Civil Appeal No. 27 of 2014 · The High Court
Case Details
Second Appeal No. 593 of 2016 IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No.593 of 2016 (Against the judgment and decree dated 29.07.2016 passed by the learned District Judge -II, Bermo at Tenughat in Civil Appeal No. 27 of 2014) .... .... ------ Paglu Sao, son of Late Lalo Sao, resident of village –Tantri Punervas (Rehabilitation) Area, P.O. –Tupkadih, P.S. –Jaridih, District -Bokaro …. Versus Plaintiff/Appellant/Appellant 1. Ramshwar Hazam 2. Bhuneshwar Hazam 3. Chandrika Hazam 4. Kamlesh Hazam 5. Anil Hazam 6. Lakhan Hazam Sons of Late Moti Hazam 7. Nuni Bala Devi daughter of Late Moti Hazam 8. Chandrika Hazam @ Mohan Thakur, son of Late Moti Hazam 9. Parshu Ram Dusadh, son of not Known All residents of village –Punarwas Area Tola, Nutandih, P.O. –Tupkadih, P.S. –Jaridih, District -Bokaro .... Defendants/Respondents/Respondents .... …. For the Appellant : Mr. Ramawatar Sharma, Advocate ------ ------ PRESENT HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ------ By the Court:-
Legal Reasoning
Heard the parties. 2 This second appeal has been preferred under Section 100 of Code of Civil Procedure against the judgment and decree dated 29.07.2016 passed by the learned District Judge -II, Bermo at Tenughat in Civil Appeal No. 27 of 2014 whereby and where under, in a judgment of concurrence, the learned first appellate court dismissed the appeal. 3 The case of the plaintiff in brief is that the Schedule –A land of the plaint was purchased by the plaintiff from its original owner Rajendra Prasad Mishra. The land was Gair Majarua Khas Land. The 1 Second Appeal No. 593 of 2016 plaintiff bounded his purchased land by erecting boundary wall made of bricks and also constructed a residential house having asbestos sheets roof and has been remaining in the said house. The plaintiff further pleaded that apart from the house, the remaining portion of the land is in possession of the plaintiff by growing maize, arhar, Khurthi etc.. The plaintiff also got his land mutated in the Government Register and has been paying rent to the State Government. The plaintiff next pleaded that in the year, 1999, some musclemen tried to grab his property. The plaintiff filed Jaridih P.S. Case No. 15 of 1999, hence the grabbers of the land could not succeed in their effort. The plaintiff filed the suit with a prayer for declaration of right, title, interest and possession over the suit property described in Schedule –A of the plaint and for confirmation of his possession over it and further direction to the defendants to vacate the house. 4 The defendants in their written statement besides challenging the maintainability of the suit on various technical grounds further pleaded that they purchased 17 decimals of land in the year, 1999 from the original owner Rajendra Prasad Mishra and got the land mutated in the name of Chandrika Hazam. Chandrika Hazam constructed three rooms towards Phusro Jaina More Road. 5 The learned trial court basing upon the materials in the record settled the following eight issues:- 1. Is the suit maintainable in its present form? 2. Whether the plaintiff has got valid cause of action for the suit? 3. Whether the suit is barred by law of limitation and adverse possession? 2 Second Appeal No. 593 of 2016 4. Whether the suit is hit by Section 34 of the Specific Relief Act? 5. Whether the suit is bad for non-joinder of necessary parties? 6. Whether plaintiff has got right, title and possession over the suit land, described in Schedule A of the plaint? 7. Whether plaintiff is entitled for recovery of Khas possession of the Schedule B land by evicting the defendants? 8. To what relief/reliefs plaintiffs are entitled for 6 In support of his case, the plaintiff altogether examined seven witnesses including himself as P.W.6. Besides, the plaintiff proved the documents which have been marked Ext.1 series & Ext. 2 series as well as Ext. 3 & 4. From the side of the defendants also seven witnesses were examined. Besides, the defendants also proved the documents which have been marked Ext. A and A/1. 7 The learned trial court first took up issue no.1 and held that the suit is maintainable. In respect of issue no.2, next taken up by the learned trial court, the learned trial court came to the conclusion that the plaintiff has valid cause of action for filing the suit. In respect of issue no.3, the learned trial court held that the suit is filed within the period of limitation and the defendant has not claimed any adverse possession over the suit land which has been described in the plaint by the plaintiff. In respect of issue no.5, the learned trial court held that the suit is not bad for non-joinder of necessary parties. In respect of issue no.4, the learned trial court came to the conclusion that the suit is not hit by Section 34 of the Specific Relief Act. In respect of issue no.6, considering the evidence in the record including the electric bill deposits which have been marked Ext. E & F, which fact was also admitted by the plaintiff, the learned trial court came to the 3 Second Appeal No. 593 of 2016 conclusion that the plaintiff has got no right, title and interest upon the Schedule –A land and Schedule –B land which have not been correctly described as in Ext.2 which was been filed by the plaintiff in the case being the sale deed basing upon which the plaintiff claims his title. In respect of issue no.7, the learned trial court held that since the plaintiff and defendants both have land in Khata No. 103, Plot No. 1999 of Tantri Village but their possessions are different from each other and the defendant has not encroached upon the land of the plaintiff in any manner, hence the plaintiff is not entitled for the relief of recovery of possession. The learned trial court then considered that the plaintiff is not entitled to any other reliefs and dismissed the suit. 8 Being aggrieved by the judgment and decree passed by the learned trial court, the plaintiff preferred Civil Appeal No.27 of 2014 before the Principal District Judge, Bokaro which was ultimately heard and disposed of by the learned first appellate court by the impugned judgment and decree. 