SECOND APPEAL No. 411 of 2018 · Jharkhand High Court

and affirmed the judgment and decree passed by the learned trial court being the court of Additional Munsif-I, Giridih in Title Suit No.164 of 1996 dated 21.06.2008 whereby and where under, the learned trial court decreed the suit of the plaintiff with costs and declared that the plaintiff has got the subsisting right and title in respect of the suit land and further declared that the three sale deeds executed in favour of the defendants and two others are partly illegal, void and inoperative to the extent of the suit land transferred under khata no.44 and 64 only, and not as a whole, as claimed by the plaintiff and the same are not binding upon the plaintiff in any manner. Hence, the same have not affected the title of the plaintiff in respect of the suit lands and permanently restrained the defendants from going upon the suit lands and dispossessing the plaintiff therefrom. 3 It is the admitted case of the parties to the suit that the suit land was jointly recorded in the cadastral survey in the name of seven recorded tenants having equal shares and who died one after another.

Kaila Mahto – plaintiff was the son of one of the seven recorded tenants namely Biru Mahto. The plaintiff and his co-sharers i.e the descendants of other recorded tenants amicably partitioned the land amongst themselves equally and they came in possession of their respective shares. It is the case of the plaintiff that Sobha Mahto- the son of one of the seven recorded tenants namely Pran Mahto transferred his share of land in khata no.44 measuring 7.80 5/7(Item 2 Second Appeal No. 411 of 2018 No.1 of the schedule) acres including houses and tress in favour of the plaintiff for Rs.1,000/- and gave possession of the property sold to the plaintiff. The father of the plaintiff namely Biru Mahto acquired raiyati settlement of five acres of gairmajarua tand land by way of hukumnama granted by the ex-landlord Bhola Rai and Nakul Rai and came in possession of the settled land. After the death of Biru Mahto, the plaintiff being his son has been coming in possession over the suit land and paying the rent of the suit land and obtaining rent receipts.

The plaintiff then pleaded that after the death of Sobha Mahto; Madho Mahto, Meghu Mahto and Mangar Mahto together illegally and fraudulently got executed the sale deed dated 11.01.1963 by the widow of Sobha Mahto namely Mostt. Meghni regarding 1/7th share of Sobha Mahto in khata no.44 besides some other lands of khata no.64 which was already sold by Sobha Mahto to the plaintiff on

17.12.1962. Mangar Mahto did not pay any consideration amount. The plaintiff asserted that the sale deed dated 11.01.1963 is illegal, fraudulent and void ab-initio and no title passed thereby in favour of vendees of the said sale deed who did not come in possession over the land mentioned in the sale deed. The plaintiff specifically pleaded that consequent upon the sale of the entire land by Sobha Mahto on

17.12.1962, Mostt. Meghni did not have any right or title to execute the sale deed in respect of the same property on 11.01.1963. It is the further case of the plaintiff that Madho Mahto, Meghu Mahto and Mangar Mahto had illegally and fraudulently executed three separate sale deeds on 22.08.1996 which has been marked Ext. B to B/2 in 3 Second Appeal No. 411 of 2018 respect of the different portions of the said land in favour of the defendants. The plaintiff next asserted that the said sale deeds marked Ext. B to B/2 are illegal and void and no title was passed thereby in favour of the vendees being the defendants of the suit nor the same has conferred the title upon the plaintiff. Hence, the plaintiff filed the suit for declaration of his rights and permanent injunction. 4 The defendants contested the suit by filing joint written statement. The defendants challenged the maintainability of the suit on various technical grounds. They pleaded that the sale deed dated

17.12.1962 allegedly executed by Sobha Mahto in favour of the plaintiff is forged and fabricated document as Sobha Mahto had already died before 17.12.1962. The defendants claimed that Biru Mahto and the plaintiff never came in possession of the suit land and they claimed that Mostt. Meghni was having full right to sale the property which she has legally sold by the sale deed executed on

11.01.1963 and Madho Mahto, Meghu Mahto and Mangar Mahto are in possession of the land sold by her. The defendants further pleaded that as the Madho Mahto, Meghu Mahto and Mangar Mahto have been coming in possession of the suit land and the defendants have been continuing in possession of the same openly and peacefully hence, they have also perfected the title over the suit land by way of adverse possession and they have also got their names mutated in the office of the government and are obtaining rent receipts in their names. They also pleaded that the sale deed executed by Madho Mahto, Meghu Mahto and Mangar Mahto in their favour is legal and 4 Second Appeal No. 411 of 2018 valid. 5 On the basis of rival pleadings of the parties, the learned trial court framed the following fifteen issues:- (I) Whether the suit as framed is maintainable? (II) Whether the plaintiff has got a valid cause of action for the suit?

