Civil Appeal No. 2 of 2014 · The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No. 508 of 2018 (Against the judgment dated 30.08.2018 passed by learned Additional Judicial Commissioner XI, Ranchi in Civil Appeal No. 2 of 2014) 1. Jabidan Khatoon, Widow of Late Samiruddin Ansari age-65 yrs 2. Amir Hamja, Age 47 yrs 3. Zakir Parwez, Age 42 yrs 4. Sakir Ansari, Age 41 yrs 5. Shahid Ansari, Age 40 yrs 6. Rashid Ansari, Age 29 yrs All sons of Late Samiruddin Ansari, All resident of Village Chamke, PO- Chakme, P.S.-Burmu, District- Ranchi 7. Azhar Ansari, Age 40 yrs 8. Mohsin Ansari, Age 39 yrs, Sons of Late Anwar Ali 9. Skeikh Tahir Ali, Son of Late Azamat Ali, Age-85 yrs By faith- Muslim, by occupation-Cultivation and Service Resident of Village-Sarle, PO Omedanda, PS-Burmu, District- Ranchi. …….Plaintiffs/Respondents/Appellants Versus 1. Jainath Munda 2. Deonath Munda 3. Shivanath Munda, All sons of Late Mukund Pahan, By faith- Aboriginal, by occupation- Cultivation, resident of Village- Sarle, P.O-Omedanda, PS.- Burmu, District- Ranchi, PIN- …….Respondent/Appellants/Defendants. 4. Dy Commissioner Ranchi …….Respondent 5. Shama Parveen, W/o Shamim Ansari, and D/o Late Samiruddin Ansari, Resident of Kadru near Argora Rly Stn. , P.O.- Argora, P.S.-Argora, District- Ranchi 6. Shahin Parveen, W/o Ismail Ansari, and D/o Late Samiruddin Ansari, Resident of Village- Matwe, PO- Roll Matwe, P.S.- Burmu, District-Ranchi 7. Asiruddin Ansari, S/o Seikh Rahmat Ali, 8. Arsad Ansari 9. Ibrar Ansari Sons of Late Anwar Ali 10. Nuresha Khatoon, D/o Late Sheikh Sahmat Ali All resident of Village- Sarle, PO-Omedanda, P.S.- Burmu, Dist.- Ranchi …….Plaintiff/Respondents/Respondents For the Appellants
Legal Reasoning
: Mr. Vishal Kr. Tiwari , Adv. Mr. Deepak Kumar , Adv. Md. Imran Beig, Adv. 1 SA No. 508 of 2018 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 preferred against the judgment of reversal dated 30.08.2018 passed by learned Additional Judicial Commissioner XI, Ranchi in Civil Appeal No. 2 of 2014 whereby and where under, learned First Appellate Court has reversed the judgment and decree passed by learned trial court being learned Munsif, Civil Court, Ranchi in Title Suit no. 40 of 1995 dated 13.08.2013, whereby and whereunder, learned Munsif decreed the suit of the plaintiff and allowed the appeal. 3. The brief facts of the case is that the plaintiff-appellant filed Title Suit no. 40 of 1995 for declaration of their right, title and interest over the schedule land of the plaint and that the entry of the name of the defendants made in terms of the SAR case no. 701 of 1989-90 will not affect the legal right, title and interest of the plaintiffs. The plaintiffs also prayed for the relief of confirmation of the possession over the suit land and if the plaintiffs are found dispossessed from the suit land then for recovery of the possession of the suit land, cost of the suit and other reliefs to which the plaintiffs are entitled. 4. The case of the plaintiffs in brief is that Sohrai Munda was the recorded tenant of the suit land. Being unable to pay the rent, Sohrai Munda surrendered the suit land to the ex-landlord Jan Mohammad in the year 1944, by registered deed of surrender. The ex-landlord Jan Mohammad subsequently settled the suit land by Sada Hukumnama in favour of Ghuran Miyan who was paying rent to the ex-landlord and after vesting of the State, 2 SA No. 508 of 2018 paying rent to the State of Bihar. Ghuran Miyan in the year 1960, transferred the suit land consisting of 6.17 ½ Acre in favour of the plaintiffs for valuable consideration by registered sale deed dated 02.06.1960. After the such purchase, the plaintiffs got their names mutated in the office of Burmu Circle and had been paying rent and obtaining rent receipts. The plaintiffs improved the suit land incurring huge expenses. The defendants filed an application under Section 71A of the Chotangpur Tenancy (CNT) Act vide SAR case no. 701 of 1989-90 in the court of Special Officer-cum- Executive Magistrate, Ranchi. Notice of the said SAR case was received by the plaintiffs. The plaintiffs filed show cause in the said SAR Case no. 701 of 1989-90. The Special Officer-cum- Executive Magistrate, Ranchi passed the order for restoration of the suit land in favour of the defendants vide its order dated 16.04.1993. The defendants got the land recorded in his name before settlement officer. The plaintiffs’ possession has been mentioned in the remarks column. The plaintiffs pleaded that the order passed in SAR case no. 701 of 1989-90 is wholly illegal and the same has not affected the right, title and interest of the plaintiffs and the plaintiffs continued to be in possession over the suit land since 1944 and perfected their right, title and interest by way of adverse possession also hence the plaintiffs filed the said suit. 5. Defendant in the written statement challenged the maintainability of the suit on various technical reasons. It was further pleaded by the defendants that Ghuran Miyan never paid any rent in respect of the suit land. They also denied that Ghuran Miyan transferred the suit land in favour of the plaintiffs or the land was ever mutated in favour of the plaintiffs. The defendants pleaded that they are paying rent to the state of Bihar and 3 SA No. 508 of 2018 are obtaining receipts for the same. The defendants denied the claim of peaceful cultivable or possession over the suit land by the plaintiffs. The defendants claimed that they are in peaceful possession of the suit land. The defendants next pleaded that the order passed in SAR case number 701 / 1989-90 is legal and proper and delivery of possession was given to the defendants in terms of the said order on 08.08.1993; along with several other lands of RS Khata no. 145. 