The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No.248 of 2002 ------ (Against the judgment dated 28.08.2002 passed by the learned 7th Additional District Judge, Palamau at Daltonganj in Title Appeal No.38 of 1991) ------ 1. (a) Ajay Singh aged about 51 years 1. (b) Abhay Singh aged about 48 years 1. (c) Hareram Singh aged about 53 years All sons of Late Krishna Bihari Singh. All are resident of village- Mohammadganj, P.O. & P.S.- Mohammadganj, District- Palamau. 2. (a) Mukha Devi W/o Late Balram Singh 2. (b) Arun Singh aged about 56 years 2. (c) Dhruv Shankar Singh S. No.2(b) and 2(c) are sons of Late Balram Singh. All are resident of village- Mohammadganj, P.O. & P.S.- Mohammadganj, District- Palamau. 3. (a) Bimla Devi W/o Late Sitaram Singh 3. (b) Rajesh Kumar Singh aged about 40 years S/o Late Sitaram Singh. Both are residents of village- Mohammadganj, P.O. & P.S.- Mohammadganj, District- Palamau. 4. Gauri Shankar Singh 5. Sachidanand Singh Sl. No.4 and 5 sons of Sri Inderdeo Singh, resident of village Mohammadganj, P.O. and P.S. Mohammadganj, District- Palamau. .... .... …. Plaintiffs/Respondents/ Appellants Versus 1. Nathuni Ram Son of Late Jagdish Ram, resident of village Mohammadganj, P.O. and P.S. Mohammadganj, District- Palamau. 2. Fulbasi Devi daughter of Late Mandeep Ram.
Legal Reasoning
3. Srimati Muni Devi daughter of Late Mandeep Ram. 1 S.A. No.248 of 2002 4. Ramawadhesh Ram Son of Late Mandeep Ram. 5. Rajesh Ram, Minor Son of Late Mandeep Ram. 6. Guddi Devi, Minor daughter of Late Mandeep Ram. Nos.5 and 6 are being represented through their mother and natural guardian, Sarshwati Devi wife of Late Mandeep Ram whose interest is not adverse to that of her minor son and daughter. 7. (a) Namdhari Chandravanshi (b) Kaushal Chandravanshi (c) Shiv Shankar Chandravanshi All sons of Late Ram Parwesh Ram. All are resident of village- Mohammadganj, P.O. & P.S.- Mohammadganj, District- Palamau. 8. (Dead) .... .... …. Defendants/Appellants/Appellants For the Appellants For the Respondents ------ : Mr. Manjul Prasad, Sr. Advocate Mr. Akhauri Prakahar Sinha, Advocate Mr. Arbind Kr. Sinha, Advocate : Ms. Moushmi Chatterjee, Advocate Ms. Apurv, Advocate ------ P R E S E N T HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ------ By the Court:- I.A. No.1544 of 2024 Heard the parties. 2. Learned counsel for the respondents submits that this interlocutory application has been filed with a prayer to pass an appropriate order. It is next submitted that the respondent No.1 does not want to contest the second appeal. 2 S.A. No.248 of 2002 3. It is a settled principle of law that the respondent in a second appeal, is free either to contest or not to contest the same. Therefore, no order is required to be passed by this court, in this respect. 4. Accordingly, this interlocutory application, being without any merit, is dismissed. (Anil Kumar Choudhary, J.) S.A. No.248 of 2002 1. This Second Appeal, under Section 100 of Code of Civil Procedure, has been preferred against the judgment of reversal dated 28.08.2002 passed by the learned 7th Additional District Judge, Palamau at Daltonganj in Title Appeal No.38 of 1991 whereby and where under the learned first appellate court allowed the appeal on contest and reversed the judgment and decree passed by the trial court being the Subordinate Judge-I, Palamau at Daltonganj dated 30.04.1991 in Title Suit No.62 of 1988 by which the learned Subordinate Judge-I, Palamau at Daltonganj decreed the suit of the plaintiffs filed with a prayer for declaration of right, title, interest and confirmation of possession over the suit land or in alternative for recovery of the possession and for carving out ½ share of the suit land. 2. The case of the plaintiffs in brief is that the suit land was earlier recorded by the survey authority in the name of Lagan Kahar son of Govind Kahar. Lagan Kahar died leaving behind his two sons namely Jagdish Ram and Mandeep Ram and both of them jointly came in possession of the property of Lagan Kahar after his death. Sometimes after the death of Lagan Kahar, 3 S.A. No.248 of 2002 Jagdish Ram and Mandeep Ram divided both the plots. Therefore, unity of title and unity of possession ceased to exist between Jagdish Ram and Mandeep Ram. Mandeep Ram executed registered Deed of Gift No.3195 dated 26.11.1970 with respect to half share of him from the property of Lagan Kahar, in favour of his wife. Even after gifting the land, Mandeep Ram exercised control over the property gifted by him to his wife. In the year 1972, Jagdish Ram sold the suit land to the plaintiffs to meet the expenses of his treatment, by registered sale-deed marked Ext.2. 