[Cites 18, Cited by 0]
Patna High Court
Gango Kuar vs Asharfi Mishra on 6 January, 2026
Author: Anshuman
Bench: Anshuman
IN THE HIGH COURT OF JUDICATURE AT PATNA
SECOND APPEAL No.331 of 1987
======================================================
2. Suresh Kumar Shukla, Son of Late Baidyanath Shukla Resident of Village
Matuk Chapra P.S. and District Siwan
3.1. Sarswati Kuar W/o Late Indu Sharan Shukla @ Indu Bhushan Shukla
Resident of Village- Matuk Chapra, P.S. and District Siwan.
3.2. Sushil Kr. Shukla S/o Late Indu Sharan Shukla @ Indu Bhushan Shukla
Resident of Village- Matuk Chapra, P.S. and District Siwan.
3.3. Atul Kr. Shukla S/o late Indu Sharan Shukla @ Indu Bhushan Shukla
Resident of Village- Matuk Chapra, P.S. and District Siwan.
3.4. Mirdul Kr. Shukla Son of Late Indu Sharan Shukla @ Indu Bhushan Shukla
Resident of Village- Matuk Chapra, P.S. and District Siwan.
3.5. Punam Devi Daughter of Late Indu Sharan Shukla @ Indu Bhushan Shukla
Resident of Village- Matuk Chapra, P.S. and District Siwan.
3.6. Purnima Devi Daughter of Late Indu Sharan Shukla @ Indu Bhushan Shukla
Resident of Village- Matuk Chapra, P.S. and District Siwan.
3.7. Susma Kumari Daughter of Late Indu Sharan Shukla @ Indu Bhushan
Shukla Resident of Village- Matuk Chapra, P.S. and District Siwan.
4.1. Sishir Kumar Shukla S/o Late Vidya Sharan Shukla Resident of Village-
Matuk Chapra, P.S. and District Siwan.
4.2. Rakesh Kumar Shukla S/o Late Vidya Sharan Shukla Resident of Village-
Matuk Chapra, P.S. and District Siwan.
4.3. Sunita Devi Daughter of Late Vidya Sharan Shukla Resident of Village-
Matuk Chapra, P.S. and District Siwan.
5. Shushil Kumar Shukla, Son of Indrashan Shukla Resident of Village Matuk
Chapra P.S. and District Siwan
6. Sunil Shukla @ Sunil Dutta Shukla, Son of Vidya Sharan Shukla Resident of
Village Matuk Chapra P.S. and District Siwan
7.1. Ranju Devi Wife of Late Sumit Shukla @ Sumit Kumar Shukla Resident of
Village- Matuk Chapra, P.S. and District Siwan.
7.2. Stuti Kumari D/o Late Sumit Shukla @ Sumit Kumar Shukla Resident of
Village- Matuk Chapra, P.S. and District Siwan.
7.3. Kshity Kumar S/o Late Sumit Shukla @ Sumit Kumar Shukla Resident of
Village- Matuk Chapra, P.S. and District Siwan.
7.4. Kartik Kumar S/o Sumit Shukla @ Sumit Kumar Shukla Resident of
Village- Matuk Chapra, P.S. and District Siwan.
... ... Appellant/s
Versus
3.1. Uma Devi D/o late Jagdish Mishra Resident of Village- Matuk Chapra, P.S.
and District Siwan.
4. Madho Mishra, Son of Jagdish Mishra Resident of Village Matuk Chapra,
P.S. and District Siwan
Patna High Court SA No.331 of 1987 dt.06-01-2026
2/22
5.1. Kamla Devi Wife of Late Udho Mishra Resident of Village- Matuk Chapra,
P.S. and District Siwan.
5.2. Ranjit Mishra S/o Late Udho Mishra Resident of Village- Matuk Chapra,
P.S. and District Siwan.
5.3. Premjit Mishra S/o Udho Mishra Resident of Village- Matuk Chapra, P.S.
and District Siwan.
5.4. Sanjit Mishra S/o Late Udho Mishra Resident of Village- Matuk Chapra,
P.S. and District Siwan.
5.5. Santosh Mishra S/o Late Udho Mishra Resident of Village- Matuk Chapra,
P.S. and District Siwan.