6. Learned trial court on the basis of the rival pleadings of the parties, framed the following thirteen issues:- Is the suit framed maintainable ? I. II. Have the plaintiffs valid cause of action for the suit? III. Whether the plaintiffs’ suit is barred by law of limitation and adverse possession and ouster? IV. Whether the plaintiffs’ suit is bad for nonjoinder and V. VI. misjoinder of necessary parties? Is the suit barred by under the principle of waiver, estoppel and acquiescence? Is the suit barred under the provision of CNT Act and land reforms Act? Is the suit barred u/s 34 of the Specific Relief Act? Whether the suit barred by the law of res judicata? IX. Whether the recorded raiyat Sohrai Munda had surrendered the land in suit to the then landlord by registered deed dated 19.1.1944 and whether the alleged surrender deed is legal and valid one ? VII. VIII. X. Whether alleged surrender and settlement as claimed by XI. plaintiff are legal and valid? Whether the plaintiffs have got right title and interest and possession over the suit property? XII. Whether the order passed in SAR case no 701/89-90 is illegal and without jurisdiction and mere entry of names of 14 defendants in respect of the suit land in the new survey khata no 305 has affected the right title and interest of the plaintiffs over the suit property ? Have the plaintiffs entitled for the relief or reliefs as claimed for ? XIII. 7. In support of their case, the plaintiffs examined six witnesses and proved the documents, which have been marked as Ext. 1 to 4/8. From the side of the defendants, however, seven witnesses were examined and the documents have been marked as Ext. A to G. 8. Learned trial court first took up issue no. IX to XII and 4 SA No. 508 of 2018 after considering the evidence in the record, learned trial court came to the conclusion that the settlement document is valid and by the same right, title and interest over the suit accrued to Seikh Ghuran Miyan and by registered sale deed Seikh Ghuran Miyan has conferred right, title and interest of the suit land in favour of the plaintiffs. The plaintiffs were in possession of the suit land before SAR case no. 2 /96 and even after the said SAR case the defendants are not in possession and the entry in the revenue record made in favour of the defendant is illegal. The order passed in SAR case is illegal and without jurisdiction and decided the issues number IX to XII in favour of the plaintiffs and against the defendants. 9. Learned trial court next took up issue no. III to VIII together and after considering the evidence in the record, learned trial court came to the conclusion that the defendants have not adduced any oral or documentary evidence in respect of these issues and decided the issue nos. III to VIII against the defendants. 10. Learned trial court next took up issue nos. I and II together and after considering the evidence in the record and in view of the findings of the other issues came to the conclusion that that the suit is maintainable in its present form and there is cause of action for the suit. 11. Learned trial court lastly took up issue no. XIII and held that the plaintiffs have right, title and interest over the suit land and are entitled to the possession of the same and decreed the suit on contest. 12. Being aggrieved by the judgment and decree passed by learned trial court, the plaintiffs filed the Civil Appeal no. 02 of 2014 which was ultimately heard and disposed of by learned First Appellate Court by the impugned judgment as already indicated above. 5 SA No. 508 of 2018 13. Learned First Appellate Court after considering the materials available in the record and submissions made before it, made independent appreciation of the evidence in the record and considered that the Kabuliyat, which has been marked as Ext. 2, has not been pleaded by plaintiffs and in the absence of the pleading, excluded the Ext. 2 from consideration. That left the plaintiff with only title document being the unregistered Hukumnama in respect of which, there was no return filed by the ex- landlord, Jan Mohammad nor any document could be brought on record by the plaintiffs as to on what basis they are paying rent to the State and the plaintiffs also could not produce any evidence to suggest that they ever paid any rent to Jan Mohammed. Hence learned First Appellate Court held that in the absence of any title transferred by Jan Mohammad to Seikh Ghuran Miyan and Seikh Ghuran Miyan had no title, to transfer the same to plaintiff. Learned First Appellate Court also considered that the plaintiffs failed to establish that Sohrai Munda ever surrendered the land to Jan Mohammed in accordance with law and went on to hold that the plaintiffs failed to establish their title and allowed the appeal and set aside the judgment and decree passed by learned trial court. 