MUNESHWAR SINGH Vs. GIRIJA DEVI ALIAS JOGIYA DEVI

JUDGEMENT

(1.) THIS Second Appeal has been preferred against the judgment and decree passed by Sri S.S. Das, learned District Judge, Siwan, on 29th April, 1988, in Title Appeal No. 125 of 1986 reversing the judgment and decree passed on 20th September, 1986, by Sri Arun Prabhat, learned IInd Additional Munsif, Siwan, in Title Suit No. 243 of 1966/48 of 1986, whereby the learned Munsif had dismissed the suit of the plaintiff-respondent.

(2.) THE case of the plaintiff-respondent, in brief, is that one Bhanwar Bind had two sons, namely, Goga Bind and Dhondha Bind. Nand Lal, Palatu and Dashrath Bind were sons of Goga Bind. Palatu Bind and Dashrath Bind died issueless. Nand Lal Bind had a son, namely, Rajpati Bind. His name was recorded in the record of rights (Khatiyan). Another son of Bhanwar Bind, namely, Dhondha Bind had two sons, namely, Sakti Bind and Ugram Bind. Ugram Bind died issueless. Sakti Bind had three sons, namely, Jokhan Bind, Tokhan Bind and Mangaru Bind. Jokhan Bind died before revisional survey. Managru had a son, namely, Girdhari Bind, who settled in Assam prior to revisional survey having no connection in village Khulsa as such the entire properties left by Dhondha Bind were inherited by Tokhan Bind. Plaintiff is the son of Tokhan Bind. THE two branches of Goga Bind and Dhondha Bind were separate since before the cadestral survey. This is also mentioned in the records of cadestral survey and revisional survey. From the genealogical table, as described above, it is clear that Rajpati Bind was the uncle of the plaintiff, who died shortly after revisional survey leaving no male or female issue and, so, the plaintiff's father being the sole heir of Rajpati Bind inherited the entire properties left by Rajpati. THEreafter, the father of the plaintiff also died leaving behind him the plaintiff as his sole heir and therefore the entire properties of the two branches came in possession of the plaintiff and since that time the plaintiff has been coming in possession of the properties in dispute. THE plaintiff was exercising the acts of possession over the properties and planted orchard thereon but the defendants-appellants, who are the descendants of ex-landlord, started interfering with the possession of the plaintiff and, hence, necessity of filing of the suit arose.

(3.) IT has been argued by the learned Advocate of the respondents that under Section 100 of the Code of Civil Procedure, (hereinafter called as "C.P.C"), the second appeal cannot be entertained unless the court is satisfied that some substantial questions of law are involved in the case. He further submitted that this Court is not empowered to reverse the judgment of the first appellate court which is the final court of fact after re-appreciation of the evidence of the parties as the same is not permissible under Section 100 of the C.P.C. The learned Advocate of the respondents has further submitted that even if this Court is of the opinion that another view is also possible on re-appreciation of the evidence of the parties, the same is also not permissible unless this Court comes to the conclusion that the finding of the first appellate court is perverse i.e. based on no evidence. In support of his argument, learned Advocate of the respondents has relied upon the following decisions : (1); (2) ; (3) 2002 (2) PLJR 250; (4) ; and (5) 1988 (2) All PLR 425.