6. Duldul Mishra, Son of Jagdish Mishra Resident of Village Matuk Chapra,
P.S. and District Siwan
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Shashi Shekhar Dvivedi, Sr. Advocate
Mr. Ashutosh Kumar Pandey, Adv.
Mr. Parth Gaurav, Adv.
Mr. Swayamparaph, Adv.
Ms. Shalini, Adv.
For the Respondent/s : None
======================================================
CORAM: HONOURABLE MR. JUSTICE DR. ANSHUMAN
ORAL JUDGMENT
Date : 06-01-2026
The present appeal has been filed by the appellants
against the judgment and decree dated 09.07.1987 and
22.07.1987
passed and prepared respectively in Title Appeal No.
33 of 1975 by Mr. P. L. Kaungari, 5 th Addl. District Judge,
Siwan, reversing and setting aside the judgment dated
11.08.1975 and decree dated 28.08.1975 passed and prepared
respectively by Mr. Prem Narain Shukla, First Munsif, Siwan, in
Title Suit No. 2 of 1966.
Patna High Court SA No.331 of 1987 dt.06-01-2026
2. The original appellant No. 1 to 7 were the
plaintiffs of the title suit in which respondent No. 1 to 6 of
present appeal were defendants and after decree of the title suit
No. 2 of 1966 in favour of the original plaintiffs, original
respondent Nos. 1 to 3 preferred Title Appeal No. 33 of 1975 in
which the original appellants of memo of second appeal were
respondents first set and original defendant Nos. 4 to 6 were
respondent second set. The said appeal was allowed. Thereafter,
the original plaintiffs-respondents first set had preferred the
present second appeal which was numbered as Second Appeal
No. 331 of 1987. But with the span of time, parties died and at
their place, heirs and legal representatives of the respective
parties were substituted at the place respective appellants and
respondents whose name are shown in the present judgment.
3. Initially, the present appeal was admitted vide
order dated 01.05.1989, in which one substantial question of law
was framed, but subsequently, vide order No. 24 dated
24.09.2024, three more substantial questions of law have been
framed. Those substantial questions of law are as follows:-
"(i) Whether in view of the fact that
the original return was called for from the office
of the Circle Officer and was admittedly not
produced, the appellant could lead secondary
Patna High Court SA No.331 of 1987 dt.06-01-2026
evidence to prove the certified copy of the said
return in terms of section 65(e) of the Evidence
Act ?
(ii) Whether Khatian entry is a
document of title and/or such recorded person has
to prove his title independently?
(iii) Whether the Appellate Court
Judgment not being in accordance with Order
XLI Rule 31 of the Code of Civil Procedure, 1908
and passed without independent on consideration
of the entire material on record, is unsustainable
in law?
(iv) Whether daughtership of
Halimani (heirs of present respondent), having
been categorically denied by the plaintiff (present
appellant), heavily onus lie on the defendants
(respondents) to prove it according to Section 50
and 60 of the Evidence Act, which they have failed
to do it?"
4. It is made clear that vide order No. 25 dated
28.01.2025, due to non-appearance of the respondents or their
counsel, the present appeal has been fixed 'For Hearing' ex parte
against the respondents in the light of the provisions made in
Order XLI Rule 17(2) of the Code of Civil Procedure, 1908, and
subsequently, after hearing ex parte, the present appeal has been
fixed for judgment.
Patna High Court SA No.331 of 1987 dt.06-01-2026
5. Prior to deciding the substantial questions of law,
it is necessary to place the case of the parties in brief.
Plaintiffs' Case
6. The Plaintiffs' case is that the ancestors of them
were the Maliks of Tauzi No. 1342 before Revisional Survey.
Ancestor of the Plaintiffs came in its possession over C.S. Plot
No. 491 as Malik of village Matook Chapra, C.S. Plot No. 491
and 492 belonging to Bhajan Mishra and Mangal Shukla were of
this Tauzi. These two plots were recorded in the Revisional
survey as one plot no. 837 of Khata No. 96. Since Bhajan Mishra
and Mangal Shukla died issueless before R.S. ancestor of the
Plaintiffs came in its possession over C.S. Plot No. 491 and 492
as malik and began to cultivate them, after amalgamating the
same. These two plots were recorded in R.S. as R.S. Plot No.
