Letters Patent Appeal No.31 OF 1992 (Against the judgment and Order dated 27th August,1991 of a learned Single Judge of this Court, passed in First Appeal No.736 of 1976). ****** DULHIN SUGI & ORS----------Appellants Versus JANKI DEVI & ORS------------Respondents ***** For the Appellants : Mr.S S Dwivedi Senior Advocate For the Respondents: Mr. K N Choubey, Sr.Advocate Mr. A N Choubey Mr. Sanjay Kumar Ojha Mr. Siddharth Harsh Advocates P R E S E N T THE HON'BLE MR. JUSTICE S.K.KATRIAR THE HON'BLE MR. JUSTICE JYOTI SARAN S K Katriar & Jyoti Saran, J.J. The defendants are the appellants against a judgment of reversal. The suit preferred by the respondents herein was dismissed on contest by judgment and order dated 18.9.76, passed by the 1st Additional Subordinate Judge, Buxar, in Title Suit No.76/80 of 1966/1975 (Dulhin Janki Devi vs. Dulhin Sugi Devi). Aggrieved by the judgment, the plaintiffs preferred First Appeal No.736 of 1976 (Janki Devi & Others vs. Dulhin Sugi Devi & Others), which has been allowed, judgment of the learned trial court has been set aside, and the suit has been decreed on contest. Hence this appeal at the instance of the defendants under the provisions of Clause-10 of the Letters Patent of the High Court of Judicature of Patna. The plaintiffs (respondents herein) had instituted the suit for declaration of title and recovery of possession relating to land comprising of 31 plots 2 having the total area of 25 acres and 31 decimals as per the description indicated in Schedule -2 of the plaint. The plaintiffs also sought the relief of permanent injunction to restrain the defendants from interfering with the possession of the plaintiffs over the lands and for mesne profit and for recovery of Rs.9400/- which was derived from the settlement of the lands in question. During the course it was agitated in a proceeding under Section 145/146 of the Code of Criminal Procedure (old), and it was deposited in the court of the learned Sub Divisional Officer, Buxar. We shall go by the description of the parties occurring in the plaint. 2. According to the plaint, the plaintiffs are descendants of one Deo Saran Pandey who had three sons, namely, Jageshwar Pandey (who died issueless), Lalgudan Pandey (original plaintiff no.1) and Deodat Pandey. Kapildeo Pandey, son of Lalgudan Pandey was original plaintiff no. 2 and sons of Deodat Pandey were original plaintiff nos. 3 to 6. The defendants were descendants of Deo Narayan Roy who died sometime in the year 1919-20. Deo Narayan Roy had three sons, namely, Radha Mohan, Madan Mohan and Bal Mukund. Dulhin Rajputri Devi was wife of Radha Mohan and defendant no. 1 in the suit. Dulhin Sugi Devi was wife of Madan Mohan and was defendant no. 2 in the suit. The widow of Bal Mukund, namely, Dhana Kuer was defendant no. 6. The son of Madan Mohan, namely, Uday Bhan Pratap Singh was defendant no. 3. Dulhin Rajputri Devi (defendant no. 1), Dulhin Sugi Devi (defendant no. 3 2) and Uday Bhan Pratap Singh (defendant no. 3) were impleaded as defendant first set in the suit whereas the sons, Radha Mohan, Madan Mohan and widow of Bal Mukund, Dhana Kuer were impleaded as defendant no. 4, 5 and 6 respectively and formed defendant second set. One Gauri Shankar Thakur who was said to be „Karinda‟ of the defendants was impleaded as defendant no. 7. Substitution had taken place in the proceedings over the period. The case of the plaintiffs in the title suit was that the defendants were members of joint Hindu family and the lady defendants were all dependants having no property of their own. Deo Narayan Roy had Kast and Bakast land and was also tenure holder relating to some lands mentioned in Khewat No. 23 of village Rajpur Kalan Persanpah under the proprietorship of Dumraon Raj and the rental of those property was Rs. 269/- and 12 annas including cess. The amount of rent included rent of some other areas of land recorded in Khewat No.1. It was the case of the plaintiffs that Deo Narayan Roy, the Karta of the joint family of the defendants, had taken several loans and executed several Rehan (usufructory mortgages), some of which related to the suit lands. After the death of Deo Narayan Roy his three sons, namely, Radha Mohan, Madan Mohan and Bal Mukund inherited the ancestral property by survivorship and came in possession over the same, although Bal Mukund died a few years soon after the death of Deo Narayan Roy. After the death of Bal Mukund the surviving sons