Civil Appeal No. 04 of 2006 · The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No.107 of 2024 ------ (Against the judgment dated 13.05.2024 passed by the learned District Judge-VII, Dhanbad in Civil Appeal No.04 of 2006) 1. Anita Mahato, Aged about 63 years, wife of late Ramdeo Mahato. 2. Akansha Kumari, Aged about 38 years, 3. Anjali Upasana, Aged about 32 years Sl. No. 2 & 3 (both) are daughter of late Ramdeo Mahato. 4. Kumar Harshvardhan, Aged about 37 years, son of Ramdeo Mahato 5. Sarla Devi, Aged about 59 years, wife of late Indra Deo Mahato. 6. Tanushree Singh, Aged about 36 years, daughter of late Indra Deo Mahato. 7. Karan Kumar Singh, Aged about 35 years, son of late Indra Deo Mahato. Sl. No. 1 to 7 are Resident of Tetulmari, P.O. Katras, P.S. Katras (Tetulmari) chouki Sub Registry, District- Dhanbad. 8. Jagdeo Prasad Mahto, Aged about 60 years, S/o Late Nandlal Mahato 9. Remesh Ranjan Singh, Aged about 49 years, 10. Shankar Mahato, Aged about 43 years, 11. Bishnu Mahato, Aged about 39 years, Sl. No. 9 to 11 are sons of late Nandlal Mahato, Resident of Village- Tutulmari, P.O. Katras, P.S. Katras ( Now Tetulmari) chouki, Dist- Dhanbad 12. Sumitra Kumari, Aged about 45 years, 13. Pushpa Devi, Aged about 55 years, 14. Binita Devi, Aged about 54 years, Sl. No.12 to 14 are daughter of late Nandlal Mahato, Resident of 1 S.A. No.107 of 2024 Village Tetulmari, P.O. Katras, P.S. Katras (Now Tetulmari), Chouki, District- Dhanbad. ....
Legal Reasoning
.... …. Appellants/Plaintiffs/Respondents Versus 1. BCCL, Agent Tetulmari Colliery, Sijua Area No.V, P.O. & P.S. Katras, District- Dhanbad. 2. Estate Officer, Sijua Area, P.O. & P.S. Sijua, District- Dhanbad. 3. BCCL Ltd. through the authorized representative of Koyla Bhawan, Koyla Nagar, P.O. & P.S. Saraidhela, District- Dhanbad. 4. Senior Personnel Officer, Tetulmari Colliery, P.O. & P.S. Tetulmari, District- Dhanbad. 5. Manager, Tetulmari Colliery, P.O. & P.S. Tetulmari, District- Dhanbad. 6. Agent, Modidih, P.O. & P.S. Dhanbad, District- Dhanbad. .... .... …. Respondents/Defendants/Appellants For the Appellant For the Respondents
Legal Reasoning
: Mr. Rahul Kr. Gupta, Advocate : Mr. Anoop Kr. Mehta, Advocate ------ ------ P R E S E N T HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ------ By the Court:- Heard the parties. 2. This Second Appeal, under Section 100 of Code of Civil Procedure, has been preferred against the judgment of reversal dated 13.05.2024 passed by the learned District Judge-VII, Dhanbad in Civil Appeal No.04 of 2006 whereby and where under the learned District Judge-VII, Dhanbad has allowed the appeal on contest but without any cost. 2 S.A. No.107 of 2024 3. The brief facts of the case is that the plaintiffs filed Title Suit No.55 of 1984 for declaration of their permanent raiyati right over the schedule-B land of the plaint and he was also the plaintiffs be given Khas possession of the same by ejectment of defendants and for permanent injunction. 4. The case of the plaintiffs in brief is that the suit land belongs to Raja Sree Shiv Prasad Singh of Jharia Raj Estate. The same was recorded as in the name of him in the last survey settlement record of right as ‘Gair Abad Malik’. The plaintiffs have ancestral house just besides the suit land. As per the custom prevailing in the locality, the plaintiffs reclaimed the suit land consisting of area five acres and cultivated paddy and reaped the harvest and thus continued in the peaceful possession of the same by making improvement of the suit land by exercising the ‘Korkar’ right under the Chhotanagpur Tenancy Act. After vesting of the intermediary interest of the tenure holder in the State, in terms of the provisions of Bihar Land’s Reforms Act, the estate entered the shoe of the landlord. During the encroachment drive by the Circle Officer, Baghmara, the plaintiffs were found in possession of the suit land. There was land encroachment Case No.155 (iii)/64-65 in which the plaintiffs made the prayer to the Circle Officer, Baghmara and the Circle Officer, Baghmara recommended the settlement of the suit land in favour of the plaintiffs. As the plaintiffs agreed to pay the rental dues besides salami, the suit land was settled to the plaintiffs with the annual rent of Rs.1.15 and the plaintiffs continued in possession of the same by growing paddy. 3 S.A. No.107 of 2024 5. There was a proceeding under Section 144 of Cr.P.C. in which the Executive Magistrate made the rule absolute against the plaintiffs. On 20.01.1984, the defendants engaged a number of labourers to cut the harvest from the suit land of the plaintiffs and dispossessed the plaintiffs from the suit land. Hence, the plaintiffs filed the suit. 6. The defendants besides challenging the maintainability of the suit on various technical grounds, further pleaded that the suit land has been in uninterrupted physical possession of the defendant No.1. The defendants pleaded that the suit land which is a part of 17 acres of land was settled in favour of the predecessor in interest of the defendants namely Rai Bahadur Wali Ram Taneja by the then Zamindar, Jharia by a registered lease-deed and the land did not ever vest in the state government. The plaintiffs, therefore, has not impleaded the State as a party. 