1. Maqsood Mian, son of Late Abdul Mian, 2. Rafique Mian, son of Late v. …
Case Details
S.A. No. 588 of 2015 1 IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No.588 of 2015 ------ 1. Maqsood Mian, son of Late Abdul Mian, 2. Rafique Mian, son of Late Abdul Mian, 3. Hafiz Mian, son of Late Abdul Mian, 4. Gulo Mian, son of Late Umeda Mian All resident of village –Piluwahi, P.O. +P.S. –Mohanpur, District - Deoghar .... .... Versus …. Plaintiffs/ Appellants /Appellants 1. Turabati Mian, son of Late Riyatali Mian, 2. Nazir Mian, son of Late Riyatali Mian, 3. Wazir Mian, son of Late Riyatali Mian, 4. Kadbanu Bibi, wife of Late Parsati Mian, 5. Ismail Mian, son of Late Parsati Mian, 6. Jirabali Mian, son of Late Parsati Mian, 7. Md. Sabbir, son of Late Parsati Mian, 8. Md. Rasid, son of Late Parsati Mian, 9. Panchu Mian, son of Late Parsati Mian, 10. Chhatu Mian, son of Late Parsati Mian, 11. Usuf Mian, son of Late Riyatali Mian, 12. Haroon Mian, son of Late Riyatali Mian, 13. Kadir Mian, son of Lae Riyatali Mian, 14. Fuljan Bibi daughter of late Riyatali Mian, wife of Failul Rahman. All are resident of village –Bhangia Pahari, P.O. +P.S. –Mohanpur, District –Deoghar. .... …. Defendants -Respondents-Respondents .... 15. Mobin Mian, son of Late Khatir Mian, 16. Sarafat Mian, son of Late Khatir Mian, 17. Allauddin Mian, son of Late Bhola Mian, 18. Alim Mian, son of Late Bhola Mian, 19. Farijan Bibi, wife of Late Bhola Mian. All are resident of village –Piluwahi, P.O. +P.S. –Mohanpur, District – Deoghar. For the Appellants .... .... …. Plaintiffs -Appellants-Performa Respondents ------ : Mr. Arvind Kr. Choudhary, Advocate : Mr. Shambhu Nath Tiwari, Advocate ------ P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ------ By the Court:- 1. 2.
Legal Reasoning
Heard the learned counsel for the appellants. This second appeal under Section 100 of the Code of Civil Procedure has been preferred against the judgment and decree dated 25.07.2015, passed by the learned Principal District Judge, Deoghar in S.A. No. 588 of 2015 2 Title Appeal No. 23 of 2010 by which in a judgment of concurrence, the learned first appellate court dismissed the appeal, finding that the learned trial court has rightly dismissed the suit of the plaintiffs in Title Suit No. 141 of 2002 filed with a prayer for declaration of title of the plaintiffs over the suit land by way of adverse possession and in case, during the pendency of the suit, the plaintiffs are dispossessed from the suit land, then handing over possession of the suit land to the plaintiffs, costs of the suit and other reliefs. 3. The case of the plaintiffs in brief is that the ancestor of the plaintiff namely Umeda Ali Mian has cordial relationship with the recorded tenant of the suit land namely Dipti Mian. Dipti Mian settled two acres of land out of the total area of 6.77 acres of the suit land in favour of the said ancestor of the plaintiffs namely Umeda Ali Main in the year 1936 through a registered Kurfa. The ancestor of the plaintiffs came in possession of the suit land and after his death, the successor in interest came in possession as absolute owner. At the instigation of some inimical person, Dipti Mian filed Title Suit No. 50 of 1967 and the said suit was dismissed for default and the plaintiffs continued in possession over the same. Later on the suit land was also mutated in the name of the plaintiffs and the plaintiffs paid rent. The plaintiffs further pleaded that a proceeding under Section 144 Cr.P.C. and 145 Cr.P.C. was initiated in respect of the suit land but the same was decided in favour of the defendants. The Hon’ble Patna High Court in Criminal Revision No. 451 of 1985 set aside the order and remanded the case under Section 144 Cr.P.C. and 145 Cr.P.C. for disposal after hearing the parties but even after remand, the Magistrate vide order S.A. No. 588 of 2015 3 dated 16.09.1991 declared possession of the defendants over the suit land. The plaintiffs filed Criminal Revision No. 89 of 1991 before the Sessions Judge but the same was dismissed. 4. The defendants on the other hand challenged the maintainability of the suit on various technical grounds besides it was pleaded by the defendants that they are the descendants of Dipti Mian, the undisputed recorded tenant of the suit land. They denied any relationship between Dipti Mian and Umed Ali Mian and they further pleaded that Dipti Mian never executed any Kurfa settlement in favour of Umed Ali Mian. The defendants pleaded that the suit land is non-transferable raiyati land and the transfer of such land is strictly prohibited under the Santhal Pargana Tenancy Act. The defendants next pleaded that Dipti Mian reclaimed about five acres of Dhani land. The defendants denied that Dipti Mian ever filed Title Suit No. 50 of 1967. 5. On the basis of the rival pleadings of the parties, the learned trial court settled the following eight issues: (i) Is the suit maintainable? (ii) Have the plaintiffs got valid cause of action for filing the present suit? (iii) Had Dipti Mian settled the suit land to Umed Ali Mian through kurfa in the year 1936? (iv) Whether the parcha entry regarding the suit plot is final and conclusive? (v) Whether the plaintiffs have got adverse possession or occupancy right over the suit land by remaining in continuous possession more than 12 years prior to passing of the SPT Act, S.A. No. 588 of 2015 4 1949? And whether the recorded tenant Dipti Mian was ever dispossessed from the suit plot? (vi) Whether plaintiffs claim and the suit is in contravention of the tenancy law and whether the suit is maintainable? (vii) Whether the suit is barred by law of limitation? (viii) Whether the suit is fit to be dismissed with cost? 6. In support of their case, the plaintiffs examined six witnesses besides proving the documents