JUDGMENT
Syed Md. Mahfooz Alam, J.
Page 1307
1. This second appeal has been preferred against the judgment and decree dated 12th September, 1985 passed in Title Appeal No. 115 of 1977 by Sri Kamla Prasad Sinha, 2nd Additional District Judge, Siwan whereby he has been pleased to set aside the judgment and decree dated 9.7.1977 passed by M.A. Siddique, Subordinate Judge, Siwan in Title Suit No. 593 of 1972 and dismissed the suit of the plaintiffs – appellants.
2. Briefly stated, the case of the plaintiffs is that Mahipat Nonia was the common ancestor of the plaintiffs and defendants Nos. 1 and 2. He died leaving behind him his two sons, namely, Hiraman Nonia and Sohan Nonia. Hiraman died leaving behind his son Gulab Nonia and Gulab died leaving behind his son Bakal Nonia. Bakal Nonia had two sons namely, Raj Kumar and Rajman, Defendant Nos. 1 and 2 are the daughters of Rajkumar Nonia. Rajman died leaving behind his son Nagina who was blind by birth and he died unmarried. Defendant No. 7 is the auction purchaser whereas defendant, No. 8 is the purchaser. Further case of the plaintiffs is that Sohan Nonia, another son of Mahipat Nonia, died leaving behind his son Bacha Nonia. Thereafter Bacha Nonia died leaving behind his son Chhathoo. Plaintiffs, namely, Jhagaru, Shri Bhagwan and Lallan are the sons of Chhathoo. Further case of the plaintiffs is that no partition had taken place between the two sons of Mahipat Nonia, namely, Hiraman and Sohan by metes and bounds and the suit property is still joint between the two branches of Hiraman and Sohan since the time of their ancestor Mahipat Nonia. Further case of the plaintiffs is that after the death of Mahipat his two sons, namely, Hiraman and Sohan separated in mess and cultivation from each other before the cadastral survey and came in separate possession over some of the lands for the sake of convenience in cultivation but the rest of the lands and another property remained joint and no partition took place between them by metes and bounds. Further case of the plaintiffs is that at the time of cadestral survey operation, Sohan Nonia, the ancestor of the plaintiffs, had died and his son Bacha Nonia, the grand-father of the plaintiffs, was minor and as such the cadestral survey operation was looked after by Gulab Nonia, who got the C.S. entry made in respect of the ancestral property against the genealogy showing 2/3rd share in his Page 1308 name and 1/3rd share in the name of Bacha Nonia. Subsequently, revisional survey entry of the land was also recorded on the basis C.S. Khatian against the genealogy as Chhathoo Nonia father of the plaintiffs was not present in the village at the time of revisional survey operation and he had no knowledge of R.S. entry. The claim of the plaintiffs is that the plaintiffs have got 1/2 share in the suit property and as there was no partition between the heirs of Hiraman and the heirs of Sohan by metes and bounds, as such the necessity of filing of the suit arose.
3. Defendants 1, 3 to 6 and defendant No. 8 contested the suit and filed two separate written statements. Defendant Nos. 1, 3 to 6 contended that the common ancestor, Mahipat Nonia had three sons, Hiraman, Rajman and Sohan and not only two sons. All the three sons were separate in mess and property. Rajman had no son. Gulab Nonia used to attend him, serve him and manage his property. Rajman relinquished his interest in favour of Gulab, put the latter in possession of his land and got entries made in the record of rights during cadestral survey. The share of Gulab Nonia was, therefore, recorded as 2/3rd during cadestral survey and that to Chhatoo Nonia as 1/3rd. Possession of the two co-sharers Gulab and Chhathoo was accordingly, recorded in khatian. During revision survey operation, similar entry was made in the name of Rajkumar, descendant of Gulab and Chhathu, son of Bacha Nonia. Raj Kumar died leaving behind his widow and daughters and daughter’s son. On 7.6.41 the widow of Raj Kumar executed a deed of gift with respect to her property in favour of her daughter, Most. Bisani, defendant No. 2 and daughter’s son Sitaram and Brahmchari, defendant Nos. 3 and 4, sons of her daughter Bipati Defendant No. 1. Defendant No. 2 Bisani, subsequently, sold her land to different persons and purchasers were in possession. These defendants further pleaded that there was no unity of title and unity of possession. Nothing was joint. The suit was also barred by limitation and the same is fit to be dismissed.