14. Learned counsel for the appellants submits that the judgment and degree passed by the learned First Appellate Court is against the weight of the evidence and materials available in the record. It is next submitted that the findings of learned trial court is contrary to the law and evidences, as the learned First Appellate Court failed to accord due consideration to the registered deed of surrender of the year 1944 and the registered deed of Kabuliyat dated 26.01.1944 which having been accepted with no objection cannot be said to be forged and 6 SA No. 508 of 2018 fabricated document, without specific pleading in respect of the same by the defendants hence it is submitted that the judgment and decree passed by learned First Appellate Court being not sustainable in law be set aside and the judgment and decree passed by learned trial court, being learned Munsif, Civil Court, Ranchi be restored, after formulating appropriate substantial question of law. 15. Having heard the submissions made at the Bar and after going through the materials available in the record, the undisputed fact remains that there is absolutely no pleading of the plaintiffs regarding the Kabuliyat which has been marked Exhibit 2. It is needless to mention that it is a settled principle of law that the evidence beyond the pleading is not admissible, as has been reiterated by the Hon’ble Supreme Court of India in the case of Ram Sarup Gupta (dead) by LRs., vs. Bishun Narain Inter College [AIR 1987 SC 1242] as under :- "It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should state the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a liberal construction, no pedantic approach should be adopted to defeat technicalities. justice Sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law, in such a case it is the duty of the court to ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the splitting hair on 7 SA No. 508 of 2018 question about lack of pleading is raised the enquiry should not be so much about the form of pleadings, instead the court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings, parties knew the case and they proceeded to trial on those issue by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal."[Emphasis supplied] as also in the case of Bondar Singh and Others v. Nihal Singh and Others reported in (2003) 4 SCC 161, para 7 of which reads as under:- “7. As regards the plea of sub-tenancy (shikmi) argued on behalf of the defendants by their learned counsel, first we may note that this plea was never taken in the written statement the way it has been put forth now. The written statement is totally vague and lacking in material particulars on this aspect. There is nothing to support this plea except some alleged revenue entries. It is settled law that in the absence of a plea no amount of evidence led in relation thereto can be looked into. Therefore, in the absence of a clear plea regarding sub-tenancy (shikmi), the defendants cannot be allowed to build up a case of sub-tenancy (shikmi). Had the defendants taken such a plea it would have found place as an issue in the suit. We have perused the issues framed in the suit. There is no issue on the point.” (Emphasis supplied) 16. Now since there is no pleading or plea of Kabuliyat certainly raised by the plaintiffs in the plaint, this court has no hesitation in holding that learned First Appellate Court has not committed any illegality by excluding the Kabuliyat which has been marked Ext. 2 from consideration, so that leaves only a Hukumnama which was not even marked as exhibit and only marked ‘X’ for identification, as the sole document basing upon which the plaintiff claims title of his predecessor in interest . 17. It is a settled principle of law that the plaintiff has to prove his own case and cannot rest upon the weakness of the defendant. Now since the plaintiffs filed the suit for declaration of the right, title and interest, obviously, the burden was upon the plaintiffs to establish their title. The 8 SA No. 508 of 2018 plaintiffs cannot bring any document regarding transfer of title in respect of the suit land by the ex-landlord- Jan Mohammad to Seikh Ghuran Miyan, the predecessor in interest of the plaintiff. There is no return filed by Jan Mohammad at the time of vesting of the estate of the ex- landlord to the State of Bihar nor the plaintiffs could produce any document as on what basis they are paying rent to the State of Bihar. The undisputed fact remains that there was SAR case no. 701/1989-90 which was decided in favour of the defendants and in which the order for eviction of the plaintiffs from the suit property has been passed by learned Special Officer and the same has never been challenged by the plaintiffs, though the same, without any doubt, was against the plaintiffs. 18. Under such circumstances this court do not find any illegality in the impugned judgment and decree passed by the learned First Appellate Court by holding that the plaintiffs have failed to establish their title and this court is also of the considered view that there is absolutely no substantial question of law involved in this appeal. 19. Accordingly, this appeal being without any merit is dismissed. 20. Let a copy of this Judgment be sent to the Court concerned forthwith. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated, the 3rd October, 2024 Smita /AFR 9 SA No. 508 of 2018