The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No. 90 of 2000 (Against the judgment and decree dated 08.09.2000 passed by learned Additional District Judge, IInd, Bokaro at Chas in Title Appeal no. 08 of 1999) 1. (a) Baijnath Mahto 1. (b) Nirmal Mahto 1. (c) Dhiren Kumar 1. (d ) Rajendra Mahto All S/o Late Chaman Mahto, R/o Katghara, P.O. & P.S.- Nawadih, Dist.- Bokaro 1. (e) Saraswati Devi, W/o Sri Mangar Mahto and daughter of late Chaman Mahto, resident of village Barmasiya, P.O.- Birni, P.S.- Nawadih, Dist.- Bokaro …...Plaintiffs/Respondents / Appellants Versus 1(a) Kishori Mahto 1(b) Kishun Mahto Both 1(a) and 1(b), sons of Late Daulat Mahto 1(c) Kaili Devi, Wife of Late Daulat Mahto 1(d) Pamo Devi 1(e) Tulli Devi 1(f) Khiria Devi 1(g)Tulia Devi, 1(d) to 1(g), daughters of sons of Late Daulat Mahto All residents of village- Katghra, P.S.- Nawadih, Dist.- Bokaro 2(a) Khiriya Devi, wife of late Nandu Mahto 2(b) Daroga Mahto 2(c ) Chotelal Mahto, both sons of late Nandu Mahto 2(d) Sugia Devi, wife of Kashi Mahto, daughter of late Nandu Mahto village – Chapri, P.O.- Chapri, Dist.- Bokaro 2(e ) Lalita Devi, wife of Govind Mahto, daughter of late Nandu Mahto village- Khalcho, P.O.- Telco, Dist.- Bokaro 2(f) Kaliya Devi, daughter of late Nandu Mahto Dhori Basti, P.O.- Phusro Bazar, Bokaro 2(g) Chunia Devi, daughter of late Nandu Mahto, village- Fatehpur, P.O.- Birni, Dist.- Bokaro Sl. No. 2(a) to 2(c ), residents of village- Katghara, P.S.- Nawadih, Dist.- Bokaro 3. Kishori Mahto, son of Dautat Mahto, resident of village- Katghara, P.S.- Nawadih, Dist.- Bokaro ….. Defendants/ Appellants / Respondents For the Appellants : Mr. Amar Kr. Sinha , Adv. Mr. Prabhat Kumar , Adv. 1 SA No. 90 of 2000 For the Respondents Mr. Kundan Kr. Ambastha , Adv. : Mr. Sachi Nandan Das , Adv. Mr. Om Prakash Singh , Adv. P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:- Heard the learned counsel for the appellants. 2. This Second Appeal under Section 100 of the Code of Civil Procedure, 1908 has been preferred against the judgment of reversal dated 08.09.2000 passed by learned Additional District Judge, II, Bokaro at Chas in Title Appeal no. 08 of 1999 whereby and where under, learned
Facts
First Appellate Court has reversed and set aside the judgment and decree dated 07.11.1998 passed by learned Sub-Judge II, Bermo at Tenughat in Title suit No. 5 of 1996 whereby and where under learned trial court has decreed the suit of the plaintiff on contest with costs and allowed the appeal. 3. The brief facts of the case is that the plaintiff filed Title Suit no. 5 of 1996 with a prayer for declaration that the suit land described in Schedule A of the plaint is raiyati land of the plaintiff by virtue of settlement made by Ramgarh Raj Estate through Fard Amin Report dated 25.10.1938 and Hukumnama dated 28.10.1938. A further declaration was made that the final order passed by Executive Magistrate, Bermo at Tenughat in Case no. 151 of 1988 under Section 145 of CrPC which was antedated to 20.12.1994 is illegal, void and without any merit, inoperative and not binding upon the plaintiff. The plaintiff also prayed for declaration of the possession of the plaintiff over the suit land and confirmation of the same and in case, it is found out that the plaintiff has been dispossessed from the suit land, then recovery of 2 SA No. 90 of 2000 possession. The plaintiff also prayed for injunction and other consequential reliefs. 4. The case of the plaintiff in brief is that the suit schedule A land of the pliant, stood recorded in last Cadastral Survey as Gairmajurwa Khas land of the landlord. The plaintiff brought schedule A suit land into the state of cultivation and approached the ex-landlord, Ramgarh Rajya for Raiyati settlement. On the basis of the reclamation of the land by the plaintiff, the ex-landlord made raiyati settlement of 41 Decimals of land under Khata no. 1, plot no. 487 in village – Khathghara, P.S.- Gomia, Dist. – Bokaro with the plaintiff on 28.10.1938 and the plaintiff paid rent and was accepted as Raiyat by the landlord. After vesting of the Zamindari, the plaintiff continued to pay rent to the State of Bihar and in the Tenant’s Ledger Register II, the name of the plaintiff was entered. All of sudden on 21.12.1988, the defendants armed with deadly weapons came over the suit land and tried to cut foundation for constructing a boundary wall over the land of the plaintiff by engaging a large number of labourers over the suit land. The plaintiff protested and filed a petition under Section 144 of CrPC in the court of learned SDM, Bermo at Tenughat. Learned SDM, Bermo at Tenughat converted the proceeding under 144 of CrPC into 145 of CrPC. Learned Magistrate; Bermo at Tenughat adjourned the Case on 14.12.1994 to 20.12.1994. The plaintiff lost
Legal Reasoning