837 and R.S. Plot No. 838 also belonged to Mangal shukla but
after the death of Mangal Shukla, Malik Achuta Nand Shukla
came in its possession and later on this Achutanand Shukla
settled it to Mukha Kamkar who is having his Nad, Khunta and
Palani etc. over it and C.S. Plot No. 491 and 492 came in
possession of the plaintiffs who are in its possession. There was
one Chulahi Mian who had his house in R.S. Plot No. 832 but he
had no concern with 837 and 838. This Chulahi Mian worked
Patna High Court SA No.331 of 1987 dt.06-01-2026
with the officials of Survey department and got his name entered
into R.S. records over plot no. 837 and 838 in collusion with the
survey officials. This was done by him secretly for taking
advantage of the death of Mangal Shukla and Bhajan Mishra and
without knowledge of Mahabir Shukla and his son Sheobachan
Shukla on 4.02.60 defendants 1 to 3 began to interfere with the
peaceful possession of the plaintiffs over R.S. Plot No. 837 and
in collusion with Dafadar of the Halka get a false and collusive
report submitted at the P.S. Siwan, who started one proceeding
under section 144 Cr.P.C. between the plaintiff and defendants 1
to 3. This 144 Cr.P.C. proceeding later on was converted into
145 Cr.P.C. proceeding and was decided by Mr. Onkar Nath,
Magistrate, 1st Class, Siwan. Both the parties, according to the
plaintiff's case submitted their documents and the plaintiff was
found to be in possession of the land still then because the
defendants 1 to 3 had filed a sale deed in their name executed by
one Halimani. Mr. Onkar Nath the Magistrate decided this case
against the plaintiff on 20.04.1963 and in favour of the defendant
and hence the necessity of this suit.
Defendants' Case
7. Defendant nos. 1 to 3 have contested the suit
after filing of a joint written statement. In which they had raise
Patna High Court SA No.331 of 1987 dt.06-01-2026
question of maintainability, further stated that the plaintiffs have
got no cause of action or right to sue and that the suit is barred
by law of limitation. Defendant further contented that the
plaintiffs have no subsisting title ever-the suit land. Defendants
have also challenged the suit as bad for non -joinder of the
parties because Indrawati and others, according to them, are
necessary party to the Suit. The further case of the defendants is
that the suit land is not the same as C.S. Plot No. 491 and 492
Bhajan Mishra and Mangal Shukla, according to them had no
concern with the suit land. According to them Managal Shukla
and Bhajan Mishra did not die issueless neither after their death
the Plaintiff came in possession of the suit land. The plaintiffs
and their ancestors never amalgamated plot nos. 491 and 492
into 837 and did not cultivate these plots. R.S. Plot No. 838.
They further denied the possession of the Plaintiffs. As per their
further pleading land in question belonged to one Chulhai Mian
Most.Rojhani and Most. Halimani and at present these lands are
in possession of the defendants. They further stated that they
never came in possession of these lands as Malik. R.S. Plot No.
837 and 838 were Dih Basgit land of Chulahi Mian who did not
work with the officials of Survey Department nor, did he pull the
chain and carry their papers. Chulahi did not got his name
entered in these lands in collusion with these instead entries of
Patna High Court SA No.331 of 1987 dt.06-01-2026
these lands are correct and were in the knowledge of Mahabir
Shukla and Sheobachan Shukla ancestor of the plaintiffs. On
04.02.1960, defendants did not interfere with the possession of
the plaintiff Same because there was no occasion for the name
nor, did the defendants get a collusive report filed by the Dafadar
rather, Dafadar correctly reported to the police who started a
proceeding under Section 144 Cr.P.C. which was later on
converted into 145 Cr.P.C. proceeding. At the time of Section
145 Cr.P.C. proceeding the plaintiff had no potato and brinjal in
the suit land, nor they were in possession, The defendant since
their show cause had correctly given in 145 Cr.P.C. proceeding
that the suit land belonged to Chulhai Mian who executed a deed
of gift in favour of Most. Rojhani and after her death Most.