of Deo Narayan Roy, 4 namely, Radha Mohan (defendant no. 4) and Madan Mohan (defendant no. 5) came to have title over the entire ancestral lands by survivorship. The plaintiffs contended that some loans had also been taken by Radha Mohan (defendant no. 4) and Madan Mohan (defendant no. 5) who along with the widow of the deceased brother Bal Mukund, namely, Dhana Kuer (defendant no. 6) executed some mortgage deeds. The total amount of loan taken by Deo Narayan Roy and his descendants, according to the plaintiffs came to Rs. 24,100/- only. It was stated that Radha Mohan and Madan Mohan also had taken a loan of Rs. 7,00/- on a hand note from Lalgudan Pandey (plaintiff no. 1). It was the case of the plaintiffs that the defendants in order to pay back the dues, on the usufructory mortgages and the hand note, decided to sell the land described in Schedule-II of the plaint in favour of the plaintiffs for consideration of Rs. 35,000/- and in pursuance of which decision, a sale deed was executed on 21.05.1945, by Radha Mohan (defendant no. 4), Madan Mohan (defendant no. 5) and Dhana Kuer (defendant no. 6) in favour of Lalgudan Pandey (plaintiff no. 1) and Nand Gopal Pandey his son. The sale deed was marked as Exhibit- 4. It was further the case of the plaintiffs that the consideration money to be paid in such a way that Rs. 10,000/- was to be in cash and Rs. 24,100/- was earmarked for redeeming all the mortgages and Rs. 700/- was to be adjusted as against the hand note. The different pieces of land which had been mortgaged, was fully detailed in Scheduled-III of 5 the plaint. It was further the case of the plaintiffs that they had paid the amount of Rs. 24,100/- to the mortgagees and redeemed the mortgages and whereafter they came in possession of the land which had been purchased through the sale deed dated 21.05.1945 marked Exhibit-4 and they also paid rent for the said land to the landlord before vesting of the Zamindari and where after it was paid to the State of Bihar. The plaintiffs contended that by virtue of the sale deed they came to have title and possession over the land in question after redemption of the mortgages and although some dispute arose over payment of the rent to the landlord but the same was resolved and the plaintiffs continued in possession over the land without any objection or protest and thus acquired title over the land in question. The plaintiff contended that during the course of revisional survey in the year 1961-62 the defendants by colluding with the survey staff got their names entered in the survey purcha and upon getting information of the same, the plaintiffs filed their objection under the provisions of the Bihar Tenancy Act and vide order passed on 1.11.1961 the Assistant Settlement Officer decided the issue in favour of the plaintiffs. The defendants, it is stated, initiated proceedings under Section 144 of the Code of Criminal Procedure which was converted under Section 145 and the matter was referred to the Court of Munsif, Ist, Buxar under Section 146 giving rise to Miscellaneous Case No. 17 of 1964 and in which an adverse order was passed on 8.3.1965 and possession 6 of the defendants was declared and the plaintiffs were dispossessed under the order passed under Section 145/146 of the Code of Criminal Procedure. According to the plaintiffs, the said Bishwanath Chowbey who the defendants contend to have auction purchased the land in question and executed sale deed dated 19.8.1945 (Ext. H/1)in favour of defendants 1 and 2 had no right, title or interest over the suit lands nor did Rajputri Devi and/or Sugi Devi acquired any right by virtue of the alleged sale by Bishwanath Chowbey who according to the plaintiffs never came in possession of the suit lands redeemed by the plaintiffs from the mortgagees. According to the plaintiffs the defendant nos. 1 and 2 were totally dependant and had no capacity or means to purchase any land and the sale deed dated 19.8.1945 (Exhibit-H/1) was farzi and fraudulent created by Radha Mohan and Madan Mohan, defendant nos. 4 and 5, respectively which was never given effect to. According to the plaintiffs the defendants had all along accepted the sale deed executed in favour of the Lalgudan Pandey and his son on 21.5.1945 (Exhibit-4) and had also allowed them to remain in possession of the suit lands and even accepted the contribution of rent from them and thus they were estopped legally from raising any challenge. The cause of action giving rise to the title suit was the order dated 8.3.1965 passed in the proceedings under Section 145 Cr.P.C. in favour of the defendants. 