) Budhadeo Rout, aged about 83 years, son of Late Bhutal Rout, resident of v. 1. Ragini Kumari, wife of Nityanand Mishra 2. Lalan Kumar Mis
Case Details
1 S.A. 160 of 2022 IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No. 160 of 2022 (Against the judgment and decree 18.08.2022 passed by the learned District Judge II, Dumka in Civil Appeal no. 40 of 2019) Budhadeo Rout, aged about 83 years, son of Late Bhutal Rout, resident of Village - Sirsaa, P.O. - Lalatari, P.S. - Jama, Sub Division & District - Dumka, at present residing at Bara in the house standing on Plot No. 2246 of Mouza - Bara, P.O. & P.S. - Jama, Sub Division & District - Dumka. …... Defendant/ Appellant/ Appellant Versus 1. Ragini Kumari, wife of Nityanand Mishra 2. Lalan Kumar Mishra 3. Vidyanand Mishra No. 2 and 3 both sons of Late Jagdish Mishra, All resident of Village - Asanjore, P.O. - Asanjore, P.S. -Jama, Sub Division & District - Dumka. ….. Plaintiffs/ Respondents/ Respondents For the Appellant : Mr. S.K.Sharma , Adv. Mr. Baleshwar Yadav , Adv. P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:- Heard. 2. This Second Appeal under Section 100 of the Code of Civil Procedure, 1908 has been directed against the judgment and decree 18.08.2022 passed by the learned District Judge II, Dumka in Civil Appeal no. 40 of 2019 by which, learned First Appellate Court affirmed the judgment and decree passed by learned Senior Civil Judge-I, Dumka in Title Suit No. 07 of 2014, dated 18.06.2019 whereby and whereunder the learned Senior Civil Judge- I, Dumka, decreed the suit of
Legal Reasoning
the plaintiffs filed with a prayer for declaring right, title and interest and the recovery of possession in respect of the suit property and dismissed the Civil Appeal on contest, but without costs. 2 S.A. 160 of 2022 3. The case of the plaintiffs in brief is that the recorded tenant Parasram Bhawaniya entered into an agreement for sale on 18.02.1992 with the husband of the plaintiff no. 1, who is also the father of the plaintiff no. 2 to 4, in respect of the suit property for consideration amount of Rs. 5,00,000/- and earnest money of Rs. 51,000/- was taken by Parasram Bhawaniya. After the death of both Parasram Bhawaniya and the husband of the plaintiff no. 1 – Jagdish Mishra, the surviving legal heirs of Parasram Bhawaniya executed a sale deed in favour of the plaintiffs in respect of the suit land by registered sale deed no. 635 of 2011 and the plaintiffs came in possession of the said suit land. The plaintiffs went to Patna for treatment of Kamla Kant Thakur- the father of the plaintiffs no. 1 and 03.08.2012, when the plaintiffs returned to their village, they found that the defendant has illegally and forcibly constructed a house over the part of the suit land on an area of 20 feet x 32 feet with asbestos and Khapraposh roof. On protest by the plaintiffs, the defendant assured the plaintiffs that he has not made any construction over their land and assured to remove the structure found over their land after measurement. But because of the nefarious tactics adopted by the defendant, the measurement could not be immediately done and ultimately on 15.04.2013, the plaintiff no. 3 filed a petition before the SDO, Dumka for demarcation and the Amin was deputed and upon measurement, it was found that the house constructed by the defendant was over the land of the plaintiffs, being part of the plot no. 2246 but the defendant did not allow the Amin to make the demarcation. The defendant delayed the matter of vacating the suit premises and ultimately on 14.11.2013, refused to remove the structure, illegally constructed by him over the land of the plaintiffs and the plaintiffs filed the suit with the following prayer: (a) for decree of declaration of right title, interest and possession of the plaintiff; 3 S.A. 160 of 2022 (b) decree for eviction of the defendants from the suit property; (c) the delivery of possession in respect of the suit property in favor of the plaintiffs; (d) the decree in respect of mesne profit; (e) Cost of the suit; (f) any other relief or reliefs. 4. The defendant in his written statement challenged the maintainability of the suit on various technical grounds, including the law of limitation. The defendant admitted that Parasram Bhawaniya was the owner of the land. Jagdish Mishra entered into an agreement for sale with Parasram Bhawaniya. Jagdish Mishra was having intimacy with the defendant, hence Jagdish Mishra sold and transferred the suit land to the defendant for Rs. 25,000/- per katha and Jagdish Mishra received and acknowledged receiving of Rs. 1,35,000/- from the defendant between the year 1992 to 1995 and claimed to be in possession of the suit land but because of some litigation, Jagdish Mishra could not execute the sale deed. The defendant claimed that they have been in physical possession of the suit land since the year 1992 by constructing brick built house with a Khapra roof. The defendant also made pucca well in the land. The defendant denied that the plaintiffs have any right, title and interest over the suit land. 5. On the basis of the rival pleadings of the parties, learned trial court framed the following eight issues :- (i) Is the suit maintainable in its present form? (ii) Whether the Plaintiffs have got any cause of action? (iii) Whether the Suit is barred by law of limitation or any other Acts or any Principle of Law? (iv) Whether the Suit is undervalued and Court fee paid is sufficient? (v) Whether the Plaintiffs have got right, title, interest and possession over suit land? (vi) Whether the Plaintiffs are entitled of delivery of possession? (vii) Whether the Plaintiffs are entitled of mense profit? (viii) Whether the plaintiff is entitled of relief as prayed for or any other relief? 