Arjun Sahu, aged about 77 years, s/o late Faudari Sahu, r/o village- Pethiatand, Pachamba v. 1. Shankar Sao 2. Rajendra Sao @ Shiv Shankar Sao, 3. Suresh Sao, 4
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Second Appeal No. 13 of 2024 --------------- Arjun Sahu, aged about 77 years, s/o late Faudari Sahu, r/o village- Pethiatand, Pachamba, PO & PS-Giridih Town, District-Giridih ......Plaintiff/Appellant Versus 1. Shankar Sao 2. Rajendra Sao @ Shiv Shankar Sao, 3. Suresh Sao, 4. Nand Kishore Sahu 5. Manoj Sahu 6. Ranjeet Sahu 7. Santosh Kumar Serial 1 to 7 all sons of late Bhuneshwar Sahu, r/o village-Salaiya, PO-Tiklato, PS-Pachamba, District-Giridih 8. Urmila Devi, wife of Prayag Sahu, r/o Village Dumka Road Petrol Pump, P.O. & P.S. Jamtara District- Jamtara 9. Prema Devi, wife of Devendra Sao, Resident of Bata More, Near Mahavir Mandir Jharia, P.O. & P.S. Jharia, District-Dhanbad 10. Anjana Devi, w/o Rajesh Sao, r/o At Jharia no.04 in front of Matri Sadar Hospital (Shakti Medical Hall) P.O. + P.S. Jharia, District- Dhanbad. 11. Sarita Devi, wife of Ashok Saw, Resident of Pachgarahi Bazar, Katras P.O& P.S - Katra District- Dhanbad …..... Defendants/Respondents CORAM: HON'BLE THE ACTING CHIEF JUSTICE For the Appellant For the Respondents : Ms. Sanjay Kumar Tiwari, Advocate : None Order No.4/ Dated: 12th March 2024 Being aggrieved with the judgment dated 13th October 2023 and decree dated 2nd December 2023 passed in Civil Appeal No.27 of 2016
Legal Reasoning
whereby the lower appellate Court affirmed the judgment dated 30th August 2016 and decree dated 14th September 2016 in Title Suit No.73 of 2004, the appellant has filed the present Second Appeal. 2. Title Suit No. 73 of 2004 was instituted by Arjun Sahu for a declaration of title and confirmation of his possession over the subject property comprised in plot no. 36 within khata no. 10 of Mouza Salaiya Thana at Giridih (M). The plaintiff pleaded that the subject property was recorded as Bakast land in the survey khatian in Khewat No. 2 and was under usufructuous mortgage with Sitaram and Jagarnath Khetan of Pamchamba. On surrender of the said mortgage, registered sale deed was 2 Second Appeal No.13 of 2024 executed in favor of Rajmata Mandakini Devi on 27th July 1938 by virtue of mutual agreement between the ex-landlord Umaid Narain Singh and the mortgagee. Later, Bibi Hasidan and others also surrendered the lands within khata no. 10 to Sitaram and Jagarnath Khetan who in turn made settlement of 15 decimals of land in favor of Bishun Singh with the consent of the landlord. The plaintiff has further pleaded that the landlord recognised the settlement and possession of Bishun Singh and after the vesting of Zamindari in the State, Bishun Singh was granted rent receipts and his name was entered in Register-II. According to the plaintiff, Bishun Singh remained in peaceful possession of the subject property to the knowledge of the defendant and the whole world and also perfected his title of adverse possession. 3. This is the case pleaded by the plaintiff that Bishun Singh transferred the subject property measuring 15 decimals of land in his favor by virtue of registered sale deeds dated 3rd December 1996 and 6th December 1996 and he came in peaceful possession over the subject property. However, in March 2004, the defendant illegally dumped some materials over the subject property and the dispute between the parties was inquired into by the police. A report was submitted to the Sub-Divisional Magistrate, Giridih, whereupon a proceeding under section 144 of the Code of Criminal Procedure was started. In the said proceeding, the defendant produced certain documents claiming that his mother Sahodari Devi was granted settlement of 60 decimals of land comprised under khata no. 10 in Mauza Salaiya by the ex-landlord. The plaintiff disputed those documents and claimed that those were anti-dated and fabricated documents and no rent receipts were issued in favor of Sahodari Devi. 4. Disputing the plaint averments, the defendant filed a written statement raising a whole lot of objections. According to the defendant, plot no. 36 within khata no. 10 comprised about 10 Acres of Gair-mazarua land of the ex-landlord which was recorded as Bakast land under khewat no. 1. The ex-landlord Umaid Narain Singh settled 60 decimals land in plot no. 36 of khata no. 10 in favor of his mother Sahodari Devi on