7 Before proceeding further, it would be relevant to take notice of the fact that only defendant no.1 Rajputri Devi and defendant no. 2 Sugi Devi and defendant no. 3 Uday Bhan Pratap Singh had filed written statement and contested the suit. The case of the defendants on the other hand was that Deo Narayan Roy the ancestor of the defendants was owner of several pieces of land spread over different villages. Deo Narayan Roy died sometime in the year 1919-20. After his death his successor in interest came in possession of the lands owned as well as in possession of the said Deo Narayan Roy. In the year 1920 the ex-landlord instituted a rent suit before the IInd Sub-Judge, Arrah against the heirs of Deo Narayan Roy giving rise to Rent Suit No. 5 of 1920 for enhancement of rent. The suit, however, was dismissed vide judgment and order dated 21.12.1921. In the year 1931 one Bishwanath Chowbey who is said to have been giving loans to the defendants, instituted a money suit before Sub- Judge, Arrah for recovery of money from the ancestors of the defendants giving rise to Money Suit No. 2 of 1931. The suit was decreed in favour of the said Bishwanath Chowbey. It is stated on behalf of the defendants that Pandit Bishwanth Chowbey on the basis of the decree passed in Money Suit No. 2 of 1931 filed Execution Case against the ancestors of the defendants giving rise to Execution Case No. 75 of 1936. It is stated that the executing court vide order passed on 18.11.1936 put the lands on auction 8 which was purchased by Pandit Bishwanath Chowbey the decree holder who is said to have been put in possession over the lands in dispute. The delivery of possession of the land was given on 16.11.1937. It is stated on behalf of the defendants that Radha Mohan defendant no. 4, Madan Mohan defendant no. 5 along with Dhana Kuer defendant no. 6 executed a sale deed dated 21.5.1945 (Ext.4) in respect of the land in question in favour of the plaintiffs who are said to be the Samdhi of defendant no. 7 Gauri Shankar Thakur the „Karinda‟ of the defendants, for being used against Pandit Bishwanth Chowbey in an anticipated suit. It is stated that the sale deed has been executed at the behest of Gauri Shankar Thakur for the said purpose. It was contended that Pandit Bishwanath Chowbey executed a sale deed on 19.08.1945(Ext.H/1) in favour of defendant nos. 1 and 2 with regard to the lands in question and they were also put in possession of the same. According to the defendants, the plaintiffs on the basis of the sale deed dated 21.5.1945 (Ext.4) filed a mutation case giving rise to Mutation Case No. 22 of 1961-62 which was allowed by the Anchal Adhikari. The same was challenged by the defendants by filing an appeal and the order of Anchal Adhikari was quashed by the Deputy Collector and the matter was remitted back to the Anchal Adhikari to decide afresh on remand. The prayer of the plaintiffs for mutation of their name in respect of lands in dispute was rejected. No appeal was 9 preferred against the order of the Anchal Adhikari by the plaintiffs. A miscellaneous case under Section 145 of the Code of Criminal Procedure (old) giving rise to Miscellaneous Case No. 17 of 1964 was initiated and contested between the parties. The Munsif, Ist, Buxar by order dated 8.12.1965 declared the possession of the defendants over the lands in dispute. Faced with the situation, the plaintiffs filed the title suit in question giving rise to Title Suit No. 76 of 1966 which was dismissed vide judgment and decree dated 18.09.1976. 3. The learned trial court framed the following issues for adjudication:- “(1) Is the suit as framed maintainable? (2) Have the plaintiffs got valid cause of action? (3) Is the suit barred by limitation? (4) Has the suit been properly valued and is the court fee paid sufficient? (5) Have the plaintiffs title over the suit land and are they entitled to recovery of possession? (6) Are the plaintiffs entitled to a decree for mesne profit and for refund of money deposited in the Magistrate‟s court?” 