The High Court
Case Details
S.A.No.427 of 2015 IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No.427 of 2015 ------ (Against the judgment dated 30.04.2015 passed by learned District Judge-1st, Jamtara in Title Appeal No.13 of 2014) ------ 1. Negi Bourin wife of Late Sadai Bouri 2. Srinath Bouri son of Late Sadai Bouri 3. Nibash Bouri son of Late Sadai Bouri 4. Gulab Bouri son of Late Sadai Bouri 5. Moni Bouri daughter of Late Sadai Bouri 6. Shikha Bouri daughter of Late Sadai Bouri 7. Manilal Bouri son of Late Mangal Bouri 8. Sanat Bouri son of Late Mangal Bouri 9. Bablu Bouri son of Late Shankar Bouri, All 1 to 9 resident of Village- Garjuri, P.O.- Palajori, P.S.- Kundahit, District- Jamtara. .... .... …. Plaintiffs / Respondents /Appellants Versus 1. Haradhan Bouri son of Late Shankar Bouri, resident of Village- Garjuri, P.O.- Palajori, P.S.- Kundahit, District- Jamtara. 2. Chapa Bourin wife of Helaram Bouri, r/o Village- Jaipur, P.O. & P.S. Rajnagar, District- Birbhum (W.B.) .... .... …. Defendants / Appellants / Respondents ------ For the Appellants
Legal Reasoning
: Mr. Nityanand Pd. Choudhary, Advocate For the Respondents : Mr. Rahul Kr. Gupta, Advocate ------ P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:- Heard the parties. ------ 2. This Second Appeal, under Section 100 of the Code of Civil Procedure, has been preferred against the judgment dated 30.04.2015 passed by learned District Judge-I, Jamtara in Title Appeal No.13 of 2014 1 S.A.No.427 of 2015 whereby and where under in the judgment of reversal, the learned First Appellate Court has set aside the judgment and decree passed by the trial court being the Civil Judge Senior Division-III, Jamtara in Title Suit No.43 of 2005 dated 21.01.2014 by which the learned Civil Judge Senior Division -III, Jamtara decreed the suit of the plaintiff and declared the order passed by the Circle Officer in Mutation Case marked Ext. D to be null and void and inoperative and therefore, consequential orders and actions shall have no effect and the order of injunction granted against the defendants restraining them from dispossessing the plaintiffs from the suit land was made absolute and permanent. 3. The case of the plaintiffs in brief is that the suit property was recorded in the name of Lahar Bouri and Jahar Bouri and both of them were the sons of late Balai Bouri in the Survey Settlement recorded as Kotali Jagir. The plaintiffs are the descendants of the original plaintiff Saday Bouri who was the son of Akal Bouri. Akal Bouri was the third son from the first wife of Jahar Bouri. The plaintiffs are sons of the remaining two brothers of Saday Bouri. After the death of Lahar Bouri and Jahar Bouri in or about 1935 or 1936, Akal Bouri was appointed and continued to work as Kotal at Garjuri and possessed the Kotali Jagir land of the village which is the suit land till vesting of the estate in the State of Bihar after abolition of Zamindari. The Circle Officer, Kundahit assessed the rent of Kotal Jagiri land appertaining to AKJ No.135 of Mouja Garjuri in the name of Akal Bouri as the recorded raiyat. Akal Bouri is the sole legal heir and successor of Lahar Bouri and Jahar Bouri. The ancestors of the plaintiffs used to pay the rent regularly for those lands. Akal Bouri died in or about 1980 leaving behind the plaintiffs. In the year 1985 one Mihir Bouri of village Garjuri set up a lady namely Chapu @ Chapur Bourin as the daughter of Jahar Bouri. Chapur Bourin filed a mutation case for mutation of the suit land in the court of S.D.O., Jamtara vide Mutation Case No.26/1985-86 and when the general notice was served on 16 Anna raiyat, the plaintiffs and their predecessor-in-interest filed objection against the mutation but the land in respect of which mutation is sought was in fact appertaining to Jote No.135 and not 270 of Mouja Garjuri and the plaintiffs reiterated that the lands are Kotali Jagir land and Akal Bouri 2 S.A.No.427 of 2015 was the Kotal. As after filing of the objection, Chapur Bourin did not turn up before the S.D.O., the mutation case was dismissed. Chapur Bourin filed a complaint vide P.C.R. Case No.35 of 1987 in which the plaintiffs were the accused persons but vide judgment dated 07.02.1989, the court acquitted the plaintiffs. The plaintiffs asserted that the Circle Officer, Kundahit is not legally authorized to review or revise order of mutation passed by the Circle Officer, Kundahit in Kabil Lagan Case No.483 of 1964-65 dated 14.01.1965, hence, the order dated 30.09.2004 passed by the Circle Officer, Kundahit is void, illegal, without jurisdiction and is nullity. The plaintiffs further claimed that they have acquired occupancy right and indefeasible title by law of adverse possession by possessing the suit land after the death of recorded raiyat. The plaintiffs claimed to be in peaceful possession of the suit land and filed the suit. 4. The defendants challenged the maintainability of the suit on various technical grounds. The defendants pleaded that the plaintiffs are no way related to Lahar Bouri and Jahar Bouri. The defendants denied the genealogy of the plaintiffs as pleaded by them in the plaint and came up with a different genealogy of the recorded tenant of the