4. On the basis of the pleadings of both the parties, the learned trial court framed as many as five issues for determination which are as follows:
(1) Is the suit, as framed, maintainable?
(2) Have the plaintiffs got any valid cause of action for the suit?
(3) Whether the Rajman was the son of Mahipat or son of Bakal Nonia and whether he has gifted his share to Gulab, as stated by the defendants?
(4) Are the plaintiffs entitled to a decree of partition as claimed? If so, to what extent and in respect of what property?
(5) To what relief or reliefs, if any, are the plaintiffs entitled to?
5. From perusal of the judgment of the trial court it appears that the trial court held that Rajman was not the son of Mahipat rather he was son of Bakal and brother of Rajkumar. The learned trial court further held that the suit property was joint and no partition had taken place between the parties by metes and bounds and the plaintiffs had got half share in the suit property and so, on the basis of the above findings, the learned trial court decreed the suit.
6. It further transpires that against the said judgment and decree of the trial court, the defendants preferred appeal which was numbered as Title Appeal No. 155 of 1977. The said appeal was disposed of 12th September, 1985 by Sri Kamla Prasad Sinha, 2nd Additional District Judge, Siwan and it appears that by the said judgment Page 1309 and decree passed in the appeal, the learned Additional District Judge allowed the appeal and dismissed the suit of the appellants.
7. From perusal of the judgment of the first appellate court, it appears that the learned Additional District Judge formulated three points for determination in the appeal, namely,:
(1) Whether the genealogy given by the plaintiffs is correct and they have half share in the suit property?
(2) Whether there is unity of title and unity of possession between the parties?
(3) Whether the suit is barred by limitation?
8. It appears that after formulating the above three points, the learned Additional District Judge made full discussions on all the points and came to the conclusion that the genealogy given by the plaintiffs was not correct and it is not a fact that the plaintiffs had got half share in the suit property. The learned Additional District Judge also came to the conclusion that there was no unity of title and unity of possession between the parties and that the suit is barred by limitation and even if the case of the plaintiffs is accepted, they stood ousted and the descendants of Hiraman had perfected their title by adverse possession.
9. Against the said judgment and decree of the first appellate court, this second appeal has been preferred and the finding of the first appellate court has been challenged in this appeal on several grounds. However, it appears that while admitting this second appeal on 4.4.1986 only one substantial question of law was formulated in this appeal for determination, which is as follows:
Whether the plea of ouster is implicit and the title of branch of Hiraman stood perfected by possession for a period of more than several 12 years openly, adversely, exclusively, continuously within the knowledge of the descendants of Sohan is an error of law as there was no consideration of this aspect of the case by the trial court and there is neither any issue nor any evidence with regard to the adverse possession (wrongly written as “delivery of possession)?
10. During the hearing of the appeal the learned Advocate of the appellants could not be able to show that any other substantial question of law is involved in this appeal and, therefore, I confine myself to only one substantial question of law as stated above but before giving any finding on the substantial question of law, I would like to incorporate this fact that this is a second appeal and in second appeal this Court is generally not authorised to interfere with the finding of the first appellate court unless the said finding appears to be perverse or based on misreading of evidence or based on no evidence. To support my view, I would like to rely upon the following decisions. In 2005 (2) BBCJ – IV Page 420, while making discussion on the scope of Section 100 CPC, the Apex Court made following observations:
In second appeal existence of substantial question of law is sine quo non for exercise of jurisdiction and the High Court cannot proceed to hear a second appeal without formulating the substantial questions of law.