payment of salami. The defendant further pleaded that Umaid Narain Singh in token of settlement of the subject property in favor of Sahodari Devi granted raiyati Hukumnama in her name on 9th August 1942 and 3 Second Appeal No.13 of 2024 since then Sahodari Devi was in peaceful physical possession thereon and she continued to pay rent for which rent receipts were duly issued. After the vesting of Zamindari in the State of Bihar, the ex-landlord submitted the Return showing the name of raiyats in respect of lands of khata no. 10 and on that basis Compensation Case No. 1781 of 1955-56 was opened. The defendant claimed that at sl. no. 23 of the Return submitted by Rajmata Mandakini Devi, the name of his mother appeared confirming Hukumnama with respect to 60 decimals land settled by Umaid Narain Singh. The defendant further pleaded that in the proceeding under section 144 of the Code of Criminal Procedure it was brought on record that he had constructed house, khaliyan and courtyard over the suit property measuring 15 decimals in plot no. 36 which was wrongly claimed by the plaintiff. Even the Pleader Commissioner appointed by the Court made a report that the defendant was in possession over the suit property that he had made many constructions thereon. On the basis of the pleadings of the parties, the following issues were framed for determination: Is the suit maintainable? Has the plaintiff valid cause of action for filing the suit? I) II) III) Has the plaintiff any title and possession over the suit land? IV) Whether Sita Ram Khaitan and Jagarnath Khaitan have right to settled the land of Khata No. 10? V) Whether the suit land was settled to Bishun Singh? VI) Whether Bishun Singh was the owner of the suit land? VII) Whether the sale deeds dated 03.12.1996 and 06.12.1996 are legal, valid and binding on plaintiff? Is the plaintiff entitled for any other relief or relief as claimed by him? VIII) 5. In the trial, the plaintiff examined ten witnesses and himself tendered evidence as PW6. He also laid documentary evidence such as Advocate Commissioner’s report vide Ext.-I, case dairy of Giridih(T) PS Case No. 43 of 2002 vide Ext. 2, rent receipts vide Ext. 3, 3/A, 3/B, 4 and attested copy of rent receipt vide Ext. 4/A, certified copy of registered sale deed vide Ext. 5, 5/A, 5/B, 5/C and the certified copies of the orders passed in Case No. 2 of 2004, Case No. 303 of 2004, Misc. Case No. 13 of 2007-08, police report, report of Circle Officer, certified copy of Register- II and several other documents. The defendant also came in the witness box and tendered evidence as DW5. Besides producing four other witnesses in support of his case to dispute the plaintiff’s claim over the suit property, the defendant has also produced a host of documentary evidence 4 Second Appeal No.13 of 2024 such as government rent receipts, municipal tax receipt, certified copy of Zamindari Compensation Case No. 1781 of 1956, order passed in Criminal Revision No. 03 of 2005, Misc. Case No. 83 of 2008-09, certified copy of Kabuliyat Patta etc. 6. The trial Judge took up the issue nos. 5, 6 and 7 which are mainly in respect of settlement of the land in khata no. 10 in favor of Bishun Singh and execution of sale deeds by him in favor of the plaintiff. The trial Judge found that the plaintiff could not prove valid execution of sale deeds dated 3rd December 1996 and 6th December 1996 by Bishun Singh and he did not produce any evidence as to the Return or Zamindari rent receipt whereas the defendant produced such documents vide Exts. A to A/3 and B to B/7. The trial Judge further recorded that the report of Survey Knowing Commissioner dated 5th April 2007 also prima-facie supported the claim of the defendant, that he was in possession of the subject property. The trial Judge accepted the stand of the defendant that the plaintiff had made interpolation in the Return submitted by Rajmata Mandakini Devi and the name of Bishun Singh was entered by tampering the said document. 