) ------ Shakur Mian S/o Late Mohammad Mian, residents of Village- Saraidih, P.O. & v. 1. Bajrangi Dusadh S/o Late Mohan Dusadh @ Malu Dusadh, Permanent residents of village
Case Details
S.A.No.511 of 2015 IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No.511 of 2015 ------ (Against the judgment dated 10.07.2015 passed by learned District Judge-I, Latehar in Title Appeal No.06 of 2013) ------ Shakur Mian S/o Late Mohammad Mian, residents of Village- Saraidih, P.O. & P.S.- Barwadih, District- Latehar. .... .... …. Appellant /Appellant/Plaintiff Versus 1. Bajrangi Dusadh S/o Late Mohan Dusadh @ Malu Dusadh, Permanent residents of village- Saidup, P.O. & P.S.- Barwadih, District- Latehar, Provisionally residents of Village- Saraidih, P.O. & P.S.- Barwadih, District- Latehar. 2. Jhubli Devi D/o Bhukhu Dusadh W/o Laxman Manjhi, residents of Village & P.O.- Lalgarh Bihar, P.S.- Bishrampur, District- Palamau. .... .... …. Respondents/Respondents/Defendants For the Appellant For the Respondents ------ : Mr. Manjul Prasad, Sr. Advocate Mr. Baban Prasad, Advocate Mr. Akhouri Prakhar Sinha, Advocate Mr. Praveen Kr. Varma, Advocate Mr. Arbind Kr. Sinha, Advocate : None ------ P R E S E N T
Legal Reasoning
HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ------ By the Court:- Heard the learned senior counsel for the appellant. 2. Though notice has been validly served upon the respondents yet no one turns up on behalf of the respondents in spite of repeated calls. Hence, this appeal is heard and disposed of ex-parte against the respondents. 3. This Second Appeal, under Section 100 of the Code of Civil Procedure, has been preferred against the judgment of concurrence dated 1 S.A.No.511 of 2015 10.07.2015 passed by learned District Judge-I, Latehar in Title Appeal No.06 of 2013 whereby and where under the learned First Appellate Court has dismissed the appeal after finding no justification to interfere with the judgment and decree of dismissal of Title Suit No.24 of 2007 filed with a prayer for:- (a) declaration that the plaintiff has right, title and interest over the Schedule B property as the same has not been allotted by the judgment dated 03.05.2007 passed in Revenue Appeal No.16 of 2004. (b) possession of the plaintiff be continued over schedule ‘B’ property and if the plaintiff is found to be out of possession, he be put in possession of the same through the process of the court. (c) cost of the suit. (d) any other relief or relief. 4. The case of the plaintiff in brief is that the suit land was a household property and in the cadastral survey which was concluded in the year 1918-19, the same stood recorded in the name of Mohan Dusadh and Bhukhi Dusadh both sons of Dukhit Dusadh. Mohan Dusadh died leaving behind his widow Duli Devi and a son Bajrangi. Bhukhi Dusadh died leaving behind his widow Dhankuwari Devi and his son Rusan Dusadh and two daughters namely Jhubli Devi and Kulwanti Devi as his heirs. After the death of Mohan Dusadh, his son Bajrangi Dusadh and widow of Mohan Dusadh left the village Saraidih after handing over the possession of his share in suit property to Dhankuwari Devi and her daughters. Dhankuwari Devi through registered deed of sale transferred entire interest in the suit property to Jhubli Devi making her the owner of the entire property and put Jhubli Devi in possession of the suit property; because by that time her son died issueless and daughter Kulwanti Devi was married in a well to do family. Therefore, Jhubli Devi came in possession of the entire suit property and accordingly she was mutated alone for the suit property. Thereafter Jhubli Devi sold the entire property vide registered sale-deed No.7270 dated 20.06.1975 to the plaintiff. The plaintiff demolished the old Kutcha house and constructed new house under the Government scheme of Indira Aawas and was residing with the members of his family. The plaintiff filed petition for mutation of his 2 S.A.No.511 of 2015 name which was registered as Mutation Case No.64 of 1981-82. The defendant No.1 at the instigation of enemies of the plaintiff filed Misc. Case No.07 of 1994-95 before the Circle Officer for cancellation of demand of the plaintiff. The plaintiff appeared and the Misc. Case was rejected directing the defendant No.1 to seek redressal in the Civil Court having competent jurisdiction. The plaintiff filed Revenue Suit No.469 of 1989 under Section 87 of the Chota Nagpur Tenancy Act before the Revenue Officer and