Halimani came in its possession. The deed of gift was not
fraudulent one, but legal and was acted upon. Most. Rojhani did
not die issueless neither Bachoo Jolaha remarried himself with
Matijan and Most. Halimani was not born with Ali Hussain and
Matijan. She is the daughter of Rojhani and Bachoo Jolaha.
Most Halimani came in possession of the entire land of Chulahi
Mia. It has been denied that the learned Magistrate, decided the
145 Cr.P.C. proceeding without going into its merit. True facts
are that R.S. Plot Nos. 837 and 838 were Dih Basgit land of
Chulahi and were in his possession. Chulhai used to grow
Patna High Court SA No.331 of 1987 dt.06-01-2026
vegetable on those land at the time of R.S. the Survey office
found them in possession of the Maliks and the entries were
made in the name of Chulahi Mian. This Chulahi had a daughter
Most. Rojhani and Chulahi Mian orally gifted his entire
properties to Most. Rojhani and put her in possession thereof.
Most Rojhani came in possession of this land in the life time of
Chulahi. Most. Halimani after the death of Rojhani came in
possession of the properties of Rojhani and used to grow
vegetables over the suit land. Since, Halimani was married in
different village which was at a distance from Matook Chapra.
She sold R.S. Plot Nos.837 and 838 to these defendants on
11.01.1960 at the sum of cost of Rs. 300/- and after receiving
consideration money put them in possession thereof on the day
of execution of the sale deed. Halimani had grown vegetable in
the suit land and they were given to the defendants. The
plaintiffs, according to the further case of the defendants wanted
to purchase the suit land from Halimani but after defendants
purchased them the plaintiffs were annoyed and began to
interfere with the possession resulting in 144 and 145 Cr.P.C.
proceeding which was later on decided in favour of the
defendants. The defendants have, therefore, acquired title over
the suit land by adverse possession to the knowledge of all since
they are in its possession for more than 12 years and on these
Patna High Court SA No.331 of 1987 dt.06-01-2026
grounds it is prayed that the suit be dismissed with cost.
8. As per the pleading of the both parties Ld. Trial
Court framed issues for decision in the Suit i.e.
i. Is the suit as framed maintainable?
ii. Have the plaintiff got cause of action or right to
sue?
iii. Is the suit barred by law of limitation?
iv. Is the R.S. entry correct?
v. Does the suit suffer from defect of parties?
vi. Were the Plaintiffs and their ancestors in
possession of the suit land within 12 years of the suit?
vii. Is the sale deed of the defendants valid genuine
and for consideration?
viii. Have the plaintiffs got any subsisting title over
the suit land?
ix. To what relief, if any, are plaintiffs entitled?
9. On the basis of the above-mentioned issues, the
learned Trial Court recorded its findings and decreed the suit
bearing No. 02/1966 in favour of the plaintiffs on 11.08.1975.
10. Being aggrieved and dissatisfied with the
Patna High Court SA No.331 of 1987 dt.06-01-2026
judgment and decree dated 11.08.1975 and 28.08.1975 passed by
Shri Prem Narayan Shukla, 1st Munsif, Siwan, in T.S. No.
02/1966, the defendant of the said suit preferred a Title Appeal
bearing No. 33/1975, in which the following points of
consideration were raised:-
i. Whether finding of the learned lower court that
the plaintiffs and their ancestors were in possession of the Suit
land is correct?
ii. Whether the finding of the learned lower court,
that the plaintiff 's claim that R.S. entry relating to the suit or
plot is wrong incorrect?
iii. Whether the impugned judgement and decree
are fit to be set aside?
11. That on the basis of the above-mentioned points
of consideration, the learned Appellate Court recorded its
findings in Title Appeal No. 33/1975, passed the judgment and
decree on 09.07.1987 and 22.07.1987, and set aside the
judgment and decree passed and prepared by the learned Trial
Court in T.S. No. 02/1966 on 11.08.1975 and 28.08.1975
respectively.
