IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.422 of 2009 1. Ajij Mian. 2. Ajim Mian. 3. Tajib Mian. All Sons of Jalil Miyan @ Marari Miyan. 4. Badruduza @ Tuntun, S/o Late Habib Miyan. 5. Moinuddin @ Mannu. 6. Mohammad Parwez Alam @ Chunnu. Both Sons of Late Amir. All residents of village-Fidar Bazar, P.S.- Bhagwan Bazar, P.O.Chapra, District-Saran. -Defendants-Respondents-Appellants. Versus 1.Habibul Hassan, Son of Late Noor Ahmad. 2. Immamu Hassan. 3. Anwar Alam. Both Sons of Habibul Hassan. All Residents of Village- Salawastganj, P.S.- Bhagwan Bazar, P.O.Chapara, Town, District- Saran. ----Plaintiff-Appellants- Respondents –Ist Set. 4. Mohammad Munir, S/o Raza Jarrah. 5. Most Mamu Nisa, W/o Late Nazam. 6. Nazare Imam. 7.Habibur Rahman. 8.Nausad Ahmad. All Sons of Late Nazam. 9.Rasada Khatun. 10.Muni, W/o Lallan Jaran. 2 11.Madina, W/o Manuddin. 12.Jarina , W/o Neyaz. All R/o Village- Salawastganj, Gudari, P.S.- Bhagwan Bazar, Prag Manjhi, P.O.Chapara, District-Saran. -----Defendant-Respondents-Respondents 2nd Set. ----------- 05. 24.10.2011 Heard the learned counsel appearing on behalf of the appellants in support of this appeal. This appeal has been filed against the judgment and decree dated 18.05.2009 passed by learned Additional District Judge-F.T.C.I, Saran at Chapra in Title Appeal No.37/2001 reversing the judgment and decree dated 01.05.2001 passed by Sub Judge V, Chapra in Title Suit No. 102/1993. The Title Suit No. 102/1993 has been filed for partition wherein the plaintiffs prayed for carving out of his ¾ shares in the suit property. The plaintiffs have come out with the case that Noor Mohammad had two sons namely Habibual Hassan who is plaintiff no.1 and Mahboob Hassan. Noor Ahmad had 8 Kathas of homestead land which he had given to his wife Bibi Tabijan who was mother of the plaintiffs by a registered deed of ‘Baimuquasa’ dated 20.05.1926 and put her in 3 possession. She remained in possession of the said property till her death in the year 1955 and after her death, the plaintiff no.1 alongwith his brother and father inherited and came in possession of the same as her heir. Later on the brother of plaintiff no.1 orally gifted the share inherited by him to the sons of the plaintiff no.1 (plaintiff nos. 2 and 3) and put them in possession. The father of the plaintiff i.e. Noor Ahmad had also sold his share to the defendants by sale deed dated 16.08.1955. Thus the suit has been filed by the plaintiff in order to separate his share which they have been holding jointly with the defendants. However, contesting the relief sought by the plaintiffs, the defendants denied the status of the plaintiff no.1 and his brother Mahboob Hasan as sons of Bibi Tabijan and asserted that the plaintiff no.1 and his brother Mahboob Hassan were the sons of Noor Ahmad from his first wife Bibi Koraisha. According to the defendants Noor Ahmad had no issue from his second wife Bibi Tabijan. The defendants, however, did not challenge the execution of the deed of ‘Baimuquasa’ in favour of Bibi Tabijan but asserted that after the death of Bibi Tabijan, the property which was subject matter of ‘Baimuquasa’ had reverted 4 back to her husband Noor Mohammad exclusively. It is also the case of the defendants that the deed of ‘Baimuquasa’ had not been acgted upon and thus the title over the suit property remained with Noor Mohammad. Thus according to the defendants Noor Ahmad was the sole owner of the suit property and had transferred the same to the defendants by registered sale deed dated 16.08.1954 and the plaintiff no.1 by executing a registered deed of Ladabi dated 20.11.1957 had recognised the title and possession of the defendants over the suit property and his claim has now no merit. The trial court came to the finding that the deed of ‘Baimuquasa’ of the year 1956 had not been acted upon and had remained inoperative and the suit property remained with the original owner Noor Ahmad and after accepting this case of the defendants, the trial court further held that the dispute of sonship of plaintiff had become immaterial. The trial court further relied upon the deed of Ladabi executed by the plaintiffs and came to the finding that the plaintiffs had no title and possession over the suit land. Accordingly, the trial court dismissed the suit. 5 In appeal by the plaintiffs, the appellate court in view of the rival contentions of the parties formulated the points for determination which included the issue of status of the plaintiff no.1 and his brother as sons of Bibi Tabijan and also the issue of Noor Ahmad having two wives. After considering the evidence of the parties, the appellate court has come to the conclusion that none of the witnesses examined on behalf of the defendants were competent for determination of the issue of the status of the plaintiff no.1as son of Bibi Tabijan and the status of Bibi Tabijan as second wife of Noor Mohammad in view of the provisions of Sections 50 & 60 of the Evidence Act and their evidence was found not relevant on the issue. The appellate court has preferred to rely upon the deposition of the plaintiff’s witnesses and the documentary evidence (Ext.1 and Ext.2) of the plaintiff and has also taken notice of the fact that in the deed of ‘Baimuquasa’ dated 30.05.1926 no mention of two marriages of Noor Ahmad had been made. Thus on the basis of consideration of the evidence of rival parties, the appellate court has concluded that the defendants have failed to establish that Bibi Tabijan was the