the same was allowed vide order dated 10.01.2004 allowing the name of the plaintiff to be recorded for half portion of the suit property in place of Dhankuwari Devi. Thereafter, with the consent of Bajrangi Dusadh, the plaintiff handed over possession of half portion of suit property to Bajrangi Dusadh and remained in possession of remaining half portion. The defendant No.1, with malafide intention, without the knowledge of the plaintiff, filed Revenue Appeal No.16 of 2004 in the court of District Judge, Latehar against the judgment of Revenue Suit No.469 of 1989. The plaintiff although appeared before the court but the learned District Judge without considering the law and facts of the case allowed the appeal and as per judgment dated 03.05.2007 set aside the judgment and decree of Revenue Court. The learned District Judge did not consider this fact that when Dhankuwari Devi and Jhubli Devi had not challenged the deed of plaintiff, the defendant No.1 who has only got half portion of the suit property, had no authority to challenge the sale deed of plaintiff. The plaintiff claimed that the plaintiff coming in continuous possession of the suit property is within the knowledge of the defendant No.1 and he has perfected his title by adverse possession also. Hence, the plaintiff filed the suit for the said reliefs. 5. In his written statement, the defendant No.1 challenged the maintainability of the suit and further pleaded that Dhankuwari was neither the sole owner of the property nor was she the Karta of the joint family. Hence, she has no right to sell the entire property to her daughter through registered sale-deed without consent of co-sharer and she is also not entitled to sell the same without previous sanction of the Deputy Commissioner because she was Dusadh by caste and belonged to Schedule Caste community and her right over the land is protected under 3 S.A.No.511 of 2015 Section 46 of the Chota Nagpur Tenancy Act and as her vendee Jhubli Devi got nothing by the registered sale-deed, so she has no right, title or possession to transfer the same to the plaintiff. The defendant No.1 and his aunt Dhankuwari Devi remained in joint right, title and possession of the suit property. 6. On the basis of rival pleadings of the parties, learned trial court framed the following seven issues:- (i) Whether the suit is maintainable as framed? (ii) Whether plaintiff has valid cause of action? (iii) Whether the suit is bad by non-joinder and mis-joinder of parties? (iv) Whether suit is barred by law of Specific Relief Act, C.N.T. Act waiver, estoppel, acquiescence, limitation? (v) Whether the plaintiff has right, title over the suit property? (vi) Whether possession of plaintiff be confirmed over suit property. If he is not found in possession whether the plaintiff be put in possession over the suit property by process of law? (vii) Whether plaintiff is entitled for relief or other reliefs as claimed for? 7. In support of their case, the plaintiff examined six witnesses besides proving the documents which have been marked Ext. 1 to Ext. 5. From the side of the defendants, three witnesses were examined. 8. The learned trial court first took up issue Nos. (i), (ii), (v) and (vi) together and came to the conclusion that the suit land was an agricultural land and considered the fact that from Ext. C, the suit land can be divided into two portions. The first portion of land belongs to CS Khata No.121 plot No.758 area 0.2 decimal recorded as ‘Makan Mai Sahan’ i.e. dwelling house over the suit land, so, the portion of the suit land is for residential purposes which has acquired the nature of Chapparbandi land. The second portion of the land belonged to CS Khata No.121 plot No.759 area 11 decimal recorded as ‘Ghar-bari’ and the character of tenancy is shown as Raiyati holding which means that this portion of land is used for residence connected with the cultivation or for the agricultural operations, hence, went on to hold that both sale-deeds marked Ext.1 and Ext. 3 are in violation of Section 46 of the Chota Nagpur Tenancy Act, and these are void ab initio. The learned trial court further considered that the D.W.1, D.W.2, and D.W.3 have stated that the suit land is 13 decimals whereas the suit land was only of 6 decimals. The learned trial court observed that since the suit was the joint family property, in the absence of any 4 S.A.No.511 of 2015 partition, the question of adverse possession is not tenable and went on to hold that the plaintiff has no cause of action and the suit is not maintainable. 