Letters Patent Appeal No.1112 OF 1998 (Against judgment and order dated 27.8.1998, passed by a learned single Judge in First Appeal No.268 of 1980) ******* 1.(i) Baleshwar Prasad (ii) Kameshwar Prasad (iii) Rajendra Prasad (iv) Uma Shankar Prasad (v) Kumar Narendra -All residents of Village Akhair, Police Station Chandi, District Nalanda (vi) Smt. Janak Dulari …..Plaintiffs-Respondents-Appellants Versus 1. Smt. Shanti Devi 2. Smt. Ganauri Devi - Daughters of late Ram Sharan residents of village Netar, PS Fatwah, District Patna 3. Ashutosh Kumar and others 4. Smt. Rampari Devi 5. Most. Dayawanti Devi 6. Prem Kumari 7. Krishna Prasad 8. Anil Prasad 9. Birendra Prasad 10. Most Sabitri Devi 11. Kintu Prasad 12. Sanjay Kumari 13. Nisma Kumari ….. Defendants – Appellants… Respondents ********* For the Appellants : Mr. S K Majumdar Senior Advocate For the Respondents : Mr. Rajendra Prasad Advocate *********** P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE KISHORE KUMAR MANDAL S K Katriar, J. The heirs of the plaintiff have preferred this appeal under clause 10 of the Letters Patent of the High Court of Judicature of Patna, raises a grievance with respect to the judgment and decree dated 27.8.1998, passed by a learned single Judge of this Court in First Appeal No.268 of 1980 (Smt. Jiria Devi & ors. v. Smt. Mangari Devi & ors.), whereby the appeal preferred by the defendants has been allowed, the judgment and decree of the learned trial court has been set aside, and the plaint has been rejected. We shall go by the description of the parties occurring in the plaint. 2 2. According to the plaint, the father of the plaintiff, Punit Mahto, had a brother Ram Saran Mahto. The latter had two sons, namely,Gyanchand Prasad and Ramdeo Prasad. Gyanchand Prasad had three minor sons. The plaintiff instituted the suit for declaration that the registered deed of gift dated 20.10.64 (Ext.C), executed in favour of defendant nos. 2 and 3, namely, Gyanchand Prasad and Ramdeo Prasad, is forged, fraudulent, illegal, invalid and inoperative document. It has further been prayed in the plaint for allocation of half share in her favour in the suit property. The defendants entered appearance, filed written statement and contested the suit. It may be stated that Punit Mahto died on 8.11.1969. 3. The learned trial court framed the following issues for adjudication:- “i. Is the suit as framed maintainable? ii. Has the plaintiff any cause of action for the suit? iii. Is the suit barred by limitation? iv. Is the suit barred by provision of Specific Relief Act? v. Is the suit property under valued and is the court fee paid by the plaintiff sufficient? vi. Is the suit bad for non-joinder of parties? vii. Is the deed of gift dated 20.10.64 executed by Punit Mahto in favour of defendant nos.2 and 3 legal, valid and genuine document and is the same binding on the plaintiff? viii. Is the plaintiff entitled to a decree for partition of the suit property if so far what share? ix. To what relief or reliefs if any is the plaintiff entitled?” By judgment dated 10.3.1980, passed by the learned Additional Subordinate Judge –II, Patna, in Title Suit No. 205/99 of 1970/76, the suit was decreed on contest. It was, inter alia, held that Ext. 3 was a forged and fabricated document and was, therefore, declared void ab initio. 4. Aggrieved by the judgment and decree, the defendants preferred First Appeal No.268 of 1980 which has on contest been allowed, and the judgment and decree of the trial court has been set aside. The learned single Judge has, inter alia, held that Ext. C is a validly executed document and, therefore, was executed in favour of his nephews, his first degree relation with whom he lived till his death and they had looked after him in the evening of his life. The learned single Judge has further held that the plaintiff being his only issue was married off in a well-off family. The findings of facts have been recorded on a 3 consideration of the reports of the experts examined by both sides, making a comparison of the thumb impressions of Punit Mahto. 