The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No.497 of 2017 ------ 1 (a) Abdul Jabbar, son of late Ajju Mian and husband of late Bibi Rojni Khatoon 1 (b) Md. Samsher 1 (c) Md. Anwar Ansari 1 (d) Md. Asgar Ansari 1 (e) Maqbul Ansari Sl. No. 1 (b) to 1 (e) are all sons of Abdul Jabbar and late Bibi Rojni Khatoon All resident of Village-Nawada, P.O.-Bahimar, P.S.-Katkamsandi, Dist.-Hazaribag .... .... …. Appellants 1. Noor Mahammad, son of late Aligan Mian, resident of Village- Versus Nawada, P.O.-Bahimar, P.S.-Katkamsandi, Dist.-Hazaribag 2. Md. Yunus Ansari, son of Jabbar and late Bibi Rojni Khatoon, r/o Village-Nawada, P.O.-Bahimar, P.S.-Katkamsandi, Dist.-Hazaribag 3. Jubeda Khatoon, w/o Md. Habib, d/o late Rajni Bibi, r/o Dhanwar, P.O.+P.S.-Dhanwar, Hazaribagh 4. Saibul Khatoon, w/o Md. Jaslim, r/o at Saiyal, P.O.+P.S.-Saiyal, Dist.- Ramgarh For the Appellants …. .... …. Respondents ------ : Mr. Rajeev Ranjan Tiwary, Advocate : Mr. Ranjit Kumar Tiwari, Advocate ------ PRESENT HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ------ By the Court:- Heard the learned counsel for the appellants. 2. This second appeal has been preferred under Section 100 of Code of Civil Procedure against the judgment and decree of
Legal Reasoning
affirmance dated 10.08.2017 passed by the learned Principal District Judge, Hazaribagh in Title Appeal No. 60 of 2015 by which the learned first appellate court has dismissed the appeal and affirmed the judgment and decree passed by the learned Senior Civil Judge-IV [the correct designation the Civil Judge (Senior Division-IV)], Hazaribagh in Title Suit No. 16 of 2008 dated 23.07.2015. 1 Second Appeal No. 497 of 2017 3. The brief fact of the case is that the plaintiff who is the respondent herein in this second appeal filed Title Suit No. 16 of 2008 in the court of Senior Civil Judge-IV, Hazaribagh with a prayer for declaration of his right over schedule ‘B’ land and for delivery of khas possession of the schedule ‘B’ land by evicting the defendant from the same and by removing the compound wall from the suit land. 4. The case of the plaintiff in brief is that Govind Mahto was the owner of the suit land. Before cadastral survey he died and his property has been inherited by his four sons. One of the sons Nanhak Mahto died issueless leaving behind his two wives Most. Rupia and Most. Mangari. The recorded tenant of the suit land Most. Mangari and Most. Rupia died issueless in the state of jointness with Cheto Mahto, Nando Mahto and son of Kewal Mahto. After their death their interest devolved upon Cheto Mahto, Nando Mahto, Duli Mahto, Tilak Mahto and Bhola Mahto. It is further the case of the plaintiff that in an amicable partition among the co-sharers plot no.337 of area 9 decimals of the suit land fell in the share of Chhatradhari Mahto and plot no. 338 of area 9 decimals fell in the share of Baso Mahto- who being in possession of the suit land and in need of money sold 9 decimals of plot no. 337 and 4 ‰ decimals in plot no. 338 i.e. total 13 ‰ decimals for a consideration of Rs.2,000/- by registered sale deed and put the plaintiff in possession of the suit land. The plaintiff applied for mutation which was allowed. Taking advantage of the absence of the plaintiff and his family members who had gone out, the 2 Second Appeal No. 497 of 2017 defendant forcibly constructed a compound wall over 4 ‰ decimals of plot no. 338 even though the same was objected to by the wife and grandson of the plaintiff. The demarcation was made on the prayer of the plaintiff and the amin found 4 ‰ decimals of the land belonging to the plaintiff of plot no. 338 has been captured by the defendant by constructing the compound wall. The defendant claimed that she had purchased the land in 1996 and 2001. The circle officer held the claim of the plaintiff to be valid and the claim of the defendant to be false. As even after request of the plaintiff the defendant did not remove the compound wall hence, the plaintiff filed the suit. 5. The defendant in her written statement challenged the maintainability of the suit on various technical grounds. The defendant admitted that originally the suit belonged to Govind Mahto and she also admitted about his descendants as pleaded by the plaintiff. The defendant denied the partition between the descendants of Govind Mahto as