6. In support of their case, the plaintiffs examined six 4 S.A. 160 of 2022 witnesses and proved documents which have been marked as Exhibit 1 to 8/A. The defendants on the other hand, examined five witnesses, but did not prove any document. Learned trial court first took up issue nos. (i), (ii), (iii) and (iv) together and considering the materials in the record, answered the issue nos. (i), (ii), (iii) and (iv) in favour of the plaintiffs. Learned trial court then took up issue nos. (v) and (vi), and considering the materials in the record, answered the issue no. (v) in favour of the plaintiffs. In respect of issue no. (vi), next taken up by learned trial court, learned trial court came to the conclusion that the defendant failed to establish possession since 1992. Hence the plaintiffs are entitled to delivery of possession. Lastly, the learned trial court took up issue no. (vii) and held that the plaintiffs are not entitled to any mesne profit and went on to decree the suit of the plaintiff as already indicated above. 7. Being aggrieved by the judgment and decree passed by learned trial court, the defendant- appellant filed Civil Appeal no. 40 of 2019 in the court of learned District Judge II, Dumka which was ultimately heard and disposed of by the learned First Appellate Court by the impugned judgment and decree. 8. Learned First Appellate Court formulated the following three points for determination: I. Whether the plaintiffs have a valid right title and interest over the suit property? II. Whether the plaintiffs are entitled for delivery of possession of the suit property? III. Whether the judgment and decree passed by learned Sr. Civil Judge-I, Dumka requires any interference by this court or not ? 9. Learned First Appellate Court First took up the first point for determination and after considering the materials in the record, learned First Appellate Court considered that DW1 who is the defendant himself; in his cross-examination 5 S.A. 160 of 2022 admitted that he is not even acquainted with Jagdish Mishra. In paragraph 16, DW1 has admitted that he has not purchased the suit land by any registered deed and there is no sale-deed in respect of the suit land. In his cross- examination, DWI admitted that he has not filed the documents regarding the acknowledgment of receipt of Rs. 1,35,000/- by Jagdish Mishra, nor he could tell the name of the witnesses in whose presence, the said consideration money was paid. Learned First Appellate Court also considered that DW 2, 3, 4 and 5 to be the witnesses who have not much knowledge about the dispute involved in the suit. Learned First Appellate Court brushed aside the two new grounds agitated by the defendants for the first time before the appellate court though there was no such pleading in the written statement and observed that such grounds were not supported by any evidence and on the basis of the evidence in the record, put forth by the plaintiffs, went on to hold that the plaintiffs have valid right, title and interest over the suit property. Learned First Appellate Court next took up second point for determination and after considering the materials in the record, observed that since Jagdish Mishra had no right and title over the suit land, he could not have sold the suit land. Learned First Appellate Court observed that since admittedly, the defendant was in permissive possession of Jagdish Mishra, hence he would not claim the title on the basis of adverse possession and went on to hold that since the plaintiffs have proved their right, title and interest over the suit property, they are entitled to recovery of possession in the suit property as well. Learned First Appellate Court lastly, took up point for determination no. 3 and after considering the materials in the record came to the conclusion that learned trial court has correctly decided the right, title and interest of the plaintiffs over the suit property and entitlement of the plaintiffs for delivery of possession by deciding the issues nos. 5 and 6 in favour of the plaintiffs and against the defendant and 6 S.A. 160 of 2022 observed that since the trial court found that the plaintiff is not entitled to any mesne profit, it should have decided the issue no. (vii) in favour of the defendant and affirmed the judgment and decree passed by learned trial court and dismissed the appeal.
