Tamar, District v. Mostt. Ghasni Devi

… … Defendants/Respondents/Respondents

18. Basanti Devi, W/o Dileshwar Mahto & Daughter of Late Dhananjay Mahto, resident of Kheduwadih, P.O. Baridih, P.S. Tamar, District Ranchi (appeal abated vide order dated 18.01.2023)

19. Ganga Devi, wife of Bhajohari Mahto and Daughter of Late Dhananjay Mahto, resident of Landerpih, P.O. & P.S. Sonahatu, District Ranchi 20. Rekha Devi, wife of Rajkumar Mahto and daughter of Late Dhananjay Mahto, resident of Dimbudih, P.O. & P.S. Tamar, District Ranchi … … Plaitniffs/Appellants/Proforma Respondents CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY --- For the Appellants For the Respondents --- : Mr. Sudhir Kr. Sharma, Advocate Mr. Harshit Pradhan, Advocate Mr. Sashi Shekhar Dwivedi, Advocate : Mr. A.K. Sahani, Advocate --- 29/23rd June 2025 1. 2. Heard the learned counsels appearing on behalf of the parties. This appeal has been filed against the judgment dated 6th October 2015 (decree signed on 14th October 2015) passed by the learned Additional Judicial Commissioner-VII, Ranchi in Title Appeal No. 125/2009/Trial No. 01/2014 whereby the learned 1st appellate court has dismissed the appeal and affirmed the judgment dated 11th August 2009 (decree signed on 19th August 2009) passed by the learned Munsif, Khunti in Title Suit No. 12/2004. 2

3. This appeal was admitted vide order dated 18.04.2024 on the following substantial questions of law: - 2025: JHHC: 16537 i. Whether the First Court of Fact failed to consider and record its independent finding with respect to oral and documentary evidences adduced on behalf of the plaintiffs namely, Ext.3 and other evidences of possession of the plaintiffs over the suit land? ii. Whether the First Appellate Court failed to return a finding with respect to Item Nos. 2, 3, 4, 6, 9, 10 of Schedule-A which was not claimed by the defendants? Arguments of the appellants 4. Learned counsel for the appellants has submitted that it is not in dispute that the property involved in this case is Mundari Khutkatidar land which did not vest in the State upon abolition of Zamindari. He also submits that the landlord is Munda and not the Jharkhand State and therefore Hukumnamas as well as rent receipts are issued by the landlord who are Mundas. 5. It is submitted that Schedule-A of the property, which is also the suit property, consists of altogether 14 items. Item No. 1 is covered by Sada Hukumnama dated 28.05.1969 (Ext-6/c); item no. 2 to 10 is covered by Sada Hukumnama dated 12.02.1960 (Exhibit-6/A). Item No. 11 and 12 is covered by Sada Hukumnama dated 19.11.1961 (Exhibit 6/D). Item No. 13 is covered by Sada Hukumnama dated 15.04.1960 (Exhjbit-6/B). Item No. 14 is covered by Sada Hukumnama dated 09.05.1973(Ext. 6/E). 6. The learned counsel further submits that the property with respect to item no. 1 to 10 of schedule A was in possession of the plaintiffs since 1939 which they developed till the year 1945 and made it cultivable and ultimately the landlord settled the properties in the aforesaid Khata through Sada Hukumnama. With respect to the property from item nos. 11 to 14, it has been submitted that the plaintiffs were in the possession since 1940 and they developed till 1946 and made the land cultivable and ultimately the said property remained in possession which were also settled in their name by aforesaid Hukumnamas. 3 2025: JHHC: 16537

