1. The defendants first set and second set have filed the appeals against the judgment and decree dated 14th May, 1991 passed by 2nd Additional District Judge, Patna setting aside the judgment and decree dated 3-11-1983 passed by Addl. Sub-Judge II, Patna in Title Suit No. 242 of 1977/075 of 1981 dismissing the suit filed by the respondents.
2. At the stage of hearing under Order 41, Rule 11 of the Code of Civil Procedure (in short the Code) itself the plaintiffs respondents appeared and as such the parties have been heard and the appeals are being disposed of at this stage.
3. The plaintiffs-respondents had filed the suit for declaration of title and confirmation of possession and in the alternative for recovery of possession with regard to the lands detailed in Schedules A and B of the plaint. Schedule A contain lands of Kata No. 121, Plot No. 148 area 10 decimals and Schedule B contains land of Khata No. 275 Plot Nos. 149 and 152, Khata No. 87 Plot No. 150 and Khata No. 302, Plot No. 151 situate in village Nasirpur, in the district of Patna, Schedule C of the plaint contains plot Nos. 153, 154 and 155 with regard to which no relief has been claimed.
4. The case of the plaintiffs, in brief is that Plot No. 148 belonged to Deso Gope and Plot Nos. 149 and 152 belonged to Beni Madhav Gope, Plot No. 150 belonged to Mostt. Iddan daughter of Sheikh Rajballi, Plot No. 151 belonged to Bhagwan Das, Plot Nos. 153, 154 and 155 belonged to Nathuni Gope and Raghu Gope. On 12-11-1912 Plot No. 148 was sold by registered sale deed by Daso Gope to Bhagwan Das vide Ext. 3.D, Plot Nos. 149 and 152 was sold by recorded tenant to Bhagwan Das by registered sale deed vide Ext. 3.B on 26-8-1910 and Plot No. 150 was sold by the heirs of the recorded tenant to Bhagwan Das by registered sale deed dated 30-9-1906 vide Ext. 3.A. Plot Nos 152 to 155 was sold by recorded tenants to Bhagwan Das by registered sale deed dated 21-12-1911 vide Ext. 3.C. Thus, Bhagwan Das came in possession over the Plots Nos. 148, 149, 150, 152, 153 to 155 by virtue of purchase, Plot No. 151 belonged to him. He by registered sale deed dated 31-1-1919 vide Ext. 3.E sold all the aforesaid plots mentioned above to Ganga Prasad and the aforesaid plots were numbered during the municipal survey made in 1932-1933 as Municipal Plot No. 3496 to 3501 and were recorded in possession of Ganga Prasad (Ext. 10 Series). The name of Ganga Prasad was mentioned in the records of the ex-land lord and after vesting in the records of State of Bihar vide Ext., Ganga Prasad died leaving behind his widow, son and grandsons (Defendants Nos. 11 to 17) and they by registered sale deed dated 27-10-1970 (Ext. 3) transferred the lands to the plaintiffs and they came in possession and their names have been mutated in the government records. The plot No. 142 has been wrongly mentioned in the sale deeds in place of plot No. 148.
5. The defendant Ist and IInd set falsely claimed the disputed land on the basis of forged and fabricated sale deeds as a result of which there was a dispute between the parties which led to initiation of two proceedings under Section 145, Cr. P.C between the parties. The said procedures were wrongly decided against the plaintiffs, hence the suit.
6. Three sets of the written statements were field in the court below by the defendants in respect of their claim. Defendant IInd set claims Plot No. 148 only. According to them Plot No. 148 was never sold by the recorded tenant Deso Gope to Bhagrwan Das on the other hand Plot No. 142 was sold to him. They have purchased Plot No. 148 for Kishan Gope son of Daso Gope by registered sale deeds dated 4-1-1972 (Ext. B/2 series) and since then they are in possession over the same and their names has been mutated in the Government records.
7. The defendants Ist set have admitted that plot Nos. 149 and 152 were recorded in the name of Beni Madhave Gope and plot No. 150 in the name of Mostt. Iddan and Plot No. 151 in the name of Bhagwan Das. According to their case the recorded tenants surrendered the lands to the ex-land lord Kazi Saiyed Md. Afzal @ Gule Moinuddin and in pursuance of that the landlord came in possession over the aforesaid lands and after his death the aforesaid plots came in possession of his son Azmal @ Gholam Rasool. He settled the lands to Daso Gope followed by Hukumname dated 21-3-1917 (Ext. C-1). After death of Daso Gope the lands of aforesaid plots Nos. 149 to 152 fell into share of Kishan Prasad Yadav whose name was recorded in the Jamabandi. He sold the disputed lands by registered sale deed dated 4-1-1972 to defendants 1st set. The defendants 1st set came in possession and their names have been mutated. The sale deeds relied upon by the plaintiffs in support of their case do not mention plots Nos. 149 to 152 and as such the plaintiffs did not acquire the right, title and possession with regard to the aforesaid plots.