(III) Whether the suit is barred by limitation and adverse possession? (IV) Whether the suit is also barred by principles of waiver, estoppel and acquiescence? (V) Whether the suit is grossly under-valued and the court fee paid by the plaintiff is inadequate? (VI) Whether this court has got pecuniary jurisdiction to try this suit? (VII) Whether the suit is also barred u/s 34 of the Specific Relief Act? (VIII) Whether the suit is bad for non-joinder of Madho Mahto, Meghu Mahto and Mangar Mahto as necessary parties to the suit? (IX) Whether Sobha Mahto had died prior to 17.12.1962 i.e. the alleged date of execution of the sale deed by him in favour of the plaintiff, as alleged by the defendants? (X) Whether the registered sale deed dated 17.12.1962 allegedly executed by Sobha Mahto in favour of the plaintiff, is a legal, genuine and valid document and the plaintiff has acquired title thereby? (XI) Whether Biru Mahto- father of the plaintiff, had acquired 5 acres of land in khata no.64 of village Balgo by way of settlement from the ex-landlord vide Hukumnama dated 12th Chait 1332 Sal Fasli in respect of the Item no.2 of the suit land?

(XII) Whether the plaintiff has got any right, title and interest over the suit lands? (XIII) Whether the plaintiff is in possession over the suit land as alleged? (XIV) Whether the plaintiff is entitled to the relief claimed in the plaint? (XV) What relief, if any, the plaintiff is entitled to? 6 . The learned trial court considered the evidence in the record i.e. the oral testimony of four witnesses examined by the plaintiff and the documents which have been marked Ext. 1 to 5/B as well as the oral testimony of six witnesses examined by the defendants and the documents which have been marked Ext. A to E. 7 The learned trial court disposed of the issue no. (IV) as not 5 Second Appeal No. 411 of 2018 pressed. Then the learned trial court took up issue no. (V) and (VI) together and considering the evidence in the record came to the conclusion that the plaintiff has to pay court fee of Rs.3,665/- and the court has pecuniary jurisdiction to entertain the suit.

The learned trial court next took up issue no. (VII) and came to the conclusion that as the plaintiff is not a party to the three sale deeds executed by Madho Mahto, Meghu Mahto and Mangar Mahto in favour of the defendants, he is not required to seek cancellation of the said three sale deeds. As such, the suit is not hit by section 34 of Specific Relief Act, 1963. The learned trial court next took up issue no. (VIII) and came to the conclusion that Madho Mahto, Meghu Mahto and Mangar Mahto were not necessary parties but they may be proper parties. Hence, the suit is not bad for non-joinder of necessary party. In respect of issue no. (IX), the learned trial court after considering the evidence in the record and relying upon the judgment of criminal case lodged against the plaintiff marked as Ext. 3 wherein, the panchayat sewak of the gram panchayat proved report of sarpanch to the effect that Sobha Mahto died on 23.12.1962; came to the conclusion that Sobha Mahto duly executed the sale deed dated 17.12.1962 and later on he died on 23.12.1962.

On the basis of its finding on issue no. (IX), the learned trial court answered issue no. (X) by holding that the sale deed dated 17.12.1962 executed by Sobha Mahto in favour of plaintiff is legal, genuine and valid document which confer title upon the plaintiff in respect of 1/7th share of Sobha Mahto in khata no.44. The learned trial court then took up issue no. (XI) and after 6 Second Appeal No. 411 of 2018 considering the evidence in the record held that the father of the plaintiff namely Biru Mahto has acquired 5 acres of land of khata no.64 of village- Balgo through hukumnama in respect of item no.2 of the schedule land of the plaint. The learned trial court answered the issue no. (XIII) by holding that the plaintiff has been coming in possession over the suit land. In respect of issue no. (III), the learned trial court observed that since the defendants have not pleaded specifically of any clear cut case of adverse possession, hence, it decided the issue no.