Para – 17 of the decision runs as follows:
This judgment was followed by this Court in Civil Appeal No. 2292 of 1999 Govindaraju v. Marriamman . In Govindaraju’s case (supra) it has been held that the High Court while exercising the power under Section Page 13010 100 of the Code of Civil Procedure on re-appreciation of the evidence cannot set aside the findings of the fact recorded by the first appellate court unless the High Court comes to the conclusion that the findings recorded by the first appellate court were perverse i.e. based on misreading of evidence or based on no evidence.
In AIR 1959 Supreme Court Page 57 while interpreting the provision of Section 100 C.P.C. the Apex Court made following observations:
The provisions of Section 100 are clear and unambiguous. There is no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, however, gross the error may seem to be. Nor does the fact that the finding of the first appellate court is based upon some documentary evidence make it any the less a finding of fact. A judge of the High Court, has, therefore, no jurisdiction to interfere in second appeal with the findings of fact given by the first appellate court based upon a re-appreciation of the relevant evidence.
11. From the decisions referred above, it is clear that according to the provisions of Section 100 of the Code of Civil Procedure, in second appeal this Court has got no jurisdiction to interfere with the finding of the first appellate court without formulating substantial question of law and cannot set aside the findings of the first appellate court on re-appreciation of the oral as well as documentary evidence available on record unless the Court finds that the findings of fact recorded by the first appellate court were perverse i.e. based on misreading of evidence or based on no evidence, Thus, before coming to the substantial question of law formulated in this case, I would like, to see – whether the findings of the first appellate court are perverse. As I have already stated above that in order to decide the appeal, the learned first appellate court had framed three questions for determination:- (1) Whether the genealogy given by the plaintiffs is correct and they have half share in the suit property, (2) Whether there is unity of title and unity of possession between the parties and (3) Whether the suit is barred by limitation. No question was framed regarding the ouster and adverse possession. Generally, in a suit for partition as in this case the main points for consideration remain as to whether the parties are descendants of common ancestor and whether there is unity of title and unity of possession between the parties, other points do not remain of vital importance. From perusal of judgment of the first appellate court, it appears that the learned first appellate court dealt with point Nos. 1 and 2 at paragraphs 7, 8, 9, 10, 11 and 12 of its judgment. He has made elaborate discussions on both the points and came to the conclusion that the genealogical table given by the plaintiffs is not correct and there is no unity of title and unity of possession between the parties.
12. According to the plaintiffs, Mahipat Nonia was the common ancestor. He had two sons, namely, Hiraman and Sohan. The plaintiffs are the descendants of Sohan whereas the defendants are the descendants of Hiraman. Some of the defendants are purchasers. According to the case of the defendants, Mahipat Nonia had three sons, namely, Hiraman, Sohan and Rajman and it is incorrect to say that he had only two sons. It appears that while coming to the conclusion that Mahipat Nonia had three sons, namely, Hiraman, Sohan and Rajman, the learned first appellate court relied upon the oral evidence as well as the entries made in the record of rights i.e. C.S. Khatian of the year, 1898 and revisional survey khatian of the year, 1919 which is Ext. G. Both the records of rights show that the defendants’ branch Page 1311 represented by Gulab Nonia, son of Hiraman Nonia had 2/3rd share in the property of Mahipat Nonia whereas the plaintiffs’ branch had only 1/3rd share in the property of Mahipat Nonia. The learned Additional District Judge, on the basis of the entries made in the record of rights, came to the conclusion that the allotment of share between the heirs of Mahipat establishes that Mahipat Nonia had three sons and not two sons and that is why, 2/3rd share was recorded in the name of Gulab whereas 1/3rd share was recorded in the name of Bacha Nonia, plaintiffs’ ancestor. The learned first appellate court was also of the view that the entry made in the record of rights was correct and that is why, the father of plaintiffs, Chhathoo and grand-father of the plaintiffs Bacha Nonia did not raise any objection regarding the entries made in the records of rights.