pleaded by the plaintiff, but instead pleaded that in an amicable partition it was agreed to by the co-sharers that plot no. 338 of area 9 decimals be allotted to Badri Mahto and Bindo Mahto both sons of Manki Mahot and Jago @ Jagdish Mahto son of Dully Mahto, Biheshar @ Biso Mahto, Narayan Mahto, Arun Mahto and Rameshwar Mahto. The defendant denied that Chhatradhari Mahto and Baso Mahto sold the suit land to the plaintiff and pleaded that sale deed dated 05.02.1980 is invalid, inoperative, illegal, void, without consideration and never acted upon. The defendant also denied 3 Second Appeal No. 497 of 2017 that amin found that the defendant has captured 4 ‰ decimals of land under plot no. 338. The defendant denied the ownership of plaintiff over the plot no. 338 and claimed that the same belongs to the defendant. Hence, there is no question of capture. 6. On the basis of rival pleadings of the parties, the learned trial court settled the following ten issues:- (I) Whether the present suit is maintainable? (II) Whether the plaintiff got cause of action for the present suit? (III) Whether the suit is barred by law of estoppel, waiver and acquiescence? (IV) Whether the suit is barred by the provisions of the Specific Relief Act? (V) Whether the suit is barred by law of limitation and adverse possession? (VI) Whether the suit is bad for misjoinder and non-joinder of parties? (VII) Whether the suit is undervalued? (VIII) Whether the plaintiff has got title over Schedule ‘B’ of the suit land? (IX) Whether the plaintiff is entitled for recovery of possession of Schedule ‘B’ land by evicting the defendant and removing compound wall therefrom? (X) Whether the plaintiff is entitled to any relief in this suit? If so, what relief or reliefs the plaintiff is entitled to? 7. In support of his case, the plaintiff examined altogether five witnesses and proved the documents which have been marked Ext. 1 to Ext.3. On the other hand from the side of the defendant, the defendant examined altogether four witnesses and proved the documents which have been marked Ext. A and B. 8. The learned trial court first took up issue no. VIII and IX together and considering the materials available in the record found that the plaintiff upon acquisition of the suit land through registered deed of sale from the successors of recorded tenant Most. Mangri and Most. Rupia; has got mutation in his favour and subsequent to which has been paying the rent of the suit property 4 Second Appeal No. 497 of 2017 but the defendant has failed to rebut such evidence nor the defendant could show that Chhatradhari Mahto and Baso Mahto has no right to execute the sale deed dated 05.02.1980. The learned trial court also considered that the claim of right, title and interest based on documents by the defendant over the suit land have not been corroborated by the oral evidence. The defendant has failed to prove the execution of the sale deed marked Ext. A/1 as the witnesses failed to identify the purchaser and admitted that the executant was absent at the time of execution of the sale deed; even though the executant himself was examined as a witness. The learned trial court also found the recital of the sale deed to be vague and sale deed has no recital as regards status or possession over the land of plot no. 338. Further sale deed executed in favour of the plaintiff is much prior to the sale deed executed in favour of the defendant. Ext. B is an unregistered sale deed and the same appears to be not authentic and by thus considering decided the issues against the defendant. The trial court disposed of the issue nos. III, IV, V, VI and VII as not pressed. Lastly the learned trial court took up issue nos. I, II and X and arrived at the conclusion that the suit is maintainable in its present form. The plaintiff has got valid cause of action for the same and the plaintiff is entitled for the relief as sought for in the suit and decided the issues in favour of the plaintiff and decreed the suit. 9. Being aggrieved by the judgment and decree passed by the learned trial court, the defendant filed Title Appeal No.60 of 2015 in the court of Principal District Judge, Hazaribagh which was 5 Second Appeal No. 497 of 2017 ultimately heard and disposed of by the learned first appellate court by the impugned judgment and decree. 