second wife of Noor Mohamad and the 6 plaintiff no.1 was born from his first wife. Accordingly, the appeal was allowed holding the plaintiffs to be entitled to ¾ share in the suit property and for partition of the same. Learned counsel appearing on behalf of the petitioners has submitted that the appellate court below has not considered the fact that the deed of Baimuquasa’ of the year 1926 had not been acted upon and as such no title was acquired by the Bibi Tabijan and the property remained with Noor Ahmad. It has been further urged that the appellate court below has also ignored the deed of Ladabi of the year 1957 executed by the plaintiff no.1 recognizing the title and possession of the defendants over the suit property. The further contention on behalf of the appellants has been that the sale deed dated 16.08.1955 in their favour has not been challenged by the plaintiffs within the prescribed period of limitation and as such no relief could have been granted to the plaintiffs. On the basis of these submissions, the learned counsel has submitted that the judgment and decree of the appellate court below is not sustainable and substantial questions of law arise for consideration in this appeal. 7 In view of the submissions on behalf of the appellants it becomes necessary to examine the case of the defendants as asserted by them in the written statement. From the perusal of the judgments of both the courts below wherein the rival cases of the parties have been mentioned it does not appear that the defendants have ever pleaded that the deed of ‘Baimuquasa’ had not been acted upon and remained inoperative during the life time of Bibi Tabijan. It appears from the conjoint reading of the separate written statements that the defendants have, firstly, denied execution of the registered deed of ‘Baimuquasa’ itself and thereafter have also made out the case that even if the deed of ‘Baimuquasa’ had been executed by the admitted owner in favour of Bibi Tabijan still the plaintiffs could acquire no interest in the suit property as they were not the heirs of Bibi Tabijan. In view of the absence of pleading to the effect that the deed of ‘Baimuquasa’ had never been acted upon, it is not possible to accept the submission on behalf of the appellants in this regard and the finding of the trial court that the deed of ‘Baimuquasa’ was never acted upon is clearly beyond the pleading. Further it was for the 8 defendants, who challenged the status of the plaintiff no.1 as son of Noor Ahmad from the first wife to establish that Noor Ahmad had married twice and his second wife Bibi Tabijan was issueless and the plaintiff no.1 and his brother Mahboob Hassan were the sons of Noor Ahmad from his first wife. The appellate court has discussed in detail the oral evidence led by the defendants in this regard and has found that none of the witnesses had the special means of knowledge to form an opinion regarding the relationship and had expressed the same by their conduct and has rightly come to the conclusion that their evidence were not admissible under Sections 50 & 60 of the Evidence Act. After analyzing their depositions the appellate court has rightly come to the conclusion that those witnesses were not competent to depose regarding the two marriages of Noor Ahmad and death of Bibi Tabijan without issue. The reappraisal of evidence is normally not permissible in second appellate jurisdiction unless the findings are shown and established to be perverse. During the course of argument nothing could be brought to the notice of the Court to indicate the perversity in the findings of fact recorded by the appellate court. It is not the case of the 9 appellants that the findings are based on no evidence or relevant admissible evidence has been omitted from consideration and inadmissible evidence has been relied upon by the appellate court below. The apex court in (NARENDRA GOPAL VIDYARTHI VS. RAJAT VIDYARTHI) 2009(3)SCC 287 has laid down that a finding of fact arrived at by the first appellate court is ordinarily final except in cases where the same was based upon no evidence or otherwise perverse if correct legal principles were not applied. The findings of the appellate court could not be shown to be suffering from any of the aforesaid infirmities. The submissions on behalf of the appellants regarding the bar of the suit by limitation in challenging the sale deed dated 16.08.1955 appears to be misconceived inasmuch as the suit has not been filed for challenging the sale deed dated 16.08.1955 rather the plaintiffs have accepted the said sale deed executed by Noor Ahmad to be valid with regard to his share. The appellate court has also not set aside the sale deed rather the same has been found to be valid to the extent of the share of Noor Ahmad in the suit property which has been determined as ¼ and the plaintiffs have 10 been held entitled to remaining ¾ shares in the property. It is now also well settled that a title in the immovable property cannot be created or extinguished by a deed of relinquishment (Ladabi) and once the plaintiffs have been found entitled to a share in the suit property the same cannot be denied on the basis of the statement made in a deed of Ladabi. In view of the aforesaid discussions, it is held that the judgment of the appellate court below does not suffer from legal infirmities and no substantial question of law thus arises for consideration in this appeal. The second appeal is, accordingly, dismissed. Nitesh ( V. Nath, J.)