Jharkhand High Court
Bhushan Munda Son Of Late Sitaram Munda vs Niranjan Mahli Son Of Late Deothan Mahli on 19 April, 2018
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
Second Appeal No. 45 of 2011
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No.45 of 2011
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1. Bhushan Munda Son of Late Sitaram Munda
2. Nawal Munda Son of Late Charan Munda
3. Sanjay Munda Son of Late Dular Munda
4. Manoj Munda Son of Late Biphai Munda All are residents of Village-Madhuban Tola, P.O. and P.S.- Lohardaga, District-Lohardaga, Jharkhand .... .... .... Appellants Versus
1. Niranjan Mahli son of Late Deothan Mahli
2. Durga Mahli Son of Late Hari Nandan Mahli Both residents of Barwatoli, P.O. and P.S.-Lohardaga, District- Lohardaga, Jharkhand
3. The Deputy Commissioner, Lohardaga, District-Lohardaga .... .... .... Respondents For the Appellants : Mr. B.K. Sinha, Advocate PRESENT HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:-
1. Heard the learned counsel for the appellants.
2. This second appeal has been preferred by the plaintiffs, who were the appellants in lower Appellate Court and the appellants herein, against the judgment and decree dated 26.02.2011 passed by the District Judge, Lohardaga in Title Appeal No.7 of 2009 whereby and whereunder, the learned Lower Appellate Court has dismissed the appeal and upheld the judgment and decree passed by the trial Court.
3. The case of the Plaintiffs in brief is that the suit land was recorded in the name of Fagua Pahan, as Pahanai Bakast land of the Pahan. The descendants of Fagua Pahan namely Luchu Munda, Ram Munda, Peka Munda and Nekal Munda filed a petition for permission before the Deputy Commissioner on 02.12.1946 for transfer of the suit lands to Bhula Mahali for the construction of water reservoir or bandh. Vide order dated 17.12.1947 in case no. 20R8 (ii) of 1946-47, permission for transfer of land was accorded by Deputy Commissioner, Ranchi, for a sum of Rs.4,200/-. It is further pleaded by the plaintiffs that though 1 Second Appeal No. 45 of 2011 the land was transferred for the construction of water reservoir but no water reservoir was ever constructed. Thereafter, the ancestors of the plaintiffs moved for restoration of land under Section 71A of the Chota Nagpur Tenancy Act (Schedule Area Regulation 1969) before the designated court of the S.D.O., Lohardaga in S.A.R. Case No.69 of 1976-77 but the same was dismissed by order dated 24.09.1976. The appeal was preferred vide appeal no.26R/15/77-78. The appellate court of Additional Collector, Lohardaga in the said appeal vide order dated 31.03.1990 remanded back the said case to the court of DCLR for fresh hearing. After remand on fresh hearing and submission of a report by the circle officer, the land was ordered to be restored to Sita Ram Pahan in the said S.A.R. Case No.69 of 1976-77. Being aggrieved by the said order of restoration, the defendants moved the Appellate Court of the Additional Collector, Lohardaga in S.A.R. Appeal No.17R 15/95-96 and by order dated 09.07.1996, the appeal of the defendants was dismissed. The defendants preferred a revision before the High Court vide C.W.J.C. No.2800 of 1996(R) and by order dated 12.05.2003 a coordinate Bench of this Court held that Section 71A of the Chota Nagpur Tenancy Act is not applicable in the instant case and the order of restoration was set aside and thereafter, the plaintiffs filed the instant title suit and pleaded that the orders passed in a writ jurisdiction in exercise of Civil Writ Jurisdiction is not a judgment and the jurisdiction of the civil court is still there. The defendants filed their joint written statements and asserted that the matter has attained finality by the order passed by a coordinate Bench of this Court in the said C.W.J.C. No.2800 of 1996 (R) as the same has not been assailed by the plaintiffs and the jurisdiction of the civil court is barred under Section 258 of Chota Nagpur Tenancy Act. It has further been pleaded by the defendants that there is specific provision under Section 49 (5) of Chota Nagpur Tenancy Act for restoration of such land by the State Government.
4. On the basis of the rival pleadings, the learned trial court framed six issues. The main issue being "Whether the plaintiffs are entitled to a decree of declaration of their right, title and interest over the suit land?"
5. The learned trial court observed that the power of annulment is with the State Government and not with the Civil Court even under Section 49 (5) of the Chota Nagpur Tenancy Act, 1908 and that the essential ground for such annulment was that the consent under Sub-Section 1 and 2 of Section 49, must have been obtained in contravention of the provisions of Subsection 1 and 2 of 2 Second Appeal No. 45 of 2011 Section 49 of the Chota Nagpur Tenancy Act, 1908, by misrepresentation or fraud and the plaintiffs having not pleaded fraud or misrepresentation at any stage of the case, dismissed the suit.