suit land. According to the defendants, after the death of Lahar Bouri and Jahar Bouri, the son of Lahar Bouri namely Shankar Bouri became the Kotal of village Garjuri and he performed the duty of Kotal till his death. After the death of Shankar Bouri, the defendant No.1- Haradhan Bouri became the Kotal of village Garjuri and the defendant No.1 is possessing the suit land of AKJ No.135 peacefully. As Suday Bouri along with some local Mahajan wanted to create trouble over the suit land, Criminal Miscellaneous Case No.476 of 2003 was registered under Section 144 Cr.P.C. and vide order dated 01.10.2003, the same was decided in favour of the defendants. The defendants denied that Akal Bouri at any point of time, was Kotal. The defendants pleaded that acquittal in a criminal complaint case of cutting away the paddy crops do not confer any title upon the plaintiffs. The defendant pleaded that Chapur Bourin has undivided share of the land of her husband and she had allowed the defendant No.1 on her behalf and Chapur Bourin is getting her due from the defendant No.1 every year. The defendants further pleaded that the defendant No.1- Haradhan Bouri is 3 S.A.No.427 of 2015 the son of recorded tenant- Lahar Bouri and defendant No.2- Chapur Bouri is the daughter of the recorded tenant- Jahar Bouri. The defendants pleaded that the plaintiffs have never come in possession over the suit land, hence, they have not acquired occupancy right or adverse possession over the suit land. 5. In view of the rival submissions of the parties, the learned trial court framed the following five issues:- (I) Is the suit maintainable in its present form? (II) Is there any valid cause of action for the suit? (III) Do the plaintiff has got any right, title and interest over the suit property? (IV) Is the order dated 30.09.2004 passed by the Circle Officer, Kundahit regarding mutation illegal, in-operative and nullity? (V) Is the plaintiff entitled for grant of reliefs claimed for? 6. In support of their case, the plaintiffs altogether examined eight witnesses besides proving the documents which have been marked Ext.1 to 7. On the other hand, the defendants also examined eight witnesses and proved the documents which have been marked Ext. A to Ext. G. 7. The learned trial court first took up issue No. (I) and held that the suit as filed, is maintainable. 8. In respect of the issue No. (II), the learned trial court held that the plaintiffs have valid cause of action for filing the suit. 9. In respect of issue No. (IV), the learned trial court considering the evidence in the record declared that the order of the Circle Officer, marked Ext. D and the correction slip which was marked Ext. C was illegal, inoperative and not binding upon the plaintiffs. 10. In respect of the issue No. (III), the learned trial court after considering the evidence in the record, held that the plaintiffs have been coming in possession of the suit land in exercise of their right, title and interest and accordingly, decided the issue No. (III) in favour of the plaintiffs and against the defendants. 11. Lastly, the learned trial court took up issue No. (V) and held that the plaintiffs are entitled for grant of the relief as claimed for and decreed the suit. 12. Being aggrieved by the judgment and decree passed by the trial 4 S.A.No.427 of 2015 court, the defendants preferred Title Appeal No.13 of 2014 in the court of Principal District Judge, Jamtara which was ultimately heard and disposed of by the learned First Appellate Court by the impugned judgment and decree. 13. The learned First Appellate Court, considering the materials in the record, formulated the following points for determination:- (1) Whether the impugned judgment/order and decree passed by the court below is maintainable? (2) Whether the plaintiffs/appellants are entitled for the reliefs as claimed in the plaint of the suit? 14. The learned First Appellate Court first considered the issue No. (IV) framed by the trial court and considered that though the plaintiffs prayed for declaring the mutation order dated 30.09.2004 passed in Mutation Case No.12/04-05 passed by the Circle Officer, Kundahit but they did not file the said order during the trial with the plaint or during the course of the evidence in the trial court or before the learned First Appellate Court. The learned First Appellate Court observed that the Ext. D was dated 25.09.2004 which has been produced by the defendant in the suit in place of order dated 30.09.2004. The learned First Appellate Court observed that the trial court committed error by putting the burden of proof on the defendants on this issue. The learned First Appellate Court found fault with the findings of fact arrived at by the learned trial court on accepting the verbal submission of the plaintiffs that Ext. D dated 25.09.2004 is the document sought to be declared not being void though the pleadings of the plaintiffs shows that the plaintiffs prayed for declaration of the order dated 30.09.2004 as void, illegal, nullity and inoperative, hence, observed that this act of the learned trial court is absurd and bad in law and decided the issue No. (IV) framed by the learned trial court in favour of the defendants. 