Important pointWhere finding of fact recorded by 1st appellate Court was a pure finding of fact based on evidence on record, High Court would be justified in not interfering such finding in second appeal.

Headnote:Civil Procedure Code, 1908—Section 100—Title suit where in plaintiff claimed to have purchased suit property by regd. sale deed in 1972—Defendant claimed to have purchased that very suit land by regd. sale deed in 1976—Suit decreed by trial Court—1st appellate Court reversed trial Courts findings and set aside the decree—High Court declined to interfere as findings were on facts—Appeal—Vendors of suit property, descendants of common ancestor, had claimed title by partition which had taken place in 1941—Partition was oral and Courts had necessarily to depend on oral evidence on record—High Court was justified in holding that the finding of fact recorded by 1st appellate Court was a pure finding of fact based on evidence and did not deserve interference in second appeal.
Held : In the instant case, the appellant-plaintiff claims to have purchased the property from one of the sons of Sanatan Kalo, namely, Benudhar, claiming that in the oral partition of 1941 this plot fell to the share of Benudhar. On the other hand, the defendants claim to have purchased the same plot of land from Raghunath, son of Kunu, another son of Sanatan Kalo, claiming that the plot in question fell to the share of Kunu in the partition of the year 1941. There could be no challenge to either of the transfers under Regulation 2 of 1956 because the transfer in favour of the plaintiff being a transfer in favour of a member of a scheduled tribe did not offend the said Regulation, and the transfer in favour of the defendant was in accordance with the Regulation since previous consent of the competent authority was obtained. The sole question, therefore, which fell for consideration was whether in the partition of the year 1941 the plot in question fell to the share of Kunu as claimed by the defendant, or to the share of Benudhar as claimed by the appellant. Such a question has necessarily to be decided on the basis of evidence on record and, therefore, the High Court was justified in holding that the finding of fact recorded by the District Judge namely, that the appellant had failed to prove that the plot in question fell to the share of Benudhar and, therefore, he derived no valid title from him, was a pure finding of fact based on evidence on record which did not deserve interference in second appeal. We find no reason to take a different view. (Para 9)

Judgment

B.P. Singh, J.—This appeal by special leave is directed against the judgment and order of the High Court of Orissa at Cuttack dated October 22, 1992, in Second Appeal No. 188 of 1981. The plaintiff is the appellant whose suit was decreed by the Subordinate Judge in Title Suit No. 2 of 1977 by judgment and decree of 27th September, 1979. The District Judge, Sundargarh, however, in Title Appeal No. 23/79 dated 10th April, 1981 reversed the decision of the trial court and dismissed the suit. The Second Appeal appeal preferred by the plaintiff has been dismissed. This appeal has been preferred by special leave.

2. The case of the appellant is that one Sanatan Kalo of Mouza Sundargarh had three sons namely, Kunu, Benudhar and Somnath. Sanatan Kalo as well as his sons are all dead. Kunu had three sons namely, Ratnakar, Raghunath and Pitambar, while Benudhar also had three sons namely, Sadasiv, Dhaneswar and Binod. The third son namely, Somnath had two sons namely, Kanhei and Purna. In the Mukherjee Settlement which took place prior to 1972 the plot in question was recorded in Khata No. 12 of Mouza Sundargarh in the names of Kunu and Benudhar, sons of Sanatan Kalo and Kanhei and Purna, sons of the third son of Sanatan Kalo namely, Somnath. The land measured 33 decimals in plot No. 824. This corresponds to Hal Plot No. 61 measuring as 0.270 decimals in Khata No. 371 of the Hal Settlement, which we are told took place after 1972. In the aforesaid settlement, the land in question was recorded jointly in the names of the sons of Kunu, Benudhar and Somnath.

3. The case of the plaintiff is that he purchased the lands from Sadasiv, Dhaneswar and Binod, sons of Benudhar by registered sale deed dated 12th January, 1972. It may here be noticed that Sanatan Kalo was the member of a scheduled tribe and the appellant was also a member of a scheduled tribe. According to the appellant, after the execution of the sale deed he came in possession of the suit plot and the same was fenced by him and he continued in enjoyment of the said plot. However, in the year 1976 the defendant claims to have purchased the land from Raghunath, one of the sons of Kunu under a registered sale deed dated 4th February, 1976. It is not disputed that the defendant is not a tribal and he obtained the property in question from a tribal with the prior permission of the competent authority under the relevant Regulation namely, Orissa Regulation No.2 of 1956. After obtaining the sale deed the defendant respondent is alleged to have forcibly evicted the appellant from the plot in question. This led the appellant to file a suit for recovery of possession on the basis of his title.

4. The parties led evidence before the learned Subordinate Judge who decreed the suit. On appeal, the learned District Judge, Sundargarh set aside the aforesaid judgment and decree and dismissed the suit. The High Court in second appeal found that the question as to whether the land in question fell to the share of Kunu or Benudhar, the sons of original holder Sanatan Kalo being a pure question of fact, there was no reason for the High Court to set aside this finding of fact which was based on evidence on record. The appellant has impugned the aforesaid judgment and order of the High Court.

5. Learned counsel appearing on behalf of the appellant submitted that the High Court itself noticed the fact that the onus had been wrongly placed on the plaintiff to prove his title, and that the appellate court did not even look into the evidence led by the defendant. The submission is that since both the parties had led evidence on the question as to whether in the oral partition of the year 1941 the plot in question fell to the share of Kunu or Benudhar, the appellate court ought to have looked into the evidence adduced by both the parties and it was not justified in merely examining the evidence produced by the plaintiff and not the evidence adduced by the defendant. Having noticed this fact the High Court

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