) 1. Golak Nath Gorai aged about 83 years, son of late Rajendra Nath v. 1. The
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No. 200 of 2020 (Against the judgment dated 18.07.2020 passed by learned District Judge I, Dhanbad in Civil appeal No. 05 of 2016) 1. Golak Nath Gorai aged about 83 years, son of late Rajendra Nath Gorai. 2. Narayan-Chandra Gorai aged about 79 years (now dead), son of late Rajendra Nath Gorai. 3. Phani Bhushan Gorai, aged about 71 years. 4. Balai Chandra Gorai, aged about 62 years both sons of late Manik lal Gorai, all resident of village- Murradih, P.O. Murradih, P.S. Barwadda, District- Dhanbad. / …….Plaintiffs/Appellants/Appellants Versus 1. The State of through Deputy Commissioner, Dhanbad, having his office at Dhanbad Collectorate, P.O., P.S. and District-Dhanbad. represented Jharkhand 2. District Program Officer, Dhanbad Collectorate, P.O., P.S. and District-Dhanbad. 3. Child Development Project Officer, Govindpur, B.D.C. Office Campus, P.O. and P.S. Govindpur, District-Dhanbad. 4. Hanumani Yadav, Junior Engineer, N.R.E.P., Combined Building, P.O. and P.S. Dhanbad, District-Dhanbad. 5. Nemai Mahato son of Sri Durga Mahato, resident of village Jainagar, P.O. Murradih, P.S. Barwadda, (Via I.S.M.) District-Dhanbad. …….Defendants/Respondents/Respondents For the Appellants : Mr. Sachi Nandan Das , Adv. Mr. Om Prakash Singh , Adv. : Mr. Praveen Akhauri , SC (Mines I) Mr. Aishwary Prakash, AC to SC (Mines I) For the State P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:- Heard. 2. This Second Appeal under Section 100 of the Code of Civil Procedure, 1908 has been preferred against the judgment of concurrence dated 18.07.2020 passed by 1 SA No. 200 of 2020 learned District Judge I, Dhanabd in Civil appeal No. 05 of 2016
Legal Reasoning
whereby and where under, learned First Appellate Court has dismissed the the appeal. 3. The brief facts of the case is that the plaintiff-appellant filed Title Suit no. 12 of 2006 in the court learned Civil Judge, Jr. Div. Dhanbad with the prayer for decree for recovery of possession, in favour of the plaintiffs by removing the illegal construction made over the suit land and if the plaintiffs are found dispossessed during the pendency of the suit, then restoration of the possession of the suit land to the plaintiffs by the process of court and the cost of the suit. 4. The case of the plaintiffs in brief is that suit land
Legal Reasoning
belonged to Jharia Raj Estate. The Raja of Jharia, Sri Shiv Prasad Singh permanently settled the suit land to his brother Sri Krishna Prasad Singh as Khorposh (maintenance). Sri Krishna Prasad Singh made permanent settlement of the land in the name of his wife Krishna Priya Devi through registered permanent settlement. Krishna Priya Devi on receiving valuable consideration, has permanently settled the land to Sri Surendera Narayan Roy vide registered deed of settlement no. 3826 dated 21.08.1928 and put Surendera Narayan Roy in possession. Surendera Narayan Roy died leaving behind his two sons namely Ashok Kumar Roy and Rajat Kumar Roy and said two sons sold 4.16 Acres of land by two registered sale deed no. 1791 and 1792 on 16.02.1962 to Nikunja Lal Gorai, who came in possession of the suit property. Nikunja Lal Gorai had a family deity of Sri Sri Lakhi Mata Thakurani. Nikunja Lal Gorai made an Arpan Nama in the name of Sri Sri Lakhi Mata Thakurani and appointed Sevait Manik Lal Gorai, Golak Nath Gorai and Narayan Chandra Gorai, sons of Rajendra Nath Gorai, vide registered deed of 2 SA No. 200 of 2020 Arpan Nama no. 17887 dated 12.07.1971, with the conditions that the Sevait would stay in the village and will worship Sri Sri Lakhi Mata Thakurani. After 2-3 years of service, all the Sevaits left the village and the property came in exclusive possession of Nikunja Lal Gorai who continue to cultivate the land and perform the Puja by appointing other persons. Manik Lal Gorai, Golak Nath Gorai and Narayan Chandra Gorai helped him in conducting puja. Nikunja Lal Gorai died in the year 1989 leaving behind Rani Bala Gorai, his widow, who used to cultivate the land through others and also were rearing fish. The suit property, during the revisional survey operation was recorded in the name of the Sri Sri Lakhi Mata Thakurani, Sevait Nikunja Lal Gorai. The defendant no. 5, who