The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No. 263 of 2016 (Against the judgment dated 18.02.2016 passed by learned Principal District Judge, Gumla in Title Appeal No. 20 of 2004) 1. Deleted 2. Md. Salauddin 3. Md. Samiruddin 4. Md. Minhaj 5. Md. Sajjad 6. Md. Sahanwaj 7. Md. Sahbaj nos. 2 to 7 sons of Late Md. Moinuddin 8. Sajda Khatoon 9. Ajda Khatoon Nos. 8 and 9 daughters of Late Md. Moinuddin 10. Md. Amiruddin 11. Md. Kalimuddin 12. Md. Salimuddin Nos. 10 to 12 are sons of Late Nizamuddin. 13. Roshan Ara wife of Muzaphar Hassain 14. Kausher Ara wife of Safique Alam 15. Tahera Khatoon wife of late Sultan Ali, All are resident of village Sisai, P.O. and P.S.- Sisai, District Gumla. ….Plaintiffs / Appellants / Appellant Versus 1. Md. Azimuddin 2. Md. Samsuddin 3. Md. Kalimuddin 4. Md. Jahir No. 1 to 4 are sons of Md. Jasimuddin, residents of village Sisai, P.O. and P.S. Sisai, District Gumla 5. Jaitoon Bibi wife of Bashir Ahmad 6. Babia Bibi @ Jaibon Nissa Nos. 5 and 6 are residents of village Itki, P.O. and P.S. Itki, District Ranchi. 7. Md. Abid 8. Md. Tahir 9. Md. Shamim 10. Md. Mansoor 11. Md. Alias Nos. 7 to 11 are sons of Late Abdul Mian, resident of village Sisai, P.O. and P.S. Sisai, District Gumla 12. Nazma Bibi wife of Md. Mahuddin, resident of village Toto, P.O., P.S. and District Gumla 13. Shamima Khatoon wife of Late Zamal Mian, resident of village Sisai, P.O., and P.S. Sisai, District Gumla 1 SA No. 263 of 2016 14. Kamru Nisha wife of Md. Suleman Mian, resident of Azad Basti, P.O.- Gumla P.S. and District- Gumla 15. Aisa Khatoon wife of Akhtar Ali, resident of village Amlatoli, Lohardaga, P.O., P.S and District- Lohardaga 16. Md. Mahir son of Late Md. Jasimuddin, resident of village Sisai, P.O. and P.S. Sisai, District Gumla ……. Defendants / Respondents / Respondents For the Appellants
Legal Reasoning
: Mr. Amar Kr. Sinha , Adv. Mr. Kundan Kr. Ambastha , Adv. Mr. Sandeep Verma, Adv. P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:- Heard. 2. This Second Appeal under Section 100 of the Code of Civil Procedure, 1908 has been preferred against the judgment of concurrence dated 18.02.2016 passed by learned Principal District Judge, Gumla in Title Appeal No. 20 of 2004 whereby and where under, learned First Appellate Court has dismissed the appeal on contest and confirmed the judgment and decree passed by learned trial court being the learned Munsif, Gumla dated 28.08.2004 by which, learned trial court dismissed the suit filed by the plaintiff-appellant with a prayer for declaration of title and confirmation of possession over the suit land and also to declare the deed of sale executed by the defendant no. 8, in favour of the deceased father of the defendant no.1, 2 and 7 as null and void and not binding upon the plaintiffs. 3. The plaintiffs further made the prayer that the mutation order passed by LRDC, Gumla in Mutation case no. 199 of 1994 dated 27.04.1996 and the order of Additional Collector, Gumla passed on 01.07.1997 in Mutation 2 SA No. 263 of 2016 Appeal no. 17R15/96-97 be declared infructuous and other reliefs. 4. The case of the plaintiffs in brief is that the suit land originally belonged to one Budhu Mian. Budhu Mian gave the suit land to his son-in-law Md. Nizamuddin through a ‘Sada Hukumnama’. On the basis of the same, the original plaintiff Md. Nizamuddin came in possession over the suit land and constructed a residential house and is living therein along with his family members. In the year 1970, the plaintiffs through amicable partition, got 0.07 Acre of land through his wife and also constructed house over the entire land. Jasimuddin Mian, who is father of the defendant no. 1 to 7, was the brother of the original plaintiffs. Hence, the original plaintiff Md. Nizamuddin allowed the father of the defendant no. 1 to 7 to live in his house but the father of the defendant no. 1 to 7 in connivance with Abdul Mian, who is one of the three sons of Budhu Mian, got registered sale deed no. 2309 dated 05.10.1991, executed in his name and made false claim over the suit area. The plaintiff pleaded that the boundary given in the sale deed no. 2309 does not tally with the boundary given in the suit. In a mutation proceeding, the DCLR, without considering the facts allowed the Mutation on 27.04.1996. Therefore, the Mutation Appeal no. 17R15 / 96-97 filed by the plaintiffs before Additional Collector, Gumla was dismissed. 