) 1. Kinan Kharia s/o Late William Kharia 2. Longoy Kharia s/o Late William v. 1
Case Details
S.A.No.546 of 2015 IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No.546 of 2015 ------ (Against the judgment dated 26.06.2015 passed by learned District Judge, Simdega in Title Partition Appeal No.03 of 2004) 1. Kinan Kharia s/o Late William Kharia 2. Longoy Kharia s/o Late William Kharia ------ 3. Prabhudayal Kharia s/o Late Matias Kharia 4. Nikodim Kharia s/o Late Matias Kharia All residence of village Bherikudar PO+PS+Dist. Simdega .... .... …. Defendants /Appellants/ Appellants Versus 1. (a) Churamani Patar 1. (b) Digambar Patar Both sons of Late Shivnandan Patar R/o Village Bherikudar, PO/PS/District Simdega .... .... …. Plaintiffs /Respondents/ Respondents 2. 3. Laxmi Patar s/o Late Bhaku Patar Bora Patar s/o Late Bhaku Patar 4. Madan Patar s/o Late Bhaku Patar 5. Netar Patar s/o Late Ramchandar Patar 6. Manoj Patar s/o Late Ramchandar Patar 7. Deepak Patar s/o Late Ramchandar Patar 8. Yuvraj Patar s/o Late Ramchandar Patar 9. Natraj Patar s/o Late Ramchandar Patar 10. Biswas Patar s/o Late Ramchandar Patar 11. Janki Devi w/o Juglum Kindo and D/O Ramchandar Patar 12. Bilsan Patar s/o Late Raghu Patar All R/O village Bherikudar PO+PS+Dist. Simdega 13. Deputy Commissioner Simdega Office of Deputy Commissioner at PO+PS+Dist. Simdega ....
Legal Reasoning
.... …. Defendants/Respondents/ Respondents 1 S.A.No.546 of 2015 For the Appellants :
Legal Reasoning
Mr. Dr. Hasnain Waris, Advocate ------ Ms. Reshma Kumari, Advocate For the Respondents : None ------ 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. No one turns up on behalf of the respondent in spite of repeated calls, hence, this appeal is heard and disposed of ex-parte against the respondent. 3. This Second Appeal, under Section 100 of the Code of Civil Procedure, has been preferred against the judgment of concurrence dated 26.06.2015 passed by learned District Judge, Simdega in Title Partition Appeal No.03 of 2004 by which the learned First Appellate Court dismissed the appeal and affirmed the judgment and decree dated 21.07.2004 passed by the trial court being Sub-Judge-I, Simdega in Title Suit No.12 of 1996. 4. The case of the plaintiffs in brief is that the plaintiff and the defendant Nos.4 to 6 are brothers and are Raiyats of Bherikudar village since generations being the descendants of late Bhikham Patar- the Khatiyani Raiyat. The land which was in Schedule-B of the plaint has been in possession of the plaintiff alone by way of amicable family settlement. The father of the plaintiff- late Sukru Patar got the land from Bhikhan Patar- the original Khatiyani Raiyat under sale-deed dated 17.04.1948 and remained in possession till filing of the suit. Sukru Patar- the father of the plaintiff even prior to sell, was in use and possession of the said land as Adhbataidar. The consideration amount of the sale-deed was Rs.60/- and it was not required to be registered compulsorily. Consequent upon acquisition of the land and coming in possession by hard labour and huge investment, the suit land was changed from Tanr to Don-I and yielding produced yearly. The defendant Matias Kharia due to greediness and instigation of some interested persons, filed a petition on 16.10.1995 before 2 S.A.No.546 of 2015 the S.D.O., Simdega resulting in S.A.R. Case No.16 of 1995 on the basis of forged documents with a plea that the land in question was purchased by his father late Nichodim Kharia from late Balram Marwari under registered deed No.67 dated 19.03.1951 and late Balram Marwari got the land sold by him, from late Harukh Patar under the registered sale-deed. But no mutation in the name of Nichodim Kharia was available and Nichodim Kharia does not have any document except the forged rent receipts. The S.D.O. Simdega passed restoration order dated 26.03.1996 and the plaintiff went in appeal before the Additional Collector, Gumla vide S.A.R. Appeal No.19 of 1996. The Additional Collector, Gumla admitted the said appeal and stayed the order of S.D.O., Simdega vide his order dated 08.04.1996. The plaintiff came to be in possession of the suit land for more than 60 years. Hence, the plaintiff prayed for:- (a) declaration of right, title and possession of the plaintiff and confirmation for the same and that the order passed by the S.D.O., Simdega dated 26.03.1996 is illegal, void and without any jurisdiction and other reliefs. 