Civil Appeal No. 21 of 2015 · The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No.18 of 2022 ------ (Against the judgment dated 22.11.2019 passed by learned District Judge-II, East Singhbhum at Jamshedpur in Civil Appeal No.21 of 2015) 1. Deleted ------ 2. Shambhu Kumar, aged about 50 years, Son of Late Raj Deo Thakur, 3. Subodh Kumar, aged about 50 years, Son of Late Raj Deo Thakur, 4. Sunita Kumari, aged about 36 years, Daughter of Late Raj Deo Thakur, 5. Babita Kumari, aged about 36 years, Daughter of Late Raj Deo Thakur, 6. Sabita Kumari, aged about 36 years, Daughter of Late Raj Deo Thakur, All residents of Village Gadhra, Tola Barigora, PO and PS- Persudih, District – Singhbhum East (Jharkhand) .... .... …. Defendants/Appellants/Appellants. Versus 1. Ram Kumar Sinha, Son of Late Kunkun Sinha, 2. Ratan Kumar Sinha, Son of Late Kunkun Sinha, Both resident of Village Gadhra, Tola Barigora, PO and PS- Persudih, District – Singhbhum East (Jharkhand) .... .... …. Plaintiffs/Respondents/Respondents For the Appellants For the Respondents ------
Legal Reasoning
: Mr. Amit Kr. Das, Advocate Ms. Swati Shalini, Advocate : Mr. Samir Kr. Lall, Advocate ------ P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ------ 1 S.A. No.18 of 2022 By the Court:- Heard the parties. 2. This Second Appeal filed under section 100 of the Code of Civil Procedure, 1908 has been preferred against the judgment of affirmance dated 22.11.2019 passed by learned District Judge-II, East Singhbhum at Jamshedpur in Civil Appeal No.21 of 2015 whereby and where under the learned first appellate court has dismissed the appeal without any cost and affirmed the judgment and decree passed by the learned Civil Judge (Senior Division)-II, Singhbhum East, Jamshedpur in Title Suit No.33 of 1998 dated 26.03.2015. 3. The brief facts of the case is that the plaintiffs filed Title Suit No.33 of 1998 in the court of Civil Judge (Senior Division)-II, Singhbhum East, Jamshedpur with a prayer for declaration of their title and eviction of the defendant from the suit property with arrear of rent and mesne-profit. The case of the plaintiffs in brief is that the suit property originally belonged to one Brindawan Tiwary being the self-acquired property of Brindawan Tiwary. After the death of the said Brindawan Tiwary, the suit property devolved upon his widow namely Fulo Devi. Fulo Devi executed the registered sale-deed in respect of the suit land, on 30.09.1992 which has been marked as Ext. 2 in favour of the plaintiffs. The defendant occupied the portion of the suit property as a tenant under the plaintiffs on payment of monthly rent of Rs.100/- which has been described in Schedule B of the plaint and which is the suit property. The defendant paid house rent of the suit property till May, 1997. From June, 1997 the defendant wilfully failed and neglected to pay the house rent and thus, has become a defaulter in payment of rent as even after the notice, the defendant neither paid the arrear of rent nor vacated the suit premises but in reply to the notice, denied the relationship of landlord and 2 S.A. No.18 of 2022 tenant between the plaintiffs and him and rather laid a false claim of ownership over the suit premises, hence, the plaintiffs filed the suit. 4. The defendants in their written-statement challenged the maintainability of the suit on various technical grounds and pleaded that the coparceners of the joint Hindu family of Brindawan Tiwary namely Babu Prasad Tiwary- being the nephew of the said Brindawan Tiwary having right, title and interest over the suit property as the suit property was acquired out of the joint family fund by the joint Hindu Undivided family. After the death of Brindawan Tiwary, there was a partition between the coparceners and Babu Prasad Tiwary used to look after the suit land. There was an oral partition of the suit property in presence of the vendors of the plaintiffs. It was further pleaded by the defendant that Babu Prasad Tiwary on the strength of verbal partition in the family, became absolute owner of Schedule A property and sold the same to the defendant. The defendant pleaded that the sale-deed executed by Fulo Devi was a fraudulent one having been prepared by deceitful means and without the consent of Fulo Devi. The defendant also took the plea of adverse possession and claimed that the right, title, interest and possession of the defendant be declared by way of adverse possession over the suit property. 5. On the basis of the rival pleadings of the parties, the learned trial court framed the following ten issues:- Whether the suit as framed is maintainable? (i) (ii) Whether the Plaintiffs have got cause of action? (ii) Whether the suit is barred by resjudicata, acquiescence, waiver and estoppel? (iv) Whether the suit is hit by provision of Specific Relief Act and Law of Limitation? (v) Whether the plaintiffs have got right, title and interest over the suit property? (vi) Whether the relationship of landlord and tenant was ever created 3 S.A. No.18 of 2022 between the plaintiffs and the defendant? (vii) Whether the suit has been properly valued and sufficient court fees have been paid? (viii) Whether the plaintiffs are entitled to a decree of arrears of rent, if yes, what will be the amount? (ix) Whether the suit is fit to be decreed? (x) Whether the plaintiffs are entitled to the relief or reliefs, if any, the plaintiff is entitled to? 6. In support of their case, the plaintiffs altogether examined six witnesses besides proving the documents which have been marked as Ext.1 to Ext. 4. From the side of the defendant, five witnesses have been examined and they also proved the documents which have been marked as Ext. A to Ext. F. 7. The learned trial court first took up issue No.(v) and after considering the evidence in the record, came to the conclusion that the plaintiffs have got better case and it has been established that the plaintiffs have right, title and interest over the suit property on the basis of the valid sale-deed executed in their behalf by the real and exclusive owner namely Fulo Devi. 8. The learned trial court next took up the issue No.