The High Court
Case Details
Second Appeal No. 579 of 2015 IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No.579 of 2015 (Against the Judgment and decree dated 31.07.2015 passed by the learned District Judge-I, Seraikella-Kharsawan in Title Appeal No. 35/2007) ------ 1 Shardhanand Naik, s/o of late Surendera Naik 2 (i) Gulabi Nayak aged about 32 years wife of late Ananta Naik 2 (ii) Reshma Naik, aged about 19 years daughter of late Ananta Naik 2 (iii) Reshmi Naik aged about 17 years, daughter of late Ananta Naik 2 (iv) Mukish Naik aged about 14 years, son of late Ananta Naik Reshmi Naik and Mukish Naik are represented through their mother and the natural guardian Gulabi Nayak. All are resident of village- Saldih, P.O. & P.S.- Seraikella, Dist. – Seraikella- Kharsawan 3 Kani Naikani wife of late Shanti Naik and daughter of Late Surendera Naik 4 Thuding Naikani daughter of late Surendra Naik 5 Sitaram Naik son of Devi Naik Appellant No. 1, 4 and 5 are the resident of Village- Salidh, P.O. & P.S.- Seraikella, Dist. – Seraikella- Kharsawan Appellant no.3 is the resident of Village- Ukri, P.O. & P.S.- Seraikella, Dist. – Seraikella- Kharsawan .... .... …. Appellants Versus 1. Deleted (Expugned) 2. Prasna Naik son of late Dibakar Naik 3. Niraj Naik son of late Dibakar Naik 4. Raj Kishore Naik son of late Dibakar Naik 5. Subhash Naik son of late Dibakar Naik 6. Mahendra Naik son of late Dibakar Naik 7. Madan @ Bandu Lochan Naik son of late Dibakar Naik Respondent No.1 to 7 are the resident of Village- Hadwa, P.O. & P.S.- Seraikella, Dist.- Seraikella-Kharsawan 8. Sarat @ Tulu Naik 9. Misri Naik 10. Dilip Naik 11. Bhadu Naik 12. Gosa Naikani Respondent no. 8 to 11 are the sons and respondent no.12 is the wife of late Srikant Naik and respondent no.8 to 12 are the resident of Village- Curgaon, P.O. & P.S.- Majgaon, Dist.- Singhbhum West. 13. Kala Mani Naikani wife of Bakna Naik, resident of Village- Chalabera, P.O. & P.S.- Chakradharpur, Dist.- Singhbhum West 14. Kalabati Naikani daughter of late Ram Naik, resident of Village- Hadwa, P.O. & P.S.- Seraikella, Dist.- Seraikella, Kharsawan 15. Lal Naik 16. Jhutlu Naik 17. Motho Naik Respondent no.15 to 17 are the sons of Butu Naik and son-in-law of 1 Second Appeal No. 579 of 2015 late Debi Naik are residents of Village- Balidih, Tola- Soro Ghutu, P.O. & P.S.- Tonto, Bara Jhink Pani, Dist.- Singhbhum West. 18. Biswa Mitra Naik 19. (a) Panchu Naik 19. (b) Kunu Respondent no. 19 (a) and 19 (b) are the minor son and son-in-law of late Debi Naik daughter of late Taramani Naikani, represented through their maternal grandfather Biswa Mitra Naik and are resident of Village- Rajgaon, P.O. & P.S.-Gamharia, Dist.- Seraikella- Kharsawan ... .... …. Respondents For the Appellants
Legal Reasoning
: Mr. R.C.P. Sah, Advocate ------ ------ PRESENT HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ------ By the Court:- Heard the parties. 2 This second appeal has been preferred under Section 100 of Code of Civil Procedure against the judgment and decree dated 31.07.2015 passed by the learned District Judge-I, Seraikella- Kharsawan in Title Appeal No. 35/2007 whereby and where under, by the said judgment of concurrence, the learned first appellate court dismissed the appeal and affirmed the judgment and decree passed by the learned Munsif, Seraikella in Title Suit No.47 of 1982/102 of 2007 dated 06.10.2007. 3 The plaintiffs filed the suit for partition and allotment of share. It is the case of the plaintiffs that the parties to the suit are Hindu and are governed by Mithakshara school of Hindu Law and by Hindu Succession Act, 1956, after its enactment. The plaintiffs next pleaded that the parties to the suit are the descendants of common ancestor namely Gopal Naik who was also known as Konda Naik and 2 Second Appeal No. 579 of 2015 Dasrath Naik. Gopal Naik had two sons Chaitan Naik and Chamtu Naik. The plaintiffs are the descendants of the branch of Chaitan Naik whereas the defendants are the descendants of Chamtu Naik. The plaintiffs prayed for a partition of 1/6th share for the plaintiff no.1 and 1/6th share jointly for the plaintiff nos.2 to 5 of the schedule ‘B’ land of the plaint. 