8. The trial Court held that the plaintiffs failed to prove their right title and possession over the suit lands and the defendants Ist set and 2nd set have their title and possession over the same. The lower appellate Court reversed the judgment and decree of the trial Court and held that the plaintiffs have title and possession over the lands mentioned in Schedule A and B and the defendants Ist and IInd set have failed to prove title and possession over the lands.
9. Learned counsel for the appellants contended following points;
(a) the finding arrived at by the lower appellate Court that plots Nos. 148 to 152 were validly acquired by the plaintiffs is based on inadmissible evidence, namely, Municipal Khasra Ext. 10 series and Exts. 8 and 8.A the registered sale deed executed between the third parties.
(b) in absence of mention of plot Nos. 148 to 152 in the documents of title, namely, sale deed dated 31-1-1919 executed by Ghagwan Das in favour of Ganga Prasad and the sale deed dated 27-10-1970 executed by the heirs of Ganga Prasad in favour of plaintiffs, the appellate court erred in holding that the plaintiffs acquired title and possession oyer the said land.
(c) the appellate Court has committed a substantial error of law in ignoring to consider the provision of Sections 21 and 22 of the Registration Act in as much as identity of the land bearing plot Nos. 149 to 152 was not identifiable from the documents of title (sale deed dated 31st Jan. 1919 Ext. 3.E). In the sale deed plot No. 149 to 152 has not been mentioned and as such it did not confer title with respect to the aforesaid plot to the vendee.
(d) the lower appellate Court has committed serious error of law in deciding the question of possession on the principle “possession follows title.”
10. Learned counsel for the plaintiffs-respondents on the other hand combated all the points and submitted that none of the questions raised by the appellants are substantial question of law requiring interference under Section 100 of the Code. He alternatively contended that none of the points raised on behalf of the appellants are available in this case for the reason that the appellate Court after having gone through the oral and documentary evidence in detail has accepted the case.
11. Section 100 of the Code has been amended by Act 104/76. Prior to the amendment of Section 100 of the Code the second appeal to the High Court would lie from every appellate decree passed in appeal by any court Subordinate to it when the decision is contrary to law or to some usage having force of law or the decision having failed to determine some materials issued or law usage having the force of law or a substantial error or defect in the procedure provided by the code or by any law for the time being in force causing error or defect in the decision of the case upon merit.
12. While interpreting the aforesaid provision it has been consistently held by the privy council and the apex Court that finding of fact is not open to challenge even if the appreciation of evidence is palpably erroneous and the finding of fact arrived at is grossly erroneous. It was also held that the sufficiency or adequacy of evidence to support the finding of fact is matter for decision of Court of fact. The law commission noticed that wide language of Section 100 of the Code has been liberally interpreted by the Courts as a result of which the basic principle that on question of facts, decision of Courts of first instance would be final subject to appeal has been given a good bye and accordingly suggested the substitution of the said section by amendment as stated above. The amended provision provides that an appeal will lie to the High Court by the appellate decree of the Subordinate Court only, if the High Court is satisfied that the case involves the substantial question of law. Thus, according to the amended provision the question of law could not be a ground for interference in second appeal. The question of law should be a substantial question of law.