The principle was reiterated by this Court in Ram Sarup Gupta (dead) by LRs., vs. Bishun Narain Inter College [AIR 1987 SC 1242] : "It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should state the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a liberal construction, no pedantic approach should be adopted to defeat justice on hair splitting technicalities. Sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law, in such a case it is the duty of the court to ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of pleadings, instead the court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings, parties knew the case and they proceeded to trial on those issue by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal.”[Emphasis supplied]” 11 SA No. 90 of 2000 23. Now coming to facts of the case, as there is absolutely no pleading of the defendant regarding adverse possession nor the defendant has pleaded the essential ingredients of adverse possession, this Court has no hesitation in holding that learned First Appellate Court has erred in law and committed a perversity in holding that the defendants have perfected their title over the suit land. 24. Accordingly, the sole substantial question of law is answered in the affirmative and because of the answer to the sole substantial question of law, this court has no hesitation in holding that the judgment dated 08.09.2000 passed by learned Additional District Judge, II, Bokaro at Chas in Title Appeal no. 08 of 1999 is not sustainable in law. Accordingly, the same is set aside and the judgment and decree passed by learned Sub-Judge II, Bermo at Tenughat in Title suit No. 5 of 1996 is restored.
Arguments
faith on Sri K.K.Roy, the Executive Magistrate and filed the petition under Section 411 of CrPC for transfer of the said proceeding under Section 145 of CrPC. The application was allowed on 22.12.1994 but the said Sri K.K.Roy, passed the final order and antedated the order to show that the same has been passed on 20.12.1994 declaring the possession of the plaintiff over the land in the suit, hence, the plaintiff filed the suit with 3 SA No. 90 of 2000 the said prayer. 5. In their written statement, the defendant challenged the maintainability of the suit on various technical grounds besides that it was pleaded that entire claim of the plaintiff is false. The plaintiff never came in possession of the suit land and according to the defendant, one Bolai Mahato and Samar Mahto were the settled raiyat of the village Khathghara having reclaimed the land and the defendant no. 1 to 3 are the heirs of Bolai Mahato and Samar Mahto and after the death of Bolai Mahato and Samar Mahto, the defendant no. 1 to 3 came and continued their possession over the suit land. 6. On the basis of the rival pleadings of the parties, learned trial court settled the following nine issues :- I. Is the suit maintainable ? II. Has the plaintiff got a valid cause of action for this suit? III. Is the suit barred by law of limitation and adverse possession? IV. Whether the ex-landlord had settled the suit land with the plaintiff Chaman Mahto by virtue of Hukumnama on 28.10.1938 and accepted his possession of the rent, granted rent receipt to him or he settled the same to Bolai Mahto and Somar Mahto by virtue of Hukumnama on 12.02.1939 and accepted their possession and on acceptance of rent from them, granted rent receipts to them? V. Whether the plaintiff continues his possession over the suit land for more than 12 years and after vesting of the estate in the State of Bihar , the plaintiff was recognized as the raiyat by the new landlord with respect to the suit land ? VI. Whether the plaintiff has got subsisting right, title and interest over the suit land? VII. Whether the defendants forcibly lay foundation of wall on the suit land on 21.12.1988 which led to the initiation of proceeding under Section 144 of CrPC which was later on converted into a proceeding under Section 145 of CrPC between the plaintiff and the defendants and ultimately decided against the plaintiff? 4 SA No. 90 of 2000 VIII. Whether the plaintiff is entitled to get a decree against the defendants ? IX. To what other relief or reliefs, if any, the plaintiff is entitled to? 7. In support of their case, the plaintiff examined thirteen witness and proved the documents which have been marked as Ext. 1 to 16. From the side of the defendant, five witnesses were examined and the defendant proved the documents which have been marked as Ext. A to D. 8. Learned trial court first took up issue nos. IV, V and VII together and after considering the evidence in the record, came to conclusion that the plaintiff acquired his possession over the suit land by virtue of Hukumnama of the year 1938, paid rent to the ex-lanlord, continued his possession even after vesting of the Estate in the State of Bihar and recognized as the raiyat by the new landlord and in the year 1988 -89, the defendant forcibly erected wall on the suit land and did not believe the settlement of land in favour of Bolai Mahto and Samar Mahto; for their failure to get the demand opened in their name after vesting of the Estate in the State of Bihar, and paying rent to the landlord as their names were not found in the Register II of the suit. Learned trial court also considered that Hukumnama can be used for the collateral purposes only which was supported by the entry made in the name of the plaintiff in the Register II in the year 1961-62 and went on to hold that the plaintiff has acquired valid right, title and interest over the suit land and decided the issued nos. IV, V and VII in favour of the plaintiff. 