(Against the Judgment and decree dated 22.02.2020 passed by the learned District Judge-I, Giridih v. 1. Kumar Mahto son of late Khiro Mahto 2. Hiraman Mahto son of late
Case Details
Second Appeal No. 234 of 2020 IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No.234 of 2020 (Against the Judgment and decree dated 22.02.2020 passed by the learned District Judge-I, Giridih in Civil Appeal No. 38/2017) 1. Somar Mahto son of late Tulo Mahto, aged about 46 years 2. Bhimlal Mahto son of late Latu Mahto aged about 49 years ------ Resident of Village- Sundari, P.O. & P.S.- Chakai, Dist.- Jamui, Bihar .... .... …. Appellants Versus 1. Kumar Mahto son of late Khiro Mahto 2. Hiraman Mahto son of late Lutan Mahto 3. Bishun Mahto son of late Mitan Mahto Resident of Village- Madhupur, P.O. & P.S.- Bengabad, Dist.- Giridih ... .... …. Respondents For the Appellants : Mr. Prabhash Ch. Sinha, Advocate ------ ------ PRESENT HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ------ By the Court:- Heard the parties. 2 This second appeal has been preferred under Section 100 of Code of Civil Procedure against the judgment and decree dated 22.02.2020 passed by the learned District Judge-I, Giridih in Civil Appeal No. 38/2017 whereby and where under, by the said judgment
Legal Reasoning
of concurrence, the learned first appellate court has dismissed the appeal and affirmed the judgment and decree passed by the learned trial court being the court of Civil Judge (Sr. Div.-II), Giridih in Title Suit No.162 of 2005 dated 29.04.2017 by which the learned trial court dismissed the suit of the plaintiffs on contest filed with the following prayers :- (a) for a relief that on due adjudication, the right, title, interest and possession of the plaintiffs over the suit land be declared and the 1 Second Appeal No. 234 of 2020 possession of the plaintiffs over the suit land be confirmed and if during the pendency of the suit, the plaintiffs have been dispossessed by the defendants then the possession may be delivered to the plaintiffs through the process of the court. (b) With further prayer of the settlement paper of the year 1945 in the name of the fathers of the defendants may be declared as forged, null and void documents and not binding upon the plaintiffs. (c) 3 Cost of the suit and any other reliefs. The case of the plaintiffs in brief is that the suit land was recorded in the name of Secretary of Estate for India Council in the survey khatiyan. The plaintiffs own and possess 7 acres of land under khata no.18 of Village- Madhupur. The Deputy Commissioner, Hazaribagh on being the Secretary of Estate for India Council settled the suit land in the name of Tulo Mahto by virtue of settled pata no.287 dated 15.04.1941. The settlement was entered in Register – I B continuous khatiyan maintained by the Deputy Commissioner, Hazaribagh and the settlee came in possession thereof and converted the same into cultivable lands. The settlee Tulo Mahto paid rent to khas mahal and obtained rent receipts and exercised acts of possession over the suit land. After vesting of the zamindari, in the state government the zamindari for the above noted settled land was opened in the name of Tulo Mahto and Tulo Mahto paid rent receipts. Tulo Mahto died 40 years prior to filing of the suit leaving behind his three sons being Latu Mahto, Pokhi Mahto and Somar Mahto. Somar 2 Second Appeal No. 234 of 2020 Mahto is the plaintiff no.1 who inherited the property of his father and came in possession of the land. Pokhi Mahto died issueless. Latu Mahto died leaving behind his only son Bhimlal Mahto who is the plaintiff no.2. The defendants created some forged documents and started disturbing the plaintiff and therefore a proceeding under Section 144 Cr.P.C. was drawn up against both the parties and after hearing, the S.D.M., Giridih held that the matter is a civil dispute and civil court has jurisdiction to decide the matter and dropped the proceeding under Section 144 Cr.P.C. Hence, the plaintiffs filed the suit. 4 The defendants in their written statement challenged the maintainability of the suit on various technical grounds and further pleaded that the plaintiffs applied for mutation of their name in the office of circle officer, Bengabad in respect of the suit land on the basis of Bhoodan Mal Nirdharan case no.13/2000-01. The defendants further pleaded that sons of the plaintiff no.1 had applied for mutation of their names on the basis of various Bhoodan Parchas over parts of the suit land and in this connection Bhoodan Mal Nirdharan case no.13 of 2000-01, 10 of 2000-01, 11 of 2000-01 and 12 of 2000-01 were registered but the circle officer, Bengabad observed that zamindari of village Madhupur belongs to the Secretary of Estate of India Council or it was a khas mahal zamindari and the question of donation of land to sant vinobha bhave will not arise and secondly the said land could not have been settled by the bhoodan parcha and accordingly, the circle officer, Bengabad rejected all the said four 3 Second Appeal No. 234 of 2020 applications by his order dated 08.12.2000. The defendants further pleaded that the plaintiff no.1 filed an application in Bengabad police station on the basis of claiming ownership of the suit land on the basis of donation cum bhoodan yagan committee and on the basis