is a contractor, without notice and permission of the plaintiffs, started demarcating the Schedule B land, for the purpose of construction of building, to which, the plaintiffs protested and made a complaint to the Deputy Commissioner, Dhanbad. The plaintiffs pleaded that the defendants have no right, title and interest and possession over the Schedule B land of the plaint. On 08.01.2006, the plaintiffs through Amin got the land measured and found that the contractor is adamant to construct on Schedule B property, hence, the plaintiffs filed the suit. 5. The defendant nos. 1 to 4, challenged the maintainability of the suit on various technical grounds. They denied the averments in the plaint. The defendants specifically pleaded that the claim of the plaintiffs of preparation of Record Of Rights, for Khata no. 167 over the suit property in the name of the family deity is wrong. The defendants specifically pleaded that the plaintiffs got the suit property recorded in the name of the deity in collusion with the survey department to grab the 3 SA No. 200 of 2020 government land. The plot 699 of village Jainagar was recorded in Gair Aabad Khata no. 95 and the same was vested to the State after abolition of the intermediary right under the provision of Bihar Land Reforms Act 1950, hence the suit land belongs of the State Government. 6. In his written statement, the defendant no. 5 also challenged the maintainability of the suit on various technical grounds and pleaded that an Angan Bari centre has been constructed over the suit land and the defendant has assisted other defendants of the locality in the construction of the same, after enactment of Bihar Land Reforms Act 1950. The suit land vested in state government. The plaintiffs have no right, title and interest over the schedule B land. No obstruction could be caused to the devotees of Sri Sri Lakhi Mata Thakurani. 7. Learned trial court on the basis of the pleadings of the parties, framed the following nine issues:- I. Whether the suit is maintainable? II. Whether there is a cause of action for the present suit? III. IV. Whether the suit is bad for non-joinder of necessary party? V. Whether the suit is bad for non-compliance of provision of U/s 80 Whether the suit is barred by Limitation? C.P.C? VI. Whether the husband of plaintiff no.1 acquired right, title, interest and possession over the suit land by virtue of registered sale deed nos. 1791 & 1792 dated 16-02-1962? Whether the suit land vested in the State by operation of Bihar Land Reforms Act 1950? VII. VIII. Whether the plaintiffs have unlawfully dispossessed from the suit land by the defendants? IX. Whether the plaintiffs are entitled for any relief? If so, what relief or reliefs the plaintiffs are entitled to? 8. In support of their case, the plaintiffs examined six witnesses and proved the documents, which have been marked as Ext. 1 and 6. From the side of the defendants, two witnesses were examined. 9. Learned trial court first took up issue no. VI, VII and VIII together and after considering the evidence in the record, 4 SA No. 200 of 2020 learned trial court came to the conclusion that the plaintiffs failed to establish that right, title and interest has accrued to the plaintiff no. 1 on the basis of the sale deed, executed in favour of the husband of the plaintiff no. 1. The defendants have not dispossessed the plaintiffs from the suit land illegally and the Angan Bari school has been constructed legally over the suit land and a pond was also constructed and decided the issues no. VI , VII and VIII in favour of the defendants. 10. Learned trial court next took up issue no. I, V and IX together and after considering the evidence in the record as well as the finding of other issues, learned trial court observed that since the land has been vested with the State by virtue of Bihar Land Reforms Act 1950 and the defendant have not been dispossessed illegally, hence the suit is not maintainable nor the plaintiffs have any cause of action. 