13. I would like to quote some of the reasonings given by the first appellate court in arriving at the conclusion that the genealogy given by the plaintiffs is incorrect and the genealogy given by the defendants that Mahipat had three sons is correct and that the entries made in the record of rights i.e. in the cadestral survey khatian and revisional survey khatian Ext. G are correct. At para – 7 while dealing with point No. 1 the learned first appellate court held that admittedly, the share of Gulab Nonia, son of Hiraman was recorded as 2/3rd and that of Bacha Nonia son of Sohan Nonia was recorded as 1/3rd during the cadestral survey operation which was finalised in the year 1898. He has further observed that during the revisional survey operation which was finalsed in the year, 1919, 2/3rd share was recorded in the name of Raj Kumar, son of Gulab Nonia whereas 1/3rd share was recorded in the name of Chhathoo Nonia, son of Bacha Nonia. The learned appellate court observed that there is prescription of the correctness of the entries made in the record of rights and law is well settled that the entries made in the record of rights must be presumed to be correct unless contrary is proved by evidence. According to the findings of the learned first appellate court, the entry made in the record of rights of cadestral survey was made about 74 years before filing of the suit whereas the entry made in the revisional survey was made about 54 years of filing of the suit. The learned first appellate court has also observed that the ancestor of the plaintiffs and their grand-father Bacha Nonia did not raise any objection regarding the entry of cadestral survey as well as revisional survey meaning thereby that the father of the plaintiffs and their grand-father both had accepted the entries of cadestral survey as well as revisional survey true and correct and this circumstance shows that Mahipat had three sons and not two sons. It futher transpires that the learned first appellate court has discussed the evidence of the plaintiffs as well as the defendants and after thorough discussion, he came to the conclusion that it is not correct to say that Rajman was the son of Bakal Nonia. From perusal of the judgment it appears that he has given very sound argument in accepting the evidence of the defendants that Rajman was the son of Mahipat Nonia and by any stretch of imagination, it cannot be held that this finding is incorrect or is based on incorrect reading of the evidence or it is imaginary. Likewise, the finding of the appellate court that there is no unity of title and unity of possession between the parties is also based on correct appreciation of the evidence adduced on behalf of the parties. From perusal of the judgment of the appellate court it appears that he has dealt with this point at para – 12 of his judgment. I would like to quote some sentence from para-12 of the judgment of the first appellate court. “R.S. Khatian Ext. G shows that possession of the parties has been recorded separately against all the plots of khata No. 193. Most of the plots Page 1312 were under mortgage. The parties were separately dealing with the lands. The area in possession of the parties confirms their shares of 2/3rd or 1/3rd. After the death of Raj Kumar his wife Basmatia also mortgaged plot Nos. 802 and 1011 vide mortgage deed Ext. D/1 dated 31.8.33. Plot No. 1751 of Khata No. 228, area 1 kathas 2 dhurs which was recorded joint during the revisional survey was also partitioned. Thus, there was partition by metes and bounds between the parties long back and no suit for partition can lie. There had been thus, complete partition and the suit for partition is not maintainable. Thus, there is no unity of title and unity of possession between the parties.” From reading of para – 12 of the judgment of the appellate court, it is established that the appellate court for arriving at the conclusion that there was no unity of title and unity of possession between the parties, has given cogent and sound reasons after discussing the evidence available on record and, therefore, I am of the view that by any stretch of imagination, this Court is unable to hold that the judgment of the first appellate court is perverse. It is well settled law that unless it is shown that the judgment of the first appellate, court is perverse, under Section 100 C.P.C. this Court is not empowered to set aside the finding of the first appellate court after re-appraisal of the evidence of the parties. I am, therefore, of the view that on this score alone the appeal is not maintainable.
14. As regards the substantial question of law, it appears that this point has been discussed by the learned first; appellate court at para – 13 of its judgment and on making full discussion on the point, the appellate court held in the following manner – “In fact, the plaintiffs stood ousted, if at all they had any interest, and their suit is barred by law of limitation. The plea of the ouster is implicit and title of the branch of Hiraman stood perfected by possession for a period of more than several 12 years openly, adversely, exclusively, continuously within the knowledge of the descendants of Sohan. The possession was without any concealment. The ancestors of the plaintiffs were aware of what was happening.”
