Bisheshwar Kumar Singh @ Vishwar KumarversusMunna Yadav and Anr

                      IN THE HIGH COURT OF JUDICATURE AT PATNA
                                   SECOND APPEAL No.353 of 2017
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                 Bisheshwar Kumar Singh @ Vishwar Kumar S/o Nawal Kishore Singh, R/o
                 Mohalla- Koeri Tola, Adarsh Colony, Bettiah, P.O. and P.S.- Bettiah Town,
                 Dist- West Champaran.

                                                                          ... ... Appellant/s
                                                 Versus
           1.    Munna Yadav S/o Late Shital Raut
           2.    Ahilya Devi, D/o Late Shital Raut, W/o Ramagya Yadav, Both R/o Mohalla-
                 Chhawani, P.O.- Bettiah, P.S.- Bettiah Town, Distt- West Champaran.

                                                           ... ... Respondent/s
                 ======================================================
                 Appearance :

                 For the Appellant/s    :     Mr. Shashi Shekhar Dwivedi, Advocate
                                              Mr. Parth Gaurav, Advocate
                                              Mr. Ashutosh Kumar Pandey, Advocate
                                              Mrs. Megha Singh, Advocate
                                              Ms. Shalini Singh, Advocate

                 For the Respondent/s   :
                 ======================================================
                 CORAM: HONOURABLE MR. JUSTICE KHATIM REZA
                                       ORAL ORDER

4   12-01-2026                   Heard Mr. Shashi Shekhar Dwivedi, learned senior

                    counsel assisted by Mr. Parth Gaurav appearing on behalf of

                    the appellants.

                                 2. This Second Appeal has been preferred against the

                    judgment and decree of affirmance dated 01.04.2017 passed by

                    the learned Additional District and Sessions Judge-I, Bettiah,

                    West Champaran, in Title Appeal No. 15 of 2011, whereby the

                    learned First Appellate Court upheld the judgment and decree

                    dated 31.01.2011 passed by the learned Sub-Judge–IV, Bettiah,

                    in Title Suit No. 31 of 2003.
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                        3. The plaintiff-appellant filed the suit for specific

           performance of contract on the basis of a Mahadanama

           (agreement to sell) dated 11.02.2000, alleged to have been

           executed by the defendant Most. Sarbatiya Devi, w/o Shital

           Raut in respect of 10 kathas of land described in the

           Mahadanama. The total consideration was stated to be Rs.

           60,000/-, out of which Rs. 15,000/- was allegedly paid as

           earnest money at the time of execution of the agreement.

                        4. The defendant appeared and filed her written

           statement categorically denying the execution of the alleged

           Mahadanama ( agreement to sell) dated 11-02-2000. It was

           specifically pleaded that the said agreement to sell was forged

           and fabricated and brought into existence to deceive the

           defendant. It was further asserted that she had no title over the

           suit land and no negotiation for sale ever took place as well as

           that no earnest money was paid by the plaintiff. It was also

           contended that the land, in dispute, originally belonged to Ram

           Khelawan Raut. The properties, in-question, and others were

           self-acquired property by Ram Khelawan Raut and it is further

           pleaded that Ram Khelawan Raut after his marriage settled in

           his ‘Sasural’ and he had no ancestral land and there was no

           nucleus for joint acquisition and, in fact, the said Ram
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           Khelawan Raut made separate acquisition from his own

           earning in his own name as well as in the names of his

           daughter-in-law (original defendant) and son Munna Yadav.