12. Being aggrieved and dissatisfied with the
judgment and decree dated 09.07.1987 and 22.07.1987 passed
Patna High Court SA No.331 of 1987 dt.06-01-2026
by Shri P. L. Kaurgari, 5th learned Additional District Judge,
Siwan, in Title Appeal No. 33/1975, the plaintiffs/respondents of
Suit No. 02/1966 and Title Appeal No. 33/1975 preferred a
Second Appeal bearing No. S.A. 331/1987 before the Hon'ble
Patna High Court.
13. In the background of the above-said facts and
circumstances, this Court is hereby deciding the substantial
questions of law one by one.
(i) Whether in view of the fact that
the original return was called for from the office
of the Circle Officer and was admittedly not
produced, the appellant could lead secondary
evidence to prove the certified copy of the said
return in terms of section 65(e) of the Evidence
Act ?
14. With regard to deciding this substantial
question of law, Exhibit 8 is most crucial, which is basically the
certified copy of the "Awedan Patra." In support of Exhibit 8, the
depositions of PW10 and PW15 have been relied upon.
According to them, this Awedan Patra was filed in Pachrukhi
Block and was to be recorded in the Records of Rights.
However, after its deposit, the Trial Court sent a letter to the
B.D.O., Pachrukhi Block, for production of the record, i.e., the
Return Register, which was to be prepared on the basis of the
Patna High Court SA No.331 of 1987 dt.06-01-2026
said Awedan Patra. Despite this, the record was not sent, even
though the envelope had been dispatched to the Pachrukhi
Block.
15. Counsel for the appellant submits that when the
certified copy of the return was filed before the Court and the
original was called from the office of Pachrukhi Block but was
not produced before the Court, the said certified copy should, in
that view of the matter, be treated as secondary evidence in
terms of Section 65(e) of the Indian Evidence Act. No one
appeared on behalf of the respondent to contest this issue,
whereas the contention of counsel for the appellant is that the
certified copy is a public document and is admissible in the
absence of the original record, as the State is the custodian of the
records and it is the duty of the State to maintain such records.
16. In support of his argument, counsel for the
appellant relied on the judgment of J. Yashoda v. K. Sobha
Rani, reported in (2007) 5 SCC 730, and submits that it clarifies
the circumstances under which the admissibility of secondary
evidence in the absence of the primary document is permissible.
Counsel further submits that the certified copy is a public
document and is therefore admissible. Accordingly, he contends
that when the said certified copy, Exhibit-8, is placed on record,
Patna High Court SA No.331 of 1987 dt.06-01-2026
and upon calling for the original record, the concerned official
failed to produce it, the certified copy should be treated as
secondary evidence, and its admissibility should be recognized
in light of Section 65(e) of the Indian Evidence Act.
17. In this regard, the question of the applicability
of Section 65(e) of the Indian Evidence Act arises only when
Exhibit-8 is treated as a public document. When the Exhibit-8
shall be treated as public document then only question of
admissibility shall take place, and in the absence of the original
record, this public document may be treated and accepted as
secondary evidence.
18. On the point of whether the document is a
public document or not, this Hon'ble Court has recently decided
a case, namely, Abdul Rashid v. Iftakhar Hussain @ Dablu &
Ors., passed in CWJC No. 1651 of 2019, dated 21.05.2025, in
which all the judgments regarding whether a certified copy is a
public document under the Indian Evidence Act were discussed.
19. A Three-Judge Bench of the Hon'ble Supreme
Court of India, in the case of Deccan Paper Mills Company
Limited vs. Regency Mahavir Properties & Ors., reported in
(2021) 4 SCC 786, referred to the decision of Gopal Das vs. Sri
Thakurji, reported in AIR 1943 PC 83. Additionally, a Division
Patna High Court SA No.331 of 1987 dt.06-01-2026
Bench of the Hon'ble Supreme Court in Appaiya vs. Andimuthu
@ Thangapandi & Ors. [Civil Appeal No. 14630 of 2015 {SLP
(C) No. 10031 of 2015}], Smt. Rekha Rani & Ors. vs. Smt.
Ratnashree Jain, reported in AIR 2006 MP 107, N.N. Global
Mercantile (P) Ltd. vs. Indo Unique Flame Ltd., reported in
(2023) 7 SCC 1, Ram Briksha Singh & Ors. vs. Ramashray
Singh & Ors. (Civil Misc. No. 1824 of 2018), and Umashankar
Singh & Anr. vs. Keshwa Singh & Ors., reported in (2014) 3
PLJR 121, have also considered this issue.
