Civil Appeal No. 45 of 2017 · The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No. 406 of 2019 (Against the judgment and decree dated 30.09.2019 passed by learned District Judge, XI, Dhanbad in Civil Appeal No. 45 of 2017) 1(a) Purnima Devi, W/o Late Sanju Prasad Napit 1(b) Bhim Chandra Thakur 1(c ) Arjun Napit 1(d) Nakul Napit 1(e) Krishna Chandra Napit All 1(b) to 1(e) are sons of Late Sarju Prasad Napit and 1(a) to 1(e) are residents of Bagdaha, P.O. & P.S. Rajganj, Dist.- Dhanbad at present residing at P.O.- Fatehpur, PS.- Tundi, Chowki, Dhanbad …...Palintiffs/ Appellants /Appellants Versus 1. Maniruddin Ansari 2. Hamid Ansari 3. Jamruddin Ansari 4. Jalil Ansari All sons of late Jamedar Mian, R/o village- Fatehpur, P.O.- Fatehpur, & P.S.- Tundi, Dist.- Dhanbad 5. Savitri Devi @ Tupli Devi, W/o Baldeo Mallick 6. Rekha Kumari, D/o Late Baldeo Mallick 7. Pintu Kumar Mallick 8. Gurju Kumar Sl. No. 7 & 8 are sons of Late Baldeo Mallick Sl. No. 5 to 8 are residents of village- Fatehpur, P.O.- Fathepur, P.S.- Tundi, Dist.- Dhanabd ….. Defendants / Respondents / Respondents For the Appellants : Mr. Sudhir Kr. Sharma, Adv. Mr. Akash Kr. Lal , Adv. Mr. Shash Shekhar Dwivedi , Adv. P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:- Heard the learned counsel for the appellants. 1 SA No. 406 of 2019 2. This Second Appeal under Section 100 of the Code of Civil Procedure, 1908 has been preferred against the judgment of affirmation dated 30.09.2019 passed by learned District Judge, XI, Dhanbad in Civil Appeal No. 45 of 2017 whereby and where under, learned First Appellate Court has dismissed the appeal and upheld the judgment and decree dated 27.04.2017 passed by learned Civil Judge (Sr. Div.) – VI, Dhanbad in Title Suit No. 14 of 1987. 3. The brief facts of the case is that the plaintiff – appellant filed Title Suit No. 14 of 1987 with a prayer for confirmation of possession after declaration of the permanent raiyati right of the plaintiff over schedule A of the plaint which belonged to Budhu Mallick in the last cadastral Survey Settlement Records of Rights. The suit
Legal Reasoning
was first dismissed on 29.02.1992. The plaintiff preferred Title Appeal No. 13 of 1994 and vide judgment dated 08.03.2000 in Title Appeal No. 13 of 1994, the earlier judgment dated 29.02.1992 in the suit was set aside and the suit was remanded to the trial court to decide the two issues, mentioned in para 7 of the judgment of Title Appeal no. 13 of 1994 dated 08.03.2000. The second judgment was passed in Title Suit no. 14 of 1987 by learned Sub Judge, Dhanbad on 08.08.2005 whereby the suit was decreed on contest in favour of the plaintiff. The defendants then filed Title Appeal No. 154 of 2005 in which, the judgment and decree dt. 08.08.2005 was set aside and the case was remanded to the court to re-admit the suit under its original suit number and to decide the following two issues:- 1. Whether the suit land was surrendered by Budhu Mallick to landlord and the same was settled in favour of Panu Hari ? 2. Is the sale deed no. 930 dated 02.03.1987 executed by the defendant nos. 5 and 6 in favour of defendant nos. 1 to 4 2 SA No. 406 of 2019 illegal, collusive and without consideration and void on the basis of evidence and materials already available on the record? 4. So the last judgment in Title Suit no. 14 of 1987, was passed on 27.04.2017. 5. The case of the plaintiff is that the landlord namely Kishori Mohan Bhagat settled the suit in favour of Panu Hari after taking Salami of Rs. 60/- and an annual rent of 8 annas and 6 paise on 03.11.1945. Such settlement was made orally but later on, one Hukumnama was given. Panu Hari died in 1981 leaving behind his two sons Peary Hari and Ajodhya Hari who inherited the schedule land. On 15.10.1982, Panu Hari and Ajodhya Hari executed sale deed no. 11858 in favour of the plaintiff and put the plaintiff in possession thereof and the plaintiff paid rent to the State Government. The plaintiff further pleaded that Badri Mallick and Misri Mallick being the defendant nos. 6 and 5 respectively; though are not legal heirs of Budhu Mallick, without any title and possession as well as right over the schedule property created a collusive document in favour of the defendant nos. 1 to 4 on 02.03.1987 and since then, the defendants are threatening the plaintiff for dispossessing them from the land and contended that the sale deed no. 930 executed