9. It is pertinent to mention that though in the judgment it has been mentioned as issue No.(ii) but in fact it is issue No.(iii), hence, it shall be read accordingly. The learned trial court next took up issue No.(iii) and held that the suit is not bad for non-joinder of the necessary parties and decided the same in favour of the plaintiff. 10. The learned trial court disposed of the issue No. (iv) as being not pressed. 11. Lastly, the learned trial court took up issue No. (vii) and held that the plaintiff is not entitled to any relief or reliefs and dismissed the suit. 12. Being aggrieved by the judgment and decree passed by the learned trial court, the plaintiff/appellant filed Title Appeal No.06 of 2013 in the court of learned Principal District Judge, Latehar and the same was heard and disposed of by the impugned judgment and decree passed by the learned First Appellate Court. 13. The learned First Appellate Court made independent appreciation of the evidence in the record and observed that the transfer of the land to the plaintiff is hit by the provisions of Chota Nagpur Tenany Act under Section 46 of the Act and the sale-deed is void ab initio. 14. At the time of admission of this appeal vide order dated 25.11.2021, the following substantial questions of law were formulated by the predecessor Judge in the roster:- (A) Whether both the courts below have seriously erred in applying bar of Sec. 46 of C.N.T. Act to a land recorded in Ext.- C, the C.S. Khatiyan as “Makan Bari” merely on the basis of Ext.- A and B the judgment passed in Revenue Appeal No.16 of 2004 and Decree thereupon respectively? (B) Whether the learned court of appeal below being final court of fact has properly exercised its jurisdiction vested under Section 96 and Order-XLI Rule 31 of Code of Civil Procedure? (C) Whether the First Appellate Court being the final court of facts was duty bound to independently evaluate the evidence and come to independent conclusion while deciding the facts? (D) Whether the First Appellate Court was duty bound to deal with all the issues and record finding of each of the issues and by not doing so the judgment of the first appellate Court whether can be sustained? 15. Mr. Manjul Prasad- learned senior counsel for the appellant submits 5 S.A.No.511 of 2015 that though four substantial questions of law have been formulated but the substantial questions of law at serial number (A) is the only relevant substantial question of law and the substantial questions of law at serial numbers (B), (C) and (D) are intertwined and casted in the different language but meaning thereby that the learned First Appellate Court could not properly appreciate the evidence in the record. Hence, it is submitted that substantial questions of law formulated at serial numbers (B), (C) and (D) relate to the sole question that the learned First Appellate Court has failed to exercise its jurisdiction vested upon it under Order XLI Rule 31 of the Code of Civil Procedure by reversing the perversity committed by the learned trial court in ignoring the fact; which was apparent on the face of the record that the land in question was a Gharbari and overlooking such documentary evidence in arriving at the conclusion that the land is a Raiyati land. Mr. Prasad next submits that in Ext. C- which is the cadastral settlement Khatiyan; the type of land has categorically been mentioned as Gharbari (Homestead) and Ext. 3 which is the sale-deed executed by Dhankuwari Devi to Jhubli Devi as also the Ext.1 which is the sale-deed executed by Jhubli Devi in favour of the plaintiff, in the description of the land, the type of the land has been mentioned to be a house, both the courts below have committed a perversity by holding that the suit land is a Raiyati land and hence, Section 46 of the Chota Nagpur Tenancy Act is attracted to the facts of the case. Mr. Prasad next submits that the learned First Appellate Court has also failed to exercise the jurisdiction vested upon it under Section 96 as well as Order XLI Rule 31 of the Code of Civil Procedure and could not properly appreciate the evidence in the record in their right perspective and ought to have set aside the perverse finding of the learned trial court of observing that the suit land is a Raiyati land. Hence, it is submitted that the impugned judgment and decree passed by both the courts below be set aside and the suit of the plaintiff be decreed. 