Raj Kumar Choubey, son of Shri Parmeshwar Choubey, resident v. of village Kurmidih, P.O. Kurmidih, P.S
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No.08 of 2015 ------ (Against the judgment dated 27.11.2014 passed by learned Principal District Judge, Bokaro in Title Appeal No.14 of 2011) 1. Abated. ------ 2. (a) Sushil Kumar, S/o Late Ramchandra Sharma, R/o – Upar Tola Mohanpur, P.O.- Jainamore, Tanr, Mohanpur, P.S.- Jaridih, District- Bokaro, PIN- 829301, Jharkhand. .... .... …. Defendants/Appellants/Appellants. 1. Raj Kumar Choubey, son of Shri Parmeshwar Choubey, resident Versus of village Kurmidih, P.O. Kurmidih, P.S.: Balidih, District: Bokaro .... .... …. Plaintiff/Respondent/Respondent 2. Sahdeo Tiwary, son of late Bhakhru Tiwary @ Bhakhru Tiwary, resident of village Tanr Mohanpur, P.O Jainamore, P.S. Jaridih, District: Bokaro .... .... …. Defendant/Respondent/Respondent ------ For the Appellants For the Respondents
Legal Reasoning
: Mrs. Debolina Sen Hirani, Advocate Mr. Tapish Kabiraj, Advocate Ms. Kashyapi, Advocate : Mr. Atanu Banerjee, Advocate Mr. Satish Kumar, Advocate Mr. Aditya Banerjee, Advocate ------ P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ------ By the Court:- Heard the parties. 2. This Second Appeal filed under section 100 of the Code of Civil Procedure, 1908 has been preferred against the judgment of affirmance dated 27.11.2014 passed by learned Principal District Judge, Bokaro in Title Appeal 1 S.A. No.08 of 2015 No.14 of 2011 whereby and where under the learned first appellate court has dismissed the appeal finding no illegality in the judgment and decree passed by the Munsif, Bermo at Tenughat in Title Suit No.36 of 2004 dated 29.06.2011. 3. The brief facts of the case is that the plaintiff filed Title Suit No.36 of 2004 with a prayer for declaration of title and possession of the plaintiff over the suit land also for permanent injunction restraining the defendants or their agents not to make any construction over the suit land along with the cost of the suit. The case of the plaintiff in brief is that the suit land originally belonged to Ganesh Tiwary, Mahadeo Tiwary, Jyoti Tiwary and Prayag Tiwary and others as their joint property. They sold 75 decimals of land out of 1.14 acres arising out of plot No.203, Khata No.10 of village Tand Mohanpur to one Raman Chandra Jha and put Raman Chandra Jha in possession of the same. Raman Chandra Jha vide sale-deed dated 01.08.1992 sold 10 decimals of land out of the purchased land and put him in possession. Certainly, in the month of October, 2003, the defendant Nos.1 and 2 tried to disturb the possession of the plaintiff on the ground that the defendant Nos.1 and 2 purchased 25 decimals of the land from defendant No.3 who is the son of Prayag Tiwary. Hence, the plaintiff filed the suit. 4. The defendants challenged the maintainability of the suit on various technical grounds. The defendant Nos.1 and 2 filed one set of written- statement while a separate written-statement was filed by the defendant No.3. The defendant Nos.1 and 2 pleaded that the defendants have no knowledge about the execution of the sale-deed by Ganesh Tiwary and others in favour of Raman Chandra Jha. These defendants have also no knowledge about the execution of the sale-deed in respect of the Schedule A land of the suit which 2 S.A. No.08 of 2015 consists of 10 decimals by Raman Chandra Jha in favour of the plaintiff. The defendant Nos.1 and 2 claimed that the suit land is part and parcel of the purchased land of the defendant No.1- Sumitra Devi as per the boundary given. The defendant No.3 adopted the written-statement filed by the defendant Nos.1 and 2. 5. On the basis of the rival pleadings of the parties, the learned trial court framed the following eight issues:- Whether the suit is maintainable in its present form? (I) (II) Whether the plaintiff has valid cause of action for the present suit? (III) Whether the suit is barred by law of limitation and adverse possession? (IV) Whether the suit is hit by the provisions of Specific Relief Act? (V) Whether the suit is bad for non-joinder of necessary party? (VI) Whether the suit is undervalued and the plaintiff has not paid proper court fee? (VII) Whether the plaintiff has valid right, title, interest and possession over the suit land? (VII) Whether the plaintiff is entitled to any relief as sought for? 6. The learned trial court first took up issue No.