Saroj Kumar v. Laxmi Rajwar & Ors.

.... …. Respondents/Respondents/Defendants ------ For the Appellants : Mr. Rajesh Kr. Mahtha, Advocate ------ P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ------ By the Court:- Heard the learned counsel for the appellants. 1 S.A. No.159 of 2019

#2. This Second Appeal, under Section 100 of Code of Civil Procedure, has been preferred against the judgment and decree of reversal dated 28.03.2019 passed by the learned District Judge-I, Bermo at Tenughat in Title Appeal No.04 of 2012 whereby and where under the learned first appellate court allowed the appeal and set aside the judgment and decree passed by the learned Civil Judge (Junior Division) Bermo at Tenughat in Title Suit No.111 of 2006 dated 20.01.2012 whereby and where under the learned Civil Judge (Junior Division) Bermo at Tenughat decreed the suit of the plaintiffs.

#3. The brief fact of the case is that the plaintiffs filed a suit for declaration of right, title and interest over the suit land and also prayed that if the plaintiffs were found dispossessed from the suit land by the defendants during the pendency of the suit in that event, possession of the suit land be given to the plaintiffs by evicting the defendants from the suit land.

#4. The case of the plaintiffs in brief is that the suit land was originally standing in the name of Tekna Rajwar and his brothers including all sons of Kani Ram. Tekna Rajwar was survived by only son and legal heir Shyam Rajwar. It is stated that Shyamlal Rajwar and Khedan Rajwar surrendered the suit lands to the then landlord Raja Ramgarh through registered Deed of Surrender bearing No.309 dated 15.03.1937 executed in favour of manager Bahadur of the Ramgarh Raj as at that time the Estate was under ‘Wards Encumbered Estate’ under the control of its manager. The said manager of the Estate orally settled the said suit land in favour of Kunjbihari Mahtha by issuing Hukumnama and rent-receipts on Salami in 1995 Samvat who came in possession but thereafter a dispute arose between the heirs of recorded raiyats on the one hand and the settlee on the other in 1948 in which the settlee 2 S.A. No.159 of 2019 launched a criminal prosecution which resulted into a compromise in which the heirs of recorded tenant namely Aghana Rajwar @ Aghnu Rajwar son of Shyam Rajwar and Khedan Rajwar son of late Dhurpa Rajwar executed a registered agreement being deed No.1235 dated 03.04.1948 in favour of the settlee in which they admitted the surrender and settlement of the suit land in the manner stated above and further by an agreement dated 12.03.1948 admitted right, title, interest and possession of the settlee. Because of ill health of the settlee, the settlee gave the lands of plot No.534 and 535 to one Kulia Rajwar on share-cultivation basis on 13.07.1951 vide Deed No.3218 dated

13.07.1951 executed in favour of Kuila Rajwar.

#5. The case of the plaintiffs is that since the time of settlee i.e. their grandfather namely Kunjbihar Mahtha, they are coming in possession having right, title, interest and possession thereon but all of a sudden on 15.06.2006, the defendants came there and stopped cultivation. Hence, the plaintiff filed Title Suit No.111 of 2006. The defendant Nos.5 to 7 did not appear. Suit proceeded against them ex-parte. The defendant Nos.1 to 4 contested the suit by filing written statement challenging the maintainability of the suit on various technical grounds but they did not deny that the suit land was recorded in the name of Tekna Rajwar, Lodhariwa, Dhurpa, Manua and Gunwa Rajwar and after the death of the recorded raiyats, Shyamlal Rajwar and Khedan Rajwar inherited the same but they denied that Shyamlal Rajwar and Khedan Rajwar surrendered the suit land to the Raja of Ramgarh. They also denied that, the suit land was ever settled in the name of Kunjbihari Mahta. It is also the case of these defendants, that Shyamlal Rajwar and Khedan Rajwar inherited the suit 3 S.A. No.159 of 2019 land jointly being the legal representatives of the recorded raiyats. Shyamlal Rajwar and Khedan Rajwar were in joint cultivation.