7. The learned counsel for the appellants, while referring to the 1st substantial question of law, has submitted that the judgment of the learned trial court itself would reveal that there were numerous oral and documentary evidences led by both the parties with respect to their claim and both the parties were claiming property through Hukumnamas although the entire property mentioned in Schedule-A was not overlapping with respect to the claim of the respective parties. The learned counsel has also submitted that the parties had also placed rent receipts with respect to their respective claims. He submits that as many as 9 issues were framed by the learned trial court as follows: - i. Whether the suit is maintainable in its present form? ii. Whether the suit is barred by Limitation and adverse possession? iii. Whether the suit is undervalued? iv. Whether the suit is barred by principle of estoppel, waiver and acquiescence and 34 of the Specific Relief Act? v. Whether the suit is not maintainable under Order VII Rule 3 C.P.C.? vi. Whether the plaintiffs has right, title and interest and possession over the suit land mentioned in Schedule A of the plaint? vii. Whether the plaintiffs are in possession or they are entitle to get possession over the suit land? viii. Whether the plaintiffs are entitled to get relief as sought? ix. Whether the plaintiffs are entitled to get any other relief?

8. The learned trial court after consideration of materials on record has decided the issues against the plaintiffs. 9. The learned counsel has referred to the trial court’s judgment to submit that with respect to the identity of the suit property, oral and documentary evidences were subject to consideration and so far as the plaint is concerned, there were altogether 14 items in Schedule-A property 4 2025: JHHC: 16537 and the suit property was identifiable on the basis of the description in the plaint read with the description of the property in the Hukumnamas and supported by the oral evidences, but the evidences were not properly appreciated by the learned trial court while holding that the suit itself was not maintainable under Order VII Rule 3 of CPC while rejecting the claim of the plaintiffs. He has also submitted that with respect to possession also, the findings were against the plaintiffs, but that was also without considering the oral and documentary evidences on record. 10. The learned counsel has submitted that since the evidences were not properly considered, an appeal was filed before the learned 1st appellate court. Though no separate points for determination were framed, but the learned 1st appellate court primarily addressed the issue Nos. V, VI, and VII as framed by the learned trial court. 11. The learned counsel has submitted that the discussions made by the learned 1st appellate court reveal that although the learned 1st appellate court has referred to some of the findings and discussions as recorded by the learned trial court, but so far as the oral and documentary evidences on record are concerned, there is no independent application of mind. He has also submitted that there is no discussion of the evidences led by the defendants also. 12. The learned counsel has also submitted that the learned 1st appellate court has recorded that both the parties were claiming through Hukumnamas and the Hukumnamas of the respondents began sometimes in the year 1932 but the records would reveal that the properties claimed by the defendants were not fully identical even as per the claim of the defendants through their Hukumnamas. The learned counsel has submitted that on the face of the plaint and the description of the property in the plaint, it could not have been said to be hit by Order VII Rule 3 of CPC. 13. The learned counsel has also submitted that the point regarding possession has been primarily considered with respect to the proceeding under Section 145 of Cr.P.C. (exhibit-3) without considering its true 5 2025: JHHC: 16537 extent and import which as per the appellants did not cover the entire schedule A property and was relatable only to schedule B property and there is no further discussion of oral and documentary evidences in connection with possession of schedule A and schedule B property by the learned 1st appellate court . 14. The learned counsel has submitted that in a case where the matter has to be decided on the basis of both oral and documentary evidences, the learned 1st appellate court was under a duty to consider the oral and documentary evidences independent of the finding which was recorded by the learned trial court. It could be possible that the learned 1st appellate court could also arrive at the same findings, but independent application of mind should reflect from the judgment also. He submits that the perusal of the judgment passed by the learned 1st appellate court reveals that the exercise of power by the learned 1st appellate court has not been done in accordance with the mandate of law. 15. With respect to 2nd substantial question of law, the learned counsel for the appellants has submitted that the learned 1st appellate court has not returned any finding/observation with respect to item Nos. 2, 3, 4, 6, 9 and 10 of Schedule-A property which was not even claimed by the defendants and the learned trial court had also observed in its judgment that the defendants were not claiming the aforesaid property. For this, the learned counsel has referred to the trial court’s judgment at internal page 10 paragraph 23. The learned counsel has again submitted that with regard to possession, Exhibit-3 has also not been properly considered by the learned 1st appellate court. The learned counsel has also submitted that the learned 1st appellate court has recorded that there was no description with respect to item No. 14 of Schedule-A to the plaint. He has submitted that item No. 14 was referable to Exhibit-6/e which is dated 09.05.1973 and there is a clear mention of claim of the plaintiff on the basis of Hukumnama dated

