard to year of death of Kaniza Khatoon and in
support of her pleading PW-1 and PW-8 have proved the pleadings
with regard to year of death of Kaniza Khatoon. Both the
witnesses are close relatives of Bibi Kaniza Khatoon, who clearly
and specifically stated in their evidence that Kaniza Khatoon died
in the year 1933. These witnesses were not cross-examined by the
appellants. Further, DW-16, namely, Nasima Khatoon, aged about
80 years and DW-15, Faizuddin Khan, aged about 55 years, who
were party in the present case but they also in their examination-
Patna High Court SA No.283 of 2015 dt.26-05-2025
in-chief have not adduced any evidence on the point of date/year
of death of Kaniza Khatoon. The aforesaid evidence produced by
the parties shows that the defendants have not disputed the date of
death of Kaniza Khatoon. Therefore, both the courts, in the given
circumstances, did not consider the date of death of Kaniza
Khatoon as a central point in the present case. The Hon'ble Apex
Court in the case of Beereddy Dasaratha Rami Reddy Vs.
Manjunath (supra), has held that mere omission to frame issue
doesn't vitiate the trial. The Hon'ble Apex Court has held that
"omission to frame an issue as required under Order XIV Rule 1
of the Code of Civil Procedure, 1908 doesn't vitiate the trial where
the parties go to trial fully knowing the rival case and led evidence
in support of their respective contentions to refute contentions of
the other side."
19. The substantial questions of law framed by this
Court is purely on facts and the facts could not be made a
substantial question of law. The Trial Court on evidence and the
pleadings of the parties has considered the case of the parties and
did not find any material adverse against the plaintiff.
20. Considering all the aforesaid circumstances, I do not
find any flaw, legal error, perversity or patent illegality in the
Patna High Court SA No.283 of 2015 dt.26-05-2025
findings of Appellate Court. The substantial questions of law as
framed doesn't arise in the present case.
21. In view of the above discussions and findings, the
judgment and decree of the Appellate Court is affirmed.
22. Accordingly, this Second Appeal stands dismissed.
23. There shall be no order as to costs.
24. Pending interlocutory application(s), if any, shall
stand disposed of.
(Khatim Reza, J)
prabhat/-
AFR/NAFR AFR
CAV DATE 18.02.2025
Uploading Date 26.05.2025
Transmission Date N/A