5. In their written statement, the other defendants pleaded that the plaintiff and defendant Nos.4 and 5 are not the descendants of Bhikham Patar- the recorded tenant. They also denied the genealogical table furnished by the plaintiffs. These defendants further pleaded that the plaintiff or his brothers and their father- Sukru Patar was never in any way concerned with the suit property. They also challenged the sale-deed dated 17.04.1948 in favour of plaintiff’s father- Sukru Patar as fake and forged one. Bhikham Patar was the recorded tenant of the land under Khata No.52 plot No.655 in village Bherikudar and after his death his only son Harak Patar held and possessed the suit land and he sold his land along with other land vide registered sale-deed in favour of Balram Marwari and Kishun Marwari who came in possession thereon and Balram Marwari got the suit land including other lands in oral partition and he sold the suit land in favour of late Nichodim Kharia - father of the defendant No.1 under registered sale-deed dated 19/20th March, 1951. It is then pleaded that the late Nichodim Kharia peacefully possessed the suit land; as his occupancy land and converted into Don land. The defendant 3 S.A.No.546 of 2015 No.1 paid rent for the suit land and got rent receipts. They further pleaded that the suit is barred by law of limitation and the plaintiff has no title. 6. In view of the rival pleadings of the parties, the learned trial court settled the following ten issues:- Is the suit as framed maintainable? (i) (ii) Has the plaintiff got valid cost of action in the suit? (ii) (iv) Has the plaintiff got his title and possession over the suit land as Is the suit barred by the law of limitation? (v) claimed by him? Is the unregistered sale deed dated 17.4.48 said to be executed by the recorded tenant Bhikham Patar in favour of the plaintiff’s father Sukru Patar legal, valid and genuine? (vi) Are the plaintiff Shivnandan Patar and defendant No.4 (A) Ramchandra Patar, Defendant No.4 (B) Bilson Patar, No.4 (C) Brianchi Patar and Defendant No.5 Shiv Charan Patar descendent of the recorded tenant Bhikham Patar? Is S.A.R. case no.16 of 1995 filed by Matias Kharia legally maintainable and is the order dated 26.03.1996 passed by the S.D.O., Simdega in S.A.R. case mentioned aforesaid is illegal, void without jurisdiction? (vii) (viii) Is the suit property properly valued and court fee paid by the plaintiff is sufficient? Is the plaintiff entitled to a decree as claimed for? To what other relief or reliefs if any is the plaintiff entitled to? (ix) (x) 7. In support of their case, the plaintiffs examined eight witnesses and proved the documents which have been marked as Ext.1 to 6 whereas four witnesses were examined by the defendants and they also proved the documents which have been marked as Ext. A to C. 8. The learned trial court first took up issue Nos.(iv) [Gha], (v) [Anga) and (vii) (Chha) together and after considering the evidence in the record, the learned trial court considered that the Ext. 2 has not been challenged in the cross-examination of the plaintiffs or in the written statement filed by the defendants nor is there any pleading or evidence that the Ext.2 was not written by Bhikham Patar. It has not been specifically mentioned as to how the Ext.2 is a forged document. The signature of Bhikham Patar thereon has not been challenged and because of the same, the learned trial court considered the signature of Bhikham Patar over the Ext. 2 to be genuine and thus, by Ext. 2, the plaintiff have acquired right, title and interest over the suit land though the father of the plaintiff was in 4 S.A.No.546 of 2015 possession of the suit land in capacity of Adhbataidar and the possession of the plaintiff is continuing till the pronouncement of the judgment. The trial court observed that the fact of Adhbataidari is confirmed by Ext.2 and the possession of the plaintiff over the suit land is confirmed by Ext.4 and it came to the conclusion that Sukru Patar and after his death, the plaintiff has been in continuous and in possession of the suit land whereas the defendants could not produce any evidence of being in peaceful possession over the suit land and went on to held that the defendants failed to establish their case and because of continuous possession, the plaintiffs have established their title and the sale-deed dated 17.04.1948 is valid and genuine. Accordingly, the order passed in S.A.R proceeding is not correct. Hence, the plaintiff is entitled to the relief prayed for in respect of the Schedule B of the plaint and the plaintiff is also entitled to the relief (A) because of the undisputed title, interest and possession of the plaintiff but as the plaintiff has not paid ad valorem court fee, therefore, title and right of the plaintiff will be confirmed after depositing of the court fee by the plaintiff. 