7. The learned trial Judge held as under: “10……..The certified copy of compensation case no. 1981/55-56 (Return) submitted by ex-landlord Rajmata Mandakini devi is an important and valuable documents with respect to settlement of land of ex-landlord and from perusal of said document it is apparent that in serial no. 30 the name of Kali Devi is mentioned along with Sahodari Devi in serial no. 23 thus, it is crystal clear that the plaintiff filed before the copy of SDM, Giridih(Ext8A) in a case u/s 144 CrPC has omitted the name of Smt. Kali Devi by pasting white paper in the said name and committed forged and fabricate by getting the name of Bishun Singh entered herewith. Thus, it can be said that land of khata no. 10 plot no. 36 of mouja Salaiya, Dist. Giridih which is recorded in the name with Manager of encumbered estate Tikait Umaid Narain Singh to Sitaram in usufrutory mortgage but has Khetan and Jagarnath Khetan surrendered the said land to ex-landlord and the mortgagee with the consent of said land lord has registered the sale deed dt 27.07.1938 in favour of Mandakini Devi (Ext 5A). So, Tikait Umaid Narain Singh has loss his title of said khata no. 10 thereby Khetan brothers by way of registered deed dt. 11.09.1934 (Ext 6) got three bigha equal to 2.30 acres land from Most Hasidan and Md. Nasid. Hence, issue no. 4 has been admitted by both the parties and has not disputed on the said issue and hence, issue nos 5, 6 and 7 goes in favour of defendant and obviously against the plaintiff. 5 Second Appeal No.13 of 2024 11. Remaining issues i.e. ISSUE no. I, II, III and VIII clubbed together as they are related to issues and on the basis of above discussion the court is of opinion that there is no cause of action by the plaintiff in filing the suit as he has no title and possession over the suit land and so he has not entitled to get any relief as claimed and thus, the suit is not maintainable in favour of plaintiff.
Decision
ORDER Accordingly, the suit is not maintainable and liable to be dismissed without costs as not been executed in favour of plaintiff. Accordingly, decree may be prepared in favour of defendant and against plaintiff.” 8. The judgment dated 30th August 2016 in the Title Suit No. 73 of 2004 and decree prepared thereon signed on 14th September 2016 were taken in appeal vide Civil Appeal No. 27 of 2016. During pendency of this appeal, the defendant Bhuneshwar Sao passed away and his legal heirs were substituted vide order dated 10th January 2018. 9. Mr. Sanjay Kumar Tiwari, the learned counsel for the appellant refers to the findings recorded by the lower appellate Court to submit that the judgment in Civil Appeal No. 27 of 2016 is liable to be set aside as no reason has been assigned for the decision that the plaintiff could not prove his title over the suit land. In support of this submission, the learned counsel for the appellant refers to the decision in “Manjula and Ors. v. Shyamsundar and Ors.” (2022) 3 SCC 90 wherein the Hon’ble Supreme Court observed that non-compliance of the Order 41 Rule 31 of the Code of Civil Procedure shall render the judgment and decree unsustainable. 10. In “Manjula”, the Hon’ble Supreme Court held as under: “8. Section 96 of the Civil Procedure Code, 1908 (for short “CPC”) provides for filing of an appeal from the decree passed by a court of original jurisdiction. Order 41 Rule 31 CPC provides the guidelines to the appellate court for deciding the appeal. This rule mandates that the judgment of the appellate court shall state: (a) points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. Thus, the appellate court has the jurisdiction to reverse or affirm the findings of the trial court. It is settled law that an appeal is a continuation of the original proceedings. The appellate court's jurisdiction involves a rehearing of appeal on questions of law as well as fact. The first appeal is a valuable right, and, at that stage, all questions of fact and law decided by the trial court are open for reconsideration. The judgment of the appellate court must, therefore, 6 Second Appeal No.13 of 2024 reflect conscious application of mind and must record the court's findings, supported by reasons for its decision in respect of all the issues, along with the contentions put forth and pressed by the parties. Needless to say, the first appellate court is required to comply with the requirements of Order 41 Rule 31 CPC and non-observance of these requirements lead to infirmity in the judgment.” 