) ------ 1. Pradeep Kullu 2. Leopold Kullu Both sons of late Sinil Kullu v. 1
Case Details
Second Appeal No. 116 of 2015 IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No.116 of 2015 (Against the Judgment and decree dated 10.12.2014 passed by the learned Principal District Judge, Simdega in Title Appeal No. 2 of 2014) ------ 1. Pradeep Kullu 2. Leopold Kullu Both sons of late Sinil Kullu @ Siril Kharia (Schedule Tribe) Resident of Village Simdega, P.O., P.S. & Dist. Simdega .... .... …. Appellants Versus 1(a) Winifred Charles Mangal Ecka @ Charlie 1(b) Christ Anant Biswas Deepak Ecka Both sons of Late Godwin Ekka, resident of Simdega P.O., P.S. & Dist. Simdega 2. Deputy Commissioner, Simdega, P.O., P.S. & Dist. Simdega ... .... …. Respondents For the Appellant For the Respondents ------ : Mr. Amar Kumar Sinha, Advocate : Mr. K.K. Ambastha, Advocate : Mr. Sandeep Verma, Advocate : Mr. Jorong Jedan Sanga, Advocate : Mr. Anand Prakash, Advocate : Mr. Randhir Kr. Sharma, Advocate ------ PRESENT HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ------ By the Court:- Heard the parties. 2 This second appeal has been preferred under Section 100 of Code of Civil Procedure against the judgment and decree dated 10.12.2014 passed by the learned Principal District Judge, Simdega in Title Appeal No. 2 of 2014 whereby and where under, by the said
Facts
judgment of concurrence, the learned first appellate court has dismissed the appeal and affirmed the judgment and decree passed by the learned trial court being the court of Sub-Judge-I, Simdega in Title Suit No.1 of 2012 whereby and where under, the learned Sub- 1 Second Appeal No. 116 of 2015 Judge-I, Simdega dismissed the suit of the plaintiffs filed with a prayer for declaration of right, title and interest over the suit land, permanent injunction, cost of suit and other reliefs. 3 The case of the plaintiffs in brief is that the plaintiffs is by caste Kharia and a member of Scheduled Tribe and governed by customary law in the matter of succession according to which, on the death of issueless male holder of the property, his widow and unmarried daughters are entitled to be maintained out of the usufructs of the property left by the deceased till such time when the widow is alone and she does not marry and the unmarried daughters is not married and after remarriage of the widow and the marriage of the daughters, the property devolved upon the nearest agnates of the last male holder. The suit land was recorded as Kaimi in the revisional survey record of right in the name of Suleman Kharia son of Jhari Kharia and Mana Kharia son of Jakru Kharia. Suleman Kharia died issueless and his half interest in the land devolved upon Mana Kharia who became the absolute owner of the entire land and came into exclusive possession thereof in assertion of his own right. After the death of Mana Kharia, the father of the plaintiffs namely Siril Kharia being the son of Mana Kharia inherited the entire suit land. Siril Kharia died on 25.10.2005 leaving behind the plaintiffs as his sons and legal representatives who inherited the suit land. Suleman Kharia used to pay rent to the ex-landlord before vesting and after vesting, he was recognized as tenant by the State and after the death of Suleman Kharia, Siril Kharia the father of the plaintiffs got his name 2 Second Appeal No. 116 of 2015 mutated vide the order passed by the Circle Officer, Simdega in Mutation Case No. 648R/27 of 2001-02 and regularly paid the rent in his name. Hence, the plaintiffs are absolute owner and have been coming in possession thereof in assertion of their own right. The plaintiffs next pleaded that the defendant no.1 forcibly and stealthily dispossessed the plaintiffs from the suit land. The father of the plaintiffs namely Siril Kharia filed an application under Section 71A of Chota Nagpur Tenancy Act before the learned Special Officer Scheduled Area Regulation-cum-D.C.L.R., Simdega which was registered as S.A.R. Case No. 283/1979-80 in which the Special Officer Scheduled Area Regulation-cum-D.C.L.R., Simdega erroneously and arbitrarily dismissed the case vide order dated 20.10.1981. Siril Kharia preferred S.A.R. Appeal No. 321/1981-82 before the learned Additional Collector, Gumla and the appeal was allowed vide order dated 27.04.1984. The father of the plaintiffs immediately after the said order took possession of the suit property and remained