IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.230 of 2007 1. TANIK LAL MAHTO, SON OF LATE KALI MAHTON. 2. RAMDEO PD. RAMAN. 3. PUNIT PD. RAMAN. 4. RAMESHWAR PD. RAMAN. 5. BIPIN BIHARI RAMAN. SONS OF TANIK LAL MAHTON. ALL ARE RESIDENT OF MANIKPUR, TOLA-KONIPAR, P.S. SURAJGARHA, DISTRICT-LAKHISARAI. ……………………PLAINTIFFS/APPELLANTS-APPELLANTS. Versus 1. KAILASH PATI MAHTON. 2. GENALAL MAHTON. 3. RAM PRASAD MAHTON. 4. SURENDRA PD. SINGH. ALL SONS OF LATE BITO MAHTON. 5. SUSHILA DEVI, WIFE OF LATE MAHENDRA MAHTON. 6. RAJA RAM MAHTON. 7. GUDDU MAHTON. SONS OF LATE MAHENDRA MAHTON. 8. NITU KUMARI, DAUGHTER OF LATE MAHENDRA MAHTON. ALL ARE RESIDENT OF VILLAGE-MANIKPUR, TOLA- KONIPAR, P.O. DIGBARI, P.S. SURAJGARHA, DISTRICT- LAKHISARAI. 9. NEELU KUMARI, WIFE OF BIJAY KUMAR SINGH, DAUGHTER OF LATE MAHENDRA MAHTO, RESIDING AT ABGIL, P.O. PAHARPUR, P.S. SURAJGARHA, DISTRICT-LAKHISARAI. 10. SEELU KUMARI, WIFE OF MUKESH KUMAR, DAUGHTER OF LATE MAHENDRA MAHTON, RESIDENT OF VILLAGE-RATANPUR, P.S. BARIYARPUR, DISTRICT- MUNGER. 11. SIKANDAR MAHTON. 12. PRAMOD MAHTON. SONS OF LATE HEERA LAL MAHTO. BOTH ARE RESIDENT OF VILLAGE-MANIKPUR, TOLA- KONIPAR, P.O. DIGHORI, P.S. SURAJGARHA, DISTRICT- LAKHISARAI. 2 13. ANJU DEVI, WIFE OF RAVINDRA KUMAR, DAUGHTER OF HARILAL MAHTON, RESIDENCE OF VILLAGE- SUNDERPUR, P.O. BAHA CHANKI, P.S., DISTRICT- MUNGER. 14. BINOD MAHTON, SON OF LATE MAHABIR MAHTO. ALL ARE RESIDENT OF VILLAGE-MANIKPUR, TOLA- KONIPAR, P.S. SURAJGARHA, DISTRICT-LAKHISARAI. 15. BHARAT PD. RAMAN, SON OF SHRI TANIK LAL MAHTO, RESIDENT OF VILLAGE-MANIKPUR, TOLA, KONIPAR, P.S. SURAJGARHA, DISTRICT-LAKHISARAI. ……………DEFENDANTS/RESPONDENTS/RESPONDENTS. ----------- For the Appellants : M/s. Shashi Shekhar Dwivedi, Sr. Advocate, Ranjan Kumar Dubey, Sangeeta Sharma & Rakesh Choudhary, Advocates. ------------ 5. 5.7.2010. This appeal has been preferred by the plaintiffs- appellants on being aggrieved and dissatisfied with the judgment and decree dated 8.8.2007 passed by the Additional District and Sessions Judge, Fast Track Court No.II, Lakhisarai, in Title Appeal No.48 of 2004, affirming the judgment and decree dated 4.8.2004 passed by the Munsif, Lakhisarai in Title Suit No.24 of 2000, whereby the suit filed by the plaintiffs-appellants was dismissed on contest. Title Suit No.24 of 2000 had been filed by the appellants-plaintiffs for permanently restraining the respondents from interfering into the peaceful possession as well as for passing 3 a decree of permanent injunction by restraining the defendants- respondents from demolishing the construction erected upon the suit land by the plaintiffs. The suit land as has been described as of an area of 3.5 decimals appertaining to Thana No.87, Khata No.235, Plot No.629 of Mouza Manikpur, Thana-Suryagarha, District-Munger, at present Lakhisarai. It had been submitted on behalf of the plaintiffs- appellants that the defendants-respondents are in possession of the part of Plot No.629 in the north, south and east of the disputed land whereas in the western portion the plaintiffs are having their house. It is further stated that the plaintiff no.1 had filed a suit in his capacity as a Manager and Karta of the family. According to the plaintiffs-appellants, the total area of the Plot No.629 is 1.52 acres and in the record of rights it is entered as “Gair Mazarua Aam Ditch”. It has been submitted that almost all portions of the Plot No.629 had been encroached by other persons and has been merged in their house and boundary. There is a passage upon the adjacent of Plot No.229 which culminates into the aforesaid ditch and the defendants wanted thorough fare from the aforesaid ditch, i.e., 3.5 decimals of the land appertaining to Plot No.629 which is in possession of the plaintiffs-appellants since long and that has 4 been merged by the plaintiffs in their ancestral land bearing Plot No.730 whereupon the plaintiffs are having their house etc. According to the plaintiffs-appellants, the suit land is encircled by 7 ft. boundary wall and the plaintiffs claim possession of the same since last 60 years. There had also been some litigation as Section 144 Cr.P.C. proceedings was initiated which was converted into a proceedings under Section 133 Cr.P.C. and that having been decided against these plaintiffs-appellants, Criminal Revision was preferred in which the earlier order was set aside and the same was remitted back for reconsideration. However, thereafter, the plaintiffs have filed the present suit. The defendants filed their written statement refuting the claims of the plaintiffs claiming therein that the plaintiffs have encroached upon the public land which was recorded as “Gair Mazarua Aam Ditch” whereupon a public passage was existing and that has been forcibly closed leading to a dispute under Section 133 Cr.P.C. which was decided against the plaintiffs, however, the Criminal Revision No.184 of 1999 was preferred and the original order was set aside and the matter was remitted back to the Sub Divisional Magistrate for reconsideration. As it appears from perusal of the impugned judgments, the case of the defendant is that subsequently on 5 12.7.2000 in the