3. On the basis of the transfer made in his favour, the plaintiffs applied for mutation and upon mutation of land, paid rent. The defendant Nos.1 and 2 instigated by others started creating disturbance. A proceeding under Section 144 of Cr.P.C. was initiated. The same was converted to a proceeding under Section 145 of Cr.P.C. against Nathuni Ram son of Jagdish Ram; even though Nathuni Ram was in no way concerned with the suit land. The same having been sold by his father to the plaintiffs. A criminal case was also instituted involving the offences punishable under Sections 307, 379 and 354 of the Indian Penal Code vide Sessions Trial No.31 of 1977. The accused persons were acquitted in Sessions Trial No.31 of 1977. The defendant Nos.1 and 2 appeared as P.W.s in the said Sessions Trial No.31 of 1977 and admitted the factum of purchase as well as possession of the subject matter of Sessions Trial No.31 of 1977, by the plaintiffs. When 1.50 acres of the land was acquired, the plaintiffs were paid compensation by the Land Acquisition Department to the extent of 4 S.A. No.248 of 2002 half of the share and the defendants were paid the remaining half of the amount as compensation. Hence, the plaintiffs filed the said suit. 4. In their written statement, the defendants challenged the maintainability of the suit on various technical grounds. The defendants denied partition between Jagdish Ram and Mandeep Ram. These defendants admitted that even though the property was joint still Mandeep Ram gifted the property to his wife. But pleaded that the gift deed remained a dead letter and was never acted upon and is void ab initio and has never been implemented. The sale-deed purportedly executed by Jagdish Ram in favour of the plaintiffs, is forged and fabricated one in collusion with the deed writer. 5. On the basis of the rival pleadings of the parties, the trial court settled the following seven issues: - (I) Is the suit as framed, maintainable? (II) Have the plaintiffs got cause of action for the suit? (III) Is the suit barred by law of limitation and adverse possession? (IV) Whether Jagidsh Ram and Mandip Ram partitioned the suit land? (V) Whether the deed of gift was acted upon? (VI) Whether the plaintiffs have got right, title and possession over the suit land on the basis of the alleged sale deed? (VII) To what relief or reliefs if any the plaintiffs entitled? 6. The learned trial court first took up issue Nos.IV, V and VI together and considering the evidence in the record came to the conclusion that the deed of gift has been acted upon properly and on the basis of the deed of gift, mutation of the gift land has been made in favour of Saraswati Devi- the defendant No.2. 5 S.A. No.248 of 2002 The learned trial court also relied upon Ext.13 which is the certified copy of the deposition in Sessions Trial No.31 of 1977 in which Mandeep Ram who was the P.W.4 in that case and defendant No.1 of the suit, admitted that Jagdish Ram sold the suit land to the plaintiffs and the plaintiffs were in possession. 7. The learned trial court also considered that Saraswati Devi is not a coparcener of the joint family property but the coparceners being Mandeep Ram and Nathuni Ram- son of Jagdish Ram, did not appear before the court. The learned trial court considered that Mandeep Ram was kept out of the witness-box to avoid confrontation with his previous deposition vide Ext.13 in Sessions Trial No.31 of 1977 and came to the conclusion that there had been partition between Jagdish Ram and Mandeep Ram and thus the plaintiffs acquired valid right, title and possession over the suit land and confirmed the possession of the plaintiffs over the suit land. 8. The learned trial court disposed of issue No.III as not pressed and lastly took up issue Nos.I, II and VII together and held that the suit as framed is maintainable. The plaintiffs have got cause of action for the suit and the plaintiffs are entitled to the relief of declaration of right, title and possession over the suit land and decreed the suit. 9. Being aggrieved by the judgment and decree passed by the learned trial court, the defendants filed Title Appeal No.38 of 1991 before the learned District Judge, Palamau at Daltonganj which was ultimately heard and