11. Learned trial court further considered that the suit is bad for non-joinder of the necessary party; being the officers of the Fishery Department even though a pond has been constructed over the suit land which is auctioned by the Fishery Department periodically and decided the issued no. I to IV and IX against the plaintiffs and in favour of the defendants and dismissed the suit. 12. Being aggrieved by the judgment and decree dated 21.08.2015 passed in Title Suit no. 12 of 2006, the plaintiffs filed the Civil Appeal no. 05 of 2016 in the court of learned Principal District Judge, Dhanbad which was ultimately heard and disposed of by learned First Appellate Court by the impugned judgment as already indicated above. 13. Learned First Appellate Court after considering the materials available in the record and submissions made before it, formulated the following two points for 5 SA No. 200 of 2020 determination- Point No. I:- Are the plaintiffs/appellants entitled for declaration of their right, title, interest and possession over the suit property and if dispossessed are entitled for restoration of the possession of the suit property on the basis of registered Sale Deed no. 1791 & 1792 dated 16-02-1962? Point No. II:- Was the suit property vested in the State of Bihar now Jharkhand as per provision of Bihar Land Reforms Act 1950? 14. Learned First Appellate Court took up the points for determination no. I & II together and made independent appreciation of the evidence in the record and considered that Krishna Priya Devi in the deed no. 3826 dated 31.08.1928 has herself stated that the suit property was earlier settled as Khorposh (maintenance). Therefore, Khorposh right cannot be transferred because it is given only for the maintenance of the person, who has no right to sell for the purpose of transferring title of the land in question. After execution of Arpan Nama no. 17887, mutation was never done. The Record of Rights which has been marked Ext. 2 and which was prepared during revisional survey operation of Khata no. 167, stands recorded in the name of the Sri Sri Lakhi Mata Thakurani and Sevait Nikunj Lal Gorai. The property was shown as tank and band. 15. Learned First Appellate Court also considered that none of the documents as mentioned and filed by the plaintiffs were acted upon and as is evident from the order sheet of Land Ceiling Case no. 177/1970-71, passed by LRDC, Dhanbad, which has been marked as Ext. 3. Learned First Appellate Court also considered that the Ext. 5 is a copy of the petition given by Phani Bhusan Gorai to the Deputy Commissioner, Dhanbad regarding the construction of Angan Bari centre and by thus considering arrived at the conclusion that the plaintiffs 6 SA No. 200 of 2020 have not produced the connected documents i.e. the registered deed executed prior to 1950 and the certified copy of the Register II as well as the basis of the mutation, if any, in the name of the predecessor in interest of the plaintiffs and did not find any reason to interfere with the judgment and decree passed by the learned trial court and upheld the same and dismissed the appeal. 16. Learned counsel for the appellants submits that both the courts below have committed error of facts in dismissing the suit. It is next submitted that both the courts below failed to consider that as the subsequent sale deeds, which was executed even after coming into effect of Bihar Land Reforms Act, were not challenged so the plaintiffs remained the owner of the land. It is next submitted that as the Ext. 2 which is the entry made during the revisional survey Record of Rights, goes to show that the suit land was recorded in the name of the Sri Sri Lakhi Mata Thakurani, hence, as per the provisions of CNT Act, the same has reached finality, hence, it is submitted that the courts below have failed to consider the same; though some of them are more than 30 years old documents, hence, it is submitted that the judgment and decree passed by both the courts below be set aside after formulating the appropriate substantial question of law and suit of the plaintiff be decreed. 