Civil Appeal No. 02 of 2018 · The High Court
Case Details
1 S.A. 323 of 2018 IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No. 323 of 2018 (Against the judgment and decree dated 11.05.2018 passed by the learned Principal District Judge, Jamtara in Civil Appeal no. 02 of 2018) 1. Ibrahim Mian, aged about 55 years, S/o Late Basrali Mian 2. Islam Mian, aged about 53 years, S/o Late Basrali Mian 3. Kuddus Mian, aged about 49 years, S/o Late Basrali Mian 4. Samsul Mian, aged about 45 years, S/o Late Basrali Mian 5. Yakub Mian, aged about 51 years, S/o Late Basrali Mian 6. Safruddin Mian, aged about 47 years, S/o Late Basrali Mian 7. Samsuddin Mian, aged about 43 years, S/o Late Basrali Mian 8. Saddam Mian, aged about 41 years, S/o Late Basrali Mian All residents of village- Madnadih as well village – Harlatar, P.O.- Menjhladih, P.S.- Narayanpur, Dist.- Jamtara …... Defendants/ Appellants/ Appellants Versus 1. Mukhia Rai, S/o Late Dhodho Rai 2. Mahabir Rai, S/o Late Dhodho Rai 3. Ghusar Rai, S/o Late Dhodho Rai 4. Chuna Rai, S/o Late Dhodho Rai 5. Bablu Rai, S/o Late Kodo Rai 6. Habu Rai, S/o Late Kodo Rai 7. Bhutnath Rai, S/o Late Kodo Rai 8. Chhatan Rai, S/o Late Kodo Rai 9. Mahadeb Rai, S/o Late Kodo Rai 10. Nimai Rai, S/o Late Bhadu Rai , All residents of village- Madnadih, P.O.- Menjhladih, P.S.- Narayanpur, Dist.- Jamtara ….. Plaintiffs/ Respondents/ Respondents For the Appellants : Mr. N. P. Choudhary, Adv P R E S E N T
Legal Reasoning
HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:- Heard the learned counsel for the appellants. 2. This Second Appeal under Section 100 of the Code of Civil Procedure, 1908 has been preferred against the judgment and decree dated 11.05.2018 passed by the learned Principal District Judge, Jamtara in Civil Appeal no. 02 of 2018 by which, learned First Appellate Court has dismissed the 2 S.A. 323 of 2018 appeal on contest and confirmed the judgment and decree passed by learned Civil Judge (Sr. Div.) II, Jamtara dated 28.11.2017 in the Original Suit no. 20 of 2012. 3. The case of the plaintiffs in brief is that the suit land was recorded in the name of the father of the plaintiff namely Haru Rai during last survey settlement on plot no. 17 before filing the suit. Haru Rai died in the year 1977 and during his life time, he was in peaceful possession over the suit land and after the death of Haru Rai, his three minor sons succeeded to the property of Haru Rai and entered into possession thereon. The plaintiffs are the grandsons of Haru Rai. It is further averred that the defendant nos. 1 and 2 taking advantage of the temporary absence of the plaintiffs, fraudulently occupied 19 ½ decimals of land in plot no. 72 and illegally constructed two mud built Khapraphos (tiled roofed) houses thereon and started living there. The defendant’s case is that Haru Rai being a friend of grand- father of the defendant, transferred an area of 1.24 acres of plot no. 72 to Daru Mian by means of Kurfa settlement in the year 1958 and then Daru Mian constructed house over a portion of the said plot and was in peaceful possession of the same. The plaintiffs prayed for declaration of right, title and interest over the suit property, recovery of possession of the suit property through the process of court, a money decree for Rs. 500/- for damages, cost of the suit and other relief or reliefs. 4. The defendants further challenged the maintainability of the suit on various technical grounds and pleaded that their father was in peaceful possession of the suit land along with the defendants by constructing house, veranda with courtyard etc. . 5. On the basis of the rival pleadings of the parties, learned trial court framed the following seven issues :- (i) Is the suit maintainable in its present form? (ii) Is the suit barred by the law of limitation, estoppel, waiver and acquiescence? 3 S.A. 323 of 2018 (iii) Is there any valid cause of action for the suit? (iv) Do the plaintiffs have subsisting right and title over the suit property? (v) Have the defendants acquired any right, title and interest over the suit property by adverse and hostile possession ? (vi) Are the defendants liable to be adjudicated from the suit property? (vii) Is the plaintiff entitled for grant of relief or reliefs claimed for? 6. Learned trial court considered the oral testimony of 4 witnesses examined by the plaintiffs and 11 witnesses examined by the defendants besides also considering the documents, from the side of plaintiffs which have been marked as Exhibits 1 and 2 and Exhibits A & B from the side of the defendants. 7. Learned trial court first took up issue nos. (iv) and (v) together and after considering the evidence in the record, came to conclusion that the defendants have not acquired any right, title or interest over the suit property rather the plaintiffs being the descendants of the recorded tenants have their subsisting right, title over the suit property and decided issue no. (v) against the defendants and issue no. (iv) in favour of the plaintiffs. Thereafter, learned trial court took up issue no. (i), (ii) and (iii) together and disposed of issue no. (iii) being not pressed and decided the issues no. (i) and (iii) in favour of the plaintiffs by holding that there is valid cause of action for the suit and the suit is maintainable in its present form. Thereafter, learned trial court took up issue no. (vi) and (vii) together and after considering the materials available in the record, came to conclusion that the suit is fit to be decreed and ordered the defendants to vacate suit land within six months otherwise the plaintiffs shall take recourse of recovery of the possession through the process of law. 8. Being aggrieved by the judgment and decree passed by 4 S.A. 323 of 2018 learned trial court, the appellants filed Civil Appeal No. 02 of 2018 in the court of learned Principal District Judge,