Decision
disposed of by the learned court below by the impugned judgment. 6 S.A. No.248 of 2002 10. The learned first appellate court was of the considered opinion that the Sub-ordinate Judge committed an error in coming to the conclusion that there had been partition between Jagdish Ram and Mandeep Ram. The learned first appellate court considered that the plaintiffs had lost their case under Section 145 of Cr.P.C. The learned first appellate court also concluded that the Deed of Gift has not been acted upon. The learned first appellate court discarded the testimony of the witnesses of the plaintiffs regarding partition having been effected to between Jagdish Ram and Mandeep Ram as the witnesses could not state exactly which plots of land were allotted to Mandeep Ram and which were allotted to Jagdish Ram in the partition; even though the witnesses had stated that Jagdish Ram was given a share towards northern side of each of the plots and Mandeep Ram was given the share of the southern side of each of the plots. 11. The learned first appellate court did not believe the oral testimony of the witnesses that the land of each brother was separate as no document in respect of the same was produced. The learned first appellate court also considered that if the vendor of the sale-deed Jagdish Ram was ‘Kahar’ a member of Scheduled Caste and the purchaser was not a member of Scheduled Caste, hence, the sale-deed marked Ext.2 is hit by Section 46 of C.N.T. Act and thus allowed the appeal and dismissed the suit as already indicated above. 12. At the time of admission of this appeal vide order dated 05.02.2004, the predecessor judge in the roster has formulated following four substantial questions of law: - 7 S.A. No.248 of 2002 1. Whether the lower appellate court has not misconstrued the terms of sale deed, Ext.2 and has not misunderstood its terms? 2. Whether lower appellate court is correct in law in holding that Ext.2 was executed in violation of Section 46 of the Chotanagpur Tenancy Act? 3. Whether lower appellate court is correct in law in finding that there is unity of title between the parties, on the pleadings and the evidence in the case? 4. Whether the lower appellate court has not substantially erred in law in reversing the judgment and decree of the trial court without meeting the reasoning of the trial court? 13. The respondent No.1 filed an application intimating and telling that he does not want to contest the appeal which was disposed of by a separate order by this court but the rest of the respondents, even though notice has been validly served upon them, did not appear when this appeal was called out for hearing. 14. Learned senior counsel for the appellants submits that so far as the second substantial question of law is concerned, Section 46 of the Chhotanagpur Tenancy Act,1908 is the restriction for transfer of rayat right by a person belonging to inter alia Scheduled Caste without the sanction of Deputy Commissioner, but such restriction is confined only to the raiyat land. Drawing attention of this Court to portion of the Ext.2, where the description of the property mentioned in Ext.2, it is submitted by the learned senior counsel for 8 S.A. No.248 of 2002 the appellants that the subject matter of the suit is not a raiyat land but it has been specifically mentioned that the same is a house and a land of Gharbari type i.e. homestead land. Hence, the learned first appellate court has committed a gross illegality by ignoring this aspect while finding fault by holding that the Ext.2 was executed in violation of Section 46 of C.N.T. Act. 15. Learned senior counsel for the appellants, in respect of the first substantial question of law submits that, the first appellate court committed a gross illegality by ignoring this important aspect of the sale-deed which has been marked as Ext.2 and by overlooking the same has erroneously held that Ext.2 has been executed in violation of Section 46 of C.N.T. Act. 16. In respect of the third substantial question of law, the learned senior counsel for the appellants submits that the undisputed fact remains that upon execution of the Gift Deed by the defendant No.1 namely Mandeep Ram in favour of the defendant No.2, the mutation of the land gifted was made in favour of the defendant No.2 namely Saraswati Devi and this important aspect was overlooked by the learned first appellate court in arriving at the conclusion that the Gift Deed has not been acted