Churaman Mahato vs Horil Mahato

Pradeep Kumar Srivastava, J

By Court:-

Heard Mr. Manjul Prasad, learned senior counsel for the appellants as well as Mr. Ayush Aditya, learned counsel for the respondent.

Present second appeal is preferred against the judgment and decree dated 30.09.2002 (decree sealed and signed on 04.10.2002) passed by learned 1st Additional District Judge-Giridih in Title Appeal No. 21 of 1998 setting aside the judgment and decree in part dated 31.08.1998 (decree sealed and signed on 16.09.1998) passed by learned 3rd Additional Munsif in Title Suit No. 113 of 1989 on the following substantial questions of law which was formulated vide order dated 22.04.2004:-

(a) Whether in view of absence of any registered document of exchange of land, the finding of learned lower appellate court on the basis of sale deeds that the defendant is in continuous possession over five decimals of plot no. 263 and the plaintiff was ousted from plot no.263 is illegal arbitrary and erroneous ?

(b) Whether while setting aside the judgment and decree of trial court either whole or part a duty is cast on the appellate court being final court of fact, to meet with each and every reasoning of the trial court ?

Learned counsel for the appellants submits that the suit was instituted by the plaintiffs/appellants claiming right title and possession over the suit property which was decreed by the learned trial court. Thereafter, the defendant/respondent of this appeal filed the first appeal in which the appeal was partly allowed and it was finally arrived at by the appellate court that the plaintiff is entitled to a decree for plot no. 783 of Khata No. 27 measuring area of 16 dismal of Mauza Gopai. It was further held that the plaintiff cannot claim recovery of possession over the plot no. 781, Khata No. 24 measuring an area of 11 dismal of village Gopai for want of necessary party. It was also held that the plaintiff is however not entitled for recovery of possession of plot no. 263 measuring an area of 5 dismal of Khata no.30. Accordingly, the plaintiff was deprived from considerable part of the suit land claiming the recovery of possession of suit land without meeting all the reasoning given by the learned trial court. Therefore, this appeal is fit to be allowed setting aside the judgment and decree passed by the learned first appellate court.

On the other hand, learned counsel for the respondent has very fairly argued that in the Title Suit No.113 of 1989 claim of the plaintiff was allowed only in respect of land appertaining to Khata no.30, plot no. 734 measuring area of 8 dismal and in respect of other suit properties no decree was passed.

The defendant/respondent challenged that judgment and decree passed by the learned trial court by preferring Title Appeal No. 21 of 1998, which was partly allowed, in favour of plaintiff/respondent in respect of lands appertaining to plot no. 783, Khata No. 27 area 16 dismal of Mauza Gopai. Although, no specific decree was passed by the learned trial court as well as the appellate court in respect of land of Khata No. 24, plot no. 781 measuring area of 11 dismal and plot 263 of Khata No. 30 area 5 dismal. The plaintiff never filed any first appeal against the decree of concerned trial court nor has agitated any additional plea by filing any cross-objection or cross-appeal before the first appellate court. Therefore, the judgment and decree passed by both the courts below has become final and this appeal is fit to be dismissed.

I have gone through the record of the case along with judgment and decree passed by the learned trial court as well as first appellate court in the light of submissions made by learned counsel for the respective parties. There is no dispute at all that the suit of the plaintiff was decreed only in respect of plot no. 734 measuring area of 8 dismal appertaining to Khata No. 30 as mentioned in the plaint and the defendants were directed to deliver the possession of the same within 2 months from the date of the order otherwise the same may be recovered from the process of law. No appeal was filed by the present appellant/plaintiff against the judgment and decree of learned trial court rather the appeal was filed by the defendant/respondent and again the plaintiff was accorded relief in respect of plot no. 783 land appertaining to Khata no. 27 measuring an area of 16 dismal of village Gopai which has also not been challenged by the defendant by preferring any appeal or by filing cross-objection in this appeal. Therefore, the decree passed by Ist Appellate Court shall merge with the decree of trial court.

In view of above discussion, there remains no merits in the substantial questions of law formulated in this appeal. Accordingly, this appeal is dismissed.

Let the copy of the judgment alongwith lower court record be sent to court concerned for information and needful.