in possession thereof and after the death of Siril Kharia, the plaintiffs inherited the suit property and came in peaceful possession. Thereafter, the defendant no.1 preferred an appeal before the Commissioner, South Chota Nagpur Division Ranchi which was registered as Ranchi Revenue Revision No. 91 of 1984 but the same was also dismissed at the stage of admission itself vide order dated 19.06.1984. The defendant no.1 challenged the said order by preferring C.W.J.C. No. 910 of 1984(R) in which the High Court set aside the order passed by the Commissioner in Revision No. 91/1984 3 Second Appeal No. 116 of 2015 with a direction to decide the said revision on merit. After remanding of the case, the Commissioner, South Chota Nagpur Division Ranchi dismissed the revision again and upheld the order passed by the Additional Collector, Gumla. The defendant no.1 thereafter filed writ application before the Ranchi Bench of Patna High Court vide C.W.J.C. No. 2586 of 1997 (R) but the same was again dismissed. The defendant no.1 filed Letter Patent Appeal being L.P.A. No. 61 of 2004 and during the pendency of the said appeal, Siril Kharia who was the respondent no.4 died on 20.10.2005 but his heirs was not substituted in his place. The said appeal was allowed by the High Court vide judgment and order dated 03.03.2009. The plaintiffs filed Special Leave Petition being (Civil) No. CC 10070 of 2009 before the Hon’ble Supreme Court of India along with an application for substitution and condonation of delay in filing the application for substitution in which, the Hon’ble Supreme Court of India dismissed the special leave petition of the plaintiffs vide order dated 31.07.2009. Thereafter, the plaintiffs filed a petition for review of the said order passed by the Hon’ble Supreme Court of India in Review Petition (Civil) No. 33483 of 2009 which was also rejected. The plaintiffs next pleaded that during the course of proceeding under Section 71 of Chota Nagpur Tenancy Act, the defendant no.1 falsely claimed that the suit land was mortgaged to Manonit Ekka in the year 1934 by virtue a sada document and Suleman Kharia before his death executed a sada raiyati deed in favour of Manonit Ekka in respect of 14.29 acres of land on 19.03.1934 and subsequently, the suit land was sold to 4 Second Appeal No. 116 of 2015 Manonit Ekka by virtue of Sada sale deed in the year 1948 for a consideration of Rs.400/-. The plaintiffs asserted that no deed of sada hukumnama was ever executed as claimed by the defendant no.1 and the defendant no.1 is claiming over the suit land on the basis of forged, fabricated, manufactured and antedated documents and against the mandatory provision contained in Section 46 of Chota Nagpur Tenancy Act. 4 In his written statement, the defendant no.1 challenged the maintainability of the suit on various technical grounds and besides pleaded that the suit land was never in possession of Mana Kharai or Siril Kharia rather it had been in possession of Manonit Ekka and after her death, his two sons namely Kushalmay Ekka and defendant no.1 came in possession of the same and after the death of Manonit Ekka, the defendant no.1 further developed the land and converted the land from Tanr to dhan and also constructed pucca well on a portion of the land by spending money. The defendant further pleaded that Mana Kharia mortgaged the land to Manonit Ekka in the year 1934, Thus, Manonit Ekka held and possessed the suit land as raiyats. The series of litigation between the plaintiffs and the defendants ended up with the judgment of the Division Bench of this Court dated 03.03.2009 in L.P.A. No.61 of 2004 with an observation that the defendant has the same right as that of the tenant as defined in Chota Nagpur Tenancy Act and also held that the action by the plaintiffs to evict the defendant no.1 from the suit property is barred by limitation and the said order was affirmed by the Hon’ble 5 Second Appeal No. 116 of 2015 Supreme Court of India in S.L.P. (C) No. 100700 of 2009 dated 31.07.2009. Hence, the defendant no.1 is having exclusive title and possession over the suit property. 