5. The defendants in their written statement, challenged the maintainability of the suit on various technical grounds and claimed that Hukumnama claimed to have been executed by Budhu Mian in favour of the original plaintiffs is false and fabricated one. The defendants denied the claim of the plaintiffs that they constructed house over the suit land and lives therein. The defendants pleaded that their father took the suit land from the 3 SA No. 263 of 2016 Bhudhu Mian verbally after giving Rs. 35/- to construct a house about 40 years back and after construction of the said house, the father of the defendants along with defendants were living therein. Since the document of transfer was an unregistered one, hence, Abdul Mian, son of Budhu Mian executed a registered sale deed after taking Rs. 5,000/- on 05.10.1991, in favour of the father of the defendant no. 1 to 7. The defendants denied that Nizamuddin Mian allowed their father to live in his house. 6. On the basis of the rival pleadings of the parties, learned trial court settled the following eight issues :- 1. Has the plaintiff any valid cause of action for the suit ? 2. Is the suit maintainable in its present form ? 3. Is the suit barred by law of limitation, waiver and acquiescence? 4. Is the deed executed by Abdul Mian in favour of Jasimuddin Mian father of defendant No. 1 to 7 legal, valid and binding upon the plaintiff? 5. Is the mutation order creating any right, title, interest and possession over the suit land? 6. Is the suit hit of Specific relief act? 7. Had Bandhu Mian executed any Hukumnama in favour of Md. Nizamuddin? 8. Is the plaintiff entitled for any relief or reliefs as claimed for? 7. In support of their case, the plaintiffs examined 08 witnesses and proved the documents which have been marked as Ext. 1 to 4. From the side of the defendants, 10 witnesses were examined and the defendants also proved the documents which have been marked as Ext. A to E. 8. Learned trial court first took up issue no. 4, 5 and 7 together and after considering the evidence in the record, learned trial court came to the conclusion that unregistered Hukumnama executed by Budhu Mian in favour of the plaintiffs never came into effect and the 4 SA No. 263 of 2016 deed of sale executed by Abdul Mian in favour of the defendants is valid, legal and binding on the plaintiffs and that the order of mutation in favour of the defendant is correct and decided the issues in favour of the defendants and against the plaintiffs. 9. Learned trial court next took up issue no. 3 and 6 together and after considering the evidence in the record, learned trial court came to the conclusion that suit is not barred by limitation, waiver or acquiescence nor hit by any of the provisions of the Specific Relief Act and decided the issues no. 3 and 6 in favour of the plaintiffs and against the defendants. 10. Learned trial court next took up issue no. 1 and 2 together and after considering the evidence in the record, learned trial court came to the conclusion that suit of the plaintiffs is not maintainable and the plaintiffs have no valid cause of action for the suit. 11. Learned trial court lastly took up issue no. 8 and after considering the evidence in the record, learned trial court held that the plaintiffs are not entitled to any relief and dismissed the suit. 12. Being aggrieved by the judgment and decree passed by the learned trial court, the plaintiffs filed the Title Appeal no. 20 of 2004 in the court of learned Principal District Judge, Gumla which was ultimately heard and disposed of by learned First Appellate Court by the impugned judgment as already indicated above. 13. Learned First Appellate Court after considering the materials available in the record and submissions made before it, recast the issues and settled the following issues:- 1. Have the Appellants/plaintiffs any valid cause of action for the suit? 2. Is the suit maintainable in its present form? 5 SA No. 263 of 2016 3. Is the suit barred by law of limitation, waiver and acquiescence? 4. Is the deed executed by Abdul Mian in favour of Jasimuddin Mian father of defendant No. 1 to 7 legal, valid and binding upon the Appellants/plaintiffs? 5. Is the mutation order creates any right, title, interest and possession over the suit land? 6. Is the suit hit by the provision of Specific relief act? 7. Had Budhu Mian executed any Hukumnama in favour of Md. Nizamuddin and Nizamuddin has acquired any Right, Title and interest over the suit property on the basis of said Hukumnama and Partition took place in the year 1970 between the sons of Budhu Mian ? 