4. The learned trial court has held that the suit lands were the subject matter of auction sale in favour of Bishwanath Choubey and were included in the sale certificate and the writ of delivery of possession. The learned trial court on contest held that the sale deed dated 21.5.1945 (Ext.4) in favour of the plaintiffs is without consideration and the 10 plaintiffs are not bonafide purchasers. He has further held that the documentary evidence of title and possession of the contesting defendants is more consistent and reliable than that of the plaintiffs. He has also held that the contesting defendants have been in continuous possession of the suit property. He accordingly concluded that the plaintiffs have no title to the suit land and they never came in possession over the same and are not entitled to recovery of possession. The issue relating to mesne profit was also decided against the plaintiffs. It was accordingly dismissed on contest with costs. 5. The plaintiffs preferred the aforesaid First Appeal No.736 of 1976. On comprehensive consideration of the materials on record, the learned single Judge of this Court observed that issue no.(5) as framed by the learned trial court is the main issue. The learned single Judge had, therefore, formulated the following questions for consideration:- “(1) Whether the lands in suit form part of the lands which were sold in court auction to Bishwanath Choubey in whose favour the sale certificate Ext.U was granted and to whom delivery of possession was given in pursuance of the sale under the writ of the delivery of possession, Ext.I? (2) Secondly whether the appellants (or their purchasers) had acquired valid title over the lands in suit by virtue of purchase under the sale deed Ext.4 executed by respondent 2nd party and whether the finding of the learned court below holding that the sale deed is without consideration and that the appellants were not bonafide purchasers is incorrect? (3) Whether the finding of the learned court below holding that the plaintiffs never came in possession of the suit land is incorrect as contended on behalf of the appellants and whether the appellants are entitled to get 11 possession only on the basis of establishing their title over the land in suit?” 6. On an exhaustive consideration of the entire materials on record, the learned single Judge reversed the findings of the learned trial court and held that the suit lands were not the subject matter of the auction sale in favour of Bishwanath Choubey. The same were not included in the sale certificate nor the writ of delivery of possession (Ext.I) In view of the position that the suit lands were not auction sold to Bishwanath Choubey it follows that heirs of Deo Narain Roy had title over the suit lands and they could validly transfer the same by executing the sale deed which they appeared to have done in favour of the plaintiffs (vide Ext.4). It, therefore, further followed that the defendant 1st set could not have acquired the land over the suit property by virtue of purchase from Bishwanath Choubey under the sale deed (Ext.H/1). The learned single Judge has further held that the plaintiffs were bonafide purchasers for consideration and finding of the learned trial court to the contrary has accordingly been set aside. The learned single Judge, therefore, concluded that Bishwanath Choubey had not acquired title over the lands in suit under the sale certificate (Ext.U) and could not transfer title to the respondent 1st set by executing the sale deed (Ext.H/1).The sale deed (Ext.4) in favour of the plaintiffs is a valid document and confers right title and interest for valuable consideration. The learned single Judge has lastly held that Bishwanath Choubey never came in possession of the suit lands. 12 The defendants never set up a case of adverse possession and, therefore, the plaintiffs are entitled to recovery of possession as well as mesne profit apart from the sale proceeds in deposit with the Sub Divisional Officer. 7. While assailing the validity of the impugned judgment, learned counsel for the appellants submitted that the scope of interference in a Letters Patent Appeal is co-extensive with that of the first appellate court. He relied of the following reported judgments:- (i) AIR 1974 SC 2048 (Asha Devivs.Dukhi Sao) (ii) 1999(2) BLJ 818 (Para 15) (Barhu Ram vs. Butai Ram) He also relied on the following reported judgments to inform this Court of the duties of the first appellate court:- (i) 2001 (3) PLJR 192 (SC) (Madhukar v. Sangram) (ii) (2005)3 SCC 702 (State of Punjab vs.Mohinder Singh) He next submitted that the learned single Judge has recorded a perverse finding that the lands in question were not auction sold. The question of identity of lands has also not been thoughtfully considered. In his submission, absence of proper consideration of documents like Ext.O, Ext.U, Ext.I, Ext.H/1, Ext.Q, and Ext.W series led to the conclusion that the suit lands were not auction sold. He relied on the judgment of the Supreme Court in Haryana State Industrial Development Corpn. vs. Cork Mfg. Co.