9. The learned trial court next took up issue No.(vi) [Cha] and held that the genealogical table which has been mentioned in the plaint is correct. 10. Then, the learned trial court took up issue Nos.(i) [Ka], (ii) [Kha] and (iii) [Ga) together and came to the conclusion that the suit is not barred by limitation and there is cause of action for the suit and the suit is maintainable. 11. Lastly, the learned trial court took up issue Nos.(viii) [Ja] and (ix) [Jha] together and held that the plaintiff has not paid sufficient court fee. Hence, after paying the court fee, the decree will be passed in favour of the plaintiff and the plaintiff is not entitled to any other relief and directed the plaintiff that for confirmation of his right and interest, the plaintiff must deposit the ad valorem court fee by 11:00 am on 21.07.2004 and directed that the record be placed on 3:00 pm on that day and ultimately declared the right, title, interest and possession of the plaintiff over the suit schedule B land and declared that the order passed by the Sub Divisional Officer in S.A.R. Case No.16 of 1995 dated 26.03.1996 was 5 S.A.No.546 of 2015 illegal and without jurisdiction but in the absence of payment of any court fee, did not confirm the possession of the plaintiff over the suit land. 12. Being aggrieved by the judgment and decree passed by the trial court, the defendants preferred Title Partition Appeal No.03 of 2004 in the court of Principal District Judge, Simdega which was ultimately heard and disposed of by the learned First Appellate Court by the impugned judgment and decree. 13. The learned First Appellate Court made independent appreciation of the evidence in the record and took up issue Nos. (iii), (iv) and (v) settled by the learned trial court together. The learned First Appellate Court considered that nowhere it has been mentioned that after execution of the sale-deed marked Ext. A/1 by Balram Marwari in favour of the contesting respondent being Nichodim Kharia that the possession of the suit property was transferred to the vendee by the vendors. Hence, it appeared to the learned First Appellate Court that Bharat Patar who was the vendor and Balram Marwari vide sale-deed marked Ext. A, was not in possession of the suit land and similarly, Balram Marwari and Kishun Marwari also got no possession over the suit land. Therefore, Nichodim Kharia- the father of the defendants also did not get possession of the suit land and in spite of the order passed in S.A.R. Case No.16 of 1995 dated 26.03.1996, the defendants could not successfully prove their possession over the suit land. The learned First Appellate Court also considered the oral testimony of the witnesses examined by the defendants who have admitted that Sukru Patar and after his death, the plaintiffs were in possession of the suit land and in this respect, the learned First Appellate Court referred to paragraph-6 of D.W.1, paragraphs-8 and 9 of D.W.2 and paragraphs-14 and 16 of D.W.3. The learned First Appellate Court considered that these oral testimonies of even the witnesses of the defendants that Sukru Patar and thereafter the plaintiffs have been in possession of the suit land was corroborated by Banda Parcha of survey settlement marked Ext.4 as well as S.A.R. Case No.16 of 1995 also corroborated the same, hence, Ext. A and A/1 were only paper transactions. The learned First Appellate Court then considered that in the written statement filed by the defendants the only ground for challenge of 6 S.A.No.546 of 2015 Ext. 2 was that the same was a forged one. But no cogent evidence could be laid by the defendants as to how the Ext. 2 is forged. The learned First Appellate Court also considered that the unregistered sale-deed is a valid document when the consideration amount was only Rs.60/- and also held that the order passed by the S.D.O., Simdega in S.A.R. Case No.16 of 1995 is not legal and valid order and concurred with the finding of the trial court in respect of the said issues. 14. The learned First Appellate Court disposed of the issue No. (vi) as not pressed. 15. Then the learned First Appellate Court took up issue Nos.(viii) and (ix) together and mentioned that ad valorem court fee has not been paid by the plaintiffs. 16. Lastly, the learned First Appellate Court took up issue Nos.(i) to (iii) and concurred with the findings of the trial court in respect of the same and dismissed the appeal and affirmed the judgment and decree passed by the trial court. 