) ------ Thakur Mahato, son of Late Jainath Mahato @ Joynath Mahato, resident of v. 1. Bijoy Mahato, son of Late Priyanath Mahato; 2. Balram Mahato, son of Late
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No.43 of 2017 ------ (Against the judgment dated 29.07.2016 passed by learned District Judge-XI, Dhanbad in Civil Appeal No.65 of 2015) ------ Thakur Mahato, son of Late Jainath Mahato @ Joynath Mahato, resident of Village- Kenduadih, P.O.- Kenduadih, P.S.- Kenduadih, District- Dhanbad; at present at Village- Palani, P.O.- Beliapur, P.S.- Beliapur, District- Dhanbad. .... .... …. Plaintiff/ Appellant /Appellant. Versus 1. Bijoy Mahato, son of Late Priyanath Mahato; 2. Balram Mahato, son of Late Dharwari Mahato; 3. Smt. Sabitri Devi, wife of Late Deomani Mahato; 4. Sonaram Mahato, 5. Raju Mahato, 6. Dharmendra Mahato 7. Radhe Shyam Mahato, son of Late Deomani Mahato; All are residents of Village- Kenduadih, P.O.- Kenduadih, P.S.- Kenduadih, District- Dhanbad; ....
Legal Reasoning
.... …. Defendants/ Respondents /Respondents For the Appellant ------
Legal Reasoning
: Mr. Ashim Kr. Sahani, Advocate Mr. Vikesh Kumar, Advocate ------ P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ------ By the Court:- Heard the learned counsel for the appellant. 2. This Second Appeal has been preferred under section 100 of the Code of Civil Procedure, 1908 against the judgment and decree of concurrence dated 29.07.2016 passed by learned District Judge-XI, Dhanbad in Civil Appeal No.65 1 S.A. No.43 of 2017 of 2015 by which the learned District Judge-XI, Dhanbad has dismissed the appeal and affirmed the judgment and decree passed by the trial court being the Civil Judge (Junior Division)-1st, Dhanbad in Title Suit No.151 of 2003 dated 24.04.2015. 3. The brief facts of the case is that the plaintiff filed Title Suit No.151 of 2003 in the court of Civil Judge (Junior Division)-1st, Dhanbad with the prayer for declaration of sale-deed Nos.18599, 18600 and 18601 all dated 03.12.1968, are fraudulent, null and void, inoperative and without consideration, hence, the same are fit to be cancelled and for declaration of right, title, interest and the possession of the plaintiff over the Schedule A land of the plaint. The plaintiff also prayed the relief of permanent injunction restraining the defendants and their men etc. from coming over the Schedule A land, cost of the suit and other reliefs. 4. The case of the plaintiff in brief is that the suit land was recorded in the names of Chhota Fagu Mahato and Jagu Mahato both having half shares. Chhota Fagu Mahato died leaving behind his two sons namely Debu Mahato and Khem Chand Mahato who inherited half share of their father. Jagu Mahato died leaving behind his son Jainath Mahato and Jainath Mahato died leaving behind his only son- Thakur Mahato who is the plaintiff and the plaintiff- Thakur Mahato inherited the interest of Jagu Mahato i.e. half share of the total land. At the time of death of his father, the plaintiff was aged 10-11 years. The grandfather of the defendant Nos.1 to 3 brought the plaintiff to the Registry Office, Dhanbad and fraudulently got executed the said three sale-deeds dated 03.12.1968. The grandfather of the defendant Nos.1 to 3 left the plaintiff at Munger and fled away. The plaintiff managed to pass his minor life working at 2 S.A. No.43 of 2017 several shops as servant and after attaining majority he came back to Saraidhela at the age of 25 years and found out that his properties are under the possession of the defendants. The plaintiff requested the defendants to vacate the suit land in the month of December, 2001 and August, 2003 but the defendants refused, hence, the plaintiff filed the suit. 5. The defendants in their written-statement, challenged the maintainability of the suit on various technical grounds. They further pleaded that at the time of execution of the sale-deed, the plaintiff was a major, being aged about 25 years. Before selling the land, the plaintiff applied for permission under Section 46 of the Chotanagpur Tenancy Act and the then L.R.D.C. after verifying the papers and hearing the parties, granted permission to the plaintiff to transfer the land and only after that the sale-deeds were executed and the possession of the land was delivered to the defendants. The plaintiff voluntarily went to Munger, with one Gangu Bai; who was a resident of Munger and remained there with her and only after her death, came to his village after a long time. 6. On the basis of the rival pleadings of the parties, the learned trial court settled the following eight issues:- Is the suit maintainable as framed? Has the plaintiff valid cause of action for the suit? Is the suit barred by law of limitation? Is the suit bad for non-joinder of necessary parties? (1) (2) (3) (4) (5) Whether the registered sale deed nos.18599, 18600 and 18601 dt. 3.12.68 are null and void, sham, and the same have got executed by playing fraud, coercion, influence and the plaintiff was minor at the time of execution without consideration? (6) Whether the defendants have acquired full right, title and possession over the schedule A land by virtue of 3 registered sale deeds nos.18599, 18600 and 18601 dt. 3.12.1968? (7) Whether the plaintiff has full right, title and interest over the suit land mentioned in schedule A of the plaint? (8) Whether the plaintiff is entitled to get the relief as claimed? 3 S.A. No.43 of 2017 7. In support of his case, the plaintiff altogether examined three witnesses and proved one document being the Certificate of age issued by the Civil Surgeon which was marked Ext. 1. From the side of the defendants, six witnesses were examined and the defendants also proved the documents which have been marked Ext. A to E/2. 8. The learned trial court first took up issue Nos.(5), (6) and (7) together and after considering the evidence in the record considered that in the recital of the sale-deed, it has categorically been mentioned that the vendor has received the consideration amount before execution of the sale-deed. The learned trial court found that the sale-deeds which have been marked Ext. C to C/3 are legal, valid and genuine and was with consideration, hence, the plaintiff has no right, title, interest or possession over the suit land and decided the issue Nos.5 to 7 against the plaintiff and in favour of the defendants. 