IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.200 of 2008 1.Sita Ram Pandit, Son of Late Newa Lal Pandit. 2.Smt. Shyama Devi ,Wife of Raj Kapoor Pandit. All R/o Village- Pipra, P.S.- Begusarai, Pergana –Malki, District- Begusarai. -----------------(Defendant Ist Party-Appellants)-Appellants. Versus 1.Basudeo Singh, Son of Late Kapleshwar Singh. 2.Smt. Chandra Kanta Devi, Wife of Sri Basudeo Singh, R/o Village- Amba, Pergana-Malki, District-Begusarai. --------------(Plaintiffs—respondents)-Respondetns. For the Appellants: Mr.Ajit Kumar Bariar, Advocate with Mr.Vishundeo Narain,Sr. Advocate. For the Respondents: Mr.U.P.Singh, Sr.Advocate with Mr.Madan Prasad Singh,No.2 Advocate & Mr. Arun Kumar Singh. ----------- 5. 11.08.2011 Heard the learned counsel appearing on behalf of the appellants and the learned senior counsel appearing on behalf of the respondents. This second appeal has been filed against the judgment and decree dated 18th March, 2008 passed by Additional District Judge, F.T.C. V, Begusarai affirming the judgment and decree dated 18th March, 2005 passed by Munsif II, Begusarai in Title Suit No. 58 of 1990. The Title Suit No. 58 of 1990 has been filed 2 by the plaintiffs for declaration of title over the land mentioned in Schedule V of the plaint and for putting him in possession through the process of the court over the said land. Besides that other consequential reliefs have also been prayed. Shorn of unnecessary details, the fact is not disputed that the disputed land belonged to Shanti Devi whose husband was Ramchandra Pandit. The said Shanti Devi had obtained the plot No. 399, Area 16 decimal through the sale deed dated 06.09.1974 executed by her father Bato Pandit in her favour. The relevant genealogy of the family has been mentioned in the appellate court judgment. The plaintiffs have based their claim on the basis of the sale deed dated 28.02.1987 with regard to 5 Dhurs of Plot No. 399 executed by Ram Chandra Pandit who inherited the same after the death of Shanti Devi as her husband. The defendants have come out with the case that they had purchased 11 Dhurs of Plot No.399 by registered sale deed dated 05.01.1987 executed by Shanti Devi. It is relevant to state here that there is no dispute that Shanti Devi was the title holder of Plot No.399 over 16 Dhurs by the sale deed as above mentioned. Defendants 3 have resisted the claim of the plaintiffs on the ground that out of total 16 decimal of Plot No.399 of Shanti Devi there exists a Rasta over 5 Dhurs and in that view of the matter it is the specific case of the defendants that after their purchase of 11 Dhurs from Shanti Devi nothing remained with Shanti Devi or for that matter with her heir Ram Chandra Pandit (husband of the Shanti Devi) in the said plot to transfer it to the plaintiffs and as such the plaintiffs have acquired no right, title and interest over the 5 Dhurs of Plot No. 399 as claimed by them. It is relevant to state here that the suit was filed for 5 Dhurs of Plot No. 399 and 2 Dhurs of Plot No.398. However during the course of submission the learned counsel appearing on behalf of the appellants has stated that he is not pressing this appeal with regard to Plot No.398 and has confined his relief in this appeal with regard to 5 Dhurs of Plot No. 399. After hearing the parties and considering the evidence the trial court has come to the finding that there does not exist a Rasta in 5 Dhurs of Plot No.399 as claimed by the defendants and on the basis of this finding the trial court has come to the conclusion that 5 Dhurs of 4 Plot No. 399 remained with Shanti Devi and this has been validly sold to the plaintiffs by her husband Ram Chandra Pandit after her death. The trial court has also come to the finding that the plaintiffs are entitled to the relief for recovery of possession over the suit land as they have been illegally dispossessed. In appeal the appellate court reconsidered the entire evidence of the parties and after taking notice of the rival submissions has come to the finding that the alleged Rasta over 5 Dhurs of Plot No. 399 has never existed as claimed by the defendant. The appellate court below has further come to the finding that the plaintiffs are entitled to get vacant possession of the land as prayed and accordingly it concurred with the findings given by the trial court. The learned counsel appearing on behalf of the appellants submitted that both the courts below have erred in giving their finding that there is no existence of Rasta over 5 Dhurs of Plot No. 399 and the said finding is against the evidence on record particularly in view of the fact that the plaintiff has mentioned Rasta while giving the boundary of the suit land. Further submission of the 5 learned counsel is that both the courts below have wrongly shifted the defendants to the extreme east of the Plot No. 399 whereas in fact their sale deed shows that he is purchaser from the middle of the said plot and as such the courts below have committed error in law in not considering the description of the boundaries given in the sale deeds of the parties and wrongly demarcating the purchased land of the defendants. Developing his argument the learned counsel dwelt upon the provisions of Sections 92 and 94 of Indian Evidence Act and has submitted that in view of the averments made in the sale deed no oral evidence could have been looked into except the recitals in the sale deed with regard to the boundaries of the land purchased by the defendants. Thus it has submitted that there are the substantial questions of law arising in this appeal as both the courts below have committed grave error of law and jurisdiction in delivering the impugned judgment. After considering the submissions of the learned counsel for the appellants and perusing the judgments of both the courts below as well as the pleadings by the parties it appears that the defendant Ist 6 Set has not pleaded in his written statement that his purchased land i.e. 11 Dhurs of Plot No.399 lies in the middle of the Plot No. 399 and he has never sought for a relief by way of counter claim for demarcating his purchase land. The main defence raised in the written statement is that after the sale of 11 Dhurs of Plot No. 399 the owner Shanti Devi was not left with any land in the said plot because the remaining 5 Dhurs out of total 16 Dhurs was being used as Rasta. In absence of any pleading by the by the defendants, no issue has been framed regarding the location or demarcation of the land purchased by the defendants. From the judgments of both the courts below it appears that the entire evidence of both the parties as well as the pleadings have been meticulously examined and discussed and thereafter the finding of fact has been concurrently recorded that there does not exist a Rasta in 5 Dhurs of Plot No.399 as pleaded by the defendant Ist Set. No finding has been recorded regarding the location or position of the purchased land of the defendants Ist Set and the evidence including the boundaries mentioned in the different sale deeds, brought on record by way of evidence, as well as the report of the 7 pleader commissioner have been considered only for the purpose of adjudicating the issue regarding the existence of a Rasta in the remaining 5 dhurs of Plot No.399. The provisions of Section 92 and Section 94 of the Evidence Act are not applicable to these facts and circumstances and the submission in this regard is misconceived. Further nothing could be pointed out to substantiate the submission regarding the finding of non-existence of Rasta over 5 dhurs as abovementioend being against the evidence on record. As such there is no substantial question of law arising for consideration in this appeal, which is, accordingly, dismissed. Nitesh ( V. Nath, J.)