Civil Appeal No. 05 of 2018 · The High Court
Case Details
S.A.No.338 of 2019 IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No.338 of 2019 ------ (Against the judgment dated 01.07.2019 passed by learned Principal District Judge, East Singhbhum at Jamshedpur, in Civil Appeal No.05 of 2018) ------ 1. Prem Chand Mahato S/o Late Bara Bharat Mahato, aged 47 years, 2. Basudeo Mahato S/o Late Bara Bharat Mahato, aged 45 years, 3. Parwati Mahato W/o Late Bara Bharat Mahato, aged 74 years, 4. Aarti Mahato Daughter of Late Bara Bharat Mahato, aged 62 years, All are R/o Village Dugrigora, P.O. and P.S. Kamalpur (Patamda), District- East Singhghum. 5. Jilapee Mahatani W/o Late Anant Lal Mahato, aged 74 years, 6. Chittaranjan Mahato S/o Late Anant Lal Mahato, aged 47 years, 7. Haldhar Mahato S/o Late Anant Lal Mahato, aged 48 years. All are R/o village Dugrigora, P.O. and P.S. Kamalpur (Patamda), District- East Singhghum. 8. Indrani Mahato Daughter of Late Anant Lal Mahato W/o SristedharMahato R/o Village Mouziramdih, aged 34 years, P.O. and P.S. Bara Bazar, District Purulia (West Bengal). ....
Legal Reasoning
.... …. Plaintiffs/Appellants/Appellants Versus 1. Buku Mahatani Daughter of Thakur Das Mahato and wife of Bibhishan Mahato 2. Gobardhan Mahato S/o Late Madhav Mahato 3. 4. Satish Mahato S/o Late Madhav Mahato Khoki Mahatani W/o Late Shambhu Mahato 5. Duryodhan Mahato S/o Late Shambhu Mahato 6. Ashirbad Mahato S/o Late Shambhu Mahato 7. Alo Mahatani daughter of Late Bhondu Mahato 1 S.A.No.338 of 2019 8. Dilip Mahato S/o Late Bhondu Mahato 9. Bahadur Mahato S/o Late Radhu Mahato 10. Tirlochan Mahato S/o Bahadur Mahato 11. Purno Mahato S/o Radhu Mahato All are R/o Village Dugrigora, P.O. and P.S. Kamalpur (Patamda) District- East Singhbhum .... .... …. Defendants/Respondents/ Respondents ------
Legal Reasoning
For the Appellants : Mr. Kaustav Roy, Advocate Mr. Kumar Sourav Chatterjee, Advocate ------ P R E S E N T 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, has been preferred against the judgment of concurrence dated 01.07.2019 passed by learned Principal District Judge, East Singhbhum at Jamshedpur, in Civil Appeal No.05 of 2018 by which the learned First Appellate Court dismissed the appeal on contest without cost. 3. The case of the plaintiffs in brief is that in the Survey Records of the year 1911, the suit land was described in the Old Khata No.2 and Old Plot No.6 corresponding to New Khata No.22, New Plot No.12 as also Old Khata No.2, Old Plot No.86 corresponding to New Khata No.22 New Plot No.697. In the Survey Settlement of the year 1911 the suit land was recorded jointly in the names of Kinu Mahato, Ganesh Mahato, Bistu Mahato, Magaram Mahato, Kartik Mahato and Bidyadhar Mahato. Separate possession was also recorded in respect of the suit land and the amount of shares to which the recorded tenants were entitled were also mentioned in the Record of Rights. Bolai Mahato had four sons and heirs of Bolai Mahato were the recorded tenants in respect of Khata No.2 plot No.22 and 86. The suit land was jointly recorded along with the heirs of Madan Mahato namely Kartik 2 S.A.No.338 of 2019 Mahato and Bidyadhar Mahato. The heirs of Madan Mahato are the defendants in this suit. Defendant No.1 is the daughter-in-law of Bidyadhar Mahato who was one of the sons of Madan Mahato. In the recent Survey Settlement Operation finally published in the year 1964 before filing of the suit, the old Khata No.2 has been converted into Survey Khata No.22 and the lands recorded in the name of Bolai Mahato and Madan Mahato in separate possession of the remarks column has been wrongly entered in the recent Survey Records prepared in the year 1964. The plaintiffs pleaded that there was a civil suit pending between the parties vide Title Suit No.177 of 1929 filed by Kartik Mahato, Bidyadhar Mahato against Govinda Mahato, Moriram Mahato, Bistu Mahato and Magaram Mahato and the said suit was for partition which was decreed against the defendants. The defendants filed an appeal and in the said appeal there was a compromise between the
Decision