(VII) and after considering the evidence in the record, came to the conclusion that as the title in respect of the land has already been transferred in favour of Raman Chandra Jha by the original recorded tenants so, the defendant No.3 has no title to transfer the same in favour of the defendant No.1 and decided the issue No.(VII) in favour of the plaintiff. 7. The learned trial court also decided the issue Nos.(I), (II), (III), (IV) and (VIII) in favour of the plaintiff and disposed of the issues Nos.(III), (V) and (VI) as not pressed and decreed the suit. 8. Being aggrieved by the judgment and decree passed by the trial court being Munsif, Bermo at Tenughat in Title Suit No.36 of 2004, the defendant filed Title Appeal No.14 of 2011 in the court Principal District Judge, Bokaro 3 S.A. No.08 of 2015 which was ultimately heard and disposed of by the learned first appellate court by the impugned judgment; as already indicated above. 9. The learned first appellate court being the Principal District Judge, Bokaro formulated the following three points for determination:- “1. Whether the plaintiff/respondent has got right, title, interest and possession over the suit property? 2. Whether the plaintiff is entitled for the relief as claimed? 3. Whether the impugned judgment and decree passed by the Learned trial court needs interference?” 10. The learned first appellate court first took up the point for determination Nos.1 and 2 together and after making independent appreciation of the evidence in the record, came to the conclusion that the plaintiff/respondent has right, title, interest and possession over the suit land, hence, the plaintiff is entitled to relief and decided both the point for determination Nos.1 and 2 in favour of the plaintiff. 11. Lastly, the learned first appellate court took up the point for determination No.3 and answered the same by holding that the impugned judgment and decree passed by the learned trial court needs no interference and dismissed the appeal. 12. At the time of admission of this appeal, vide order No.4 dated 09.11.2017, the previous judge in the roster formulated the following three substantial questions of law:- (i) Whether the learned courts below failed to appreciate this fact that the suit plot no. 203 which consists of total area of 1.14 acres were jointly belonged to and possessed by Ganesh Tiwari, Mahadev Tiwari, Jyoti Tiwari and Prayag Tiwari and in that state of affairs Prayag Tiwari died leaving behind his widow Most. Genda Kunwari and a son namely Sahdeo Tiwari and as per law they jointly inherited the interest of Prayag Tiwari over the said lands of plot no. 203 and it is not the case of the plaintiffs regarding partition of the same amongst the owner thereof? 4 S.A. No.08 of 2015 (ii) Whether the learned lower courts below failed to appreciate this fact that as pleaded by the Plaintiff / respondent no. 1 that in the year 1967 out of said land i.e. area of 1.14 acres it had been jointly sold by Ganesh Tiwari, Madadeo Tiwari, Jyoti Tiwari, and Most. Genda Kunwari for an area of 0.75 acres to Raman Chandra Jha who in turn sold the entire lands in which 0.65 acres was sold to Govind Mahto and remaining 0.10 acres being alleged suit lands were sold to the plaintiff / respondent no. 1? (iii) Whether the learned courts below have failed to appreciate this aspect of the matter that it is also the case of the defendants / appellants / respondent no. 2 that since Sahdeo Tiwari after the death of his father Prayag Tiwari had interest and possession over the lands of plot no. 203 in the suit therefore he in the year 1987 sold lands area 0.25 acres to the defendant / appellant no. 2 being the eastern portion thereof and just after purchase the appellant having erected boundary wall constructed there pucca residential house and other constructions which too has been admitted by the plaintiff in his oral evidence and said that all the same has been made in other plot no. 206 and not in plot no. 203 and to decide the said controversy a survey knowing Pleader Commissioner was appointed who after investigation submitted report that all the said structures of the appellants exists over the suit plot no. 203 in which some other lands of plot no. 205 and 206 have been encroached? 