on 02.03.1987 by defendant nos. 5 and 6 in favour of defendant nos. 1 to 4 is wholly collusive and void. 6. The defendants in their written statement challenged the maintainability of the suit on various technical grounds and further pleaded that the contention of the plaintiff regarding Budhu Mallick surrendering the land to landlord is not true. Budhu Mallick who was the recorded tenant, was the uncle of Muchiram Mallick, who was the father of the defendant nos. 5 and 6 namely Misri Mallick and Badri Mallick respectively. After death of Budhu 3 SA No. 406 of 2019 Mallick, Muchiram Mallick inherited the entire property of Budhu Mallick, in the capacity of legal heirs of Budhu Mallick. Budhu Mallick having never surrendered the land to the then landlord and landlord never settled the suit land to Panu Hari as vide its judgment in Title Appeal no. 154 of 2005, learned District Judge, XI, Dhanbad remanded the entire case to trial court; the learned trial court considered the following four issues:- 1. Whether the suit land surrendered by Budhu Mallick to landlord and the same was settled in favour of Panu Hari? 2. Is the sale deed no. 11858 dated 15.10.1982 executed by defendant nos. 5 and 6 in favour of the defendant nos. 1 to 4 illegal, collusive, without consideration and void? 3. Whether the plaintiff is entitled to the relief as claimed in the plaint? 4. Whether the plaintiff has any valid cause of action to file this suit? 7. In support of his case, plaintiff examined altogether 11 witnesses, and proved the documents which have been marked as Ext. 1 to 5. From the side of the defendant no. 10 witnesses were examined and the defendant proved the documents which have been marked Ext. A to C. 8. Learned trial court after considering the evidence in the record considered that Ext. B/1, which is the certified copy of the return filed in Compensation Case no. 1259/1955-56, in sl. No. 33 shows the name of Budhu Mallick, son of Haru Mallick as a raiyat and the same appeared to be more true and probable to the trial court and the trial court observed that the preponderance of probability appears to be in favour of the plaintiff and decided the issue no. 1 against the plaintiff. 9. In respect of issue no. 2, learned trial court after considering the evidence in the record, came to the conclusion that the transfer of land by the defendant no. 5 4 SA No. 406 of 2019
Legal Reasoning
and 6 namely Misri Mallick and Badri Mallick respectively in favour of the defendant no. 1 to 4 vide the sale deed, which have been marked Ext. ‘C’ is void and illegal because at the time of the transfer, the defendant no. 5 and 6 had no better title over the land which he transferred in capacity of lineal descendant of Budhu Mallick and went on to dismiss the suit on contest. 10. Being aggrieved by the judgment and decree dated 27.04.2017 filed in Title Suit no. 14 of 1987, the plaintiff filed the Civil Appeal no. 45 of 2017 in the court of learned Principal District Judge, Dhanbad which was ultimately heard and disposed of by learned District Judge, XI, Dhanbad, as already indicated above. 11. Learned Principal District Judge, XI, Dhanbad after considering the materials available in the record and submissions made before it, framed the following three points for determination : I. Whether the learned trial court rightly decided the issue whether the suit land was surrendered by Budhu Mallick to ex-landlord and the same was again settled by way of Sada Hukumnama dated 03.11.1945 in favour of Panu Hari by ex- landlord, Kishori Mohan Bhagat? II. Whether the learned trial court rightly decided that sale- deed no. 930 dated 02.03.1987 executed by Badri Mallick and Mishri Mallick in favour of Maniruddin Ansari, Hamid Ansari, Jamruddin Ansari and Jalil Ansari is illegal, collusive and without consideration and void? III. Whether there is any defect in the judgment and decree of the trial court dated 27.04.2017 ? 