20. All the above-mentioned cases were discussed
in detail, and it has been held that a certified copy of a sale deed
could be produced as secondary evidence of the public document
and could be produced in proof of contents of the public
document or part of public document which it purports to be a
copy. A certified copy is, therefore, admissible in evidence both
under Sections 65(e) and 65(f) of the Indian Evidence Act.
However, these judgments relate specifically to certified copies
of sale deeds obtained from entries made in Book-1. The
Hon'ble Court held in those cases that if a sale deed is
registered, a certified copy can be obtained since it pertains to a
public record kept by the State, or a private document
maintained as a public document.
Patna High Court SA No.331 of 1987 dt.06-01-2026
21. In the present case, the situation is quite
different. The appellant's case is that an application, along with
details and Khata, was filed before the Circle Officer, and a
certified copy was obtained from the records of the
BDO/Revenue Office. The appellant claims that the certified
copy should be treated as a public document, and since it is a
certified copy, it should be considered secondary evidence.
22. However, the document in the present case is
not a registered document. It is merely a certified copy of an
application in which other documents have been annexed, and
the appellant seeks to derive benefit from it. It has not been
established on record under which provision or law the said
application is required to be registered in the records.
23. In view of the Court, the present Exhibit-8 does
not come within the purview of the public document under
Section 74 of the Indian Evidence Act and since it does not come
within the purview of public document, therefore, the question
of applicability of Section 65(e) of the Indian Evidence Act shall
not arise and hence the present substantial question of law is
hereby decided against the appellant.
(ii) Whether Khatian entry is a
document of title and/or such recorded person has
Patna High Court SA No.331 of 1987 dt.06-01-2026
to prove his title independently?
24. The present appellant himself admits that it is a
settled principle of law that a Khatian entry does not confer title
upon any person, rather, an entry in the Khatian does not create
or confer any title. In view of this, the appellant, or any person
claiming by virtue of a Khatian entry, must prove his title
independently.
25. In the present litigation, in the 145 CrPC
proceeding, possession was found against him, and this result of
the 145 CrPC proceeding has not been challenged anywhere on
the point of possession. However, it was subsequently treated as
a cause of action. The dispute between the parties arises from
144 CrPC proceedings, which were later converted into 145
CrPC proceedings.
26. It is also important to note that it is a suit in
which a declaration of possession, declaration of title, and
recovery of possession have been demanded. It is not a suit for
possessory title alone. Therefore, documents and material
relating to title are necessary to be discussed in the arguments.
27. Counsel for the appellant emphasized the
presumption in favor of the correctness of the survey entry.
However, it is true that by virtue of Exhibit-7, C.S. Plot Nos. 491
Patna High Court SA No.331 of 1987 dt.06-01-2026
and 492 were recorded in the names of Bhajan Mishra and
Mangal Shukla, which is supported by the Awedan Patra. There
was, however, no entry of Chulai Miyan in the Revisional
Survey, and it is not clear as to how his name was recorded in
the RS survey records of rights. No one appeared on behalf of
the respondent to defend their stand, as the matter is fixed ex
parte.
28. In the present appeal, Exhibit-7, i.e., the entry
in the CS plot, is undisputed, and there is no pleading regarding
the entry of Chulai Miyan in the RS. Another surprising point is
that in the old survey records, some persons lost their
possessions, while those whose names appear in the revised
survey records obtained possession, yet they are not in a position
to explain to the Court how their names were entered.
29. As such, in the absence of any pleading
regarding how the names of Chulai Miyan were entered in the
Revisional Survey, this Court finds that the persons who are
claiming through Bhajan Mishra and Mangal Sukla (the original
plaintiffs) of CS survey have a better title than those claiming
through Chulai Miyan in the RS survey. Even if Chulai Miyan
and the persons claiming through him obtained possession, the
persons claiming through Bhajan Mishra and Mangal Shukla
Patna High Court SA No.331 of 1987 dt.06-01-2026
(the original plaintiffs) shall be entitled to possession, which
shall be recovered through the process of the Court. Therefore,
this substantial question of law has been decided accordingly.
