MANAGER SINGH Vs. RADHIKA DEVI

JUDGEMENT

(1.) THIS appeal is directed against the judgment and decree passed in T.A.No.9/95 by which the learned 3rd Addl. District Judge, Bhabhua on 5th February 1998, upholding the judgment and decree of the trial court and dismissed the appeal on contest. This first appeal was preferred against the judgment and decree passed by the court of Subordinate Judge, Bhabhua in Title Suit No. 54/94 on 28th of November, 1994.

(2.) THE plaintiff in the suit sought a declaration of title over the property of Schedule -Ka of the plaint against the defendants on the basis of said sale deeds. No, further relief was sought. However, the defendants filed written statement and asserted that property belonged to Jageshwar Singh and Ram Nandan Singh and Ramnandan Singh had died leaving behind his son Shiv Kumar Singh whose wife was Bagmati Kuer. It was stated that Shiv Kumar Singh and Bagmati Kuer used to reside with the defendants who were the heirs and legal representatives of Jageshwar Singh and the defendants continued to cultivate the property and when the Chakbandi proceeding was started, the defendants got their names entered in the Chakbandi records on the basis of a Bajidawa executed by said Bagmati Kuer in favour of defendants. It was also stated that prior to it, the husband of Bagmati Kuer, namely, Shiv Kumar Singh rebounded the words between 1920 to 1925 and Bagmati Kuer continued to reside with the defendants who were looking after her. Thus, the property remained in their possession. The sale -deed purported to have been executed by Bagmati Kuer in favour of plaintiff was challenged by the defendants as forged and fabricated. The suit was filed after a proceeding u/s 144, Cr.P.C. was decided and the plaintiffs were restrained from going over the land in suit. The trial court, after framing the necessary issues, decided the suit in favour of defendants and dismissed the suit. Then the plaintiffs filed the appeal which was also heard by the Addl. District Judge -II, Bhabhua and the appeal was also dismissed and the judgment and decree of the trial court was confirmed.

(3.) THE contention has been repelled by the learned counsel for the respondents. It has been submitted that first of all the entire pleading is confusing. It has been contended that neither any specific date of execution of Bajidawa has been given nor it was produced in court. So far as the refusal of the prayer of the plaintiffs regarding calling for the Bajidawa from the court of Chakbandi Officer is concerned, it appears that because the document belonged to the plaintiffs themselves they could have taken it back after the Chakbandi proceeding was over and could have filed the same in court, but they did not do it. It is also pointed out that on the one hand it is stated that Shiv Kumar Singh had renounced the world and, thus, had met civil death between 1920 and 1925. From the pleadings in the W.S. in paragraph 4, it becomes clear that in the revisional survey proceedings, which was held between 1960 and 1969, Shiv Kumar Singh 's name was entered in the Khatiyan and it is further stated that the entry in favour of Shiv Kumar Singh was wrong and Shiv Kumar Singh had renounced thereafter. Thus, it appears from the pleading in paragraph 4 of the W.S. that Shiv Kumar Singh renounced the world some time in the year 1996 which falsifies the claim that he renounced between 1920 and 1925. It is also further submitted that if it was so that Bagmati Kuer had executed Bajidawa in favour of appellants, she could have appeared before the Chakbandi court and could have made such statement but no such statement finds recorded. It is also further stated that so far as the genuineness of the sale deeds is concerned, it has been proved by the witnesses in whose presence it was executed and the sale -deeds were marked Ext -1 and Ext -1/1. So far as the contention of the appellant that since Bagmati Kuer was of advanced age and Pardanashin lady there was onus on the defendants to prove the genuineness and correctness of the sale -deeds but it has not been done. Actually, there is no such pleading in the W.S. and, therefore, the question of considering whether the sale -deed was genuine or forged did not arise. The entire pleading of the defendants in this case appears to be completely confusing and self contradictory and the learned lower courts have rightly refused to accept the plea. So far as Section 34 of the Specific Relief Act is concerned, it lays down that a suit for declaration only can be filed, provided if the plaintiffs could seek some further relief and does not seek such relief, the suit should not be maintainable. In this connection it has been submitted on behalf of defendants that first of all, no such point was taken in the W.S. nor any such issue was framed by the courts below and, therefore, there is no finding and it has been submitted that had the question of applicability of Sec.34 of the Specific Relief Act been taken, the trial court could have directed the plaintiffs to correct the plaint suitable and to take necessary steps. There does not appear to be any point of law involved in this appeal and so far as the findings of fact are concerned, the concurrent findings have been recorded by both the courts below.