proceeding under Section 133 Cr.P.C. again an order was passed directing the plaintiffs to remove the encroachment failing which the Anchal Adhikati, Suryagarha, was directed to remove the encroachment at the cost of the plaintiffs and against which again the plaintiffs preferred Criminal Revision No.264 of 2000 which was dismissed on 2.2.2001 by the revisional court. The trial court upon consideration of the aforesaid pleadings, appreciation of evidence as well as the rival submissions made on behalf of the parties had come to the conclusion that the plaintiffs have neither claimed or sought any relief with regard to any declaration of any right, title or interest upon the suit property nor had the same been declared previously by any court of law in favour of the plaintiffs. It has also been noticed that the land in dispute having been recorded as “Gair Mazarua Aam Ditch” which is the public land, the State of Bihar has not been impleaded as a party. While discussing the evidence led on behalf of the plaintiffs, it had been noticed by the trial court that all the witnesses have stated that the plaintiffs are in possession of the suit land for more than about 60 years but all such witnesses are aged about 26-38 years and they have also not disclosed the source from whom they have got such knowledge. That apart, it has also bee noticed by the trial court that the 6 plaintiff no.1, who had claimed to be in possession of the suit land and claimed to have filed the suit being Manager and Karta of the family and who was the most suitable person to depose in this regard, had surprisingly not been examined by the plaintiffs as a witness. In the above view of the matter, the trial court had recorded a finding that the possession of the plaintiffs is also not proved. Thus, it has been held that the plaintiffs failed to demonstrate that there has been any breach of any obligation in his favour either expressly or by implication and the relief for permanent injunction cannot be granted in their favour. Thus, the suit had been dismissed on contest. The appellate court upon appreciation of cases of the respective parties and the materials available on record also noticed that in his cross examination, P.W., Bipin Bihari Raman, had stated that apart from this case, another suit being Title Suit No.42 of 2000 has been filed for declaration of title of adverse possession which is still pending. The appellate court has also noticed that the plaintiffs have not sought any relief against the order passed in a proceeding under Section 133 Cr.P.C. It has also been noticed that when the encroachment of the plaintiffs on the suit land was tried to be removed by due process of law in 7 view of the order passed in a proceeding under Section 133 Cr.P.C., resistance was made by the plaintiffs by resorting to brick batting etc., the government officials had to escape therefrom and for that Suryagarha P.S. Case No.111 of 2000 was also lodged. The appellate court has also come to the conclusion that none of the witnesses on behalf of the plaintiffs, who have stated the factum of possession of the plaintiffs, are more than 38 years of age and also that, though they have stated that the plaintiffs are in possession for more than 60 years, they have not stated what was their source of knowledge. When the issue was raised before the appellate court that some of the witnesses did not say anything regarding the passage in their cross examination, the appellate court has answered that it was the plaintiffs to ask the question during the course of cross examination in that regard which they have miserably failed to do. Thus, the appellate court has also come to the conclusion that upon evaluation of the materials on record, the defendants’ witnesses appear to be more reliable and, thus, has dismissed the appeal affirming the judgment and decree passed by the trial court. Learned counsel appearing on behalf of the appellants submitted before this Court that there has been non appreciation of evidence led on behalf of the plaintiffs and, thus, the judgment 8 and decree of the appellate court is liable to be set aside on that account. In support of his submissions, learned counsel for the appellants placed reliance upon the decisions of the Apex Court in Madhukar and others Vs. Sangram and others {2001(3) PLJR (SC) 192}, Ramchandra Sakharam Mahajan Vs. Damodar Trimbak Tanksale (Dead) and others {(2007)6 Supreme Court Cases 737}, Haryana State Industrial Development Corporation Vs. Cork Manufacturing Co. {(2007)8 Supreme Court Cases 120} and Nicholas V. Menezes Vs. Joseph M. Menezes and others {(2009)4 Supreme Courts Cases 791). It has been submitted on behalf of the appellants that in Madhukar and others Vs. Sangram and others {2001(3) PLJR (SC) 192}, the Apex Court has observed that sitting as a court of first appeal, it is the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its finding. However, in that case, it has been noticed by the Apex Court that the first appellate court was singularly silent of any discussion either of documentary evidence or oral evidence in that court which was discussed by the trial