12. Learned First Appellate Court first took up point for determination no. I. Learned First Appellate Court considered the Ext- 5 which is stated to be Hukumnama in favour of the vendor of the plaintiff – Panu Hari wherein, it has been mentioned that since Budhu Mallick 5 SA No. 406 of 2019 had expired without having any issue, therefore the suit land was settled in favour of Panu Hari in place of Budhu Mallick but it was not written therein that Budhu Mallick surrendered the suit land to the landlord. So, Learned First Appellate Court did not find the pleadings of the plaintiff that Budhu Mallick surrendered nor he found the case of the plaintiff that Budhu Mallick left the village after surrender; as acceptable as the own document of the plaintiff being Ext. 5, revealed that the ex-landlord, Kishore Mohan Bhagat has stated that after the death of Budhu Mallick only, the land was settled in favour of Panu Hari. Learned First Appellate Court also relied upon the Ext. B 1, the certified copy of Register II , issued by the revenue authority on 16.03.1988 in sl. No. 33 of which, the name of Budhu Mallick was appearing and the same was also contrary to the case of the plaintiff, of Budhu Mallick surrendering the land. Thus, Learned First Appellate Court arrived at the conclusion that the plaintiff- appellant came before the court with false claim of surrender of the holding by raiyat Budhu Mallick, in favour of Ex-landlord. Learned First Appellate Court considered that Hukumnama marked as Ext. 5, is not a registered document so, the oral evidence regarding the terms of the lease is not admissible. Hukumnama was executed on 03.11.1945. The plaintiff did not produce the Register II to show that after settlement, the ex-landlord submitted the Register before Revenue authority at the time of Zamindari Abolition showing raiyats/ tenants to be Panu Hari against the suit land. Learned First Appellate Court discarded the Ext. 6 as the same does not relate to the suit property. In the absence of any evidence of rent on malgujari and salami having paid at the time of settlement and in the absence of continuous payment of any rent, to the ex-landlord till vesting of Zamindari, the 6 SA No. 406 of 2019 register which was submitted by the ex-landlord at the time vesting of Zamindari, opening of Zamindari in the name of Raiyat, and continuous payment of rent to the State, having not fulfilled in respect of the Hukumnama, marked Ext. 5, Learned First Appellate Court held that the plaintiff – appellant failed to prove the genuineness of the Hukumnama, marked Ext. 5 and such Hukumnma has no value in the eyes of law and thus, on the basis of sada Hukumnama, Panu Hari did not have any right, title and interest over the suit land, so Panu Hari had no right, title or interest to transfer to the plaintiff –appellant. 13. Learned First Appellate Court next took up point for determination no. II. Learned First Appellate Court considered Ext. B/1 as already indicated above, Ext. 3 which is the Record of Rights, filed by the plaintiff which shows that the suit land was recorded in the name of Budhu Mallick. Relying upon the Ext. 2, it was observed by Learned First Appellate Court that it has been mentioned therein that Gendo Mallick was the son of Haru Mallick and Haru Mallick was the father of Budhu Mallick. Muchi Ram Mallick was the son of Gendo Mallick and after perusal of the Ext. B/1, B/2 and Ext. 3 as well as Ext. C, Learned First Appellate Court arrived at the conclusion that Haru Mallick had three sons – Budhu Mallick, Kheru Mallick and Gendu Mallick. Budhu Mallick and Kheru Mallick died having no issues. Gendo Mallick had one son being Muchi Ram Mallick and Muchi Ram Mallick had two sons being Mishri Mallick and Badri Mallick. Learned First Appellate Court observed that the plaintiff-appellant could not prove that Gendo Mallick was not the real brother of Budhu and went on to hold that the respondent-defendants have succeeded in establishing that after the death of Budhu Mallick, his property devolved upon his own brother 7 SA No. 406 of 2019 Gendo Mallick, and after the death of Gendo Mallick, his son Muchi Ram Mallick and after the death of Muchi Ram Mallick, his two sons being Mishri Mallick and Badri Mallick were entitled to succeed to the estate of Budhu Mallick. Upon thus considering the evidence in the record, learned First Appellate Court arrived at the conclusion that as the sale deed bearing no. 930 dated 02.03.1987 was executed by Mishri Mallick and Badri Mallick, having valid right, title and interest in favour of Maniruddin Ansari and three others, hence, the onus shifted to the plaintiffs to prove the fact that without having the right, the Ext. D-5 and D-6- the concerned sale deeds were executed and went on to hold that learned trial court by its judgment dated 27.04.2017 wrongly, held that at the time of transfer, the defendant nos. 5 and 6 had no better title over the land which they had transferred in the capacity of lineal descendant of Budhu Mallick and answered the point for determination no. II in the negative. 