17. Mr. Praveen Akhauri, learned SC (Mines I) on the other hand submits that even assuming for the sake of arguments that Ext. 2 which shows the possession of Sri Sri Lakhi Mata Thakurani confers the right upon the recorded tenant, but the fact is that Sri Sri Lakhi Mata Thakurani, is not a party to the suit and the plaintiffs have not even filed the suit, representing Sri Sri Lakhi Mata Thakurani, so whether or not, the Ext. 2 is proper, 7 SA No. 200 of 2020 the same is immaterial so far as the outcome of this suit is concerned. It is next submitted that admittedly the land consists of bandh i.e. pond, and a pond cannot be settled in favour of anybody. It is next submitted that it is the admitted case of the plaintiffs themselves that the original recorded tenants gave the land including the suit land to his brother by way of permanent settlement as Khorposh i.e. maintenance, so such a right of maintenance ceases with the death of Krishna Prashad Singh and such a right of Khorposh cannot be settled by the holder of the Kharposh to anyone else. So on this score also, as the vendors and their settlers, did not have any right, title and interest to settle the same, or transfer the same by way of sale, to the predecessors in interest of the plaintiff, hence, otherwise also, the plaintiff has no right, title and interest, therefore, the plaintiff cannot claim the recovery of possession, when the undisputed fact remains that Anagan Bari centre has been constructed over the suit land by the government; when the plaintiffs do not have any right, title and interest over the land in question, certainly, they cannot ask for its demolition of the structure over the land in question. It is lastly submitted that neither of the courts below have committed any illegality in dismissing the suit and appeal respectively and no substantial question of law is involved in this appeal, accordingly, this appeal being without any merit be dismissed. 18. Having heard the submissions made at the Bar and after going through the materials available in the record, it is pertinent to mention here that it is the admitted case of the plaintiff that as has been averred in the plaint itself, the Raja of Jharia, Sri Shiv Prasad Singh, permanently settled the land including the suit land, to his brother, Sri Krishna Prasad Singh, as Kharposh. So there being no 8 SA No. 200 of 2020 pleading of the plaintiff that Krishna Prasad Singh in whose favour Kharposh settlement was made, acquired any right, title and interest to transfer the same to someone else and in the absence of the same, as Krishna Prasad Singh was not having any right, title and interest to transfer the same by way of settlement or otherwise to anyone else, so the subsequent settlees or purchasers from the settlees, certainly cannot acquire any right, title and interest over the suit land; in view of the settled principle of law that a person cannot transfer, a title better than what he is having to anyone else. So when the plaintiffs failed to establish their right, title and interest over the suit land and it is even admitted case of the plaintiff that an Angan Bari centre has been constructed over the suit land, so certainly, the plaintiffs have no right to claim the demolition of the structure standing over the suit land. 19. So far as the contention of the appellants that the entry in the Record of Rights was made after revisional survey in the name of Sri Sri Lakhi Mata Thakurani, which has been brought on record having been proved as Ext. 2 is concerned, it is pertinent to mention here that without any rhyme or reason, Sri Sri Lakhi Mata Thakurani, has not been impleaded as a party to the suit nor the plaintiffs have filed the suit as the representative of Sri Sri Lakhi Mata Thakurani. So when it is the admitted case of the plaintiff that the suit land stands recorded in the name of Sri Sri Lakhi Mata Thakurani; the plaintiff themselves cannot have any independent right, title and interest over the suit land and in the absence of the same, certainly the plaintiffs are not entitled to claim either recovery of the possession of the suit land or for demolition of the structure of Angan Bari centre standing over the suit land constructed by the Government. 9 SA No. 200 of 2020 20. Under such circumstances, this court is of the considered view that neither learned trial court nor learned first appellate court has committed any error in dismissing the suit and appeal respectively and there is absolutely no substantial question of law involved in this appeal. 21. Accordingly, this appeal being without any merit is dismissed but under the circumstances, without any costs. 22. Let a copy of this Judgment be sent to the Court concerned forthwith. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated, the 4th December, 2024 Smita /AFR 10 SA No. 200 of 2020