court. Whereas, in the present case, the appellate court has discussed all the respective submissions of the parties and the evidence led on their behalf and the findings recorded by the court below and had come to the 9 conclusion thereafter. Similarly, while relying upon the observation of the Apex Court in paragraph-14 in Ramchandra Sakharam Mahajan Vs. Damodar Trimbak Tanksale (Dead) and others {(2007)6 Supreme Court Cases 737}, the learned counsel submitted that there should have been independent appraisal of the various documents produced by the plaintiffs in the light of the pleadings and the oral evidence available, to come to a conclusion as to whether the plaintiffs had established their title or not. In the present case, the plaintiffs have brought a suit for permanent injunction restraining the defendants from interfering into the peaceful possession of the plaintiffs and restraining them from demolishing the wall encircling the suit land by the plaintiffs. The courts below upon appreciation of all evidence have come to the conclusion that the plaintiffs could not demonstrate their right and title and so for as the possession of the plaintiffs is concerned, though their claim is that they are in possession since long, i.e., for more than 60 years, none of the witnesses produced by them are more than 38 years of age and not only that none of them have disclosed their source of knowledge regarding the possession of the plaintiffs for the last 60 years. That apart, the most vital person, who was the plaintiff no.1 10 himself, who has stated in the plaint that he had instituted a case being Manager and Karta of the family, had not been examined as plaintiffs’ witnesss. Reliance has also been made upon another decision of the Apex Court in Haryana State Industrial Development Corporation Vs. Cork Manufacturing Co. {(2007)8 Supreme Court Cases 120}. However, in that case, it has been held by the Supreme Court that the court had dismissed the appeal without advertence to the relevant materials available in that case which is not a fact in this case as the appellate court has perused the materials on record and decided the points in issue. In yet another decision relied upon by the learned counsel in Nicholas V. Menezes Vs. Joseph M. Menezes and others {(2009)4 Supreme Courts Cases 791), the appeal was dismissed by a learned Single Judge of High Court without calling for the records and proceedings and without appreciating the pleadings, evidence oral or documentary on record. Thus, it has been held by the Apex Court that the duty was cost upon the appellate court to consider the evidence on record and also questions of law. However, in the case in hand, learned counsel could not point out any infirmity in the findings recorded by appellate court. It could not be shown that deposition of any 11 witness who was competent to speak regarding the possession of the plaintiffs for the last 60 years was not considered. Learned counsel failed to show as to why the defendants’ witnesses were not cross examined on the point of existence of the concerned passage or why one of the plaintiffs who was old enough and competent to say regarding their possession upon the suit land, was not examined as a witness? It is well settled that in case of concurrent findings of two lower courts, heavy burden lies on appellant seeking to disturb them in second appeal. It would be pertinent to refer to and quote the relevant passage from the decision of Privy Council in H.A. Morine Vs. London Loan Assets, Ltd. and others (A.I.R. 1934 Privy Council 127) in this regard as under: “A litigant who seeks before a second appellate tribunal to reverse findings of fact which have been arrived at by the trial Judge and have, after consideration, been confirmed on appeal, comes always with a very heavy burden upon his shoulders. But when as here, he is the principal witness in regard to the crucial facts, and has been described by the trial Judge in the terms which have been applied to Morine in the present case, the weight of his burden is so great that few, if any, could survive under it. In regard to this appeal their Lordships deem it sufficient to say that they see no reason for doubting that the conclusions of fact and law come to by the trial Judge, and approved by the appellate Division of the Supreme Court of Ontario, are well founded and correct.” 12 The Apex Court in Nopani Investments (P) Ltd. Vs. Santokh Singh (HUF) {(2008) 2 Supreme Court Cases 728} has held that in case of reversal, the first appellate court should give some reason for reversing the finding of the trial court whereas in case of affirmation the first appellate court accepts the reasons and findings of the trial court. In the case in hand, the first appellate court had affirmed the findings of the trial court which were based on consideration of the materials available on record. Thus, no substantial error could be pointed out by the plaintiffs-appellants due to which any substantial question of law arises out of in this appeal. As a result, this appeal, being devoid of any merit, is accordingly, dismissed. P.S. (Dr. Ravi Ranjan, J)