8. Whether the Appellants/plaintiffs have locus-standi to challenge the sale deed dt. 5.10.1991 executed by Abdul Mian in favour of Jasimuddin Mian? 9. Is the plaintiff entitled for any relief or reliefs as claimed for? 14. Learned First Appellate Court took up issue no. 3 and 6 of the issues recast by him together and after making independent appreciation of the materials in the record, came to the conclusion that the period spent in prosecuting another proceeding is liable to be excluded by counting the period of duration and if that period is excluded then the suit is not barred by law of limitation, waiver or acquiescence and thus answered the issue no. 3 recast by it. 15. In respect of issue no. 6 recast by Learned Trial Court, the Learned First Appellate Court considered that there is nothing in the record on the basis of which, it can be said that the suit is barred by the provisions of Specific Relief Act and went on to hold that learned trial court has rightly decided the issue in favour of the plaintiffs and against the defendants. 16. Learned First Appellate Court next took up issue no. 4,5,7 and 8 recast together and Learned First Appellate Court 6 SA No. 263 of 2016 considered that Ext. 4, the Sada Hukumnama, does not bear the description of transfer of entire plot no. 3114 rather it has been mentioned that out of the plot no. 3114, 36 feet width and 40 feet length for construction of house and no boundary has been mentioned in the said Hukumnama- marked Ext. 4. Learned First Appellate Court then considered that the said Hukumnama has got no evidentiary value because it is not accompanied with any rent receipt. Learned First Appellate Court considered that in Ext. 1 series, the name of the original plaintiff – Md. Nizamuddin Mian or the name of the substituted plaintiffs, is not appearing rather it is in the name of Ismail Mian. The rent receipts produced, relates to the year 1980-98 whereas Hukumnama was issued on 24.03.1945 but the there was no connected rent receipt issued by the Budhu Mian. Learned First Appellate Court relied upon the ratio of the judgment of the Hon’ble Supreme Court of India in the case of State of Haryana vs. Mukesh Kumar and Ors. reported in (2011) 10 SCC 404 to the effect that if the plaintiff is neither the owner nor in possession of the property in dispute, then in such case the plaintiff has no locus standi to challenge the validity of the sale deed, in respect of such property; and went on to hold that as the plaintiff has failed to show that he is the owner or in possession of the property in dispute, hence, the plaintiff has no right to say that the impugned sale deed was a sham transaction or to challenge the impugned sale deed, mutation or the judgment and decree. Hence, the plaintiff has no locus standi to challenge the sale deed executed by Abdul Mian in favour of father of the defendant no. 1 to 7, namely Hazi Jasimuddin on 05.10.1991, and decided the issue no. 8 accordingly. 17. Learned First Appellate Court then considered the settled 7 SA No. 263 of 2016 principle of law that the mutation order does not create any right, title and interest or possession over the suit land and answered the issue no. 4 by holding that since the plaintiff has no locus standi to challenge the sale deed executed by Abdul Mian in favour of Jasumuddin on 05.10.1991, the said sale deed is binding upon the plaintiffs unless and until the deed is challenged by a person having right, title and interest in that property. 18. Learned first appellate court lastly took up issue nos. 1, 2 and 9 recast by the trial court and concurred with the view of the trial court that the suit is not maintainable and the plaintiffs have no valid cause of action and the plaintiffs are not entitled to any relief. Therefore, the suit as framed is not maintainable and the appellants have no valid cause of action and decided the issue nos. 1 , 2 and 9 accordingly and dismissed the appeal. 