Legal Reasoning
10. Mr. S.K.Sharma, learned counsel for the appellant submits that both the courts below could not properly appreciate the evidence in the record, in its right perspective. Both the courts below failed to take note of the fact that the Title Suit No. 07 of 2014 was not maintainable being barred by the limitation. It is next submitted that the Exhibit A-1- the certified copy of the order dated 27.05.1999 passed by learned SDJM Dumka in Cr. Misc. Case no. 148 of 1999, shows that the defendants have been in possession of the suit land since the year 1999; hence the suit was not maintainable and learned trial court could not appreciate the evidence in the record in their right perspective and failed to exercise the jurisdiction vested upon it under Order XLI Rule 31 of the Code of Civil Procedure, hence, it is submitted by the learned counsel for the appellant that the judgments passed by both the courts below be set aside and the suit of plaintiffs after formulating substantial question of law, be dismissed. 11. Having heard the submissions made at the Bar and after going through the materials available in the record, it is pertinent to mention here that the defendant though claims that he has been in possession of the suit land since the year 1992 but he could not produce any documentary evidence in support of his contention, nor could he produce any cogent oral testimony to that effect. On the other hand, it is specific case of the plaintiffs that between 26.07.2012 to 03.08.2012 when they were out of village in connection with the treatment of the father of the plaintiff no. 1, during that period, the defendant encroached upon the suit land and there was a measurement in which it was found that the defendant was in possession of the part of the suit land. The 7 S.A. 160 of 2022 requisition of Amin in R.M. case no. 33/13 -14 has been marked as Exhibit 4, the receipt of Nazir of Jama Block, has been marked as Exhibit 2 and the application for demarcation dated 15.04.2013 has been marked as Exhibit 3. Under such circumstances, both the courts below having not accepted the contention of possession of the defendant that he has been in possession since year 1992 rather having accepted the claim of the plaintiffs that they were dispossessed between 26.07.2012 to 03.08.2012 and the suit, having been filed in the year 2014, certainly the suit for declaration of right, title, interest and recovery of the possession as filed by the plaintiffs, is not barred by limitation. Undisputedly, Parasram Bhawaniya was the owner of the land and undisputedly Jagdish Mishra was not the owner of the land and he only entered into agreement for sale and certainly Jagdish Mishra was not having any right, title and interest to transfer the same to the defendant. So even if Jagdish Mishra has taken some money from the defendant, still Jagdish Mishra himself was not having any title and certainly it was not open for him to transfer any title to the defendant. On the other hand, the plaintiffs have filed and proved the sale deed executed by the legal heirs of the Parasram Bhawaniya in their favour and there is no illegality in the same. So, by such sale deed, the right, title and interest of Parasram Bhawaniya which was inherited by the legal heirs, has been transferred to the plaintiffs and thus the plaintiffs have acquired right, title and interest over the suit property. 12. Under such, circumstances, this court is of the considered view that the findings of the fact arrived at by both the courts below, is not by ignoring or excluding relevant materials or taking into consideration the irrelevant materials nor such finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse. 13. Under such circumstances, this court is of the considered 8 S.A. 160 of 2022 view that there is no justifiable reasons to interfere with the concurrent finding of facts arrived at both the courts below and there is absolutely no substantial question of law involved in this appeal, accordingly, this appeal being without any merit is dismissed but in the circumstances, without any cost. 14. Let a copy of this Judgment be sent back to the Court concerned forthwith. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated, the 19th July , 2023. Smita /AFR