09.05.1973 (Exhibit-6/e). He submits that merely because “item No. 14” as such has not been mentioned in the plaint, the same does not mean that 6 2025: JHHC: 16537 the plaint did not cover the property which was covered by item No. 14 Schedule-A of the plaint. 16. The learned counsel submits that considering the nature of substantial questions of law, it can certainly be argued that the learned 1st appellate court has not followed the mandate of Order XLI Rule 31 of CPC while deciding the first appeal. 17. Learned counsel for the appellants has also referred to the judgment passed by this Court reported in (2022)3 SCC 90 (Manjula & Others vs. Shyamsundar & Others) paragraph 8. Arguments of the respondents 18. Learned counsel appearing on behalf of the respondents has opposed the prayer and has submitted that the learned trial court has elaborately discussed all the evidences on record and has given findings. He submits that the learned 1st appellate court while dismissing the appeal has referred to the findings recorded by the learned trial court and has also discussed some of the evidences on record. He submits that since the impugned judgment is a judgment of affirmance, therefore, there was no further need by the learned 1st appellate court to discuss all the evidences on record. He has in particular referred to paragraph 23 of the trial’s court judgment. He has further submitted that the issue Nos. V, VI and VII have been duly considered by the learned 1st appellate court and have been decided against the appellants. 19. The learned counsel has also submitted that the plaintiffs have to stand on his own legs and weakness of the case of the defendants will not be a ground for decreeing the suit. The learned counsel has submitted that the learned trial court ultimately came to a finding that the plaintiffs have failed to establish their case and therefore the findings having been affirmed by the learned 1st appellate court. The learned counsel submits that the substantial questions of law are fit to be answered against the appellants and in favour of the respondents. Findings of this Court 7 2025: JHHC: 16537

20. After hearing the learned counsels for the parties, it is not in dispute that both the parties were claiming their respective properties through Hukumnamas. The plaintiffs were claiming the Schedule-A property by virtue of 5 Hukumnamas exhibited as Exhibit-6/a to 6/e as mentioned above and the defendants were also claiming certain portion of the property by virtue of independent Hukumnamas as contained in Exhibit- H-2 to H-10. Both the parties filed number of rent receipts and adduced oral evidences with respect to identity and possession of the suit property. 21. This Court finds that the learned trial court has considered all the evidences on record and returned findings against the plaintiffs but when it comes to the learned 1st appellate court, this Court does not find discussions of the contents of the oral and documentary evidences as adduced by the parties and there is no discussions of evidence of the witnesses of the defendants. The learned 1st appellate court while holding that the suit was barred by Order VII Rule 3 of CPC has not considered the materials on record as to whether the suit property was identifiable in law as per the evidences placed on record and failed to consider that from bare perusal of Schedule-A to the plaint, it appears that more or less boundary has been given with respect to the properties with respect to 14 items. Moreover, this Court also finds that so far as possession is concerned, the learned 1st appellate court has only considered the dropping of proceeding under Section 145 of Cr.P.C. but has not considered the other evidences placed on record and also not considered the specific case of the plaintiffs that the proceedings under section 145 Cr.P.C. as contained in exhibit-3 was relating to schedule B property. 22. This Court finds that the present case is an intricate case which required appreciation of both oral and documentary evidences on record, but the learned 1st appellate court has not discussed the materials on record independently and has primarily based its findings by referring to the trial court’s judgment and no specific finding has been recorded with respect to item Nos. 2, 3, 4, 6, 9 and 10 of Schedule-A to the plaint. With respect of item no. 14 of Schedule A of the plaint, the matter has not been 8 2025: JHHC: 16537 properly examined by the learned 1st appellate court when seen in the light of the submissions made by the learned counsel for the appellants as mentioned above. The finding with respect to possession is absolutely cryptic and without considering the materials on record and without considering the true import and extent of exhibit-3 -the order passed under Section 145 Cr.P.C. 23. In the judgement passed by the Hon’ble Supreme Court in the case of Manjula & Others (supra), it has been held that the appellate court’s jurisdiction involves rehearing of appeal on questions of law as well as on facts and the 1st appeal is a valuable right and at that stage all questions of facts and law decided by the trial court are open for reconsideration. It has been held that the 1st appellate court is required to comply with the requirements of Order 41 Rule 31 of CPC and non-observance of these requirements leads to infirmities in the judgement. Paragraph 8 of the aforesaid judgement is quoted as under:- “8. Section 96 of the Code of Civil Procedure, 1908 (for short, “CPC”) provides for filing of an appeal from the decree passed by a court of original jurisdiction. Order 41 Rule 31 of the CPC provides the guidelines to the appellate court for deciding the appeal. This rule mandates that the judgment of the appellate court shall state: (a) points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. Thus, the appellate court has the jurisdiction to reverse or affirm the findings of the trial court. It is settled law that an appeal is a continuation of the original proceedings. The appellate court’s jurisdiction involves a rehearing of appeal on questions of law as well as fact. The first appeal is a valuable right, and, at that stage, all questions of fact and law decided by the trial court are open for re-consideration. The judgment of the appellate court must, therefore, reflect conscious application of mind and must record the court’s findings, supported by reasons for its decision in respect of all the issues, along with the contentions put forth and 9 2025: JHHC: 16537 pressed by the parties. Needless to say, the first appellate court is required to comply with the requirements of Order 41 Rule 31 CPC and non-observance of these requirements lead to infirmity in the judgment.