           Ram Khelawan Raut left behind 2 bighas 9 kathas 19 dhurs of

           land after his death. Two sons of Ram Khelawan Raut, namely,

           Yadolal Raut and Dharichhan Raut died issueless. The family

           was never joint. It was further pleaded that the 3 rd son, namely,

           Shital Raut, also died in the year 1975 leaving behind his wife,

           Most. Sarbatiya Devi (original defendant). Most. Sarbatiya

           Devi, Munna Yadav and Ahilya Devi executed a deed of gift of

           1 bigha 16 kathas 19 dhurs land in favour of the son of Munna

           Yadav and also delivered possession to the donee, who has

           been coming in possession over the said gifted land. After the

           aforesaid gift, only 13 kathas of land were left in Plot No. 595

           in which Most. Sarbatiya Devi, her son Munna Yadav and

           daughter Ahilya Devi have got equal share and for the purpose

           of raising resource about the said gift deed, Most. Sarbatiya

           Devi has executed a sale deed with regard to 3 kathas of land in

           favour of the plaintiff and the said sale deed was executed on

           11.02.2000. After the said sale deed only 10 kathas of land

           remained in the said Plot No. 595. It is further pleaded that she

           never proposed to sell the remaining 10 kathas in favour of the
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           plaintiff and no negotiation for sale ever took place about the

           land, in question, for consideration amount of Rs. 60,000/- and

           she was never in need of urgent money and also never received

           Rs. 15,000/- as earnest money. She further alleged that the

           Mahadanama dated 11.02.2000 is forged and fabricated

           rendering the plaintiff liable for criminal prosecution.

                        5. The learned Trial Court, after scrutiny of

           pleadings, evidence and materials on record and after hearing

           the parties dismissed the suit.

                        6. Being aggrieved, the plaintiff preferred Title

           Appeal No. 15 of 2011, which was dismissed by the learned

           First Appellate Court. While adjudicating the appeal, the

           learned Appellate Court framed points for determination and

           after appreciation of evidence and materials on record held that

           there was a specific and categorical denial by DW-1, Most.

           Sarbatiya Devi, who clearly stated in her examination-in-chief

           that she had never agreed to sell the suit land. The plaintiff

           failed to establish that the alleged Mahadanama was a genuine

           document. The learned Appellate Court further observed that

           the plaintiff failed to establish that the left thumb impression on

           the Mahadanama dated 11.02.2000 belonged to the defendant,

           as no comparison was made with any admitted thumb
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           impression and the thumb impression on the Mahadanama was

           not examined by any finger print expert. Consequently, the

           Mahadanama dated 11.02.2000 was found to be doubtful,

           invalid and unenforceable in the eyes of law. On the basis of

           these findings, the learned Appellate Court held         that the

           plaintiff was not entitled to a decree for specific performance.

                        7. Having considered the facts, materials on record

           and the submissions advanced by learned senior counsel for the

           appellant, this Court finds that there is specific denial by the

           defendant regarding execution of the Mahadanama (agreement

           to sell) dated 11.02.2000. It is also evident that despite the

           plaintiff’s own case that the defendant had executed a

           registered sale deed dated 09.02.2000 in his favour for 3 kathas

           of land, no such document was produced or exhibited before

           the Court for the purpose of comparison of admitted thumb

           impression with the disputed one appearing on the said

           Mahadanama. In absence of any comparison of the alleged left

           thumb impression of Most. Sarbatiya Devi appearing on the

           Mahadanama with her admitted left thumb impression by a

           fingerprint expert, the authenticity of the said Mahadanama

           becomes doubtful. Consequently, the plaintiff has failed to

           prove the Mahadanama as a genuine document and hence the
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                      concurrent findings of the learned Courts below that the

                      Mahadanama has not been proved and impugned judgment

                      cannot be said to be perverse and illegal.

                                   8.    Having       regard     to   the   discussions   made

                      hereinabove, I am not inclined to interfere with the concurrent

                      findings of the learned Courts below and there is no question of

                      law much less substantial question of law involved in this case.

                                   9. Thus, the instant Second Appeal is dismissed at

                      the stage of hearing under Order XLI Rule 11 C.P.C.

                                   10. Pending interlocutory applications, if any, shall

                      stand disposed of.



                                                  (Khatim Reza, J)
shyambihari/-

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