Decision
Jamtara which was ultimately heard and disposed of by the learned First Appellate Court by the impugned judgment and decree. 9. Learned First Appellate Court formulated the following two points for determination: (i) Whether the appellant/ defendants have got any right, title and interest over the suit properties by virtue of adverse possession or not? (ii) Whether the suit is bad due to non-joinder of necessary parties or not ? 10. Learned First Appellate Court made independent appreciation of the evidence in the record and considered that the suit land of Mauza – Madnadih A. K. J. No. 97 stands recorded in the name of Haru Rai in the last survey settlement and fathers of the plaintiffs- Dhodo Rai, Kodo Rai and Bhadu Rai, were sons of the recorded tenant Haru Rai. Learned First Appellate Court found discrepancies as though the defendants claimed their title over the suit land on the basis of adverse possession and even pleaded in paragraph 12 of the written statement that the recorded tenant Haru Rai had executed a Khurfa patta (document of transfer) in favour of the predecessor of the defendants in respect of the suit land on 21.03.1958 but in paragraph 13, they have pleaded that Haru Rai had orally given the said suit land to the predecessor of the defendant in the year 1938 but as the defendants have failed to produce any document to establish the fact that the suit land was orally given to the predecessor of the appellant-defendants in the year 1938 but the order dated 21.12.2011 passed by the learned Sub Divisional Magistrate, Jamtara in Crl. Misc. Case no. 427 of 2011, does not whisper regarding oral transfer of the suit land in the years 1938; the learned First Appellate Court came to the conclusion that the defendants were not in continuous possession of 12 years over the suit land prior to 5 S.A. 323 of 2018 01.11.1949 i.e. the date of enactment of S.P.T. Act, 1949 and hence, the plea of adverse possession over the suit land by the defendants does not arise. Learned First Appellate Court also came to the conclusion that the Exhibit B- which is the alleged Khurfa patta, has never been acted upon on the basis of the mutation of land by the ancestors of the defendants, whereas the Exhibit -1 being the certified copy of parcha of Mouza Madnadih, clearly establishes the fact that the recorded tenant of the suit land was Haru Rai and the First Appellate Court ultimately, found and held that the defendants have not acquired any right, title and interest over the suit property by virtue of adverse and hostile possession and dismissed the appeal. 11. Mr. Nityanand Prasad Choudhary, learned counsel for the appellants submits that learned courts below have committed a grave error by not framing the main issue as to whether the recorded tenant Haru Rai has executed Kurfa Patta on Exhibit B, in favour of Daru Mian on 21.03.1958. It is next submitted by Mr. Choudhary that learned trial court as well as the learned First Appellate Court committed grave error by not framing the issue as to whether the defendants have acquired right, title and interest over the suit land in view of Section 27 of Regulation III of 1872. It is next submitted by Mr. Choudhary that learned appellate court has committed grave error by not considering that Basrali Mian, the father of the defendants has not been made party while he was alive and the suit is bad in law for non-joinder of necessary party, hence, it is submitted that the impugned judgment and decree be set aside by formulating the appropriate substantial question of law and suit of the plaintiff be dismissed. 12. Having heard the submissions made at the Bar and after going through the materials available in the record, it is crystal clear that both the courts below have returned the concurrent finding of fact that the defendants failed to establish their possession over the suit land and finding of 6 S.A. 323 of 2018 fact arrived at by learned First Appellate Court, is not by ignoring or excluding relevant materials or taking into consideration the irrelevant materials nor such finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse. The issues framed by the trial court and the points for determination formulated by the lower appellate court are sufficient to adjudicate the dispute between the parties raised before the respective courts. 13. Under such circumstances, this court is of the considered view that there is no perversity in the finding of facts returned by learned First Appellate court and there is absolutely no substantial question of law involved in this appeal, , accordingly, this appeal being without any merit is dismissed but in the circumstances, without any cost. 14. Let a copy of this Judgment be sent to the Court concerned forthwith. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated, the 3rd January, 2023. Smita /AFR