24. In view of the aforesaid discussions read with the aforesaid judgement passed in the case of Manjula & Others (supra), this court is of the considered view that the learned 1st appellate court has not followed the mandate of law while deciding the 1st appeal. The learned 1st appellate court has omitted to consider many materials on record and has not applied its judicial mind to the materials on record and case of the respect parties. The 1st Appellate Court has also failed to return a finding with respect to Item Nos. 2, 3, 4, 6, 9, 10 of Schedule-A with respect to which the trial court recorded that the defendants had no claim. This Court also finds that with respect to Item Nos. 14 of Schedule-A property, the learned court has not considered the materials on record properly while holding that the plaint did not cover the property which was covered by item No. 14. This Court also finds that while recording that the plaint was hit by Order VII Rule 3 of CPC, the learned 1st appellate court failed to consider that the description of property in schedule A with boundaries were given and the evidences on record were required to be properly scrutinized to deal with the identity and also possession of both the schedule A and Schedule B property. 25. In view of the aforesaid findings, the substantial questions of law are answered in favour of the appellants as follows: - i. The First Court of Fact has failed to consider and record its independent finding with respect to oral and documentary evidences adduced on behalf of the plaintiffs namely, Ext.3 and other evidences of possession of the plaintiffs over the suit land. ii. The First Appellate Court has failed to return a finding with respect to Item Nos. 2, 3, 4, 6, 9, 10 of Schedule-A which was not claimed by the defendants even as per the judgement of the learned trial court. 10 2025: JHHC: 16537

26. Consequently, the judgment passed by the learned 1st appellate court is hereby set-aside. 27. The matter is required to be remitted back to the learned 1st appellate court for passing a fresh judgment in accordance with law considering the materials already available on record after following the mandate of Order XLI Rule 31 of CPC in the light of the aforesaid judgement passed by the Hon’ble Supreme Court. 28. The parties to appear before the learned 1st appellate court or to successor court on 8th September 2025 at 11:00 a.m. Since the suit is of the year 2004, the learned 1st appellate court shall decide the appeal as expeditiously as possible and on the basis of materials already available on record and the parties are directed to cooperate with the proceedings for early disposal of the case. 29. This second appeal is hereby disposed of in the aforesaid terms. 30. Pending I.A., if any, is closed. 31. Let a copy of this order be communicated to the concerned courts through ‘e-mail/FAX’. Mukul (Anubha Rawat Choudhary, J.) 11