upon. 17. Learned senior counsel for the appellants further submits that the deposition of the witnesses of the plaintiffs regarding partition between Jagdish Ram and Mandeep Ram had remained unchallenged in their cross- examination. Therefore, merely because they could not mention the detailed particulars of the huge amount of property partitioned between Jagdish Ram and Mandeep Ram; the first appellate court committed a gross illegality by 9 S.A. No.248 of 2002 failing to consider the settled principle of law, that an ordinary witness is not expected to have a razor sharp memory, particularly, when such witness deposes about a fact which took place long back. Hence, the learned first appellate court has committed perversity by finding fault of such cogent evidence, including documentary evidence, put forth by the plaintiffs regarding partition between Jagdish Ram and Mandeep Ram, more so when the coparceners of the property being the defendant Nos.1 and 3 did not enter the witness-box and undisputedly in his deposition as P.W.4 in Sessions Trial No.31 of 1977, the defendant No.1- Mandeep Ram deposed that Jagdish Ram sold the suit property to the plaintiffs. It is then submitted that thus the lower appellate court committed perversity in holding that there is unity of title between the parties on the pleading and evidence in the case even though the overwhelming evidence in the record is to the contrary. 18. So far as the 4th substantial question of law is concerned, it is submitted by the learned senior counsel for the appellants that the first appellate court has committed perversity by ignoring the undisputed evidence in the record that there was a mutation of the property gifted to the defendant No.2 in her favour but still whimsically discarded the cogent testimony put forth by the witnesses of the plaintiffs regarding prior partition between Jagdish Ram and Mandeep Ram. Hence, it is submitted that the learned first appellate court has erred in reversing the judgment and decree passed by the trial court. It is lastly submitted that thus the impugned judgment and decree passed by the learned first appellate court being not sustainable in law, hence, the same be set aside 10 S.A. No.248 of 2002 and the judgment and decree passed by the learned trial court being Sub- ordinate Judge-I, Palamau at Daltonganj passed in Title Suit No.62 of 1988 dated 30.04.1991 be restored. 19. Having heard the submissions made at the Bar and after going through the materials available in the record, it will be appropriate to take up the substantial questions of law Nos.1 and 2 together; as they are intertwined together. Section 46 of C.N.T. Act, 1908 is relevant to the facts of this case reads as under: - “[46. Restrictions on transfer of their right by Raiyat. - (1) No transfer by a Raiyat of his right in his holding or any portion thereof,- (a) by mortgagte or lease for any period expressed or implied which exceeds or might in any possible event exceed five years, or (b) by sale, gift or any other contract or agreement, shall be valid to any extent: Provided that a Raiyat may enter into a 'bhugut bundha' mortgage of his holding or any portion thereof for any period not exceeding seven years or if the mortgagee be a society registered or deemed to be registered under the 'Bihar and Orissa Co-operative Societies Act, 1935 (B&O Act VI of 1935) for any period not exceeding fifteen years:] Provided further that,- (a)X x x x x x x x x x x x x ; (b) an occupancy-Raiyat, who is a member of the [Scheduled Castes or Backward Classes] may transfer with the previous sanction of the Deputy Commissioner his right in his holding or a portion of his holding by sale, exchange, gift, will or lease to another person, who is a member of the [Scheduled Castes or, as the case may be, Backward Classes] and who is a resident within the local limits of the district within which the holding is situate [* * *]; X x x x x x x x x x (emphasis supplied) makes it crystal clear that the restriction imposed in the said Section for transfer to be made by an occupancy raiyat who is a member of inter alia Scheduled Caste, the previous sanction of Deputy Commissioner is required in respect of raiyati land nor in respect of house or homestead land. In this 11 S.A. No.248 of 2002 respect, it is appropriate to refer to two judgments placed by the learned senior counsel for the appellants. The first one being in the case of Anupama Roy vs. State of Bihar reported in (2004) AIR Jhar HCR 450 and the second one being in the case of Kamal Khess & Another vs. State of Jharkhand & Others reported in (2011) 4 AIR Jhar R 138. 