4 The case of the defendant nos.5 and 6 is that there is no cause of action for the suit filed by the plaintiffs and in the event of partition; the parties are entitled to the respective legitimate share in the suit property. 5 The defendant nos.1 to 4 and 7 to 9 challenged the maintainability of the suit on various technical grounds. They also pleaded that there is no unity of possession and title between the plaintiffs and the defendants as the plaintiffs have never possessed any title of the suit land. They also denied that Chaitan Naik and Chamtu Naik were two brothers being sons of Gopal Naik and Gopal Naik was never called as Dashrath Naik but Gopal Naik was called as Konda Naik whereas Dashrath Naik was called as Dasrath @ Dasru Naik. It is further pleaded that Dasrath @ Dasru Naik was the father of Chaitan Naik and Chamtu Naik and Dasrath @ Dasru Naik was the ancestor of the plaintiffs and plaintiffs has no title and neither inherited the suit land nor Chamtu ever acquired title over the suit land and the land was mutated in the name of the defendants. Hence, the plaintiffs are not entitled to the reliefs. 6 On the basis of rival pleadings of the parties, the learned 3 Second Appeal No. 579 of 2015 trial court framed the following six issues:- Is the suit maintainable in its present form and prayer? (1) (2) Have the plaintiffs any cause of action for this suit? (3) (4) (5) Have the parties any unity of title and possession with respect Is the suit bad for misjoinder and non-joinder of parties? Is the suit barred by adverse possession? (6) to the suit properties? Are the plaintiffs entitled to get any relief whatsoever, in this suit? 7 The learned trial court considered the evidence in the record i.e. the oral testimony of four witnesses examined by the plaintiffs and the documents which have been marked Ext. 1 to 6/1 as well as the oral testimony of seven witnesses examined by the defendants and the documents which have been marked Ext. A to F/4. 8 The learned trial court first took up issue nos. (4) and (5) together and after considering the evidence in the record, came to the conclusion that as co-sharer cannot claim adverse possession against other co-sharers and the zamabandi are only for the fiscal purpose and they do not create any title and decided the issue nos. (4) and (5) in favour of the plaintiffs and against the defendants. Thereafter, the learned trial court took up issue no. (3) and decided the said issue in favour of the plaintiffs by holding that no evidence has been adduced by the parties to agitate that the suit is bad for non-joinder or mis- joinder of necessary parties. Lastly the learned trial court took up issue nos. (1), (2) and (6) together and held that the suit is maintainable in its present form and the plaintiffs have valid cause of action for the suit and the plaintiffs are entitled to the relief as prayed and decided the issues in favour of the plaintiffs and decreed the suit by holding that the plaintiffs are entitled for preliminary decree for 4 Second Appeal No. 579 of 2015 partition of the suit land and allotted 1/6th share to the plaintiff no.1 and 1/6th share jointly to the plaintiff nos.2 to 5. 9 Being aggrieved by the judgment and decree passed by the learned trial court, the defendants filed Title Appeal No.35 of 2007 in the court of District Judge, Seraikella-Kharsawan which was ultimately heard and disposed of by the learned first appellate court by the impugned judgment and decree. 10 The learned first appellate court made independent appreciation of the evidence in the record and like the trial court took up issue nos. (4) and (5), as settled by the trial court, together for consideration. The learned first appellate court considered that in the khatiyan of the year 1961 which was marked Ext.5, in respect of new Khata no.3, the name of Chamtu Naik and Chaitan Naik and their descendants were jointly recorded and the same has been mentioned in the certified copy of Exhibit- B khatiyan which was produced by the defendants in the learned trial court. The learned first appellate court further considered that Ext. C- correction slip and observed that the same does not create any title in favour of the appellants-defendants. Similarly, the documents produced by the defendants which has been marked Ext. A, D, E and F series and the rent receipts of F series as well as Ext. 2, 3 and 4 