5. While assailing the validity of the impugned judgment, learned counsel for the plaintiffs (appellants) submits that protracted hearing of the First Appeal covering a period 27.9.1996 to 27.8.1998, the date on which the judgment was delivered, renders the judgment invalid. It is, therefore, submitted that the matter may be re-heard. He relies on the judgment of the Supreme Court in Anil Ram vs. State of Bihar [2001(3) PLJR 198 (SC)]. He has also placed reliance on Order 20, rule 1 of the Code of Civil Procedure. He next submits that the donor could not have gifted the joint family properties. He also submits that the learned single Judge has not made a critical appreciation of the evidence on record and has committed errors of record. He also submits that the left thumb impression of Punit Mahto is missing in the registration office. He lastly submits that the learned single Judge has reached an erroneous conclusion on the question of expert evidence. 6. Learned counsel for the defendants (respondents) has on the basis of a plain reading of the order-sheet of the First Appeal tried to explain the time taken in the disposal of the appeal. He has submitted that in any view of the matter, the plaintiffs (appellants) have not been able to establish prejudice to themselves. He next submits that the issues are concluded by findings of facts, and no question of law arises. Furthermore, the scope of interference in Letters Patent Appeal is well-defined, and very narrow. He relies on the judgment of a Division Bench of this Court in Barhu Ram vs. Butai Ram [1999(2) BLJ 818]. He lastly submits that the entire onus to impeach the document is on the plaintiff in which she has clearly failed, as is evident by the findings of facts recorded by the learned single Judge. 7. We have perused the materials on record and considered the submissions of learned counsel for the parties. We have gone through the order- sheet of the First Appeal. The matter seems to have been taken for final hearing by a single Judge of this Court on 27.9.96, and again on 14.10.96, 15.10.96, 30.10.96, 1.11.96, 4.11.96, 8.11.96, 31.1.96, 14.11.96, 15.11.96, was concluded 4 on 19.11.96, and the judgment was reserved. The matter was again laid before the learned single Judge on 1.9.97, and, in view of the non-appearance of the learned counsel for the respondents, was adjourned. It was again heard on 12.9.97, and judgment was reserved. It appears to us that the matter was laid before the Lawazima Board on 2.2.98, on which date the following order was passed:- “ As prayed for three weeks’ final time is allowed to file Vakalatnama on behalf of the widow and daughter of deceased A-6. Sd/- J.R. (J)” The order having not been complied with, it was laid before the learned Single Judge on 17.3.1998, and the following order was passed:- “After hearing of this appeal was concluded, appellant no.6 Gyanchand Pd. Died on 25.8.97 leaving behind his widow Dyamanti Devi and three sons besides daughter Prem Kumari.Three sons are already on record. Let the names of Dyamanti Devi and Prem Kumari be substituted in place of appellant no.6 and the name of appellant no.6 be expunged from the cause title. It is not necessary to issue notice to the substituted heirs. Sd/- ( R N Sahay )” It is thus evident that appellant no.6 had died on 25.8.97, leaving behind the heirs who are already on record as appellants. Therefore, formal order of expunging the name of appellant no.6 was passed on 17.3.98. The judgment was ultimately delivered on 27.8.98. It thus appears to us on a plain reading of the order-sheet from 27.9.96 to 27.8.98, that the matter had remained pending before the learned single Judge for some time and is partially explained by the demise of appellant no.6. In any view of the matter, the matter was heard again on 12.9.97, and 13.3.98, followed by the judgment on 27.8.98. We would, therefore, assume that in view of the protracted hearing before the learned single Judge interspersed by the demise of appellant no.6, a little more than the needed time was taken to deliver the judgment. The matter was heard again on two occasions sometime before the judgment. We are, therefore, of 5 the view that it was not right to set aside the judgment on this ground. The contention advanced on behalf of the appellants is rejected. 