parties and on the compromise the appeal was disposed of and the terms of the compromise was made part of the decree. It was arrived at in the said compromise that in addition to the plots, the possession of which was recorded in the name of the plaintiff, the plaintiff of that suit was also entitled to get their shares of the lands described in the schedule in the compromise and was also entitled for recovery of possession of the same either amicably or through the process of the court; by getting the decree executed. It is pleaded that the final decree was prepared in terms of the compromise made between the parties in the appeal arising out of the said suit. The plaintiffs next pleaded that the defendants on or about 19.03.2004 started forcibly ploughing the suit land beside the land belonging to them and when objection was raised by the plaintiffs, the defendants came with the Record of Right of the year 1964; in which the name of Thakur Das Mahato was entered in the Record of Rights to be in possession of the suit land. On enquiry, the plaintiffs discovered that a wrong entry in the Record of Rights was made in the Survey Settlement of the year 1964 though the same is contrary to the judgment passed in Title Suit of the year 1929. Hence, the plaintiffs filed the suit for following prayers:- (a) for a decree for declaration that the plaintiffs have inherited the properties fully described in the schedule below and the same is their ancestral property and they have got every right, title and interest over the suit land, 3 S.A.No.338 of 2019 (b) for a decree for declaration that the Record of Rights finally published in the year 1964 in respect of the suit land finally described in the schedule below showing the entry of the name of Thakur Das Mahato in the remarks column instead of Mansaram Mahato is wrong and erroneous and the same is illegal and has not affected the right, title, interest and possession of the plaintiffs over the suit land, (c) decree for confirmation of possession of the plaintiffs over the suit land, (d) decree for permanent injunction, (e) cost of the suit and other reliefs. 4. The defendant No.1 who is the main contesting defendant; in her written-statement; challenged the maintainability of the suit on various technical grounds and pleaded that there was never any partition and separate entry in the Record of Rights with regards to the possession and the same is not a proof of partition. Thakur Das Mahto alone was in possession of the plot No.12 so it was recorded in his possession as he being in possession of the same. Plot No.697 was also in possession of Thakur Das Mahato and Radhu Mahato, so, the entry was made to the effect that the said plot was in their joint possession. The defendant No.1 being the daughter of Thakur Das Mahato is Class-I heir of Thakur Das Mahato and was in exclusive possession of the land. She denied that the plaintiffs having any manner of interest over the suit land. The defendant or her predecessor-in- interest were never aware about Title Suit No.127 of 1929 and the judgment passed in the appeal in terms of the compromise was never subject to any final decree or execution. The suit is hopelessly time barred having been filed after forty years of the conclusion of the last Survey Settlement of the year 1964. 5. The defendant Nos.2 to 6 and 8 also filed separate written-statement and challenged the maintainability of the suit on various technical grounds. They pleaded that the description of the suit property furnished by the plaintiffs is vague and these defendants have wrongly and illegally been impleaded as party as no relief was sought by the plaintiffs against these defendants. 6. The legal representatives of the defendant No.4 filed written- statement. 7. The defendant No.7 also filed a separate written-statement wherein 4 S.A.No.338 of 2019 he denied the claim of the plaintiffs and also took similar defence as that of the other defendants stating that the suit was barred by law of limitation and under the provisions of Chota Nagpur Tenancy Act. 8. In view of the rival pleadings of the parties, the learned trial court framed the following eight issues:- (I) Whether the suit is maintainable in its present form and the relief sought for? (II) Whether the plaintiffs have valid cause of action to bring this suit? (III) Whether the suit is barred by the principle of estoppel, waiver and acquiescence? (IV) Whether the suit is bad for non-joinder of necessary party? (V) Whether the suit is barred by law of limitation? (VI) Whether the plaintiffs have any right, title, interest and possession over the suit premises? (VII) Whether the plaintiffs are entitled for a decree as prayed for and claimed for in the plaint? (VIII) Whether the plaintiffs are entitled for any other relief or reliefs? 