7. On the basis of the rival pleadings of the parties, the learned trial court settled the following ten issues: - (1) Is there any cause of action for the present suit? (2) Is the suit as framed maintainable? (3) Is the suit barred by provisions of limitation? (4) Is the suit barred by waiver, estoppels and acquiescence? (5) Is the suit barred by provisions of specific relief Act? (6) Is the suit bad for misjoinder and non-joinder of the parties? (7) Is the suit barred by provisions of Coking Coal Nationalization Act? (8) Is the suit land vested property of BCCL? (9) Has plaintiff acquired permanent raiyati right over suit land? 4 S.A. No.107 of 2024 (10) Is the plaintiff entitled to get relief prayed for in plaint? 8. The plaintiffs in support of their case examined six witnesses and proved the documents which have been marked as Ext.1 to 7 whereas the defendants examined ten witnesses and proved the documents which have been marked as Ext.A to D. 9. The learned trial court first took up issue No.7 and came to the conclusion after considering the materials available in the record that the suit land has not been vested to BCCL. Hence, the suit is not barred under the provisions of Coking Coal Mines (Nationalisation) Act. 10. The learned trial court next took up issue No.9 and came to the conclusion that the plaintiffs have acquired permanent raiyati right over the suit land. The learned trial court next took up issue No.6 and held that the suit is not bad for non-joinder of necessary parties or misjoinder of the parties. In respect of issue No.3 next taken up by the learned trial court, the learned trial court came to the conclusion that the suit is not barred by time. The learned trial court observed that issue Nos.4 and 5 are superfluous and did not give any finding in respect of the same. 11. The learned trial court mentioned issue Nos.1 and 2 but did not discuss the same nor gave any finding of facts in respect of the same. The learned trial court further took up issue Nos.7, 8 and 9 together and held that the suit is maintainable and the learned trial court furthermore took up issue No.10 and held that the plaintiffs are entitled to the relief and decreed the suit on contest without any cost against the defendants. 5 S.A. No.107 of 2024 12. Being aggrieved by the judgment and decree passed by the learned Sub- Judge-VI, Dhanbad in Title Suit No.55 of 1984 dated 31.08.2005, the defendants preferred Civil Appeal No.04 of 2006 in the court of the learned District Judge- VII, Dhanbad which was ultimately heard and disposed of by the learned first appellate court. 13. The learned first appellate court considering the materials available in the record and the submissions before it formulated the following two points for determination: - (i) Whether the judgment and decree passed and prepared by the trial court is just and proper or it requires any interference by this Appellate Court? (ii) Whether the plaintiff/respondent have right, title and interest of suit land on the basis of the Ext.3 and 4 and whether the suit barred under the provision of coking coal Nationalization Act and whether the suit land vested property of BCCL on the basis of registered lease deed no. 2785 dated 23.04.1942 (Ext.-C.)? 14. The learned first appellate court first took up the point for determination No.2 and considering the undisputed fact that 17 acres of land including the suit land was settled in favour of the predecessor in interest of the defendants namely Rai Bahadur Wali Ram Taneja by Raja Shri Shiv Prasad Singh of Jharia Raj Estate; vide Ext.C which is the registered lease-deed and in view of Section 10 of the Bihar Lands Reform’s Act, as after vesting of the estate in the State of Bihar, the State of Bihar steps into the shoe of the lessor and continued with the lessee in respect of the suit land and the interest of the defendants were saved 6 S.A. No.107 of 2024 under the provision of the Section 4 (a) of the Bihar Land Reform’s Act, 1950; went on to observe that there is plot No.1 vested in the State of Bihar and it became the lessor in view of the Section 10 of the Bihar Land Reform’s Act and the lease continued. Therefore, the action of the Circle Officer, Baghmara in settling of the acres of land in plot No.1 under Khata No.38 of Mouza Pandeydih in favour of the plaintiffs, while the lease-deed in favour of the defendants was existing and subsisting; was wholly illegal and inoperative and after nationalisation of the coal mines, the suit land deemed to have been vested with the central government. Thus, the plaintiffs have no right, title or interest over the suit land on the basis Ext.3 and 4 and the suit is barred under the provisions of Coking Coal Nationalisation Act and the suit land is the vested property of BCCL on the basis of registered lease-deed marked Ext.C and decided the first point for determination in favour of the defendants and against the respondents/plaintiffs. 