13. Learned counsel for the appellants submits that as Prayag Tiwary had died at the time of execution of the sale-deed in favour of Raman Chandra Jha and though his widow Genda Kunwari, has executed the sale-deed but she has not taken any permission from any court for sell of the property on behalf of her minor son Sahdeo Tiwary in terms of Section 8 of Hindu Minority and Guardianship Act, 1956, so, both the courts below committed illegality in failing to appreciate this aspect of the case. In support of her contention, learned counsel for the appellants relies upon the judgment of the Hon’ble Supreme Court of India in the case of Saroj vs. Sunder Singh & Others reported in (2013) 15 SCC 727 wherein in paragraph-14 it has been held that when a sale-deed is executed on behalf of the minors by their natural guardian without obtaining the permission of the court in terms of Section 8 (3) of the 5 S.A. No.08 of 2015 Hindu Minority and Guardianship Act, 1956, such sale-deed becomes voidable at the instance of the minor. 14. It is next submitted by the learned counsel for the appellants that both the courts below failed to appreciate that only 0.10 acres of land has been sold by the plaintiff and 0.75 acres of land was sold by Govind Mahto. 15. It is lastly submitted by the learned counsel for the appellants that as both the courts below have committed illegality by failing to appreciate that the Survey Knowing Pleader Commissioner has reported that 25 decimals of land is in possession of the defendants. Hence, it is submitted that the judgment and decree passed by both the courts below are not sustainable in law, hence, the same be quashed and set aside and the suit of the plaintiffs be decreed. 16. Learned counsel for the respondents on the other hand draws the attention of this Court towards Section 44 of the Transfer of Property Act and submits that the said Section provides for transfer for one of the co-owners also. Learned counsel for the respondents relies upon the judgment of the Hon’ble Supreme Court of India in the case of Atla Sidda Reddy vs. Busi Subba Reddy & Another reported in (2010) 6 SCC 666 and submits that since the original recorded tenant has already sold 75 decimals of the land prior to the same having been sold by Sahdeo who is the son of one of the recorded tenant- Prayag Tiwari who was dead at the time of execution of the sale-deed in favour of Raman Chandra Jha, hence, no right, title and interest has remained with Sahdeo Tiwari to transfer the same in favour of the defendant No.1. Hence, it is submitted that this Second Appeal, being without any merit, be dismissed. 6 S.A. No.08 of 2015 17. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, so far as the first substantial question of law being ‘Whether the learned courts below failed to appreciate this fact that the suit plot no. 203 which consists of total area of 1.14 acres were jointly belonged to and possessed by Ganesh Tiwari, Mahadev Tiwari, Jyoti Tiwari and Prayag Tiwari and in that state of affairs Prayag Tiwari died leaving behind his widow Most. Genda Kunwari and a son namely Sahdeo Tiwari and as per law they jointly inherited the interest of Prayag Tiwari over the said lands of plot no. 203 and it is not the case of the plaintiffs regarding partition of the same amongst the owner thereof’ is concerned, as has been held by the Hon’ble Supreme Court of India that had the entire joint property of 1.14 acres of the land being transferred by the sale-deed concerned in favour of Raman Chandra Jha then the said sale-deed would have been voidable at the instance of the minor i.e., the son of Prayag Tiwary but admittedly less than 3/4th (three-fourth) of the property out of 1.14 acres i.e. 0.75 acres of land, has been transferred by way of this sell by Ganesh Tiwary, Mahadeo Tiwary, Jyoti Tiwary and Genda Kunwari- the widow of Prayag Tiwary. The undisputed fact remains that out of the 4 executants of the sale deed, 3 of them are competent to transfer the entire share in the property. Therefore, the sale deed under any circumstances will remain valid at least in respect of 3/4th of the property sold. Under such circumstances, this Court is of the considered view that the learned courts below have not failed to appreciate this aspect of the case in any manner. Hence, the first substantial question of law is answered in the negative. 