(III) in favour of the plaintiff. The learned trial court lastly took up issue nos. (I), (II), (XII), (XIV) and (XV) together and came to the conclusion that the sale deed dated 11.01.1963 executed by the widow of Sobha Mahto in favour of Madho Mahto, Meghu Mahto and Mangar Mahto is not a valid document as far as it relates to 1/7th share of Sobha Mahto in khata no.44 and 5 acres of gairmajarua tand land in khata no.64 of village- Balgo or any part thereof and the sale deed dated 11.01.1963 (Ext. B/3) is not a valid document to that extent and no right and title have in respect thereof been passed in favour of Madho Mahto, Meghu Mahto and Mangar Mahto. As a corollary, the three sale deeds executed by Madho Mahto, Meghu Mahto and Mangar Mahto in favour of the defendants which have been marked Ext. 5 to 5/B as far as the same relates to khata no.44 and 64 are also not valid to that extent only and the same did not pass any title in favour of the defendants.

Hence, the plaintiff is entitled to relief claimed to the aforesaid extent only and decreed the suit as already indicated above. 7 Second Appeal No. 411 of 2018 8 Being aggrieved by the judgment and decree passed by the learned trial court, the defendants filed Civil Appeal No.38 of 2008 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 returned the concurrent finding as that of the trial court on each of the issues and dismissed the appeal and confirmed the judgment and decree passed by the learned trial court. 10 Mr. Manjul Prasad, learned Senior Advocate appearing for the appellants submits that the learned first appellate court has not properly exercised the jurisdiction vested upon it under Order XLI Rule 31 of Code of Civil Procedure.

It is next submitted by Mr. Prasad that the finding of the courts below in respect of issue no. (VII) is not sustainable in law in view of the fact and proof that the land in suit was not in possession of the plaintiffs, hence, a suit for bare declaration is not maintainable. It is next submitted by Mr. Prasad that both the courts below have failed to consider that Madho Mahto, Meghu Mahto and Mangar Mahto are the necessary parties to the suit. Hence, it is submitted that the judgment and decree of both the courts below be set aside and the suit of the plaintiffs be dismissed. 11 Having heard the submissions made at the Bar and after going through the materials in the record, it is pertinent to mention here that question whether in a particular case there has been 8 Second Appeal No. 411 of 2018 substantial compliance with the provisions of Order XLI Rule 31 CPC, has to be determined on the nature of the judgment delivered in each case.

Non-compliance with the provisions may not vitiate the judgment and make it wholly void, and may be ignored if there has been substantial compliance with it and the second appellate court is in a position to ascertain the findings of the lower appellate court as has been held by the Hon’ble Supreme Court of India in the case of G. Amalorpavam & Others v. R.C. Diocese of Madurai & Others reported in (2006) 3 SCC 224 paragraph-9 of which reads as under:- “9. The question whether in a particular case there has been substantial compliance with the provisions of Order 41 Rule 31 CPC has to be determined on the nature of the judgment delivered in each case. Noncompliance with the provisions may not vitiate the judgment and make it wholly void, and may be ignored if there has been substantial compliance with it and the second appellate court is in a position to ascertain the findings of the lower appellate court.

It is no doubt desirable that the appellate court should comply with all the requirements of Order 41 Rule 31 CPC. But if it is possible to make out from the judgment that there is substantial compliance with the said requirements and that justice has not thereby suffered, that would be sufficient. Where the appellate court has considered the entire evidence on record and discussed the same in detail, come to any conclusion and its findings are supported by reasons even though the point has not been framed by the appellate court there is substantial compliance with the provisions of Order 41 Rule 31 CPC and the judgment is not in any manner vitiated by the absence of a point of determination. Where there is an honest endeavour on the part of the lower appellate court to consider the controversy between the parties and there is proper appraisement of the respective cases and weighing and balancing of the evidence, facts and the other considerations appearing on both sides is clearly manifest by the perusal of the judgment of the lower appellate court, it would be a valid judgment even though it does not contain the points for determination.