9. In support of their case, the plaintiffs examined seven witnesses besides proving the documents which have been marked Ext. 1 to Ext. 3/d. From the side of the defendants, two witnesses have been examined but the defendants did not adduce any documentary evidence. 10. The learned trial court first took up issue Nos.(VI) and (VII) for consideration and after considering the evidence in the record came to the conclusion that the plaintiffs have no right, title, interest and possession over the suit land rather the defendants have right, title, interest and possession over the suit land. The entry in the last settlement was not challenged during the settlement operation even though the plaintiffs were very much aware about the same. Thus, the claim of the plaintiffs is barred by the provisions of the Chota Nagpur Tenancy Act. The entry in the present survey operation is neither wrong nor illegal. The evidence when weighed in the scale of preponderance of probability tilts in the favour of the defendants. The plaintiffs will not suffer irreparable loss which cannot be compensated in terms of money if the injunction is not granted. On the other hand if the injunction is granted the defendants will be put to irreparable loss. Hence, the plaintiffs are not entitled to the reliefs prayed for by them in the suit and decided the issue Nos. (VI) and (VII) against the plaintiffs and in favour of the defendants. 5 S.A.No.338 of 2019 11. Thereafter, the learned trial court took up issue Nos.(I), (V) and (VIII) together and on the basis of the findings of the issue Nos. (VI), (VII) came to the conclusion that the suit is not maintainable and the plaintiffs have no cause of action. The plaintiffs have been seeking the right, title, interest and possession of the defendants over the suit land without demur or protest. The plaintiffs have not been made the descendants of Srishtidhar Mahto, Motilal Mahto, Kinu Mahto, Bishtu Mahto and Ganesh Mahto as party to the suit though they are the necessary party, hence, the suit is bad for non-joinder of necessary parties. The suit is barred by limitation. The plaintiffs are not entitled to any other relief and dismissed the suit on contest. 12. Being aggrieved by the judgment and decree passed by the learned trial court, the plaintiffs preferred Civil Appeal No.05 of 2018 in the court of Principal District Judge, East Singhbhum at Jamshedpur which was ultimately heard and disposed of by the learned First Appellate Court by the impugned judgment and decree. 13. The learned First Appellate Court after considering the materials in the record and submissions made before it, formulated the following points for determination:- (i) Whether the plaintiff/appellant has any manner of right, title on interest over the suit land superior to and better than the defendants? (ii) Whether the Record of Rights prepared in the year 1964 is correct or is fit to be declared to be void? 14. The learned First Appellate Court made independent appreciation of the evidence in the record and considered that the land in dispute is plot No.6 and plot No.86 of Khata No.2 but which part of plot No.6 is being claimed by the plaintiffs is not clear as the land in question in plot No.6 of Khata No.2 had an area of about more than 1.5 acres. Similarly, plot No.86 has an area of 3 Bighas 18 Kathas 10 Dhurs of Aabad land and 3 Bighas 18 Kathas 10 Dhurs of Anabad land. The plaintiff is also claiming 2 Bighas and 7 Kathas of land out of plot No.86 without any boundary which also gives an incomplete description of the suit land as to which part of plot No.86 is being claimed by the plaintiff. The plaintiff has failed to explain who is Magha Mahato- whose name has been mentioned in the remarks column of 6 S.A.No.338 of 2019 plot No.86 to be in possession. The plaintiff failed to explain the linkage between the old and new plot number. The plaintiff failed to establish under what circumstances they are claiming their right over the suit land. There is nothing in the record to show that the compromise agreement was finally given effect to and observed that a mere decree on compromise