9 The learned first appellate court made independent appreciation of the evidence in the record and considering the evidence of the plaintiff himself who was examined as P.W.6 and in para -6 of his examination-in-chief which was filed in the shape of an affidavit, the P.W.6 having stated that in total 15 decimals of land after boundary wall, there also lies a asbestos roofed house adjacent to the eastern boundary and the testimony of the P.W.6 was contrary to the plaint at para -3 of the plaint and also as the P.W.6 in para -1 of his cross-examination stated that his own pucca house is situated 4 Second Appeal No. 593 of 2016 under Tantri and it is a resettlement area and is surrounded with four cornered wall and under its boundary, the land measuring 15 decimals exists and also described the boundaries different from the boundary as mentioned in Schedule –A of the plaint. The learned first appellate court also considered the documents filed by the respondent being the electricity bill and connection receipt as well as the testimony of the defendants. The learned first appellate court came to the conclusion that the plaintiff has failed to prove his case as the P.W.6 deposed against his pleadings in regard to the boundary of the suit property as appended in Schedule –A and B which is contrary to the boundary mentioned in the sale deed and dismissed the appeal. 10
Legal Reasoning
It is submitted by the learned counsel for the appellant that both the courts below have failed to appreciate the evidence in the record in their right perspective and the courts below failed to consider the sale deed which has been marked Ext.2 on the basis of which the plaintiff is claiming right, title and interest over the suit land. It is next submitted that the courts have wrongly and illegally rejected the prayer for amendment of the plaint. It is next submitted that the finding of fact by both the courts below is perverse. Hence, it is submitted that the impugned judgment and decree passed by both the courts below be set aside after formulating appropriate substantial question of law. 11 Having heard the submissions made at the Bar and after going through the materials in the record, this Court finds that both the plaintiff and defendants undisputedly purchased a small patches 5 Second Appeal No. 593 of 2016 of land of 15 decimals and 17 decimals respectively of the large plot of land of area 1.75 acres of the rightful owner. So both the part plots having been purchased by the plaintiff and defendants respectively certainly the boundary of the plot of land purchased by them was of utmost significance. The plaintiff; as already indicated above, could not put forth any evidence to the effect that he has been in possession of the Schedule –A land of the plaint, the oral testimony put forth by the plaintiff in respect of his possession over the suit land did not tally with the suit land or in other words, the plaintiff in his oral testimony stated that he was in possession of the land different from the suit land even though the examination in chief of the plaintiff was in the shape of an affidavit. 12 Under such circumstances, the finding of facts of both the courts below that the plaintiff has failed to establish his right, title and interest, in the considered opinion of this Court cannot be termed as perverse more so because the finding of facts arrived at by the learned courts below was not done by ignoring or excluding the relevant materials or by taking into consideration the irrelevant material. Nor the finding of fact arrived at by the learned first appellate court being the final court of facts outrageously defies the logic as to suffer from the vice of irrationality incurring the blame of being perverse and in the absence of any perversity in finding of facts by both the courts below, this Court do not finds any justifiable reason to interfere with the concurrent finding of facts returned by both the courts below. 13 So far as the contention of the appellant regarding the 6 Second Appeal No. 593 of 2016 amendment having been wrongly rejected is concerned, certainly the amendment by which the description of the land in respect of which suit was filed was sought to be changed was of such a nature that it intended to change the nature of the suit. Though it is stated that the appellant filed W.P. (C) No. 480 of 2015 but there is no material in the record to suggest that any order of stay was ever passed in that case. It is also not stated as to what was the result of the said W.P.(C) No. 480 of 2015. Under such circumstances, this Court do not find any illegality in the concerned order of the courts below by which the prayer for amendment rejected. 14 After carefully going through the materials in the record, this Court finds that there is absolutely no substantial question of law involved in this appeal. 15 Accordingly, this appeal being without any merit is dismissed but under the circumstances without any costs. 16 Let a copy of this Judgment be sent to the court concerned forthwith. High Court of Jharkhand, Ranchi Dated the 3rd July, 2023 AFR/ Sonu-Gunjan/- (Anil Kumar Choudhary, J.) 7