16. Having heard the submissions of the learned senior counsel for the appellant, it is pertinent to mention here that perusal of the record reveals that in Ext. C in no uncertain terms it has been mentioned that the type of the ancestral land of the parties of which the suit land being Schedule B 6 S.A.No.511 of 2015 land of the plaint is only of 6 decimals and is a Gharbari land. The total land was of 13 decimals and there is no dispute that Dhankuwari was having half of the share of the said property. Even if it is assumed that Dhankuwari is not having the power to execute sale-deed in respect of the entire 13 decimals of land in favour of Jhubli Devi by the said sale-deed marked as Ext. 3 shall remain valid at least for the share of Dhankuwari Devi i.e. 6 decimals of the land out of the 13 decimals of the land for which the sale-deed was executed as undisputedly, Dhankuwari was having right, title and interest in respect of 6 decimals of land. Similarly, Jhubli Devi having acquired right, title, interest and possession of 6 decimals of land which belonged to Dhankuwari Devi as a co-parcener of the joint family property, she has validly transferred the same to the plaintiff by way of sale-deed marked as Ext. 1. Thus, the plaintiff has right, title and interest over the suit land by virtue of the Ext. 3 executed by Dhankuwari Devi in favour of Jhubli Devi and Ext. 1 by Jhubli Devi in favour of the plaintiff. 17. So far as the finding of both the courts below regarding type of the land is concerned; as it has categorically been mentioned in all the three documents i.e. firstly Ex. C which is the Khatiyan wherein it has been mentioned that the type of land in question is a Gharbari land; secondly in Ext. 3 i.e. the sale-deed executed by Dhankuwari Devi in favour of Jhubli Devi wherein the type of land has been mentioned as house property and thirdly the same is the description of the land which has been mentioned in the sale-deed marked as Ext. 1 which has been executed by Jhubli Devi in favour of the plaintiff. Thus can safely be deduced from the aforesaid facts that the land in question was a homestead land and not a Raiyati land. Hence, this Court has no hesitation in holding that both the courts below have committed a perversity by coming to a contrary finding that the land in question is a Raiyati land and Section 46 of the Chota Nagpur Tenancy Act, 1908 is attracted. As this Court has already held that the suit land is a homestead land, hence, this Court has no hesitation in holding that Section 46 of the Chota Nagpur Tenancy Act will not be attracted to the two sale-deeds executed being Ext. 3 i.e. the sale-deed executed by Dhankuwari Devi in favour of Jhubli Devi and Ext. 1 i.e. the sale-deed 7 S.A.No.511 of 2015 which has been executed by Jhubli Devi in favour of the plaintiff. Thus, the substantial question of law formulated at serial number (A) is answered in the affirmative and as a consequence, the suit of the plaintiff is to be decreed. 18. So far as the substantial questions of law formulated at serial numbers (B), (C) and (D) are concerned, as rightly submitted by the learned senior counsel for the appellant that they are intertwined. Hence, the same relate to the sole question that the learned First Appellate Court has failed to exercise its jurisdiction vested upon it under Order XLI Rule 31 of the Code of Civil Procedure by reversing the perversity committed by the learned trial court in ignoring the fact; which was apparent on the face of the record as in all the three relevant documents being Ext. C, Ext. 1 and Ext. 3, it goes to show that the suit land was not a Raiyati land. Hence, the substantial questions of law formulated at serial numbers (B), (C) and (D) are also answered in the affirmative. 19.
Decision
In the result, the impugned judgment and decree passed by both the courts below are set aside the suit of the plaintiff is decreed and it is declared that the plaintiff has right, title and interest over the suit land described in Schedule B of the plaint and the possession of the plaintiff over the suit land is confirmed. 20. Accordingly, this appeal stands allowed ex parte but under the circumstances without any costs. 21. Let a copy of this judgment along with the lower court records be sent to the courts concerned forthwith. High Court of Jharkhand, Ranchi Dated the 06th of July, 2023 AFR/ Animesh (Anil Kumar Choudhary, J.) 8