9. Learned trial court next took up issue no. VI and held that the plaintiff has got subsisting right, title in the suit land and decided the issued no. VI in favour of the plaintiff. 10. Learned trial court then took up issue no. III and held that 5 SA No. 90 of 2000 the defendant had not succeeded in establishing their claim of possession over the suit land of more than 12 years prior to filing of the suit by the plaintiff and held that the defendant could not establish the plea of adverse possession and decided the issued no. III against the defendant. 11. Learned trial court next took up issue nos. I, II and VIII together and held that the plaintiff has got valid cause of action for filing the suit and he is entitled to the decree as sought for in the suit and decreed the suit, directing the defendant to hand over the possession of the suit land to the plaintiff within a period of three months, failing which, the possession thereof shall be restored to the plaintiff through the process of the court. 12. Being aggrieved by the judgment and decree passed by learned trial court, the defendant filed Title Appeal no. 08 of 1999 before learned Additional District Judge, II, Bokaro at Chas, which was ultimately heard and disposed of by learned First Appellate Court by the impugned order as already indicated above. 13. Learned First Appellate Court formulated the following three points for decision : (i) Whether the plaintiff / respondent has right, title and interest in the suit land ? (ii) Whether the defendant / appellant dispossessed the plaintiff / respondent on 21.12.1988 as alleged ? (iii) Whether the title by adverse possession had perfected to the plaintiff ? 14. Learned First Appellate Court considered that the report of the Circle Officer marked as Ext. 2/B supports the fact that there is old structure of the defendant on the suit land. The defendants –appellants are possessing the suit land since more than 12 years before start of the litigation and have acquired the title over the suit land. Learned 6 SA No. 90 of 2000 First Appellate Court did not believe that on 21.12.1988, the defendant dispossessed the plaintiff from the suit land and held that the Sub-ordinate Judge has erred in finding that the plaintiff respondent has title over the suit land and as the plaintiffs were forcibly dispossessed from the suit land. The learned First Appellate Court also held that the Executive Magistrate has not committed any error in declaring the possession of the defendant-appellant in the proceeding under Section 145 CrPC and he has rightly declared the possession of the appellant over the suit land and restrained the respondent –plaintiff from going over the suit land and allowed the appeal and set aside the judgment and decree passed by learned trial court. 15. At the time of admission of this appeal, the following substantial question of law was formulated : “Whether the court of appeal below erred in law in holding that the defendants perfected their title over the suit land by adverse possession.” 16. Learned counsel for the appellant relying upon the judgment of a Division Bench of Hon’ble Patna High Court in the case of Mahabir Pandey vs. Ram Narain Singh & Ors. reported in AIR 1959 Patna 406 submits that in para 6 of the said judgment, the Hon’ble Patna High Court has reiterated that the decision of a Magistrate in a proceeding under Section 145 of CrPC is not binding upon the civil court and the civil court is entitled to come to a different finding altogether. 17. Learned counsel for the appellant further submits that the defendant having not taken the plea of adverse possession nor having placed the essential ingredients of the adverse possession, learned First Appellate Court committed a grave illegality by holding that the defendant have perfected their title over the suit land by adverse possession. In support of his contention, learned counsel 7 SA No. 90 of 2000 for the appellants also relies upon the judgment of the Hon’ble Supreme Court of India in the case of Ravinder Kaur Grewal & Ors. vs. Manjit Kaur & Ors. reported in 2019 7 Supreme 559, para 57 of which reads as under “57. 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 synonym 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 the large 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.” 18. Hence, it is submitted by learned counsel for the appellants that learned First Appellate Court has committed perversity in holding that the defendants have perfected their title over the suit land by adverse possession, even though, it was not the case of the defendant and the defendant did not plead the essential ingredients of the adverse possession, hence, it is submitted by learned counsel for the appellant that the impugned judgment passed by learned First Appellate Court be set aside and the judgment of learned trial court be restored. 