which have been marked Ext.1 to Ext.5/b whereas the defendants examined seven witnesses and proved the documents which have been marked Ext. A to Ext. E. 7. The learned trial court first took up issue nos. iii, iv, v & vi together and after considering the evidence in the record came to the conclusion and held that since the Kurfanama was produced for the first time on 25.11.2000, hence the same be treated to be a document of the year 2000 and has no force in view of the provisions of Santhal Pargana Tenancy Act, 1949 which prohibits any transfer of raiyati land in any mode. The learned trial court further held that the plaintiffs have failed to establish that the recorded tenant Dipti Mian was ever dispossessed from the suit land or that the plaintiffs perfected their title by way of adverse possession and went on to hold that the suit land is the paternal land of the defendants which is in possession of the defendants and answered the issues against the plaintiffs and in favour of the defendants. Thereafter, the learned trial court took up issue no. vii and answered the same in the negative. Lastly, the learned trial court took up issue nos. i, ii & viii together and arrived at the conclusion that the suit as framed is not maintainable nor the plaintiffs have any cause of action for the suit and the plaintiffs are not S.A. No. 588 of 2015 5 entitled to any relief and dismissed the suit. 8. Being aggrieved by the said judgment and decree passed by the trial court, the plaintiffs filed Title Appeal No. 23 of 2010 in the court of Principal District Judge, Deoghar which was ultimately heard and disposed of by the learned first appellate court vide the impugned judgment and decree. 9. The learned first appellate court made independent appreciation of the evidence in the record and observed that the Kurfanama which has been marked Ext.1 has never seen the light of the day prior to filing of the deed concerned in court and the said Kurfanama was never presented by the plaintiffs in other proceedings between the parties under Section 144 Cr.P.C. and 145 Cr.P.C. and held that the execution of the alleged Kurfa settlement deed marked Ext.1 purported to have been executed by the recorded tenant Dipti Mian in favour of Umed Ali Mian, which accordingly to the plaintiffs took place in the year, 1936 could not be proved by the plaintiffs. The learned first appellate court also considered the testimony of Hari Osta who is the grandson of the scribe of Ext.1 –Kurfa namely Mahabir Osta, and observed that Mahabir Osta did not scribe the Ext.1 and disbelieved the Kurfa. The learned first appellate court also considered that there was no occasion for the recorded tenant to have filed a suit for entire 6.77 acres and the claim of the plaintiffs/appellants was only for two acres and went on to observe that the plaintiffs have failed to prove any title over the suit land and the evidence in the record is insufficient to pass the decree of adverse possession in favour of the plaintiffs, hence dismissed the suit. S.A. No. 588 of 2015 6 10. Mr. Arvind Kumar Choudhary, the learned counsel appearing for the appellants submits that the impugned judgment and decree passed by the learned first appellate court is a perverse one and has been passed on the basis of erroneous appreciation of the evidence in the record by both the courts below. Hence, it is submitted that the impugned judgment and decree passed by both the courts below be set aside and suit of the plaintiffs be decreed. 11. Having heard the submissions made at the Bar and after going through the materials available in the record, this Court finds that though the plaintiffs have filed the suit with a prayer for declaration of title on the basis of adverse possession but the plaintiffs have not mentioned the date, on and from which, the possession became adverse. 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 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, S.A.No.16 of 1998 (R) 9 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 S.A. No. 588 of 2015 7 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 land cultivable. The hard legislature in various States confers rights based on possession.” (Emphasis supplied) It is also a settled principle of law that a person who claims labour and makes the 12. 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, paragraph no.11 of which reads as under:- “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.” 13. Now coming to the facts of the case, the plaintiffs-appellants have not mentioned the date of possession over the suit land nor they could produce any cogent evidence to show their possession over the suit land. S.A. No. 588 of 2015 8 14. After carefully going through the materials in the record, this court finds that the concurrent finding of fact arrived at by the learned first appellate court being final court of facts has not been made by ignoring or excluding the relevant materials or by taking into consideration the irrelevant material nor the finding of fact arrived at by the learned first appellate court being the final court of facts outrageously defies the logic as to suffer from the vice of irrationality incurring the blame of being perverse and in the absence of any perversity in the concurrent finding of facts of both the courts below, certainly this Court has no jurisdiction to interfere with such finding of facts fact by the courts below and there is no substantial question of law involved in this appeal. 15. Accordingly, this appeal being without any merit is dismissed on contest, but under the circumstances without any costs. 16. Let a copy of this Judgment be sent to the learned court below forthwith. High Court of Jharkhand, Ranchi Dated the 28th March, 2023 AFR/ Sonu-Gunjan/- (Anil Kumar Choudhary, J.)