18. So far as the second substantial question of law being ‘Whether the learned lower courts below failed to appreciate this fact that as pleaded by the Plaintiff / 7 S.A. No.08 of 2015 respondent no. 1 that in the year 1967 out of said land i.e. area of 1.14 acres it had been jointly sold by Ganesh Tiwari, Madadeo Tiwari, Jyoti Tiwari, and Most. Genda Kunwari for an area of 0.75 acres to Raman Chandra Jha who in turn sold the entire lands in which 0.65 acres was sold to Govind Mahto and remaining 0.10 acres being alleged suit lands were sold to the plaintiff / respondent no. 1’ is concerned as valid right, title and interest has been accrued to Raman Chandra Jha by virtue of the sale-deed No.4878 dated 31.05.1967 , executed by Ganesh Tiwari, Madadeo Tiwari, Jyoti Tiwari, and Genda Kunwari, hence, they were free to sell the entire land in respect of this right, title, interest and possession accrued to them to anyone of their choice and 10 decimals of the land has been sold to the plaintiff, hence, both the courts below, in the considered opinion of this Court, have not failed to appreciate this aspect in any manner. The second substantial question of law is also answered in the negative. 19. So far as third substantial question of law being ‘Whether the learned courts below have failed to appreciate this aspect of the matter that it is also the case of the defendants / appellants / respondent no. 2 that since Sahdeo Tiwari after the death of his father Prayag Tiwari had interest and possession over the lands of plot no. 203 in the suit therefore he in the year 1987 sold lands area 0.25 acres to the defendant / appellant no. 2 being the eastern portion thereof and just after purchase the appellant having erected boundary wall constructed there pucca residential house and other constructions which too has been admitted by the plaintiff in his oral evidence and said that all the same has been made in other plot no. 206 and not in plot no. 203 and to decide the said controversy a survey knowing Pleader Commissioner was appointed who after investigation submitted report that all the said structures of the appellants exists over the suit plot no. 203 in which some other lands of plot no. 205 and 206 have 8 S.A. No.08 of 2015 been encroached’ is concerned, as both the courts below have in no uncertain manner has mentioned that the report of the Survey Knowing Pleader Commissioner cannot be ascribed to the suit land as the Survey Knowing Pleader Commissioner has in no uncertain manner, deposed that he could not locate the suit land. So, in the absence of any material to suggest that the report submitted by the Survey Knowing Pleader Commissioner relates to the suit land, such report of the Survey Knowing Pleader Commissioner is inconsequential so far as arriving at the conclusion by the learned first appellate court that the plaintiff has the possession over the suit land, is concerned. 20. As already discussed above, since both the courts below have held that the right, title and interest has accrued to the plaintiff by virtue of the sale-deed executed by Raman Chandra Jha in his favour, in respect of the suit land, so, obviously in the considered opinion of this Court there is no failure on the part of the courts below to appreciate the evidence in the record in this respect. The third substantial question of law is also answered in the negative. 21. In view of the discussions made above, this Court is of the considered view that there is no merit in this Second Appeal. 22. Accordingly, this Second Appeal, being without any merit, is dismissed but under the circumstances without any costs. 23. Let a copy of this judgment along with the lower court records be sent to the courts concerned forthwith. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 29th of July, 2024 AFR/ Animesh 9 S.A. No.08 of 2015