IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.493 of 2009 Ajablal Paswan & Anr. Versus Pramod Paswan & Ors. ----------- 09. 29.11.2011 Heard the learned counsel appearing on behalf of the appellants as well as the respondents. 1. The suit has been filed for declaration of title by plaintiff no.1 over Schedule I property and by plaintiff nos. 2 and 3 over Schedule II property with further prayer for recovery of possession. The relief has also been sought for declaration that the survey khatian entry in respect of the suit land is not legal and binding on the plaintiffs, with further prayer for permanent injunction against the defendant from interfering in the possession of the plaintiffs over the suit land. 2. It is not in dispute that the suit property had been standing in the name of Babulal Paswan. The plaintiffs who are purchasers from Babulal Paswan have claimed that the suit property exclusively belonged to Babulal Paswan whereas the defendants have come out with the case that their father Jagan Paswan acquired the suit land in the name of his younger brother Babulal Paswan out of 2 joint family fund which after partition in the year 1945 had fallen to the share of the defendants and they are coming in possession of the same. The defendants have also claimed acquisition of title over the suit property by adverse possession. 3. The trial court, after considering the evidence and submissions of the parties, came to the finding that the sale deeds in favour of the plaintiffs have never been acted upon and the plaintiffs did not acquire title and possession over the suit property by virtue of the two sale deeds. It has also been held by the trial court that the defendants have perfected their title over the suit property by adverse possession and on the basis of these two findings the suit was dismissed. 4. The appellate court reappraised the evidence of the rival parties in view of their submission and has held that Babulal Paswan was the exclusive owner of the suit property and the defendants have got no title over the same either on the basis of the partition which they have failed to prove and also by adverse possession which has been found not available to them and accordingly the judgment of the trial court was reversed and the appeal 3 was allowed. 5. The learned counsel appearing on behalf of the appellants has contended that the judgment of the appellate court below is not sustainable in law as it is based upon misappreciation of evidence as well as misinterpretation of document. It has been urged that the Ext.C has been wrongly interpreted by the appellate court below as the sole repository of title of the defendants and not as collateral evidence. The learned counsel has submitted that this Ext.C itself establishes that Babulal Paswan had recognized the half share of the defendants in the suit property standing in his name and the mutation in the name of the defendants over the suit land is further in consonance with the case of the defendants. It has contended that even otherwise also admittedly the defendants are in possession over the suit lands for more than 12 years and thus have perfected their title by adverse possession over the same. It is the submission of the learned counsel that this appeal involves interpretation of a document of title which is a substantial question of law. It has also been argued on behalf of the appellant that oral partition in a Hindu joint family is a permissible mode of 4 partition but the appellate court has wrongly disbelieved the case of partition as pleaded by the defendants for want of documentary evidence. 6. After perusing the judgments of the courts below and hearing the rival submissions of the parties it emerges that the suit land had been admittedly acquired in the name of Babulal Paswan. The main dispute between the parties is that according to the plaintiff it was the exclusive property of Babulal Paswan but according to the defendants the suit land was a joint family acquisition in the name of Babulal Paswan with further plea that there was a partition in the year 1945 in the family wherein the suit property had been allotted to the share of the defendants and they have been in possession of the same since then. 7. In the written statement, the defendants have specifically pleaded that a partition took place in the year 1945 wherein the suit land had been allotted to the share of the defendants. The appellate court has examined the oral evidence, in absence of documentary evidence of partition, adduced by the defendants to establish the case of partition in the year 1945 and has come to the finding that no such 5 partition could be established. Thereafter the appellate court has taken into consideration the affidavit sworn by Babulal Paswan brought in evidence by the defendants as Ext.C in support of the case and has rightly held that no title over the suit land could have been created in favour of the defendants on the basis of this affidavit. In this affidavit Babulal Paswan had claimed himself to be the exclusive legal owner of entire two Katha 10 Dhurs of land and has mentioned that he had allowed the defendants to occupy one Katha 5 Dhurs out of his land. There is no statement in this affidavit (Ext.C) to suggest that it is joint family property and there had been partition in the year 1945 with regard to this property. There appears to be no ambiguity in the statements made in the affidavit (Ext.C). The unequivocal statement of Babulal Paswan to be the legal owner of the land, which is suit land at present, clearly militates against the case as put forward by the defendants. The submission of the learned counsel regarding misinterpretation of this document is thus misconceived. 8. So far as the contention regarding the acquisition of title by adverse possession by the defendants it is clear 6 that such a claim will not be available to them in view of their pleading and evidence brought by them on record. The defendants have in clear terms pleaded that the suit land has been allotted to them in partition and further from Ext.C, their permissive possession over the same is only established. In order to succeed in their case on the basis of adverse possession the defendants were required to establish their necessary intention to be in forcible and hostile possession of the property of Babulal Paswan which they have failed to do. The apex court in (Joy Nath Goala Vs. Bhabani Pd. Choudhary )1997(10)SCC 276 has laid down as follows: “When the appellants have claimed their title to the property on the basis of sale deed, unless the respondents establish by evidence aliunde by pleading adverse possession and proof of disclaimer of their right in their possession as licensee asserting their title to remain in possession disclaiming the title of the appellant, the question of adverse possession did not arise”. 9. In view of the abovesaid principles of law there 7 is no illegality in the conclusion of the appellate court discarding the defendants’ claim of title by adverse possession over the suit land. 10. The learned counsel for the appellant has relied upon a decision reported in (Yadarao Dagiba Shrawane (Dead) By L.R. Vs. Nani Lal Farakchand Sah(Dead) and Ors.)2002(6)SCC 404 for fortifying his contention that in second appeal the High Court can interfere when the judgment of final court of fact is based on misinterpretation of documentary evidence, on consideration of inadmissible evidence or ignoring material evidence. But from the discussion made above, it is clear that the appellate court has meticulously examined the material evidence of the rival parties for coming to its finding and has committed no error in the process of recording its findings. 11. For the foregoing reasons, it is held that there is no substantial question of law arising for consideration in this second appeal, which is, accordingly, dismissed. Nitesh ( V. Nath, J.)