15. The learned first appellate court next took up point for determination No.1 and held that the judgment and decree passed by the learned trial court was not in accordance with law and set aside the judgment and decree passed by the learned trial court and allowed the appeal. 16. Learned counsel for the appellants relies upon the judgment of the Hon’ble Supreme Court of India in the case of State of Punjab & Another vs. Gurdev Singh reported in (1991) 4 SCC 1 wherein in the facts of that case relating to suit for declaration by a dismissed employee; it was observed by the Hon’ble Supreme Court of India in paragraphs- 10, which reads as under: 7 S.A. No.107 of 2024 10. It will be clear from these principles, the party aggrieved by the invalidity of the order has to approach the court for relief of declaration that the order against him is inoperative and not binding upon him. He must approach the court within the prescribed period of limitation. If the statutory time limit expires the court cannot give the declaration sought for. and submits that as the defendants have not challenged the Ext.3 which is the order passed by the Circle Officer, Baghmara in settling the land in favour of the plaintiffs, hence, the plaintiffs still continue to be the owner. Therefore, the learned first appellate court committed a grave illegality by setting aside the judgment and decree passed by the learned trial court. It is next submitted that the learned first appellate court has misconstrued the provisions of the Chhotanagpur Tenancy Act and Bihar Lands Reforms Act and failed to consider that in view of the Ext.4, the Bhumisatwa certificate of Circle Office, Baghmara, the defendants could not lay any claim over the suit land. Hence, it is submitted that the judgment and decree passed by the learned first appellate court being the learned District Judge-VII, Dhanbad be set aside and the judgment passed by the Sub-Judge-VI, Dhanbad in Title Suit No.55 of 1984 be restored after settling the appropriate substantial questions of law. 17. Learned counsel for the respondents on the other hand vehemently opposes the prayer made by the learned counsel for the appellants. It is next submitted that the undisputed fact remains that there was a registered lease- deed executed by the ex-landlord in favour the predecessor in interest of the defendants. Being the ex-colliery owner and after nationalisation of the colliery whose all rights, title or interest has been vested upon firstly to the central government and then to the BCCL i.e. the defendant of the suit. Therefore, 8 S.A. No.107 of 2024 without cancellation of such lease creating any further right in respect of the suit land by the Circle Officer, Baghmara is without jurisdiction and void. It is further submitted by the learned counsel for the respondents that the judgment of the Hon’ble Supreme Court of India in the case of State of Punjab & Another vs. Gurdev Singh (supra) having been passed in respect of service jurisprudence, when the suit was filed for declaration that the order of dismissal of service of an employee was ultra vires, unconstitutional and against the principle of natural justice and void, therefore, the employee continues to be in service and the issue before the Hon’ble Supreme Court of India was what would be the effect of ultra vires action, which is void, Hon’ble the Supreme Court of India in that context observed that even an action which is ultra vires, against the principles of natural justice and void remains operative unless and until it is declared to be so by this court. Therefore, the ratio of the same is not applicable to the facts of the case where the action of the Circle Officer is not void because of the same being ultra vires, against the principle of natural justice or unconstitutional, rather the same is void because the same was without jurisdiction; as in view of the subsistence of the lease, the Circle Officer was without jurisdiction in passing the order, which has been marked Exhibit-3 and as such void order relates to right of the parties to the suit in respect of the suit property which is a patch of land consisting of area of five acres. Hence, it is submitted that this second appeal, being without any merit, be dismissed. 