19. Learned counsel for the respondents, on the other hand, relying upon the judgment of the Hon’ble Supreme Court of India in the case of Nazir Mohamed vs. J. Kamala & Ors. reported in (2020) 19 SCC 57, submits that as has been reiterated in para 49 of the said judgment, the court is obliged to dismiss a suit after expiry of the period of limitation, so even though the defendant has not pleaded 8 SA No. 90 of 2000 the adverse possession but there is nothing in the record to tinker with the finding of learned First Appellate Court that the defendants have been in possession of the suit land for more than 12 years prior to filing of the suit and that makes the suit of the plaintiff barred by limitation, hence, it is submitted that there is no way, the suit of the plaintiff can be decreed and the learned trial court has failed to consider this important aspect, hence, it is submitted that this appeal being without any merit be dismissed. 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 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 v. 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.” [Mahesh Chand Sharma (Dr.) v. Raj Kumari Sharma : (1996) 8 SCC 128] 21. Now coming to the facts of the case, undisputedly, the 9 SA No. 90 of 2000 defendants have not pleaded any of the ingredients of the adverse possession nor it is the case of the defendants that they have perfected their title by way of adverse possession. 22. Further, it is a fundamental principle of civil procedure that a court cannot make out a third case, which is not pleaded by the parties, as has been held by the Hon’ble Supreme Court of India in the case of Bachhaj Nahar v. Nilima Mandal and Ors. reported in AIR 2009 SC 1103, paragraph no. 10 and 11 of which reads as under :- “10. The object of issues is to identify from the pleadings the questions or points required to be decided by the courts so as to enable parties to let in evidence thereon. When the facts necessary to make out a particular claim, or to seek a particular relief, are not found in the plaint, the court cannot focus the attention of the parties, or its own attention on that claim or relief, by framing an appropriate issue. As a result the defendant does not get an opportunity to place the facts and contentions necessary to repudiate or challenge such a claim or relief. Therefore, the court cannot, on finding that the plaintiff has not made out the case put forth by him, grant some other relief. The question before a court is not whether there is some material on the basis of which some relief can be granted. The question is whether any relief can be granted, when the defendant had no opportunity to show that the relief proposed by the court could not be granted. When there is no prayer for a particular relief and no pleadings to support such a relief, and when defendant has no opportunity to resist or oppose such a relief, if the court considers and grants such a relief, it will lead to miscarriage of justice. Thus it is said that no amount of evidence, on a plea that is not put forward in the pleadings, can be looked into to grant any relief. 11. The High Court has ignored the aforesaid principles relating to the object and necessity of pleadings. Even though right of easement was not pleaded or claimed by the plaintiffs, and even though parties were at issue only in regard to title and possession, it made out for the first time in second appeal, a case of easement and granted relief based on an easementary right. For this purpose, it relied upon the following observations of this Court in Nedunuri Kameswaramma v. Sampati Subba Rao [AIR 1963 SC 884] : "No doubt, no issue was framed, and the one, which was framed, could have been more elaborate, but since the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mistrial which vitiates proceedings. We are, therefore, of opinion that the suit could not be dismissed on this narrow ground, and also that there is no need for a remit, as the evidence which has been led in the case is sufficient to reach the right conclusion." But the said observations were made in the context of absence of an issue, and not absence of pleadings. The relevant principle 10 SA No. 90 of 2000 relating to circumstances in which the deficiency in, or absence of, pleadings could be ignored, was stated by a Constitution Bench of this Court in Bhagwati Prasad vs. Shri Chandramaul, AIR 1966 SC 735 : "If a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matter relating to the title of both parties to the suit was touched, though indirectly or even obscurely in the issues, and evidence has been led about them then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is : did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another."(Emphasis supplied)
Decision
25. In the result, this appeal is allowed. 26. Let a copy of this Judgment along with the Lower Court Records be sent to the Court concerned forthwith. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated, the 29th July, 2024 Smita /AFR 12 SA No. 90 of 2000