9. The learned trial court next took up the issue No.(4) and considering the fact that the plaintiff has not impleaded the co-sharers and successors in interest of purchaser of the sale-deed, went on to hold that the suit is bad for non-joinder of necessary parties. 10. The learned trial court next took up the issue No.(3) and considering the fact that the plaintiff had knowledge about the sale-deeds which were executed on 03.12.1968 and the limitation period as per Article 59 of the Schedule of the Limitation Act, 1963 is three years, hence, held that the suit is barred by limitation. 11. Lastly, the learned trial court stook up the issue Nos.(1), (2) and (8) together and after considering the materials available in the record held that 4 S.A. No.43 of 2017 the suit is not maintainable in its present form, the plaintiff has got no valid cause of action for the suit, the plaintiff is not entitled to any relief, as claimed for and dismissed the suit. 12. Being aggrieved by the judgment and decree passed by the learned trial court, the plaintiff filed Civil Appeal No.65 of 2015 in the court of Principal District Judge, Dhanbad which was ultimately heard and disposed of by the learned first appellate court being the District Judge-XI, Dhanbad by the impugned judgment as already indicated above. 13. The learned first appellate court on the basis of the materials available in the record and the submissions made before it, formulated the following points for determination:- “1. Whether on 3.12.68 the plaintiff/appellant was minor and so was not competent to transfer his land? 2. Whether the defendant/respondents have fraudulently got executed the 3 registered sale deeds by the plaintiff/appellant and as such they do not derive any right, title and interest over the suit land?” 14. The learned first appellate court made independent appreciation of the evidence in the record and was of the view that the medical certificate regarding age of the plaintiff which was marked Ext. 1, cannot be read into evidence as the said certificate was issued in favour of one Thakur Mahato son of Late Jaiswal Mahato whereas the plaintiff is the son of Jainath Mahato and secondly since the author of the said purported medical certificate has not been examined to prove the contents of the same nor the basis upon which such assessment of age was made, was brought on record, hence, the same is of no evidentiary value. The learned first appellate court considered that the plaintiff/appellant without any plausible reason could not produce any other document of age such as voter-list, voter identity card in support of his age 5 S.A. No.43 of 2017 and held that the plaintiff failed to establish that he was minor as on 03.12.1968. 15. The learned first appellate court next took up the second point for determination and considered that the sale-deed was executed after grant of permission under Section 46 of the Chotanagpur Tenancy Act in favour of the plaintiff for transferring the land after verifying the Khatiyan and Government rent receipts produced on behalf of the plaintiff as per Ext. E to E/2. The learned first appellate court considered the testimony of D.W.1- Gopal Mahto and D.W.2- Sukhu Mahto who are the attesting witnesses of the sale-deed and supported the fact of due execution of the sale-deeds and came to the conclusion that the plaintiff failed to establish that the sale-deeds were executed fraudulently though onus to prove the same lies upon him and dismissed the appeal and affirmed the judgment and decree passed by the learned trial court. 16. Learned counsel for the appellant submits that both the learned courts below failed to give due weightage to the Ext. 1 which is the documentary evidence regarding the age of the plaintiff based on the radiological examination and other reports and the finding of courts below in accepting the same, is a perverse one. It is next submitted that both the courts below have committed a perversity by not holding that the plaintiff was a minor on 03.12.1968- the date of the alleged execution of the sale-deed by him, hence, it is submitted that the judgment and decree passed by both the courts below be set aside and the suit of the plaintiff be decreed after formulating appropriate substantial question of law. 6 S.A. No.43 of 2017 17. Having heard the submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that the undisputed fact remains that the Ext. 1-which is the purported medical certificate of age of the plaintiff, is not in respect of the plaintiff rather it is in respect of one Thakur Mahato who was the son of Jaiswal Mahato, whereas it is not a case of the plaintiff that he is the son of Jaiswal Mahato. As undisputedly, the plaintiff is not the son of Jaiswal Mahato; so on this score this Court do not find any fault with both the courts below by not accepting the Ext. 1 to be the proof of age of the plaintiff, the same having not been issued in his favour. 18. Secondly, as specifically mentioned by the learned first appellate court, no material was brought on record by the plaintiff as to on what basis the age of the plaintiff was assessed and upon which the Ext. 1 was issued. The author of the Ext. 1 or any expert who opined the age of the plaintiff, as mentioned in Ext. 1, has not been examined and because of the same the contents of the Ext. 1, has rightly been not taken into consideration by the courts below. 19. So, this Court do not find any perversity in the concurrent finding of facts arrived at by the learned courts below as the courts below have not considered any inadmissible evidence or ignored any admissible evidence nor the finding of fact arrived at by the learned courts below can be termed as irrational without any logic. 20. Under such circumstances, this Court is of the considered view that there is absolutely no substantial question of law involved in this Second Appeal. 21. Accordingly, this appeal, being without any merit, is dismissed but under the circumstances without any costs. 7 S.A. No.43 of 2017 22. Let a copy of this judgment be sent to the courts concerned forthwith. High Court of Jharkhand, Ranchi Dated the 22nd of October, 2024 AFR/ Animesh (Anil Kumar Choudhary, J.) 8 S.A. No.43 of 2017