do not affect the title and possession of the parties to the case and do not affect unity of title and possession of the parties over the disputed land. The learned first appellate court considered that the defendants have not mentioned as to who is the true owner against whom they have claimed adverse possession and 5 Second Appeal No. 579 of 2015 as the learned first appellate court has found that there is unity of title and possession of the parties to the suit, over the suit land and the possession of coparcener is not adverse to that of the other coparcener in the joint family property and the suit of adverse possession can be brought only against the true owner and arrived at the conclusion that the suit is not hit by principle of adverse possession. The learned first appellate court next took up issue no. (3) as settled by the learned trial court and went on to hold that the issue no. (3) has rightly been decided in favour of the plaintiffs by the trial court and decided the issue no. (3) in favour of the plaintiffs and against the appellants of this appeal. The learned first appellate court next took up issue nos. (1), (2) and (6) and held that the suit is maintainable in its present form and there is cause of action for the plaintiffs and the plaintiffs are entitled to reliefs and dismissed the appeal and affirmed the judgment and decree of the learned trial court. 11 Mr. R.C.P. Sah, learned counsel for the appellants submits that both the courts below could not appreciate the evidence in the record in its right perspective. It is next submitted by Mr. Sah that both the courts below failed to take note of the fact that the plaintiffs could not file any document to show that there is unity of title and both the courts below ought to have held that Chaitan Naik is the only son of Gopal Naik @ Konda Bhuyan and Gopal Naik was never called as Dasru @ Dasrath Naik. Hence, it is submitted that the impugned judgment and decree passed by both the courts below be 6 Second Appeal No. 579 of 2015 set aside and the suit of the plaintiffs be dismissed, after formulating appropriate substantial question of law. 12 Having heard the submissions made at the Bar and after going through the materials in the record, this Court finds that both the courts below came to the conclusion that there is unity of possession and title of the parties to the suit on the basis of the entries made in Ext. 5 which shows that the suit property has been jointly recorded in the name of Chaitan Naik and Chamtu Naik and their descendants. 13 It is pertinent to mention here that 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:- “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) 14 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 7 Second Appeal No. 579 of 2015 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 paragraph-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.” 15 The plea of adverse possession of the defendants were rightly turned down by both the courts below in the absence of essential ingredients of the adverse possession as to who is the real owner against whom the defendants claim adverse possession nor the defendants could come forward with any date from which their possession became adverse and against whom their possession became adverse. Nor the defendants could produce any evidence regarding the other essential ingredients required to establish the plea of adverse possession; as mentioned in the settled principle of law as discussed above. 16 After carefully going through the materials in the record, this Court finds that the finding of fact arrived at by the learned first appellate court was not done 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 8 Second Appeal No. 579 of 2015 of being perverse. 17 Thus, in the absence of any perversity, in the concurrent finding of fact arrived at by the learned court below, this Court finds that there is no substantial question of law is involved in this appeal and thus no merit in this appeal. 18 Accordingly, this appeal being without any merit is dismissed but under the circumstances without any costs. 19 Let a copy of this Judgment be sent to the court concerned forthwith. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 14th February, 2023 AFR/ Sonu-Gunjan/- 9