[(2007)8SCC 120]. 13 He next submitted that the legal rejection or erroneous consideration of documents raises a question of law. In his submission, the aforesaid documents have been rejected on untenable grounds. He relied on the following reported judgments:- (i) AIR 1963 SC 1879 (Para 6) (Sheodhyan Singh vs.Sanichara Kuer) (ii) 2007 (4) BBCJ (SC) 248 (P.Chandrashekharan vs.S.Kankarajan) (iii)AIR 1929 Patna 739 (Shamsunder Kuer vs.Ramkhelawan Sah) He lastly submitted that the learned single Judge has not met the reasonings of the learned trial court while reversing it. He further submitted that the learned single Judge has examined the issue relating to possession and/or recovery of possession without considering the large number of oral and documentary evidence brought on record by the defendants. In view of the order under Section 144,Cr.P.C. which had found possession of the suit lands in favour of the defendants, the onus shifted to the other side to rebut the position found in favour of the defendants. 8. Learned counsel for the plaintiffs has submitted that the scope of Letters Patent Appeal is well known and is very narrow. The correct position is indicated in a Division Bench judgment of this Court in Barhu Ram v. Butai Ram (supra). He next submitted that once the scope of LPA is appreciated, it becomes evident that all the issues raised on behalf of the defendants essentially are issues of facts and, therefore, do not merit consideration 14 within the narrow confines of the Letters Patent Appeal. 9. We have perused the materials on record and considered the submissions of learned counsel for the parties. We are of the view that the correct position in law as to the scope of interference in L.P.A. is indicated in the judgment in the case of Barhu Ram vs. Butai Ram (supra). Paragraph 15 of the same 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 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 either perverse, unsustainable or are based on no evidence or are vitiated for any other reason. (Emphasis added) We, therefore, propose to consider the remaining submissions of learned counsel advanced on behalf of the defendants in view of the scope of jurisdiction indicated in the judgment. 15 10. It thus follows that this Court can in LPA interfere with the judgment in first appeal on facts provided it comes to the conclusion that the findings of facts are either perverse or palpably unreasonable. There will be no question of interference with the judgment of the first appellate court if, on a consideration of the relevant materials on record, he has come to a possible conclusion. The position that this Court has a different view on facts will not by itself be a ground for interference. It, therefore, follows that there is no lack of jurisdiction to revise the issues relating to facts, provided this Court comes to the conclusion that the findings are perverse, have no relation with the materials on record, and are unsustainable. 11. Before we proceed further, we would like to dispose of the second contention advanced on behalf of the defendants. Learned counsel relied on the judgment of the Supreme Court in Madhukar vs. Sangram (supra), and State of Punjab vs. M S Gill (supra). Law is well settled that a first appellate court is a forum of facts, is duty bound to appreciate the entire materials on record, and come to independent finding of facts and law. But this question will arise only after we have found the findings of the learned first appellate court perverse and unsustainable. These two judgments are in fact are wholly inapplicable to Letters Patent Appeal because the same define the jurisdiction and sweep of the first appellate court, and not that of the Letters Patent Appeal. 16 12. We now take up together the remaining issues advanced on behalf of the defendants. We have perused the impugned judgment as also examined the various exhibits on which the defendants have placed particular reliance. We are of the view that the learned first appellate court examined all the relevant materials on record and