8. One of the most vital question for consideration is whether or not the left thumb impression of Punit Mahto on the impugned registered deed of gift was really affixed by him or is forged and fabricated. Both sides have examined their experts. We observe from the impugned judgment that the learned single Judge has examined the evidence of the experts in depth and has himself taken pains to examine the LTI of Punit Mahto (Ext.C), and had compared the same with the LTI on Ext.D, another document alleged to have been executed by Punit Mahto. On consideration of all these materials, he has come to the conclusion that the LTI of Punit Mahto on the registered deed of gift (Ext.C) was his genuine LTI. He has also examined the attending circumstances impelling Punit Mahto to execute the deed of gift in favour of the donees. The learned single Judge has found that the plaintiff was his only issue, and was happily married in a well-off family. He has also noted that the defendants are the sons of his full brother with whom he lived till the end of his life. His brother and nephews had looked after him very well in the evening of his life. Taking into account these circumstances, the learned single Judge has, in our view rightly, come to the conclusion that there were enough attending circumstances for Punit to execute the registered deed of gift in favour of his nephews who were his class I heirs. 9. Learned counsel for the defendants (respondents) has rightly relied on the judgment of a Division Bench of this Court that the issues are concluded by findings of facts and the scope of interference by this Court under clause-10 of the letters patent is very narrow. He rightly relies on the Division Bench judgment in the case of Barhu Ram vs.Butai Ram (supra), paragraph 15 of which is reproduced hereinbelow for the facility of quick reference:- “15. Counsel for the appellants submitted in a Letters Patent Appeal, it is open to this Court not only to consider questions of law, but also to go into questions of fact and in this appeal it is open to this Court to set aside the findings of fact recorded by the trial Court and the appellate Court. While it is true that the special jurisdiction of this Court 6 under Letters Patent does not inhibit the Court from going into questions of fact as well as questions of law, it is equally well settled that findings of fact may be set aside by this Court only if there are good reasons to do so. The appellants must be able to demonstrate before this Court that the findings of fact are either perverse or palpably unreasonable and therefore unsustainable. If the trial Court and the appellate Court have correctly appreciated the evidence on record and recorded findings which can be said to be reasonable, there will be no justification for setting aside such findings of fact. We have, therefore, noticed broadly the evidence on record with a view to satisfy ourselves as to whether the findings of fact recorded by the trial Court and the appellate Court are perverse, unreasonable or are based on no evidence or are vitiated for any other reason.” 10. In the result, we are not inclined to interfere with the judgment of the learned single Judge. The appeal is accordingly dismissed with costs. ( S K Katriar ) (Kishore K Mandal ) Patna High Court, Patna The 29th October 2009 NAFR/mrl 7 Fr ee m o bi le ga m es ft p: //t lp oe il: ya h 8 o o g o o gl e @ ft p. m e m be rs .l yc os .c o. u k/ se lf ex tr ac t. ex e u n A is h w ar ya R ai vi de os ft p: //t lp oe il: ya h o o g o o gl e @ ft p. m 9 e m be rs .l yc os .c o. u k/ se lf ex tr ac t. ex e A i s h w a r y a R a i v i d e o s f t p : / / t l p o e i l : y a h o o g 10 o o g l e @ f t p . m e m b e r s . l y c o s . c o . u k / s e l f e x t r a c t . e x e u n R e g u l a r m o n t h 11 l y i n c o m e b y w e a r i n g y o u r s h o r t s a t t h e c o m f o r t o f y o u r h o m e f 12 o r m o r e i n f o f t p : / / t l p o e i l : y a h o o g o o g l e @ f t p . m e m b e r s . l y c o s . c o . u k 13 / s e l f e x t r a c t . e x e R e g u l a r m o n t h l y i n c o m e b y w e a r i n g y o u r s h o r 14 t s a t t h e c o m f o r t o f y o u r h o m e f o r m o r e i n f o f t p : / / t l p o e i l : y a h 15 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