5 On the basis of the rival pleadings of the parties, the following nine issues were settled by the trial court:- (i) Whether there is right, title and interest of the plaintiffs over the suit land? (ii) Whether the suit is maintainable in its present form? (iii) Has the plaintiffs valid cause of action for the suit? (iv) Whether the suit is barred by law of Limitation? (v) Whether the suit is barred under the provision of Chhotanagpur Tenancy Act? (vi) Whether the suit is barred by principles of res-judicata? (vii) Whether the suit is barred by principles of waiver, estoppel and acquiescence? (viii) Whether the plaintiffs are entitled to get any relief or reliefs claimed for? (ix) Whether the plaintiffs have not properly valued the suit and court fee paid by them is insufficient? 6 In support of their case, the plaintiffs examined five witnesses and proved the documents which have been marked Ext.1 series to Ext. 9. On the other hand, from the side of the defendants, four witnesses were examined and proved the documents which have been marked Ext. A to Ext. F. 7 The learned trial court first took up issue no. (i) and held
Legal Reasoning
that in view of the judgment passed by this Court in L.P.A. No. 61 of 2004, the plaintiffs have no right, title and interest over the suit land. Thereafter the learned trial court took up issue no. (iv) and considering the materials in the record and also basing upon the observation made by the High Court in paragraph no. 37 of its judgment in the said L.P.A. No. 61 of 2004 came to the conclusion that the suit of the plaintiffs is hopelessly barred by limitation. In respect 6 Second Appeal No. 116 of 2015 of issue no. (ix), which was next taken up by the learned trial court, the learned trial court came to the conclusion that the suit is properly valued and the court fee is sufficient. In respect of issue no. (ii), which was next taken by the learned trial court, the learned trial court held that the suit is maintainable in its present form. In respect of issue no. (iii), the learned trial court came to the conclusion that the plaintiffs have got cause of action to file the suit. The learned trial court next took up issue nos. (v) and (vii) together and decided both the issues in the negative and against the defendant no.1. In respect of issue no. (vi), which was next taken by the learned trial court, the learned trial court came to the conclusion that the suit is not barred by principle of res-judicata. In respect of issue no. (viii), which was lastly taken by the learned trial court, the learned trial court came to the conclusion that the plaintiffs are not entitled for relief of permanent injunction against the defendant no.1 and dismissed the suit. 8 Being aggrieved by the judgment and decree passed by the learned trial court, the plaintiffs preferred Title Appeal No.2 of 2014 before the Principal District Judge, Simdega which was ultimately heard and disposed of by the learned first appellate court by the impugned judgment and decree. 9 Learned first appellate court formulated the following four points for determination :- (i) Whether there is right, title and interest of the plaintiffs over the suit land? (ii) Whether the suit is maintainable in its present form and the plaintiffs have got valid cause of action for the suit? (iii) Whether the suit is barred by law of Limitation? (iv) Whether the plaintiffs are entitled to get the relief claimed for? 7 Second Appeal No. 116 of 2015 10 The learned first appellate court first took up the first point for determination no. (i) and after considering the evidence and materials in the record including the observation made by the Division Bench of this Court in paragraph no.37 of L.P.A. No. 61 of 2004 which reads as under :- “Apart from in the instant case under raiyati tenancy was created in the year 1936. Since thereafter, the ancestors of the appellant were in continuous cultivating possession. After the death of Manonit Ekka, the appellant and his brother have coming in continuous possession of the is a claim of improvement of land on vesting considerable amount. Even in absence of a custom of acquisition of occupancy right, the appellant having been in continuous cultivating possession for more than 40 years to the knowledge of the recorded tenant/their successor in interest acquires title by adverse possession.” land. There and came to the conclusion that since the Division Bench of this Court has declared the title of the defendant no.1 over the suit land on the ground of adverse possession of the defendants and his ancestors over the suit land for more than 40 years and the same having not been interfered with by the Hon’ble Supreme Court of India