(vi) and after considering the evidence in the record decided the said issue against the plaintiffs by answering the same in the negative. 9. The learned trial court next took up issue Nos.(iii), (iv) and (vii) together but as no evidence was produced by the defendant in respect of the same nor the same were pressed during the course of arguments on behalf of the defendant, decided the issue Nos.(iii), (iv) and (vii) in favour of the plaintiffs. 10. Thereafter, the learned trial court took up issue Nos.(i) and (ii) and after considering the materials in the record, came to the conclusion that the suit is maintainable in its present form and there is valid cause of action to sue the defendant. 4 S.A. No.18 of 2022 11. Lastly, the learned trial court took up issue Nos.(viii), (ix) and (x) together and held that the landlord-tenant relationship has not been established between the parties, so, the plaintiffs are not entitled for arrear of rent and the plaintiffs failed to establish how the plaintiffs are entitled to damages and mesne profit, hence, the plaintiffs are not entitled to the relief of damages by way of mesne profit and went on to decree the suit directing the defendant to hand over the vacant possession of the suit property to the plaintiff within three months. 12. Being aggrieved by the judgment and decree passed by the learned trial court, the defendant preferred Civil Appeal No.21 of 2015 in the court Principal District Judge, Jamshedpur which was ultimately heard and disposed of by the learned first appellate court being the District Judge-II, Jamshedpur by the impugned judgment as already indicated above. 13. The learned first appellate on the basis of the materials in the record and submissions made before it, settled the following two points for determination:- “I. Whether Foolo Devi vendor of the plaintiff entitled to execute sale deed no.3838 dt 30/09/92 (ext-2) in concerned to the property described in Schedule- A and whether before such transfer notice to the defendants was necessary. II. Whether the defendant has acquired right, title and interest over the property described in Schedule-A or suit property on basis of sale deed No.-2632 dt 23/02/82 (ext-B) executed by Babu Prasad Tiwary.” 14. The learned first appellate court made independent appreciation of the evidence in the record and considered that undisputedly Brindawan Tiwary is the recorded tenant and Fulo Devi was his wife. There is no material in the record to suggest that the suit property was purchased from the 5 S.A. No.18 of 2022 nucleus of the joint Hindu family property nor the defendant could produce any document to show that there was ever any partition in which the suit property was allotted to Babu Prasad Tiwary and went on to hold that the plaintiffs have right, title and interest over the suit property. The learned trial court held that Babu Prasad Tiwary was not entitled to execute the sale-deed in favour of the defendant as he was not having right, title and interest over the suit property nor could he bring on record any evidence regarding suit property being joint family property of Brindawan Tiwary and as in the revenue records the name of Brindawan Tiwary was not appearing, went on to hold that Fulo Devi- the vendor of the plaintiffs was entitled to execute the sale-deed marked Ext. 2 and relying upon the judgment of the Hon’ble Supreme Court of India in the case of Mahendra Raghunathdas Gupta vs. Vishwanath Bhikaji Mogul reported in 1997 AIR SCW 2353 came to the conclusion that before such transfer by Fulo Devi in favour of the plaintiffs, no notice was required to be served upon the defendant and the defendant has not acquired any right, title and interest over the suit property by the sale-deed marked Ext. B; as the vendor himself was not having the ownership over the land concerned which was sold by him and upheld judgment and decree of the trial court and dismissed the appeal. 15. Learned counsel for the appellants submits that both the courts below have committed perversity by failing to consider that the appellants/defendants having come into the possession of the suit property pursuant to execution of the registered sale-deed No.2632 dated 23.02.1982, the courts below ought not have decreed the suit for eviction of the defendants from the suit premises. It is next submitted that both the courts below have 6 S.A. No.18 of 2022 failed to consider that as the defendant has been residing over the suit premises for more than thirty (30) years so, the defendant has perfected his title by way of adverse possession. It is then submitted that both the courts below have overlooked the fact that in the absence of any relationship of landlord and tenant between the plaintiffs and the defendant how the defendant continued in possession of the suit land. It is next submitted that both the courts below failed to take into consideration that the defendant being in possession of the suit land since 1982, the suit for eviction filed in the year 1998, is barred by limitation. Hence, it is submitted that the judgment and decree passed by both the courts below be set aside and the suit of the plaintiffs be dismissed. 16. Learned counsel for the respondents on the other hand submits that in order to have title over the suit land, the defendant has to establish that Babu Prasad Tiwary- who is the vendor, was having title and ownership over the suit property. It is next submitted that admittedly the suit land stood recorded in the name of Brindawan Tiwary vide Ext. 3 which is the Khatiyan. There is no material to suggest that the same was the joint family property of Brindawan Tiwary rather the same was the exclusive property of Brindawan Tiwary, thus, in the absence of any evidence that Brindawan Tiwary purchased the property from the nucleus of the joint family it cannot be said that the property which stood recorded exclusively in the name of Brindawan Tiwary was the joint family property but it is the specific case of the plaintiffs that it is the self- acquired property of Brindawan Tiwary nor the defendants could put forth any evidence regarding partition of the property in which the suit property was allocated to the share of Babu Prasad Tiwary. 