15. The learned Advocate of the appellants has argued that since the defendants had not made out any specific case of adverse possession and the trial court had not given any finding on the point of adverse possession, as such the finding of the lower appellate court on the point of adverse possession is wrong and, therefore, the said finding should be set aside. In support of his contention, the learned Advocate of the appellants has placed reliance upon the decision reported in 1981 BBCJ Page 406 Chekhuri Mallah and Ors. appellants v. Bhabhuti Mallah and Ors. respondents. He has also relied upon the decision reported in 1977 BBCJ 527 in the case of Janeshwar Singh, appellant v. Talkeshwar Singh respondent and submitted that the finding of fact by the lower appellate court on materials not on record, the High Court is entitled to correct the, error by remanding the appeal.
16. From plain reading of para – 15 of the decision reported in 1981 BBCJ Page 406 in the case of Chekhuri Mallah v. Bhabhuti Mallah (supra), it is clear that in the said decision, reference of decision of Madhya Pradesh High Court in Ashik Ali v. Most. Unnsabi Porthahin and Ors. has been made, in which it was held that long possession and dealings with the properties as far back as 1945 may be sufficient to support the case of adverse possession even if the plea of adverse possession was not made in so many words, but all the facts necessary thereto were pleaded by the defendants. It is well settled principle of law that the principle enunciated in the decisions by the High Court or the Apex Court applies in similar cases and not in other cases. So far as this case is concerned, the fact of this case is distinguishable Page 1313 from the facts of the case relied upon by the learned Advocate of the appellants i.e. 1981 BBCJ 406. So far as this case is concerned, there is no denial of the fact that in the cadestral survey entry which was finalised as long back as in the year, 1898 2/3rd share of Gulab Nonia, the ancestor of the defendants and 1/3rd share of Bacha Nonia, the ancestor of the plaintiffs, were recorded which shows that this happening of making entry in the cadastral survey took place about 74-75 years before filing of the suit. There is no reasonable ground to believe that regarding this entry, the father of the plaintiffs, Chhathoo Nonia and the grand-father of the plaintiffs, Bacha Nonia had no knowledge. The inference will be that both the persons i.e. father and the grand-father of the plaintiffs had full knowledge of the entries and they accepted the entries to be correct. Likewise, the entry of revisional survey took place in the year, 1919 and again the father and grand-father of the plaintiffs did not raise any objection meaning thereby that they accepted the correctness of the entry of the revisional survey. There is oral and documentary evidence on record that the heirs of Gulab Nonia i.e. the defendants were dealing with the properties separately on the basis of the entries made in the cadastral survey as well as in revisional survey and no objection was ever raised by the father of the plaintiffs and their grand-father which goes to establish that even if for argument sake it is presumed that the plaintiffs’ ancestor had half share in the property, they lost their claim as they accepted title of Gulab Nonia, the ancestor of the defendants with regard to 2/3rd share in the suit property. Therefore, in the background of the case it cannot be held that the first appellate court has wrongly held that the plaintiffs stood ousted if at all they had any interest and that the descendants of Hiraman had perfected their title by ouster and adverse possession and the suit is barred by Law of Limitation. In such view of the matter, I hold that the finding of the learned first appellate court that the plea of ouster is implicit and title of the branch of Hiraman stood perfected by possession for a period of more than several 12 years openly, adversely, exclusively, continuously within the knowledge of the descendants of Sohan is correct and not an error of law. I futher hold that as the first appellate court has formulated point No. 3 with regard to the issue whether the suit is barred by limitation and after making discussion on this point, the first appellate court has arrived at the finding that the plaintiffs stood ousted if at all they had any interest and the descendants of Hiraman had perfected their title by ouster and. adverse possession, it cannot be held that there was neither any issue nor any evidence with regard to adverse possession. Accordingly, this substantial question of law is decided against the appellant.
17. In the result, I do not find any merit in this second appeal and as such, the same is hereby dismissed. The judgment and decree of the first appellate court are confirmed.