of the same, the appellants recommended for initiation of proceeding under Section 144 Cr.P.C. and case no.1438 of 2001 was registered by S.D.M. but later on the plaintiffs changed their stand and started claiming the suit land by virtue of settlement patta dated 15.04.1941 of the Deputy Commissioner, Hazaribagh as an afterthought on the basis of fabricated and forged documents after knowing that the defendants were claiming the suit land from the khas mahal zamindar in the year 1945 so the plaintiffs as an afterthought started claiming the suit on a date anterior to that of the defendants abandoning his claim of land on the basis of bhoodhan parcha. The defendants further pleaded that there was a khas mahal zamindari office at Barki tand in Bengabad and the entire khas mahal zamindari was looked by the khas mahal officer. The settlee never came in possession of the suit land nor do they raise any tand crops in the suit land and Tulo Mahto never paid any rent to khas mahal zamindar nor did he ever possessed the suit land. The defendant further pleaded that there is no settlement in the name of Tulo Mahto nor his name was ever entered in the continuous khatiyan or register II nor he or his sons paid any rent to the state and the plaintiff has forged document to lay false claim over the suit land. The plaintiffs wanted to disturb the peaceful possession of the defendants over the suit land hence, they got initiated a proceeding 4 Second Appeal No. 234 of 2020 under Section 144 Cr.P.C. which was ultimately dropped by the S.D.M. 5 On the basis of rival pleadings of the parties, the learned trial court framed the following six issues:- Is the suit maintainable? (1.) (2.) Have the plaintiffs any cause of action? (3.) Have the plaintiffs acquired their right, title, interest and possession over the suit land by virtue of settlement made by Deputy Commissioner, Hazaribagh and on behalf of the Secretary of State of India Council dated 15.04.1941 in favour of Tulo Mahto and entered in Register I B continuous khatiyan? (4.) Whether the said settlement paper dated 15.01.1941 is legal and valid document? (5.) Whether the settlement paper of the defendants granted in the name of their father in 1945 is a legal and valid document? (6.) Whether the plaintiffs are entitled for decree in the suit? 6 The learned trial court considered the evidence of four witnesses examined by the plaintiffs and the documents which have been marked Ext. 1 to 3 as well as the oral testimony of five witnesses examined by the defendants and the documents which has been marked as Ext. A series and B. 7 The learned trial court first took up issue nos. (3) and (4) together and after considering the evidence in the record and by observing that the plaintiffs have not brought any copy of the settlement order of Deputy Commissioner, Hazaribagh nor the parties admitted that the suit was a gairmajruwa khas land recorded in the name of state government but have not filed any order of settlement of the suit land in favour of their names. Thus, the plaintiffs have totally failed to prove that from which place, from which office and from which authority he obtained the certified copy 5 Second Appeal No. 234 of 2020 of the continuous khatiyan and went on to decide the issue nos. (3) and (4) against the plaintiffs. Thereafter, the learned trial court took up issue no. (5) and by observing that in the absence of any counter claim, the claim of the defendants cannot be adjudicated in the suit; disposed of the said issue as not pressed. Lastly the learned trial court took up issue nos. (1), (2) and (6) together and on the basis of the findings of the other issues held that the suit is not maintainable. The plaintiffs have no cause of action and they are not entitled to decree in the suit and dismissed the suit. 8 Being aggrieved by the judgment and decree passed by the learned trial court, the plaintiffs filed Civil Appeal No.38 of 2017 in the court of Principal District Judge, Giridih 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 first took up issue nos. (3) and (4) as framed by the learned trial court together and considering the fact that the plaintiffs have not produced any document to prove the settlement of the land in their favour and is unable to disclose the name of the zamindar of the land concerned and the several contradictions in the testimony of plaintiff no.1- Somar Mahto who was examined as P.W.1 mentioned in detail in the impugned judgment including the inability of the P.W.1 to disclose the name of the advocate who filed the application for obtaining khatiyan document or even to say the name of the office or the court 6 Second Appeal No. 234 of 2020 from which the certified copy of the said document was obtained nor he has filed the document purported to be the certified copy of khatiyan relating to the suit land. The learned first appellate court also considered the paragraph 10 of P.W.2- Ajodhi @ Ayodhya Paswan; wherein he has stated that he has not seen the document relating to the suit land and he was unable to disclose the khata number and plot number of the land. The learned first appellate court also considered that though the P.W.2 and P.W.3 have stated about the possession of the plaintiff over the suit land but they are not the resident of the village – Madhupur