17. At the time of admission of this appeal vide order dated 04.02.2020, the following substantial question of law was formulated by the predecessor Judge:- “Whether the appellate court below misinterpreted the Exhibit 2, which is the Hukumnama, whereas the appellate court has held it as the Sale deed.” while right was kept reserved for further formulation of substantial question of law at the time of hearing of the Second Appeal. 18. Dr. Hasnain Waris- learned counsel for the appellants fairly submits that he has not seen the Ext. 2 and is not aware about the contents of the same but the P.W.8 in paragraph 6 of his deposition has referred the same to be a Hukumnama. It is next submitted by Mr. Waris that since right has been kept reserved for formulation of substantive question of law at the time of hearing, hence, he submits that the following additional substantial question of law be framed: “Whether that the learned First Appellate Court has failed to exercise the jurisdiction vested upon it under Order XLI Rule 31 of the Code of Civil Procedure?” It is then submitted that the impugned judgment and decree passed 7 S.A.No.546 of 2015 by both the courts below being not sustainable in law be set aside and the suit of the plaintiffs be dismissed after formulating appropriate substantial question of law. 19. Having heard the submissions of the learned counsel for the appellants and after carefully going through the materials in the record, this Court finds that Ext. 2 is an unregistered sale-deed, the consideration amount of which is Rs.60/- and the same is not a Hukumnama. Under such circumstances, this Court is of the considered view that the courts below have not misinterpreted the Ext. 2 to be an unregistered sale-deed. It is pertinent to mention here that otherwise also the only ground upon which the defendants assail the Ext. 2 is that the same is forged. It is a settled principle of law that when a fraud is alleged, the particulars thereof are required to be pleaded as has been held by the Hon’ble Supreme Court of India in the case of Ranganayakamma & Another v. K.S. Prakash, (Dead) Lrs and others reported in (2008) 15 SCC 673 paragraphs-40 and 41 of which read as under:- “40. When a fraud is alleged, the particulars thereof are required to be pleaded. No particular of the alleged fraud or misrepresentation has been disclosed. 41. We have been taken through the averments made in the plaint. The plea of fraud is general in nature. It is vague. It was alleged by the plaintiffs that signatures were obtained on several papers on one pretext or the other and they had signed in good faith believing the representations made by the respondents, which according to them appeared to be fraudulent representations. When such representations were made, what was the nature of representation, who made the representations and what type of representations were made, have not been stated. Allegedly, on some occasions, Respondents 1 and 2 used to secure the signatures of one or more of the plaintiffs and Defendants 3 to 8 on several papers but the details therein had not been disclosed.” (Emphasis supplied) 20. After carefully going through the pleadings as well as the evidence of the defendants, this Court does not find any particular of fraud being pleaded by the defendants nor has any cogent evidence been led regarding the fraud. 21. So far as the contention of Dr. Waris that learned First Appellate Court has failed to exercise the jurisdiction vested upon it under Order 8 S.A.No.546 of 2015 XLI Rule 31 of the Code of Civil Procedure is concerned, it is a settled principle of law that when there is substantive compliance of the provisions of Order XLI Rule 31 of the Code of Civil Procedure and if it is possible to make out from the judgment that there is substantial compliance with the said requirements and that justice has not thereby suffered, such judgments of the learned First Appellate Court do not warrant any interference in exercise of jurisdiction under Section 100 of the Code of Civil Procedure. It is will be appropriate in this respect to refer to the judgment of the Hon’ble Supreme Court of India in the case of G. Amalorpavam & Others v. R.C. Diocese of Madurai & Others reported in (2006) 3 SCC 224 paragraph-9 of which reads as under:- “9. The question whether in a particular case there has been substantial compliance with the provisions of Order 41 Rule 31 CPC has to be determined on the nature of the judgment delivered in each case. Non-compliance with