13. The word substantial question of law cannot be put in straight jacket. It depends upon each of the case as to whether the substantial question of law arises in the case or not. The apex Court in the case of Pankaj Bhargava v. Mohinder Nath, AIR 1991 SC 1233 has considered the meaning and scope of word of substantial question of law while dealing with the provision of Section 39 of the Delhi Rent Control Act which provides an appeal only on substantial question of law and has held in paragraph 8 of the judgment as follows;
“What is substantial question of law would certainly depend upon facts and circumstances of every case and that if a question of law had been settled by the highest Court of the country that question however important and difficult it may have been regarded in the past and however large may be its effect on any of the parties would not be regarded as substantial question of law. In Raghunath Prasad v. Deputy Commr. of Partabgarh (1927) 54 Ind App 126 : (AIR 1927 PC 110) the judicial Committee observed that a question of law to be considered a substantial question of law need not be one of general importance and it could be substantial question as between the parties. This court had occasion to consider the views expressed on the point by the High Courts of Bomaby, Nagpur and Madras in Kaikhunshroo Pirojaha Ghaira v. C.P Syndicate Ltd. (1948) 50 Bom LR 744 : (AIR 1949 Bom 134); Dinkarrao v. Rattansey, ILR (1949) Nag 224 : (AIR 1949 Nag 300) and Rimmalapudi Subba Rao v. Hoony Veeraju, ILR (1952) Mad 264 : AIR 1951 Mad 969 (FB) respectively placing differing emphasis on what was a substantial question of law between the parties. It was held by this Court that while the view taken by the Bombay High Court was too narrow, the one taken by the Nagpur High Court was to broadly stated. Approving the view taken by the Madras High Court it was observed:
“…….. The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied and there is a mere question of applying those principles or that the plea raised in palpably absured the question would not be a substantial question of law.”
(See: Sir Chunilal V. Mehta & Sons Ltd. v. Century Spinning and Manufacturing Co. Ltd. 1962 Supp (3) SCR 549 at pp 557 and 588), AIR 1962 SC 1314 at p. 1318).
Thus, it is clear from the law laid down in the said case that if the question of law is of general public importance or it effects the right of the parties and is not finally settled by the judicial pronouncement of binding nature or is not free from difficulty or call for a discussion of alternative views then it is substantial question of law. Apart from the aforesaid question of law if the appellate Court has arrived at the finding over looking the material evidence or has relied upon inadmissible evidence or has applied the well settled law wrongly or its finding is based on no evidence or has over looked the statutory provision then such questions will be also substantial question of law under Section 100 of the Code.
14. Admitted facts are that plot No. 148 is recorded in the name of Daso Gope, plot Nos. 149 and 152 in the name of Beni Madhav Plot No. 150 in the name of Mostt. Iddan, Plot No. 151 in the name of Bhagwan Das and plot Nos. 153 to 155 in the name of Nathuni Gope. Plot Nos. 153 to 155 have been described in Schedule C of the plaint but not relied has been claimed by the plaintiffs. It is an admitted fact that the recorded tenants or their descendants have sold their lands to Bhagwan Das and Bhagwan Das by sale deed dated 31-1-1919 (Ext. 3.E) sold the plot Nos. 148 to 155 including his own plot No. 151 to Ganga Prasad. In the sale deed plots Nos. 148 to 151 are not mentioned. Similarly, in the sale deed executed by the heirs of Ganga Prasad to the plaintiffs plot Nos. 148 to 152 are not mentioned. Plot No. 142 is mentioned for plot No. 148 and other plots are not mentioned at all. It is also an admitted position that in the municipal survey the aforesaid survey plots were recorded as plot Nos. 3496 to 3501. The municipal plots were recorded in the name of Ganga Prasad predecessor in interest of the vendor of the plaintiff in the year, 1932-1933 vide Municipal Khasra (Ext. 10) and Municipal Map (Ext. 11.A). Both the Courts have found that all the plots are at one place and contiguous to each other. Regarding plot No. 148 the appellate Court has found that the said plot is not mentioned even in the sale deed executed by the original tenant Daso Gope to Bhagwan Das. However, after taking into consideration the averments made in the sale deed executed by Daso Gope to Bhagwan Das and the heirs of Ganga Prasad to the plaintiffs and taking into consideration the entries in the survey Khatihan, Municipal Khasra, Survey Map and oral evidence has come to a finding that plot No. 142 was wrongly mentioned for plot No. 148 in the sale deeds. This finding has been challenged by the appellants on the ground that there is no presumption of correctness of the entry in Municipal Khasra and the appellate Court has wrongly treated the same as document of title and on this ground the judgment is vitiated in law. Learned counsel for the appellants is wrong in making the aforesaid submission. The appellate Court in paragraph 28 of the judgment has correctly held that there is no strong presumption of correctness of title was that of survey entry but all the same they are evidence of facts mentioned therein in according to Section 10 of the Municipal Survey Act and, therefore, its evidencing value has to be considered along with other materials on the record.