6. Being aggrieved by the judgment and decree dated 27.02.2009 passed by the Sub-Judge-II, Lohardaga in Title Suit No.25 of 2003, the appellants preferred appeal in the District Judge, Lohardaga and the same was numbered as Title Appeal No.7 of 2009. The appeal was heard and disposed of by the learned District Judge, Lohardaga by the impugned judgment. The learned Lower Appellate Court after making its own independent appreciation of the materials and the evidences in the record, held that the suit of the plaintiffs could not be allowed because of four reasons. The first being, after transfer of the suit land on receipt of consideration amount by the predecessor-in-interest of the plaintiff, the plaintiffs have no title. Secondly, the transfer was made in the year 1947 on payment of compensation amount of Rs.4,200/- after due permission of the Deputy Commissioner. Thirdly, the power to annul the transfer vests with the State Government under Section 49 (5) of the Chota Nagpur Tenancy Act and fourthly, because restoration of land under section 71 A of the Chota Nagpur Tenancy Act, which came into force on 09.02.1969 can be allowed when it is brought within reasonable time and dismissed the appeal.
7. It is submitted by Mr. B.K. Sinha, the learned counsel for the appellants that the learned court below has failed to appreciate the evidence in the record in its proper perspective. He further submitted that the learned trial court failed to take note of the fact that the suit of the plaintiffs is maintainable under section 258 of the Chota Nagpur Tenancy Act, 1908. Hence he submitted that the impugned judgment and decree of the courts' below be set aside and the suit of the plaintiffs be decreed.
8. Having heard the learned counsel for the appellants and on perusal of the record, I find that the plaintiffs filed the suit in the civil court for decree of declaration of right, title, interest along with confirmation of possession over the suit land. The learned lower appellate court has considered the material and evidence in record in proper perspective and considered that since the ancestors of the plaintiffs have transferred the suit land, so the plaintiffs cannot claim title over the suit land as no title in respect of the suit land remains with the plaintiffs-appellants after transfer of the said land by their ancestors. So far as annulment of transfer is concerned, the learned lower appellate court considered that the said power vests with the State Government and for the same pleading, fraud and misrepresentation 3 Second Appeal No. 45 of 2011 was a sine qua non, which has not been pleaded by the plaintiffs-appellants at any stage of the case.
9. So far as the prayer of the appellants that the suit of the plaintiffs is maintainable under section 258 of the Chota Nagpur Tenancy Act, 1908 is concerned, it will be profitable to refer to Section 258 of the Chota Nagpur Tenancy Act, 1908 which reads as under:-
"258. Bar to suits in certain cases - Save as expressly provided in this Act, no suit shall be entertained in any Court to vary, modify or set aside, either directly or indirectly, and [decision], order or decree of any Deputy Commissioner or Revenue Officer in any suit, [application] or proceeding under Section 20, Section 32, Section 35, Section 42, Section 46, sub- section (4), Section 49, Section 50, Section 54, Section 61, Section 63, Section 65, Section 73, [Section 74(A)], Section 75, Section 85, Section 86, Section 87, Section 89, or Section 91 (Proviso), or under Chapter XIII, XIV, XV, XVI, or XVIII, except on the ground of fraud or want of jurisdiction [and every such decision, order or decree shall have the force and effect of a decree of a Civil Court in a suit between the parties and, subject to the provisions of this Act relating to appeal, shall be final]." (Emphasis Supplied) The plain reading of the Section 258 of the Chota Nagpur Tenancy Act, 1908 reveals that the said Section bars the jurisdiction of any court including the civil court to entertain any suit in respect of the orders passed by the Deputy Commissioner or Revenue Officer in respect of the Section mentioned in the said Section 258 except on the ground of fraud or want of jurisdiction but as already indicated above, the plaintiffs have not pleaded any fraud or want of jurisdiction, hence obviously Section 258 of the Chota Nagpur Tenancy Act, 1908 will be of no help to the plaintiffs-appellants in this case.
10. So far as the jurisdiction of this Court in exercise of the power under Section 100 of the Code of Civil Procedure is concerned, it is a settled principle of law that in exercise of power under Section 100 of the Code of Civil Procedure, the High Court cannot interfere with the finding of fact recorded by the first appellate court which is the final court of fact, unless the same is found to be perverse, as has been reiterated by the Hon'ble Supreme Court of India, in paragraph -10 of the case of Gurvachan Kaur and Others vs. Salikram (dead) through LRS., reported in (2010) 15 SCC 530 as under:-
"10. It is settled law that in exercise of power under Section 100 of the Code of 4 Second Appeal No. 45 of 2011 Civil Procedure, the High Court cannot interfere with the finding of fact recorded by the first appellate court which is the final court of fact, unless the same is found to be perverse. This being the position, it must be held that the High Court was not justified in reversing the finding of fact recorded by the first appellate Court on the issues of existence of landlord-tenant relationship between the plaintiff and the defendant and default committed by the latter in payment of rent." (Emphasis Supplied).
Learned Counsel for the appellants could not point out any specific instance of any particular evidence being not considered. The learned Counsel for the appellants also could not point out any illegality or error in the impugned judgment and decree of the lower Appellate Court giving rise to any substantial question of law to be framed and decided by this Court in exercise of second appellate jurisdiction.
11. Thus there being no merit, this appeal is dismissed but in the circumstances without any costs.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi.
Dated 19.04.2018 A.F.R. Sonu-Gunjan 5