11. Notwithstanding the provisions under Order 41 Rule 31 of the Code of Civil Procedure, this Second Appeal cannot survive because no substantial question of law is required to be framed in this on a mere technical plea. 12. This second appeal seeks to challenge the judgment in Civil Appeal No.27 of 2016 which affirms the judgment in Title Suit No.73 of 2004 and the decree prepared thereon. There is a concurrent finding of fact that the appellant who was the plaintiff could not establish his right, title and interest over the subject property. In “Guran Ditta v. T. Ram Ditta” AIR 1928 PC 172 (with reference to section 110 CPC which was omitted by the Amendment Act, 1973) the Privy Council held that the phrase “substantial question of law” does not mean a substantial question of general importance but a substantial question of law which is involved in the case as between the parties. In “Sir Chunilal V. Mehta and sons Ltd v. Century. Spinning and Manufacturing Co. Ltd.” AIR 1962 SC 1314 the Hon’ble Supreme Court laid down the test and construed the expression “substantial question of law”, as under: “6. We are in general agreement with the view taken by the Madras High Court and we think that while the view taken by the Bombay High Court is rather narrow the one taken by the former High Court of Nagpur is too wide. The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and, substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally, settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law. 7.Applying these tests it would be clear that the question involved in this appeal, that is, the construction of the Managing Agency agreement is not only one of law but also it is neither simple nor free from doubt. In the circumstances we have no hesitation in saying that the High Court was in error in refusing grant the appellant a certificate that appeal involves a substantial question of law. It has to be borne in mind that upon the success or the failure of the contention of the parties they stand to succeed or fall with respect to their claim for nearly 28 lakhs of rupees.” 7 Second Appeal No.13 of 2024 13. In “Santosh Hazari v. Purushottam Tiwari” (2001) 3 SCC 179 the Hon’ble Supreme Court held that a point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. 14. under: In “Santosh Hazari” the Hon’ble Supreme Court held as “14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be “substantial” a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law “involving in the case” there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis.” 15. The following substantial questions of law have been framed by the appellant for the exercise of jurisdiction by this Court under section 100 of the Code of Civil Procedure: “A. Whether the learned First Appellate Court has committed error of law by not exercising jurisdiction vested upon it under Order XLI rule 31 of the Code of Civil Procedure in view that it concurred with the findings of the learned Trial Court without assigning any reasons for decision? B. Whether the learned Court of appeal below being the Court of law and facts to address it has committed error of law in deciding the appeal without formulating any point for determination or decided even as per issue wise ? C. Whether the learned Court of appeal below was justified in passing the judgement in absence of recording of any evidence even either oral or documentary the finding can be sustained in the eye of law? D. Whether the impugned judgment and decree passed by the Courts below can be sustained particularly when they have applied wrong principles of law as if deciding the title of the defendants? E. Whether non-consideration of the plaintiff's evidence supporting the pleadings, the judgment and decree can be sustained in the eye of law? F. The appellant craves leave of the Hon'ble Court to formulate other and further substantial questions of law at the time of hearing?” 16. The appellate Court by an elaborate judgment spread over 19 pages rendered a decision that the judgment in Title Suit No. 73 of 2004 8 Second Appeal No.13 of 2024 and decree passed by the Civil Judge (Senior Division)-IV confirm to the applicable laws and are valid. The appellate Court referred to the case pleaded by both sides and the evidence laid during the trial. The recording of facts by the appellate Court is in such details that even every minor fact has been recorded in the judgment. The argument put-forth by both the sides have also been dealt with very elaborately. However, this is the manner of recording the findings by the lower appellate Court in paragraph no. 10 of the judgment dated 13th October 2023 which has attracted criticism; not being recorded