14. Learned First Appellate Court then took up point for determination no. III and concluded that as Budhu Mallick, the recorded raiyat had never surrendered the suit schedule property in favour of the ex-landlord, so the ex-landlord Kihsori Mohan Bhagat had no right to execute Sada Hukumnama with respect to the suit property in favour of Panu Hari. Since the suit property was not surrendered by Budhu Mallick , hence, further transaction of ex-landlord with respect to the suit land, has no value and also found that the plaintiff appellant did not prove the fact, that the registered sale deed no. 930 dated 02.03.1987 is illegal, collusive and void and went on to further hold that the case of the plaintiff that he is the rightful owner of the suit land through purchase from Panu Hari is not maintainable, therefore, the learned trial 8 SA No. 406 of 2019 court has rightly dismissed the suit and accordingly dismissed the appeal. 15. Learned counsel for the appellant relying upon the judgment of the Hon’ble Supreme Court of India in the case of Kashmir Singh vs. Harnam Singh & Anr., reported in 2008 AIR SCW 2417, para 17 of which, reads as under:- “17. The general rule is that High Court will not interfere with concurrent findings of the Courts below. But it is not an absolute rule. Some of the well recognized exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to 'decision based on no evidence', it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.” submits that when the courts below have ignored the materials evidence or acted on no evidence or the courts have drawn wrong inferences from the proved facts by applying the law, erroneously or the courts have wrongly cast the burden of proof when then, the High Court can interfere with the concurrent finding of fact of the courts below. It is next submitted by the learned counsel for the appellant that as the Appellate Court has not discussed the evidence of PW3 to the effect that the suit plot was settled by his father, the ex-landlord, in favour of Panu Hari by virtue of Hukumnama and which portion of testimony, was supported by PW6 Devendra Nath Mandal, PW8- Sarju Prasad Napit, hence, the learned First Appellate Court has committed a grave illegality in affirming the findings of learned trial court on issue no. I. It is next submitted by learned counsel for the appellant that learned First Appellate Court has committed a gross illegality by not considering the entries made in the Record of Rights- Ext. 3 and 3/A, on the basis of which, learned trial court concluded that the defendant nos. 5 and 6 are not lineal descendants of Budhu Mallick and not 9 SA No. 406 of 2019 entitled to transfer the suit land in favour of defendant no. 1 and 4 and this failure on the part of the learned First Appellate Court, not to consider the Ext. 3 and 3/A, has vitiated the entire impugned judgment. 16. It is next submitted by learned counsel for the appellant that the finding of the learned First Appellate Court that Gendo Mallick was the brother of Budhu Mallick was perverse. It is next submitted that learned First Appellate Court committed serious error of law as it failed to consider the Ext. C, wherein defendant no. 5 and 6 claimed through Khudu Mallick which is in contradictions with the pleadings made in the written statement where they claimed through Gendo Mallick, hence, it is submitted that the judgment and decree passed by both the courts below be quashed and set aside and the suit of the plaintiff be decreed after formulating appropriate substantial question of law. 17. 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 true it is, as has been held by the Hon’ble Supreme Court of India in the case of Kashmir Singh vs. Harnam Singh & Anr. (supra) that in appropriate cases, as already indicated above, the High Court can interfere with the concurrent finding of facts of the courts below but the point to be examined in this appeal, is whether any such grounds for interference of concurrent finding of fact returned by the courts below exists in this case nor not. 18. So far as the contention of the appellant that the oral testimony of PW3, PW6, PW8 and PW9 were not considered by the learned First Appellate Court is concerned, it