20. Section 6 of the C.N.T. Act, 1908 defines raiyat which reads as under:- “6. Meaning of "Raiyat" - (1) "Raiyat" means primarily a person who has acquired a right to hold land for the purpose of cultivating it by himself or by members of his family, or by hired servants or with the aid of partners; and includes the successor-in- interest of persons who have acquired such a right, but does not include a Mundari-khunt-kattidar. Explanation. - Where a tenant of land has the right to bring it under cultivation, he shall be deemed to have acquired a right to hold it for the purpose of cultivation, notwithstanding that he uses it for the purpose of gathering the produce of it or of grazing cattle on it. (2) A person shall not be deemed to be a Raiyat unless he holds land either immediately under a proprietor or immediately under a tenure- holder or immediately under a Mundari-khunt-kattidar. (3) the Court shall have regard to,- (a) local custom, and (b) the purpose for which the right of tenancy was originally acquired.” (Emphasis supplied) In determining whether a tenant is a tenure-holder or Raiyat, from the plain reading of the definition of “Raiyat”, itself it is abundantly clear that the raiyat means primarily a person who has acquired right to hold for the purpose of cultivating it by himself or members of his family. Thus, this court has no hesitation in holding that the learned first appellate court has committed illegality in overlooking the nature of land involved in the sale-deed marked as Ext.2 being house and homestead land and the learned first appellate court also committed illegality by holding that the Ext.2 was executed 12 S.A. No.248 of 2002 in violation of Section 46 of C.N.T. Act, 1908 and more so, when it was not even the case of the defendant that the Ext.2 sale-deed is in violation of Section 46 of C.N.T. Act, 1908. The substantial question of law Nos.1 and 2 are answered accordingly. 21. So far as substantial question of law No.3 and 4 are concerned, the same being related to each other hence, the same are taken up together. In view of the discussions made above, in the foregoing paragraphs of this judgment, this court has no hesitation in holding that the learned first appellate court has committed a perversity by failing to consider the undisputed fact that upon execution of the gift by the defendant No.1 in favour of the defendant No.2, the mutation of the said land was done in favour of the defendant No.2. So, this goes to show that the gift deed executed by the defendant No.1 in favour of the defendant No.2 was acted upon. This coupled with the cogent evidence put forth by the witnesses of the plaintiffs to the effect that there was partition between Jagdish Ram and Mandeep Ram; certainly, the learned first appellate court has committed a gross illegality and is not correct in law in returning the finding that there is unity of title and possession between the parties, overlooking the fact that there were overwhelming evidence in the record to suggest that there was partition between Jagdish Ram and Mandeep Ram and by execution of the sale-deed which has been marked as Ext.2 by Jagdish Ram in favour of the plaintiffs, the plaintiffs have acquired by valid right, title and interest over the suit land. So, third and fourth substantial questions of law are answered in the negative. 13 S.A. No.248 of 2002 22. In view of the discussion made above, this Court has no hesitation in holding that the learned first appellate court has committed a gross illegality and perversity in setting aside the judgment and decree passed by the learned trial court being the Sub-ordinate Judge-I, Palamau at Daltonganj in Title Suit No.62 of 1988 dated 30.04.1991. Accordingly, the impugned judgment and decree is not sustainable in law. Hence, the same is set aside and the judgment and decree passed by the learned Sub-ordinate Judge-I, Palamau at Daltonganj in Title Suit No.62 of 1988 dated 30.04.1991 is restored. 23. In the result, this second appeal is allowed but under the circumstances without any cost. 24. Let the Lower Court records along with copy of this judgment be sent to the courts concerned forthwith. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 21st of August, 2024 AFR/ Saroj 14 S.A. No.248 of 2002