19. It is submitted by learned counsel for the appellants that both the courts below have failed to consider the evidence in the record in their correct perspective and ought to have held that the plaintiffs have proved his title by cogent evidence. It is next submitted that learned First Appellate Court misconstrued the Ext. 4 being the customary Hukumnama, executed by Budhu Mian in favour of the original plaintiff settling the lands. It is next submitted that in the absence of fraud being pleaded and in the absence of any cogent evidence, in support of any fraud, the learned First Appellate Court ought not have held that the Hukumnama, marked Ext. 4, was a fraudulent one. It is next submitted that the learned First Appellate Court misconstrued the judgment in the case of State of Haryana vs. Mukesh Kumar and Ors. (supra), hence, it is submitted that the judgment and decree passed by both the courts below be set aside and the suit of the plaintiff be decreed after formulating 8 SA No. 263 of 2016 appropriate substantial question of law. 20. Having heard the submissions made at the Bar and after going through the materials available in the record, it is pertinent to mention here that it is a settled principle of law as has been held by Full Bench of the Hon’ble Patna High Court in the case of Mt. Ugni vs. Chowa Mahto reported in (1968) 0 BLJR 93 that title can be established by an oral settlement, accompanied by delivery of possession and acceptance of the rent by landlord. 21. Now coming to the facts of the case, though it is the case of the plaintiff that the hukumnama was given by Budhu Mian in the year 1945 but the plaintiffs have no document to show the acceptance of rent by Budhu Mian before vesting of estate in the State of Bihar nor there is any rent receipt, issued by the State of Bihar at any time before 1980. 22. Under such circumstances, in the absence of any cogent evidence as to delivery of possession of the suit land in favour of the original plaintiff or acceptance of rent of the suit land by Budhu Mian from the plaintiff and as also though undisputedly, the land described in the Hukumnama, marked Ext. 4, is a part plot yet no boundary of the same has been mentioned, this court do not find illegality in the concurrent finding of the facts by both the courts below that the plaintiffs have failed to establish their title over the suit land. 23. On the other hand, the defendants are claiming title by way of the sale deed executed by the son of Budhu Mian in their favour, the same is registered sale deed and duly proved and marked Ext. B. So as the plaintiffs have failed to establish their title, over the suit land, the suit was to fail and it has rightly been dismissed and consequently, the appeal has rightly been dismissed. 24. So far as the contention of the appellant that the appellate 9 SA No. 263 of 2016 court misconstrued the judgment in the case of State of Haryana vs. Mukesh Kumar and Ors. (supra), is concerned, there is no force in such contention of the learned counsel for the appellants; as in the said impugned judgment, the first appellate court has not based its finding on the ratio of the said judgment of the Hon’ble Supreme Court of India. On the other hand the first appellate court has held and observed that the plaintiffs having failed to establish their title over the suit land by any cogent evidence, the suit was to fail. So the avoidable reference to the said judgment of the of the Hon’ble Supreme Court of India by the learned First Appellate Court itself is not a ground to interfere with the judgment of the learned First Appellate Court and the same is the case with the contention of the appellants that the fraud having not been played by the defendants, learned First Appellate Court ought not have observed that Ext. 4 – Hukumnama was executed by fraud but as has already been indicated above, it is a settled principle of law that mere execution of Hukumnama in the absence of any evidence of delivery of possession or acceptance of rent by the landlord, after execution of such Hukumnama, a title cannot be established by the person, in whose favour the Hukumnama has been executed, hence, this court is of the considered view that the observation made by learned First Appellate Court that Ext. 4 is a fraudulent document, was unnecessary and avoidable but this unnecessary and avoidable remark is not of such nature as to warrant interference with the same, in exercise of second appellate jurisdiction under Section 100 of the CPC, as otherwise also, as already indicated above in the foregoing paragraphs of this judgment, the suit of the plaintiffs, failed for failing to establish their title over the suit land. 10 SA No. 263 of 2016 25. In view of the discussions above, this court is of the considered view that there is absolutely no substantial question of law involved in this appeal. 26. Accordingly, this appeal being without any merit is dismissed but under the circumstances, without any cost. 27. Let a copy of this Judgment be sent to the Court concerned forthwith. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated, the 19th November, 2024 Smita /AFR 11 SA No. 263 of 2016