where the land is situated. The learned first appellate court also considered that the purported continuous khatiyan dated 26.11.1948 is in the name of Telo Mahto but the same was purported to have been signed on 16.04.1941 but was purported to have been certified on 26.11.1948. Hence, the learned first appellate court observed that a document which was issued about 7 years after being signed by the official creates a suspicion about the veracity of the said document by the learned first appellate court. The absence of any copy application number in the certified copy of the khatiyan also created suspicion in the mind of the appellate court. This suspicion was further enhanced because of the testimony of P.W.4 who made the advocate’s clerk concerned stated that he cannot say whether the document concerned was a forged certified copy or not. Learned first appellate court also took note of paragraph no.8 of deposition of P.W.4 wherein he has stated that the document concerned is not the copy of the certified copy of 7 Second Appeal No. 234 of 2020 the khatiyan. The learned first appellate court also took note of the fact that P.W.5- Toto Rai did not appear for his cross-examination in the learned trial court. On the basis of the testimony of the witnesses of the defendants, the learned first appellate court observed that the revenue cases no.10/2000-01, 11/2000-01, 12/2000-01 and 13/2000-01 were registered at the behest of the sons of the plaintiffs which were rejected by the circle office, Bengabad on the ground that the plaintiffs are resident of Jamui (State of Bihar). So the lands could not be given in bhoodan and the land in question are related to mouza Madhupur which is khas mahal land and bhoodan committee has no power to issue parcha and land in dispute is in the possession of the defendants. The learned first appellate court also took note of the deposition of D.W.1 to the effect that upon rejection of the said applications on the basis of forged paper and certified copies of officer of khas mahal, this false case has been foisted by the plaintiffs and after taking note of the anomalies in the testimony of the plaintiffs, the learned first appellate court decided the issue nos. (3) and (4) against the plaintiffs. The learned first appellate court thereafter took up issue no. (5) and in the absence of any counter
Decision
claim on the part of the evidence disposed of the same as not pressed. Thereafter, the learned first appellate court took up issue nos. (1) and (2) together and held that the suit as framed is not maintainable and the plaintiffs have got no cause of action and dismissed the appeal and affirmed the judgment and decree of the learned trial court. 10 Mr. Prabhash Ch. Sinha, learned counsel for the appellants 8 Second Appeal No. 234 of 2020 submits that the learned first appellate court being the final court of fact has failed to properly appreciate the evidence in the record in their right perspective and seriously erred in appreciation of the evidence in the record. It is next submitted by Mr. Sinha that the learned court below has failed to wrongly come to the conclusion that the khatiyan is in the favour of the plaintiffs. Hence, it is submitted that the judgment and decree passed by both the courts below be set aside and the suit of the plaintiffs be decreed. 11 Having heard the submissions made at the Bar and after going through the materials in the record, this Court finds that the plaintiffs have failed to put forth any document of settlement in their favour. The plaintiffs have suppressed the fact that earlier their sons were claiming the suit land on the basis of bhoodhan parcha and after the same was rejected by the circle officer, Bengabad by a reasoned order wherein the circle officer, Bengabad also observed that the defendants are in possession of the suit land and they have come up with a new plea of settlement of the land in their favour on a date which was anterior to the date of settlement claimed by the defendants as the defendants are claiming that the land was settled in their favour in the year 1945 whereas the plaintiffs are claiming that the land was settled in their favour in the year 1941 though they failed to produce any documents whatsoever in support of the case. 12 Under such circumstances, this Court finds that the finding of fact arrived at by the learned first appellate court was not done by ignoring or excluding the relevant materials or by taking into 9 Second Appeal No. 234 of 2020 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 vice of being perverse. In the absence of any perversity in the concurrent finding of facts returned by both the courts below; certainly there is no scope for interference of this Court in the finding of facts returned by both the courts below in exercise of its jurisdiction under section 100 of the Code of Civil Procedure, 1908. 13 After carefully going through the materials in the record this court finds that there is no substantial question of law involved in this appeal. 14 Accordingly, this appeal being without any merit is dismissed but under the circumstances without any costs. 15 Let a copy of this Judgment be sent to the court concerned forthwith. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 30th January, 2023 AFR/ Sonu-Gunjan/- 10