#6. On the basis of rival pleadings of the parties, the learned trial court formulated the following ten issues: - (1) Is the suit maintainable in its present form? (2) Whether plaintiffs have got valid cause of action for the suit? (3) Whether suit is barred by Law of Limitation and Adverse possession? (4) Whether the suit is hit under the provision of Specific Relief Act? (5) Whether the suit is bad for non joinder necessary parties? (6) Whether the suit is under valued? (7) Whether suit is hit under the provision of C.N.T. Act? (8) Whether plaintiffs have got valid right, title and interest over the suit land? (9) Whether plaintiffs are entitled for recovery of khas possession of the suit land if found dispossessed during the pendency of the suit? (10) To what relief/reliefs plaintiffs are entitled for?

#7. In support of their case, the plaintiffs examined five witnesses and proved the documents which have been marked as Ext.1 to 5. From the side of the defendants, six witnesses were examined and the documents have been marked as Ext.A to B.

#8. The learned first appellate court considering the materials available in the record and the submissions made before it, formulated the following point for determination: - “Whether the surrender was legal or can be affected in the manner stated by the plaintiffs and further, whether the settlement was valid or could 4 S.A. No.159 of 2019 have been made vide a ‘Sada Hukumnama’ and /or the Manager of the Encumbered Estate had authority to affect the settlement?”

#9. The first appellate court considered that as per the case of the plaintiffs, the ex-landlord was Kumar Kamakhya Narayan Singh of Ramgarh Estate and the land was surrendered to him vide surrender deed No.3209 dated 15.03.1937 which has been marked as Ext.1 but Ext.B which was not challenged by the plaintiffs showed that Chandu Rajwar was the ex-landlord in respect of the suit land, hence, the first appellate court did not believe the story of surrender made by Ext.1 to Kamakhya Narayan Singh when Chandu Rajwar was the ex- landlord.

#10. The learned first appellate court also observed that Ext.1 is hit by the section 46 of the Chota Nagpur Tenancy Act having been made without sanction of the Deputy Commissioner. The learned first appellate court relied upon the judgment of Division Bench of the Hon’ble Patna High Court in the case of Kedar Pandey vs. Kedar Nath Singh reported in (1953) 0 Supreme (Pat) 70 paragraph-9 of which reads as under: - “9. The next argument advanced by Mr. Harinandan Singh is that the violation of Rule 16 was a mere irregularity, and the jurisdiction of the Manager to make the settlements in favour of the plaintiff was not affected merely because the Commissioner had not granted his sanction. This argument proceeds upon a misconception. The authority granted to the Manager under Sec.17, Chota Nagpur Encumbered Estates Act is a limited authority which is subject to the rules made under Sec.19 of the Act. Rule 16 enacted by the Provincial Government under the authority vested by Sec.19 states that the power to lease under Sec.17 shall be subject to the sanction of the Commissioner if the lease is granted for a term exceeding four years. That is, therefore, a preliminary condition to the exercise of the jurisdiction by the Manager to grant a lease under Sec.17, and, unless the preliminary condition imposed by Sec.16 is satisfied, any settlement made by the Manager in derogation of Rule 16 would be void and without jurisdiction. The question is not a question of mere irregularity, but the question is one going to the root of the jurisdiction of the Manager to grant the lease. It is, therefore, impossible to accept the argument advanced on behalf of the appellant, and it must 5 S.A. No.159 of 2019 be held that the settlements "made by the Manager in favour of the plaintiff in this case are null and void and without jurisdiction.” and taking into consideration the admitted case of the plaintiffs that the settlement was made by the manager of Ramgarh estate and not by the ex- landlord himself; that too without distinction of the Commissioner, when the sanction of the commissioner was required, if the lease is granted for a term exceeding four years and went on to hold that such settlement is void and invalid.

#11. The learned first appellate court also considered that the Hukumnama which was marked as Ext.5 was issued without complying with Section 45 of the Chota Nagpur Tenancy Act. Hence, the same is also hit by Section 45 of the Chota Nagpur Tenancy Act and went on to hold that since the surrender vide Ext.1 by Shyamlal Rajwar and Kedan Rajwar was void and Hukumnama marked Ext.5 was of no effect, the consequence is that the land remains with the defendants and/or the plaintiffs never acquired the right, title, interest over the suit land in the manner stated by them.