as per the requirements in law. 17. In Civil Appeal No. 27 of 2016, the lower appellate Court recorded the following findings: “10. Heard and perused the case record. From perusal of the same it reveals that both the parties are claiming their title over suit lands. As per pleading of plaintiff they acquired the title by way of registered deeds whereas defendant acquired by way of Hukumnama. From perusal of oral and documentary evidence I find that plaintiff could not prove its title over the suit land whereas defendant has succeeded to prove his title over the suit land by leading cogent oral and documentary evidence in support of his pleadings. Further, I do find that the learned Court below has rightly appreciated the evidence led by both the parties in support of their pleading and has rightly dismissed the Title Suit No. 73/2004 passed by the learned Court below. Hence the learned court below has considered and analyzed the evidence on record in proper perspective and while reaching to the conclusion the learned lower Court has not committed any illegality hence the same is as per law. ORDER 11. In view of above mentioned discussions and findings arrived at in the foregoing paragraphs I find and hold that the Judgment and decree dated 30.08.2016 and decree dated 14.09.2016, passed by the court of Learned Civil Judge (Sr. Div.)-IV, Giridih in Tile Suit No. 73 of 2004 is as per law, hence it is upheld. Accordingly present appeal is dismissed. No order regarding cost. Office is directed to return the Trial Court record along with copy of the judgment.” 18. There is a clear finding of interpolation and fabrication of records by the trial Court and this finding has been affirmed by the lower appellate Court. The whole claim of the appellant is based on the Return filed by Rajmata Mandakini Devi vide Ext. C in Zamindari Compensation Case No. 1781 of 1956. The appellant did not address this finding by demonstrating that the trial Court had gone wrong in arriving at a conclusion regarding Ext. C having been interpolated/tampered by pasting a white paper over the name of Sahodari Devi, the mother of the defendant. Now, what the lower appellant Court could have at best done was to merely reproduce the pleadings of the parties and evidence tendered 9 Second Appeal No.13 of 2024 by them which were already recorded in the previous paragraphs of the appellate judgment. This is not every mistake committed by a Judge in writing the judgment that would invite exercise of jurisdiction by the High Court under section 100 of the Code of Civil Procedure. A substantial question of law need not be framed for a mere academic purposes. A substantial question of law arising between the parties must pertain to such an issue a decision on which shall conclusively decide the lis between the parties. 19. The jurisdiction of the High Court to hear a Second Appeal is confined to “substantial question of law involved in the case”. This is therefore an obligation on the appellant to formulate substantial question(s) of law involved in the appeal or what is proposed to be urged before the High Court. Sometimes this may also happen that at the time of preliminary hearing the parties may propose substantial question(s) of law which the High Court may record and proceed to hear the Second Appeal. This is well-settled that the power of the High Court to hear the appeal on any substantial question of law other than what was formulated and not earlier formulated by it is not taken away subject to twin conditions that (i) the High Court is satisfied that the case involves such question and (ii) the High Court records reasons for its such satisfaction. Therefore, the High Court must be satisfied that a substantial question of law is involved in the case and such question should then be formulated by the High Court. In the memorandum of this Second Appeal, the substantial questions of law formulated by the appellant are just questions of law. At the time of hearing also, the learned counsel for the appellant could not indicate any error in the appreciation of evidence or procedural illegality committed by the lower appellate Court. 20. Having regard to the findings recorded by the Courts below, this Court finds that no substantial question of law arises in this case and, accordingly, Second Appeal No.13 of 2024 is dismissed. Sudhir/Tanuj AFR (Shree Chandrashekhar, A.C.J.)