is a settled principle of law that the oral testimony regarding the contents of the documents are not admissible in evidence. The oral testimony of the 10 SA No. 406 of 2019 witnesses in respect of which, it is contended by learned counsel for the appellant that the learned First Appellate Court did not consider the same, were in fact, the contents of the relevant documents, which were marked as Exhibits and which were before the court, so when learned First Appellate Court has considered the respective documents, non-mentioning of the oral testimony regarding the contents of such documents, in the considered opinion of this court, cannot be termed to be an illegality having been committed by learned First Appellate Court . 19. So far as the contention of the appellant that the learned First Appellate Court did not consider Ext. 3 and 3/A, is concerned, Ext. 3 is the certified copy of the Record of Rights where the name of Budhu Mallick as recorded tenant has been mentioned and the same has been discussed in para 21 of the appellate court judgment so, it is an erroneous submission made on behalf of the appellant by learned counsel for the appellant that learned First Appellate Court has not considered the Ext. 3, anywhere in its impugned judgment. 20. So far as the contention of the learned counsel for the appellant regarding the Ext. 3/A is concerned, the Ext. 3/A is in no way related to the case of the plaintiff nor the plaintiff has pleaded about the same, hence, the evidence which was not related to the pleadings of the parties being not admissible in evidence, is not required to be considered and as Ext. 3/A has not been pleaded by the plaintiff so in the considered opinion of this court, learned First Appellate Court has not committed any illegality by not considering an irrelevant evidence which is no way related to the pleadings of the party. Hence, in the considered opinion of this Court, learned First Appellate Court has not committed any illegality by not 11 SA No. 406 of 2019 considering the Ext. 3/A. 21. So far as the contention of the appellant that learned First Appellate Court has committed perversity by holding that Gendo Mallick was the own brother of Budhu Mallick, is concerned, it is pertinent to mention here that on the basis of the cogent evidence in shape of various documents, being the Exhibits 3/1, B/2, 3 and C which has been well discussed in the judgment, learned First Appellate Court has arrived at the conclusion that Gendo Mallick was the own real brother of Budhu Mallick. Under such circumstances, this Court do not find any merit in this contention of the appellant either. 22. So far as the contention of the appellant that learned First Appellate Court has committed serious error of law in construing the Ext. C, in the recital of which, it has been mentioned that defendant no. 5 and 6 have claimed the same through Khudu Mallick is concerned, it is the specific case of the defendant that they claimed the ownership as their vendor has acquired the suit property through Gendo Mallick. The undisputed fact remains that Ext. C is a sale deed by which, the defendant nos. 5 and 6 have transferred their title in respect of the land owned by them, the description of which has been made in the sale deed executed in favour of the defendant nos. 1 to 4. So, merely because of a wrong mentioning of the source of the acquisition of title by the vendor in the sale deed, in favour of a purchaser, cannot make sale deed void ab initio; If the vendor has title and such title has been validly transferred to the purchaser. In other words, a valid title can be transferred to the purchaser by the vendor by a registered sale deed effectively and mere error in mentioning the manner in acquisition of land by the vendor cannot prevent the purchaser from acquiring the right, title and interest over the property. So, on this score 12 SA No. 406 of 2019 also, in the considered opinion of this court, learned First Appellate Court has not committed any illegality. 23. Because of the discussion made above, this Court is of the considered view that there is no substantial question of law involved in this appeal. Accordingly, this appeal being without any merit is dismissed. 24. Let a copy of this Judgment be sent to the Court concerned forthwith. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated, the 1st August, 2024 Smita /AFR 13 SA No. 406 of 2019