15. The learned First Appellate Court thereafter took up issue No. (III) framed by the trial court and observed that as the court below has not declared the mutation order dated 30.09.2004 passed by the Circle Officer, Kundahit as null and void, therefore, no right, title and interest has accrued to the plaintiffs over the suit property. 5 S.A.No.427 of 2015 16. Lastly, the learned First Appellate Court took up issue Nos. (I), (II) and (V) as framed by the trial court and in view of its decision in respect of issue Nos. (III) and (IV) filed in the suit came to the conclusion that the plaintiffs have no cause of action for the suit and they are not entitled to the reliefs claimed in the suit and dismissed the suit and allowed the appeal. 17. Mr. Nityanand Prasad Choudhary- learned counsel for the appellants submits that the learned lower appellate court has committed an error in not considering as to whether the Circle Officer, Kundahit has any right or legal authority to review or re-mutate the earlier mutation order passed by Circle Officer, Kundahit on 14.01.1965 in Kabil Lagan Case No.483 of 1964/65. It is next submitted by Mr. Choudhary that the learned First Appellate Court failed to take into consideration that Akal Bouri and subsequently the plaintiffs have been in possession of the suit land. It is next submitted that the learned First Appellate Court has acted contrary to the evidence in the record, therefore, the impugned judgment and decree passed by the learned First Appellate Court be set aside and the judgment and decree passed by the trial court be restored. 18. Mr. Rahul Kumar Gupta- learned counsel for the respondents on the other hand defended the impugned judgment and decree and relying upon the judgment of the Hon’ble Supreme Court of India in the case of Bachhaj Nahar vs. Nilima Mandal & Ors. reported in AIR 2009 SC 1103 paragraph-10 of which reads as under:- 10.The object of issues is to identify from the pleadings the questions or points required to be decided by the courts so as to enable parties to let in evidence thereon. When the facts necessary to make out a particular claim, or to seek a particular relief, are not found in the plaint, the court cannot focus the attention of the parties, or its own attention on that claim or relief, by framing an appropriate issue. As a result the defendant does not get an opportunity to place the facts and contentions necessary to repudiate or challenge such a claim or relief. Therefore, the court cannot, on finding that the plaintiff has not made out the case put forth by him, grant some other relief. The question before a court is not whether there is some material on the basis of which some relief can be granted. The question is whether any relief can be granted, when the defendant had no opportunity to show that the relief proposed by the court could not be granted. When there is no prayer for a 6 S.A.No.427 of 2015 particular relief and no pleadings to support such a relief, and when defendant has no opportunity to resist or oppose such a relief, if the court considers and grants such a relief, it will lead to miscarriage of justice. Thus it is said that no amount of evidence, on a plea that is not put forward in the pleadings, can be looked into to grant any relief. and submits that the reliefs sought by the plaintiffs in filing the suit was to declare that the mutation order dated 30.09.2004 passed in Mutation Case No.12/2004-05 passed by the Circle Officer, Kundahit to be void, illegal and without jurisdiction and nullity and inoperative in law and further not binding upon the plaintiffs hence, it was incumbent upon the plaintiffs to file the certified copy of the said order but having not done so, the learned trial court has committed a grave illegality by declaring the Ext. D which was filed by the plaintiffs and which is not the order dated 30.09.2004 rather it is the order dated 25.09.2004 to be declared null and void. 19. It is next submitted by Mr. Gupta that the plaintiffs have not filed any document whatsoever to establish his title or possession. Admittedly, the defendants on the date of filing of the suit were paying the rent to the State in respect of the suit land and the entry in the revenue record prima facie indicates their possession over the suit property. Though the plaintiffs examined eight witnesses but the P.W.4 and P.W.5 did not turn up for their cross-examination though the affidavit in the shape of examination-in-chief was filed on their behalf by the plaintiffs. Hence, their evidence have been expunged from the record. It is next submitted by Mr. Gupta that the plaintiffs have not pleaded the ingredients required for establishing the title by way of adverse possession as the plaintiffs have not mentioned, the date from which they possessed the suit land and when their possession became adverse and who was the real owner, against whom they claim adverse possession. It is further submitted by Mr. Gupta that the certified copy of the order dated 01.10.2003 in Criminal Misc. Case No.467 of 2003 marked exhibit A, goes to show that the defendants were found in possession in a proceeding under Section 144 Cr.P.C., hence, no illegality has been committed by the learned First Appellate Court in setting aside the judgment and decree which was 7 S.A.No.427 of 2015 passed by the trial court throwing all the procedural law to the woods. Hence, it is submitted that as there is neither any perversity in finding of fact nor is there any substantial question of law, hence this appeal, being without any merit, be dismissed. 20. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record it is pertinent to mention here that it is a settled principle of law that the plaintiff has to stand on his own legs and cannot get any advantage from the weakness of the defendant and the plaintiff has to prove the case which he has pleaded. 21. Now, coming to the facts of this case; the plaintiff’s suit primarily was for declaring the order passed by the Circle Officer in Mutation Case dated 30.09.2004 to be void, illegal, without jurisdiction, nullity, inoperative in law and not binding upon the plaintiff but undisputedly the plaintiff has not filed the said order. Under such circumstances, certainly a grave perversity was committed by the learned trial court in declaring the Ext. D which was filed by the defendants and which is the order dated 30.09.2004 passed in a Mutation Case to be null and void has certainly in the absence of any issue in this respect, the defendants were certainly had no idea that the trial court will adjudicate the Exhibit-D instead of the order passed by the Circle Officer in Mutation Case dated 30.09.2004. So, the defendant had no opportunity lead any evidence regarding the genuineness and the validity of Exhibit-D. So far as the contention of the learned counsel for the appellants regarding the perversity in finding of fact by the learned First Appellate Court is concerned, this Court after going through the materials in the record found that the plaintiffs have failed to put forth any evidence regarding the ingredients required to establish the title by way of adverse possession. It is a settled principle of law that adverse possession requires all the three classic requirements to co-exist at the same time, namely, adequate in continuity, adequate in publicity and adverse to a competitor, in denial of title and his knowledge moreover Animus possidendi under hostile colour of title is also required; as has been observed by the Hon’ble Supreme Court of India in the case of Ravinder 8 S.A.No.427 of 2015 Kaur Grewal & Others vs. Manjit Kaur & Others reported in (2019) 8 SCC 729 paragraph-60 of which reads as under:- the “60. The adverse possession requires all three classic requirements to co-exist at the same time, namely, nec vi i.e. adequate in continuity, nec clam i.e. adequate in publicity and nec precario i.e. adverse to a competitor, in denial of title and his knowledge. Visible, notorious and peaceful so that if the owner does not take care to know notorious facts, knowledge is attributed to him on the basis that but for due diligence he would have known it. Adverse possession cannot be decreed on a title which is not pleaded. Animus possidendi under hostile colour of title is required. Trespasser’s long possession is not synonymous with adverse possession. Trespasser’s possession is construed to be on behalf of the owner, the casual user does not constitute adverse possession. The owner can take possession from a trespasser at any point in time. Possessor looks after the property, protects it and in case of agricultural property by and large the concept is that actual tiller should own the land who works by dint of his hard labour and makes the land cultivable. The legislature in various States confers rights based on possession.” (Emphasis supplied) It is also a settled principle of law that a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed as has been held by the Hon’ble Supreme Court of India in the case of Karnataka Board of Wakf v. Government. of India reported in (2004) 10 SCC 779 inter alia observed as under: (SCC p. 785, para 11) “Xxxx Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession.” Thus in the absence of any such essential pleading and proof certainly the claim of the plaintiffs-appellants of acquiring title by way of adverse possession has no legs to stand. The plaintiffs have been claiming their 9 S.A.No.427 of 2015 title based on an entry in the revenue record, the genealogy of which given by the plaintiffs to relate him to the recorded tenant is disputed. There is no cogent evidence in the record regarding continuous possession of the plaintiffs over the suit land. 22. Under such circumstances, this Court finds that no perversity has been committed by the learned First Appellate Court in appreciation of the evidence in the record concerned warranting interference of this Court in exercise of its jurisdiction under Section 100 of the Code of Civil Procedure. 23. Accordingly, as no substantial question of law is involved in this appeal, this appeal, being without any merit, is dismissed but under the circumstances, without any cost. 24. Let a copy of this judgment along with the lower court records be sent to the courts concerned forthwith. High Court of Jharkhand, Ranchi Dated the 29th of March, 2023 AFR/ Animesh (Anil Kumar Choudhary, J.) 10