15. The Bihar and Orissa Municipal Survey Act, 1920 has been enacted to make provision for the survey and record of land situate in municipality in Bihar and Orissa. Section 10 of the Municipal Survey Act provides that the publication of records under the aforesaid Act shall be conclusive evidence that the record has been made duly under this Act. Section 11 of the Municipal Survey Act provides that every entry in the record finally published under Section 10 shall be evidence of the matters referred to in such entry. Thus, the aforesaid provision shows that the presumption of correctness of the entry with regard to the matters referred to in such entry. The lower appellate Court has not relied only upon the Municipal Survey records for purposes of accepting the case of the plaintiffs. While determining the question as to whether the plot No. 142 or 148 was transferred the court has considered boundaries given in the sale deeds, Survey Map and Survey Khatihan. In the sale deed in question on west Kashi Gope was mentioned, and in survey Khatihan on west it is mentioned Siwan Abdul Rahman. The Court after looking the map found that on the western end of village Nasirpur Tajpur is plot No. 148 and beyond that village Abdul Rahmanpur starts vide Annexure-1 and 11.B. It also found plot No. 344 is the first plot just after plot No. 148 in village Abdul Rahmanpur. In the sale deed Gopi Koari was mentioned in the western boundary and to decide question whether plot No. 344 belongs to Gopi Koeri the Court considered the evidence of P.W 12 and also relied upon the sale deed Ext. 8 executed by son of aforesaid Gope Koeri on 4-8-1960 to Smt. Badami Devi. The Court noticed that Ganga Prasad predecessors in interest of vendor of the plaintiffs was mentioned in eastern side of plot No. 344. Learned counsel for the appellants submitted that the boundaries given in the sale deed of the third parties should not have been relied upon by the appellate Court. If the aforesaid sale deed would have been the only evidence to decide the question then there would have been some substance in the submission advanced on behalf of the appellants but that document has been considered along with other evidence on the record. As such the reliance upon the boundary given in the sale deed between third parties has not vitiated the finding. Even if the said document is excluded the finding is sustainable on other evidence on record.
16. No doubt plot Nos. 148, 149 to 152 are not mentioned in the sale deeds which are documents of title, but the appellate Court has found that the aforesaid plots were transferred. While deciding this question it took note of the fact that the lands transferred are in one block. It is also mentioned in the sale deeds that Bhagwan Das acquired the land from the recorded tenants in whose name plot Nos. 148, 149, 150 and 152 have been recorded. It also took note of the fact that so far as plot Nos. 153 to 155 are concerned they are also included in the sale deed executed in favour of the plaintiffs and there is no dispute by the recorded tenant with regard to those plots. Thus, even if the plots are not mentioned the appellate Court being the final Court of facts can come to the conclusion that the lands of the said plot has been transferred by the sale deeds to the plaintiffs.
17. The reference to Sections 21 and 22 of the Registration Act by the Counsel of the appellants is misconceived. Section 21 of the Registration Act provides that no document shall be accepted for registration unless it contains sufficient discription of property and maps or plans. Section 22 of the Registration Act provides that the State Government may prescribe that for purposes of Section 27 the houses not in town and land may be described by reference to Government map or survey. The said provision only provides that Registration Officer may refuse the registration when there is no complete discription of the property. However, it does not mean that if the registration has been made in contravention of the same the document would be null and void. Inaccurate or insufficient discription does not invalidate the document of registration. Thus, I am unable to agree with the submission that due to non mention of plot number in the sale deeds the same shall be held to be null and void in the eye of law. In cases where it is not possible to identify the property on the basis of the sale deed and other admissible evidence brought on the record the Court may negative the claim. In this case the final Court of fact has found that the identity of the lands has been established. Thus, the submission advanced on behalf of the appellants is devoid of merit.
18. Last submission advanced on behalf of the appellant is that the question of possession has been erroneously decided. The plaintiffs have filed the suit for possession on the basis of title and as such the suit is covered by Article 65 of the Limitation Act. The plaintiffs have to prove title only. He need not prove that he was in possession within 12 years of the suit. The defendants can only succeed if he proves that his possession has become advere to the plaintiffs. There is contest between the parties regarding title and possession and the appellate Court having found the title of the plaintiffs over the suit land has mentioned the maxim that possession follows the title but he has not relied upon the said maxim only to decide the question of possession. He has considered the evidence of possession adduced by both the parties and has come to a definite finding that plaintiffs are in possession. The appellate Court has also considered the case of the defendants appellants in detail and rejected the same. In my view the last submission is also devoid of substance.
19. In my view, none of the points raised on behalf of the appellants is substantial question of law requiring interference by this Court and, accordingly, the appeals are dismissed with cost.
Appeal dismissed.