7 S.A. No.18 of 2022 17. It is next submitted by the learned counsel for the respondents that the claim of adverse possession of the defendant is a vague one and it is not the case of the plaintiffs that the defendant has been in possession since 1982 rather it is the case of the plaintiffs that the plaintiffs inducted the defendant as a tenant after purchasing the property in the year 1992. Hence, in the absence of the essential ingredients to establish perfection of title by way of adverse possession, the courts below have not committed any illegality in decreeing the suit of the plaintiffs as the plaintiffs have established their title and the defendant having been unlawful possession of the suit property; as the defendant could not establish his title or the title of his vendor. Hence, it is submitted that this Second Appeal, being without any merit, be dismissed. 18. 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 the defendant has failed to establish the ownership over the suit property by Babu Prasad Tiwary at any point of time. The recital of Ext. B which is the sale-deed by which Babu Prasad Tiwary sold the suit land to the defendant, itself goes to show that it was claimed by Babu Prasad Tiwary that he acquired the suit property through amicable partition. The undisputed fact remains that the suit property stood recorded in the Record of Rights exclusively in the name of Brindawan Tiwary. The defendant failed to establish that the property which stood exclusively recorded in the name of Brindawan Tiwary was a joint family property of which Babu Prasad Tiwary was a coparcener and in any partition the suit property was allocated to the share of Babu Prasad Tiwary. In the absence of any right, title and interest of Babu Prasad Tiwary over the suit land, obviously the execution of Ext. B could not 8 S.A. No.18 of 2022 confer any title upon the plaintiffs as it is a settled principle of law that a vendor cannot transfer a title better than what he is having in respect of the property which sold by a registered sale-deed. 19. So far as the plea of adverse possession of the defendant over the suit property is concerned, it is 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 vs. Government of India & Others reported in (2004) 10 SCC 779 inter alia observed as under in para 11:- “11. Xxxxx 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.” 20. It is also 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 9 S.A. No.18 of 2022 the case of Ravinder Kaur Grewal & Others vs. Manjit Kaur & Others reported in (2019) 8 SCC 729 paragraph-60 of which reads as under:- “60.The adverse possession requires all the 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) 21. Now, coming to the facts of the case, the defendant has not pleaded that he was occupying the suit premises, adverse to the interest of the plaintiff, in denial of the title of the plaintiffs rather it is the case of the plaintiffs that the defendant was in permissive possession of the plaintiffs over the suit land. 22. Under such circumstances, in the absence of this essential ingredients to constitute perfection of title by way of adverse possession, this Court is of the considered view that no illegality has been committed by the courts below in not accepting the plea of adverse possession of the defendant over the suit land. 23. So far as the contention of the claim of the appellants that the suit was barred by limitation is concerned, limitation was never an issue before the trial court obviously as the same was not pleaded by the defendant. Before the learned first appellate court, the defendant/appellant did not raise the issue of limitation. Now, as already indicated above it is the case of the plaintiffs that 10 S.A. No.18 of 2022 the plaintiffs inducted the defendant as a tenant after purchasing the property in the year 1992; so it cannot be said that it is the admitted case of the plaintiffs that the defendant has been in possession of the suit premises since 1982. Moreover, it is the case of the plaintiffs that the defendant was in permissive possession of the plaintiffs and only for the first time in reply to the notice issued by the plaintiffs demanding payment of arrear rent and for vacating the suit premises in his reply dated 08.11.1997, the defendant claimed his ownership over the suit premises for the first time and the suit was filed in the year 1998. Thus, by no stretch of imagination it can be said that the suit was barred by limitation. 24. After going through the materials in the record, this Court finds that the concurrent finding of facts arrived at by both the courts below is not by ignoring or excluding any relevant materials or admissible evidence or by taking into consideration any inadmissible evidence nor the finding of facts arrived at by both the courts below can be termed as perverse. 25. Under such circumstances, this Court is of the considered view that there is absolutely no substantial question of law involved in this Second Appeal. 26. Accordingly, this Second Appeal, being without any merit, is dismissed but under the circumstances without any costs. 27. In view of disposal of the instant Second Appeal, pending interlocutory
Decision
applications, if any, stand disposed of being infructuous. 28. Let a copy of this judgment be sent to the courts concerned forthwith. High Court of Jharkhand, Ranchi Dated the 22nd of August, 2024 AFR/ Animesh (Anil Kumar Choudhary, J.) 11 S.A. No.18 of 2022