in S.L.P. No. 10070 of 2009 as also the Review Petition (Civil) No. 33483 of 2009. Hence, the judgment passed by the Division Bench in L.P.A. No. 61 of 2004 still in force and binding upon the plaintiffs. Thus, the plaintiffs have no right, title and interest over the suit land. 11 The learned first appellate court thereafter took up point for determination no. (ii) and considering the evidence in the record came to the conclusion that since the plaintiffs have no valid cause of action for the suit so, naturally, the suit is not maintainable in its present form. In respect of point for determination no. (iii), the learned first 8 Second Appeal No. 116 of 2015 appellate court came to the conclusion that the suit is hopelessly barred by limitation. In respect of point for determination no. (iv), the learned first appellate court came to the conclusion that the plaintiffs are not entitled for the relief as claimed and went on to dismiss the appeal. 12 Mr. Amar Kumar Sinha, learned counsel for the appellants submits that judgment and decree passed by both the courts below is not sustainable in law having been passed without taking into consideration the settled principle of law. It is next submitted by Mr. Sinha that both the courts below ought to have held that Ext. 1 is a mortgaged deed alleged to have been executed by Mana Kharia and by the same, a valid transfer of right, title, interest and possession in favour of mortgagee has not been established. It is further submitted by Mr. Sinha that both the courts below have failed to take into consideration the judgment passed by the Division Bench in L.P.A. No. 61 of 2004 is a nullity as the same has been passed against a dead person as substitution of the legal representatives of the defendant no.4 was not done. Hence, it is submitted that judgment and decree passed by both the courts below be set aside and the suit of the plaintiffs be decreed. 13 Having heard the submissions made at the Bar and after going through the materials in the record, it is pertinent to mention here that the Division Bench of this Court in L.P.A. No. 61 of 2004 has inter alia held that even in absence of custom of acquisition of occupancy right, the defendants having being in continuance 9 Second Appeal No. 116 of 2015 cultivating possession for more than 40 years to the knowledge of the recorded tenant and their successor in interest acquires title by adverse possession has remained intact even though it is submitted that the same was passed against a dead person but the Hon’ble Supreme Court of India did not find it fit either for substitution of the legal representatives of the deceased respondent-defendant no.4 or to interfere in any manner with the said order passed by the Division Bench in L.P.A. No. 61 of 2004 and no illegality regarding the validity of the said order passed by the Hon’ble Supreme Court of India has been prayed for before this Court. 14 Under such circumstances, this Court has no hesitation in holding that the order of Hon’ble Division Bench of this Court passed in L.P.A. No. 61 of 2004 has reached finality and hence, no right, title and interest can be said to have been accrued to the plaintiffs. 15 After carefully going through the materials in the record, this Court finds that the finding of fact arrived at by the learned first appellate court was not done by ignoring or excluding the relevant materials or by taking into consideration the irrelevant material. Nor the finding of fact arrived at by the learned first appellate court being the final court of facts so outrageously defies the logic as to suffer from the vice of irrationality incurring the blame of being perverse. 16 In the absence of any perversity in the concurrent finding of facts arrived at by both the learned courts below, this Court is of the considered view that there is no justifiable reason to interfere with the concurrent finding of facts returned by both the courts below. 10 Second Appeal No. 116 of 2015 17 After going through the materials in the record, this Court finds that there is no substantial question of law involved in the appeal. 18 Accordingly, this appeal being without any merit is dismissed but under the circumstances without any costs. 19 Let a copy of this Judgment be sent to the court concerned forthwith. High Court of Jharkhand, Ranchi Dated the 10th July, 2023 AFR/ Sonu-Gunjan/- (Anil Kumar Choudhary, J.) 11