10. The learned first appellate court first considered “Whether the issue nos. VIII and IX has been decided by the trial court on the basis of the evidence?” and made independent appreciation of the evidence in this regard and after considering the evidence in the record, came to the conclusion that the preponderance of probabilities of the evidence, is in favour of the plaintiff- respondent before it, who proved the sale deed executed in his favour by Chhatradhari Mahto and Baso Mahto but the defendant failed to establish his sale deed marked Ext. A/1 having been executed by Narsingh Mahto. The appellant-defendant could not file copy of Register-II to establish that his name was recorded in the register concern and found that the learned trial court has rightly discussed the documents and oral evidence adduced by both the parties and found the claim of the plaintiff justified and decided the issue nos. VIII and IX in favour of the plaintiff. Thereafter the learned first appellate court took up issue nos. I, II and X and found the same to be correctly decided and dismissed the appeal. 11.
Legal Reasoning
It is submitted by the learned counsel for the appellants that the judgment and decree passed by both the courts below are erroneous, unsound and based on lopsided consideration of facts in the record hence, the same is not sustainable in law. It is next submitted by the learned counsel for the appellants that both the courts below have committed grave error by shifting the burden to 6 Second Appeal No. 497 of 2017 the defendant. It is further submitted by the learned counsel for the appellants that both the courts below ought to have held that the defendant failed prove that Chhatradhari and Baso has no right to execute the sale deed dated 05.02.1980. 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 dismissed after formulating appropriate substantial question of law. 12. Having heard the submissions made at the Bar and after carefully going through the materials in the record, so far as the contention of the appellants that courts below have shifted the burden of proof to the defendant is concerned, this Court after carefully through the evidence in the record did not find any merit in such contention because both the courts below have arrived at the finding of fact that plaintiff has established his case basing upon both oral and documentary evidence in the record. They have considered the sale deed executed by Chhatradhari Mahto and Baso Mahto who got the said property in the partition along with co-sharers. Thus, keeping in view the fact, that they are the descendants of undisputed owner of the property namely Govind Mahto, to whose share the property fell in the partition, which could not be rebutted by the defendant on the basis of both oral and documentary evidence adduced by it; therefore the suit of the plaintiff has been decreed. Of course the courts below have taken into consideration that sale deed produced by the defendant which could not be duly proved, as the vendor himself has deposed in court that he was absent at the time of execution of the sale deed. 7 Second Appeal No. 497 of 2017 Moreover, the sale deed on the basis of which the defendant makes the claim of the suit property is subsequent to the sale deed executed in favour of the plaintiff by descendants of the admitted owner of the property. 13. Under such circumstances, this Court is of the considered view that no perversity has been committed by the courts below by arriving at the concurrent finding of fact that the plaintiff has succeeded in establishing his case and the same do not suffer from any perversity as such finding of fact has not been arrived at by excluding any admissible evidence or by considering any inadmissible evidence nor the same can be said to be so outrageously defies the logic so as to incur the blame of being perverse. 14. Under such circumstances, this Court of the considered view that there is absolutely no substantial question of law involved in this appeal. 15. Accordingly, this second appeal being without any merit is dismissed but under the circumstances without any costs. 16. Let the copy of the Judgment be sent to the learned court below forthwith. High Court of Jharkhand, Ranchi Dated the 30th September, 2024 AFR/ Sonu-Gunjan/- (Anil Kumar Choudhary, J.) 8 Second Appeal No. 497 of 2017