The object of the rule in making it incumbent upon the appellate court to frame points for determination and to cite reasons for the 9 Second Appeal No. 411 of 2018 decision is to focus attention of the court on the rival contentions which arise for determination and also to provide litigant parties opportunity in understanding the ground upon which the decision is founded with a view to enable them to know the basis of the decision and if so considered appropriate and so advised to avail the remedy of second appeal conferred by Section 100 CPC.” (Emphasis supplied)” 12 It is crystal clear from the judgment of G. Amalorpavam & Others v. R.C. Diocese of Madurai & Others (supra) as was done by the Hon’ble Supreme Court of India in the case of K. Karuppuraj vs. M. Ganesan reported in (2021) 10 SCC 777, paragraph no.11 of which reads as under :- “11. Applying the law laid down by this Court in the aforesaid decisions, if the impugned judgment and order passed by the High Court is considered, in that case, there is a total non-compliance of the provisions of Order 41 Rule 31 CPC. The High Court has failed to exercise the jurisdiction vested in it as a first appellate court; the High Court has not at all re- appreciated the entire evidence on record; and not even considered the reasoning given by the learned trial court, in particular, on findings recorded by the learned trial court on the issue of willingness.

Therefore, as such, the impugned judgment and order passed by the High Court is unsustainable and in normal circumstances we would have accepted the request of the learned Senior Counsel appearing on behalf of the respondent to remand the matter to the High Court for fresh consideration of appeal. However, even on other points also, the impugned judgment and order passed by the High Court is not sustainable. We refrain from remanding the matter to the High Court and we decide the appeal on merits.” that it is certainly not a mandate of law that a second appellate court will set aside the judgment passed by the First Appellate Court on a mere technical ground for non-compliance of the Order XLI Rule 31 of the Code of Civil Procedure by not enumerating the points for determination; and where there is substantial compliance of the 10 Second Appeal No. 411 of 2018 Order XLI Rule 31 of the Code of Civil Procedure by the learned First Appellate Court by considering the entire evidence on record and discussing the same in detail, coming to conclusion and its findings are supported by reasons; such judgments are not to be set aside and remanded.

13 Now coming to the facts of the case, the learned first appellate court has discussed the evidence threadbare and has considered the submissions made by the rival parties before it and supported its finding with reasons. Thus in the considered opinion of this Court, it is not a fit case where the impugned judgment of the learned first appellate court is to be set aside for noncompliance of the provisions of Order XLI Rule 31 of the Code of Civil Procedure. 14 So far as the contention regarding the issue no. (VII) that the plaintiff has not prayed for additional relief of either confirmation of the possession or recovery of possession is concerned, it is pertinent to mention here that the plaintiff has not filed the suit merely with the prayer for the relief of declaration rather he has made additional prayer for permanent injunction restraining the defendants from interfering with his possession over the suit land, besides the prayer for declaration.

It is the specific case of the plaintiff that the plaintiff has been in possession of the suit land and both the courts below have returned the concurrent finding of fact. 15 It is a settled principle of law that if the plaintiff had been in possession then a suit for mere declaration would be maintainable as has been observed by the Hon’ble Supreme Court of India in the case 11 Second Appeal No. 411 of 2018 of Mehar Chand Das vs. Lal Babu Siddique and Others reported in AIR 2007 SC 1499 paragraph no. 12 of which reads as under

The High Court, in our opinion, committed a manifest error in not relying upon the decision of this Court in Vinay Krishna (supra). The said decision categorically lays down the law that if the plaintiff had been in possession, then a suit for mere declaration would be maintainable: the logical corollary whereof would be that if the plaintiff is not in possession, a suit for mere declaration would not be maintainable.” (Emphasis supplied) 16 Thus, this Court is of the considered view that as the suit is not a mere suit for declaration rather the consequential relief of permanent injunction is also sought for and granted by the courts and as claimed by the plaintiff of the case, both the courts below have found the plaintiff in possession of the suit land. Hence, not praying for confirmation of possession or delivery of possession will not be fatal. 17 So far as the contention of the learned Senior Advocate appearing for the appellants that Madho Mahto, Meghu Mahto and Mangar Mahto are necessary parties, it is pertinent to refer to Rule 3 of Order I of Code of Civil Procedure reads as under :-

Who may be joined as defendants.—All persons may be joined in one suit as defendants where— (a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to exist against such persons, whether jointly, severally or in the alternative; and (b) if separate suits were brought against such persons, any common question of law or fact would arise. Which lays down the law as to persons who may be joined as defendants in the suit. 18 The plain reading of Rule 3 of Order I of the Code of Civil 12 Second Appeal No. 411 of 2018 Procedure makes it crystal clear that it is not mandatory that every person who is ultimately interested in the suit and who has assessable right in the subject matter should be impleaded as a defendant. The main object of this Rule is to avoid multiplicity of suit if possible without embarrassment to the litigant.