the provisions may not vitiate the judgment and make it wholly void, and may be ignored if there has been substantial compliance with it and the second appellate court is in a position to ascertain the findings of the lower appellate court. It is no doubt desirable that the appellate court should comply with all the requirements of Order 41 Rule 31 CPC. But if it is possible to make out from the judgment that there is substantial compliance with the said requirements and that justice has not thereby suffered, that would be sufficient. Where the appellate court has considered the entire evidence on record and discussed the same in detail, come to any conclusion and its findings are supported by reasons even though the point has not been framed by the appellate court there is substantial compliance with the provisions of Order 41 Rule 31 CPC and the judgment is not in any manner vitiated by the absence of a point of determination. Where there is an honest endeavour on the part of the lower appellate court to consider the controversy between the parties and there is proper appraisement of the respective cases and weighing and balancing of the evidence, facts and the other considerations appearing on both sides is clearly manifest by the perusal of the judgment of the lower appellate court, it would be a valid judgment even though it does not contain the points for determination. The object of the rule in making it incumbent upon the appellate court to frame points for determination and to cite reasons for the decision is to focus attention of the court on the rival contentions which arise for determination and also to provide litigant parties opportunity in understanding the ground upon which the decision is founded with a view to enable them to know the basis of the decision and if so considered appropriate and so advised to avail the remedy of second appeal conferred by Section 100 CPC.” (Emphasis supplied) 22. So far as the contention of Mr. Waris regarding the deposition of 9 S.A.No.546 of 2015 para-6 of the P.W.8 wherein the P.W.8 referred the Ext. 2 to be a Hukumnama is concerned, perusal of the record reveals that P.W.8 did not prove the Ext. 2 rather the same was proved by the witnesses examined prior to his examination. The Ext. 2 is a primary evidence being the document concerned which was produced before the court which was duly proved by the witness concerned and the same was marked exhibit without objection. When primary evidence itself is before the court, an oral testimony of a witness referring the said document to be a different document certainly cannot override the contents of the document which has been duly proved, hence, in the considered opinion of this Court the courts below have not committed any error by considering and treating the Ext. 2 to be an unregistered sale-deed despite the testimony of P.W.8 in para-6 where he has stated that the Ext. 2 to be a Hukumnama. 23. After going through the materials in the record which has already been discussed at length in the foregoing paragraphs of this judgment also, this Court finds that the learned First Appellate Court has made substantive compliance of the provisions of Order XLI Rule 31 of the Code of Civil Procedure. The learned First Appellate Court has considered the entire evidence in the record and discussed the same in detail and after that has come to conclusion and its findings are supported by reasons. So, even though the points for determination has not been framed by the learned First Appellate Court, the impugned judgment is not vitiated. Hence, this Court do not find any merit in the submissions of Mr. Waris for formulating any additional substantial question of law to the effect that the learned First Appellate Court has failed to comply the provisions of Order XLI Rule 31 of the Code of Civil Procedure. 24. In view of the discussions made above, this Court answers the sole substantial question of law being ”Whether the appellate court below misinterpreted the Exhibit 2, which is the Hukumnama, whereas the appellate court held it as the Sale deed?” in negative as in the considered opinion of this Court, there is no misinterpretation of the Ext. 2 made by the Courts below. 25. Accordingly, this appeal, being without any merit, is dismissed ex- parte but under the circumstances without any costs. 26. Let a copy of this judgment along with the lower court records be 10 S.A.No.546 of 2015 sent to the courts concerned forthwith. High Court of Jharkhand, Ranchi Dated the 2nd of March, 2023 AFR/ Animesh (Anil Kumar Choudhary, J.) 11