(iii) Whether the Appellate Court
Judgment not being in accordance with Order
XLI Rule 31 of the Code of Civil Procedure, 1908
and passed without independent on consideration
of the entire material on record, is unsustainable
in law?
30. The Scheme of Order XLI Rule 31 of the Code
of Civil Procedure, 1908 is as follows:
Contents, date and signature of
judgment.- The judgment of the Appellate Court shall be
in writing and shall state-
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is
reversed or varied, the relief to which the appellant is
entitled; and shall at the time that it is pronounced be
signed and dated by the Judge or by the Judges concurring
therein.
31. As per the provision contained in Order XLI
Clauses (a), (b) and (c) of Rule 31 of the Code of Civil
Procedure, 1908, the judgment of Ld. Appellate Court ought to
Patna High Court SA No.331 of 1987 dt.06-01-2026
have its independent findings and should not have been relied on
the findings of Ld. Trial Court. No independent finding with
regard to any of the points for consideration in the said Judgment
of Appellate Court is based on the findings of Trial Court which
ought to have been given independently.
32. The Appellate Court, at the time of deciding a
title appeal, is required to strictly follow the guidelines laid
down under Order XLI Rule 31 of the CPC, 1908.
33. In the present appeal, there is a lack of
compliance with these requirements. No reasons have been
discussed as to why the judgment of the Trial Court is erroneous
or unacceptable. Likewise, no reasons have been assigned as to
why the decision passed by the Trial Court was reversed. In view
of this absolute lack of compliance with the provisions of Order
XLI Rule 31 of the CPC, 1908, the judgment and decree of the
Appellate Court are not sustainable in law and are hereby set
aside.
(iv) Whether daughtership of
Halimani (heirs of present respondent), having
been categorically denied by the plaintiff (present
appellant), heavily onus lie on the defendants
(respondents) to prove it according to Section 50
and 60 of the Evidence Act, which they have failed
Patna High Court SA No.331 of 1987 dt.06-01-2026
to do it?
34. That in furtherance of the aforementioned
question it is submitted that the whole case of the Defendant is
based on the sale deed executed by Halimani, who is the so-
called/alleged daughter of Mos. Rojhini who is the daughter of
Chulhai Mia. The said daughtership of Halimani has been
categorically denied by the Plaintiff. In such a scenario, Onus of
proving daughtership lies upon defendant. In this regard, only
oral statement has been adduced by the Defendant which the
Trial Court has not considered as those statements were made by
witnesses residing at a distant village and were not reliable and
Ld. trial Court rightly doubted the relationship/daughtership of
Halimani as such evidences were not adduced as per mandatory
provisions of Section 50 and Section 60 of the Evidence Act.
35. Section 50 of the Indian Evidence Act clearly
states that when the Court has to form an opinion as to
relationship of one person to another, the opinion, expressed by
conduct, as to the existence of such relationship, of any person
who, as a member of the family or otherwise, has special means
of knowledge on the subject, is a relevant fact.
36. On this point, the Trial Court, at the time of
deciding the title suit, after full discussion, rightly determined
Patna High Court SA No.331 of 1987 dt.06-01-2026
the relationship/daughtership of Halimani, as no evidence to the
contrary had been adduced in accordance with the provisions of
the Indian Evidence Act. Therefore, it is clear that in order to
decide the relationship of one person to another, the applicability
of Sections 50 and 60 of the Evidence Act is required and on this
point the Appellate Court has failed to consider and not discussed
in his judgment as to why finding of the Trial Court has been
discarded by the Appellate Court. This Court hereby supports the
contention and discussion of the Trial Court on this issue and the
finding of the Appellate Court on this point specified in para 17
is discarded, in result the judgment and decree dated 09.07.1987
and 22.07.1987 passed and prepared by the First Appellate Court
in Title Appeal No. 33 of 1975 is hereby set aside.
37. Accordingly, the present second appeal is
hereby decreed ex parte. The findings given by the Trial Court
are hereby affirmed. The office is directed to return back the
lower Court records to the Trial Court.
(Dr. Anshuman, J.)
Aman Kumar/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 09.01.2026
Transmission Date NA