#12. The learned first appellate court considered the deposition of P.W.1 in which he stated that he was a resident of village- Gola while the suit land was situated in Peterbar Police Station, and went on to hold that as the settlement first verbally and thereby issuance of ‘Sada Hukumnama’ by the manager of the estate without the sanction of the Commissioner that too when the manager of the Ramgarh State was not authorized to settle the sale-deed without the sanction of the Commissioner, thereby being void one; the plaintiffs have failed to prove their case. The learned first appellate court then went on to hold that the plaintiffs have no valid right, title or interest over the suit land. 6 S.A. No.159 of 2019

#13. The learned first appellate court next took up issue Nos.1, 2 and 10 together framed by the trial court and on the basis of finding of the other issues as already indicated above went on to hold that the plaintiffs have not got valid cause of action and the suit is not maintainable and the plaintiffs are not entitled to reliefs as claimed in the suit and went on to allow the appeal as already indicated above.

#14. Learned counsel for the appellants submits that the learned first appellate court has committed a grave illegality by observing that the deed of surrender marked as Ext.1 is hit by Section 46 of the Chota Nagpur Tenancy Act, 1908 because the same having been executed in the year 1937 was not expected to comply with the requirements which were introduced in Section 14 of the Chota Nagpur Tenancy Act, 1908 in the year 1947. It is next submitted that the learned first appellate court erroneously held that the surrender made to the Encumbered Estate of Raja of Ramgarh is invalid and illegal. Hence, it is submitted that the judgment and decree passed by the learned first appellate court be set aside and the judgment and decree passed by the learned trial court be restored after formulating appropriate substantial questions of law.

#15. Having heard the submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that it is a settled principle of law that the plaintiffs have to stand on their own leg and not to take any benefit from the weakness of the defendants. Undisputed case of the plaintiffs was that the ancestor of the plaintiffs accrued right, title and interest over the suit land on the basis of the settlement made by the manager of the encumbered estate; first by orally and thereafter by a “Sada Hukumnama”. It is a settled principle of law as has been held by the Division 7 S.A. No.159 of 2019 Bench of the Hon’ble Patna High Court in the case of Kedar Pandey vs. Kedar Nath Singh (supra) that the authority granted to the manager under Section 17 of the Chota Nagpur Encumbered Estate Act is a limited authority and the power to lease under Section 17 shall be subject to the sanction of the Commissioner if the lease is granted for a term at all exceeding four years. Now, undisputedly in this case, the lease was perpetually i.e. more than four years. No sanction of the Commissioner has been made for such lease.

#16. In view of the principle of law settled by the Division Bench of the Hon’ble Patna High Court in the case of Kedar Pandey vs. Kedar Nath Singh (supra), this Court do not find any illegality in the finding of fact arrived at by the learned first appellate court being the learned District Judge-I, Bermo at Tenughat that in the absence of the Commissioner sanctioning the lease, no right, title or interest has been accrued to the ancestor of the plaintiffs so, obviously nothing was left with the ancestor of the plaintiffs to be inherited to the plaintiffs so far as the suit land is concerned; and in the absence of a valid lease in favour of the ancestor of the plaintiffs, obviously the plaintiffs have no right, title, interest or possession over the suit land nor they can establish any right, title, interest or possession over the suit land. In this backdrop, whether or not the surrender made by the ancestors of the defendant to the Ramgarh Estate being involved in an application under section 46 of the Chota Nagpur Tenancy Act, 1908 is inconsequential so far as the outcome of the dispute between the parties to the suit is concerned.

#17. Under such circumstances, this Court do not find any perversity in the finding of fact arrived at by the learned first appellate court that the plaintiff 8 S.A. No.159 of 2019 cannot test of this, their right, title and interest over the suit land and there is absolutely no substantial question of law involved in this appeal.

#18. Accordingly, this appeal, being without any merit, is dismissed. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 25th of July, 2024 AFR/ Saroj 9 S.A. No.159 of 2019