9 S.A. No.107 of 2024 18. Having heard the submissions made at the Bar and after carefully going through the materials available in the records, it is pertinent to mention here that it is a settled principle of law that the plaintiff is to stand in his own legs and not get any benefit from the weakness of the defendant. It is also a settled principle of law that no one can transfer a better title than one is having to another by any acts, deeds or things; including by the execution of sale-deed. 19. Now coming to the facts of the case, the undisputed fact remains that the suit land was leased out in favour of the predecessor in interest of the defendants namely Rai Bahadur Wali Ram Taneja, by the ex-landlord. The undisputed fact also remains that by virtue of Section 10 of the Bihar Land Reforms Act, the lease created in favour of Rai Bahadur Wali Ram Taneja is subsisting and the State has stepped into shoes of earlier lessor; in the same terms and conditions as was prevailing between earlier lessor and the lessee. 20. Under such circumstances, on the date of execution settlement made by the Circle Officer in respect of a portion of the said lease hold property in favour of the plaintiffs was obviously a void one without the cancellation or rescinding the earlier lease in favour of the predecessor in interest of the defendants namely Rai Bahadur Wali Ram Taneja. Certainly, the State has no right to settle the same in favour of the plaintiffs or their ancestors; in view of the subsistence of the earlier lease. It is the consistent case of the plaintiffs that the plaintiffs on the date of the filing of the suit were not in possession of the suit land and the defendants were in possession of the suit land. Such admission can be derived from the fact that the plaintiffs filed the suit for 10 S.A. No.107 of 2024 ejectment of the defendants from the suit land. It is also the admitted case of the plaintiffs that in a proceeding under Section 144 of Cr.P.C. against the said Rai Bahadur Wali Ram Taneja, the plaintiffs were not found to be in possession. 21. Under such circumstances, this court do not find any illegality in the finding of the facts arrived at by the learned first appellate court that the plaintiffs have failed to establish any right of them in respect of the suit land and as it is a settled principle of law that the document which is void need not be challenged by claiming a declaration as the said plea can be taken up and proved even in collateral proceedings as has been reiterated by the Hon’ble Supreme Court of India in the case Kewal Krishan vs. Rakesh Kumar & Others etc. reported in (2021) SCC OnLine SC 1097 paragraph-18 of which reads as under:- “18. Now, coming back to the case in hand, both the sale deeds record that the consideration has been paid. That is the specific case of the respondents. It is the specific case made out in the plaints as originally filed that the sale deeds are void as the same are without consideration. It is pleaded that the same are sham as the purchasers who were minor sons and wife of Sudarshan Kumar had no earning capacity. No evidence was adduced by Sudarshan Kumar about the payment of the price mentioned in the sale deeds as well as the earning capacity at the relevant time of his wife and minor sons. Hence, the sale deeds will have to be held as void being executed without consideration. Hence, the sale deeds did not affect in any manner one half share of the appellant in the suit properties. In fact, such a transaction made by Sudarshan Kumar of selling the suit properties on the basis of the power of attorney of the appellant to his own wife and minor sons is a sham transaction. Thus, the sale deeds of 10th April 1981 will not confer any right, title and interest on Sudarshan Kumar's wife and children as the sale deeds will have to be ignored being void. It was not necessary for 11 S.A. No.107 of 2024 the appellant to specifically claim a declaration as regards the sale deeds by way of amendment to the plaint. The reason being that there were specific pleadings in the plaints as originally filed that the sale deeds were void. A document which is void need not be challenged by claiming a declaration as the said plea can be set up and proved even in collateral proceedings.” 22. In view of this settled principle of law this court is of the considered view that the ratio of the case of State of Punjab & Another vs. Gurdev Singh (supra) is not applicable to the facts of this case. 23. Under such circumstances, this court do not find any merit in the contention of the learned counsel for the appellants that merely because the defendants did not file a counter-claim even if the Circle Officer was not having any right, title or interest and was not even having any jurisdiction or for that matter, the State of Bihar was not having any right, title or interest in respect of the suit land to settle the same in favour of the plaintiffs, still right has accrued to the plaintiffs over the suit land; in the facts of this case. 24. Hence, this Court is of the considered view that absolutely there is no substantial question of law involved in this appeal. 25. Accordingly, this appeal being without any merit is dismissed. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 27th of August, 2024 AFR/ Saroj 12 S.A. No.107 of 2024