cannot be the basis for concluding that there was complete severance of relationship and partition by metes and bounds in terms of the said compromise. The learned First Appellate Court also considered that the plaintiff was sleeping on the matter despite final publication of the Khatiyan in the year 1964 and there is nothing on record to show that the plaintiff has acted as the absolute owner of the suit property and he got the land mutated as his personal land to the exclusion of the defendants which could have disputed the correctness and genuineness of the Record of Rights. There is complete absence of any document of partition and the Record of Rights is final and conclusive evidence on the point of possession and the entries in the Record of Rights with regard to the factum of possession cannot be disputed to be incorrect irrespective of the fact that as to whether such entries are conclusive proof of partition or not but they can be considered to be conclusive proof of possession as per the entry made in the Records of Rights and, therefore, answered the point for determination No.1 in negative and concurred with the finding of the learned trial court that the plaintiffs are not entitled to any relief claimed and observed that the learned trial court has rightly held that the suit is barred by law of limitation and dismissed the appeal on contest but without cost. 15. Learned counsel for the appellants submits that both the courts below have failed to consider the evidence in the record in their correct perspective and failed to take note of the fact that a compromise was effected to between the parties in Title Appeal in the year 1930-31. It is next submitted that both the courts below took note of the fact that survey Records of Rights of the year 1964 was prepared without any basis and wrong entry was made in the year 1964. 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 after formulating appropriate substantial question of law. 7 S.A.No.338 of 2019 16. Having heard the submissions of the learned counsel for the appellant and after going through the materials available in the record, this Court finds that the concurrent finding of facts arrived at by both the courts below was not made by ignoring or excluding relevant materials or by taking into consideration irrelevant materials nor the findings of the courts below so outrageously defies the logic as to suffer from the vice of irrationality incurring the blame of being perverse. 17. Both the courts below have come to the concurrent finding of fact that the plaintiffs were aware about the entry made in the Records of Rights in the Survey Settlement Operation; which was undisputedly finally published in the year 1964 and the suit was filed 40 years thereafter. So, there is no doubt that the suit was hopelessly barred by the law of limitation. 18. Though the appellants emphasized on the compromise decree in a Title Suit but as rightly observed by both the courts below, there is no material in the record to suggest that the compromise decree was finally given effect to and enforced. Passing of a mere decree on compromise of the court is not a conclusive proof of the fact that the said decree was given effect to and the same cannot be a proof of complete severance of relationship and partition by metes and bounds between the parties. As is evident from the concurrent finding of facts arrived at by both the courts below; the plaintiffs failed to establish any error in the entry in the remarks column of the Records of Rights besides the description of the suit property, is a vague one though admittedly the suit property is part property of two large chunks of plots. i.e. part plots. The boundary of the same has not been furnished by the plaintiffs. 19. Under such circumstances, this Court do not find any perversity in the concurrent finding of facts of both the courts below. 20. After carefully going through the evidence in the record, this Court do not find any substantial question of law involved in this appeal. Accordingly, this appeal, being without any merit, is dismissed but under the circumstances without any costs. 8 S.A.No.338 of 2019 21. Let a copy of this judgment be sent to the courts concerned forthwith. High Court of Jharkhand, Ranchi Dated the 23rd of August, 2023 AFR/ Animesh (Anil Kumar Choudhary, J.) 9