Jharkhand High Court
Ibrahim Mian vs Munsaf Mian And Ors. on 1 April, 2004
Equivalent citations: [2004(2)JCR418(JHR)], 2004 AIR - JHAR. H. C. R. 1900, 2004 A I H C 3116, (2004) 2 JLJR 547, (2004) 2 JCR 418 (JHA), (2004) 20 ALLINDCAS 773 (JHA)
Author: Vishnudeo Narayan
Bench: Vishnudeo Narayan
JUDGMENT Vishnudeo Narayan, J.
1. This appeal at the instance of the plaintiff-appellant has been preferred against the impugned judgment and decree dated 08.12.1988 and 22.12.1988 respectively passed in Title Appeal No. 2 of 1986 by Shri Bhikari Ram, 1st Additional District Judge, Palamau whereby and whereunder the judgment and decree dated 29.11.1985 and 12.10.1985 passed in Title Suit No. 11 of 1984 by Munsif, Daltonganj were set aside and appeal was allowed.
2. The appellant had filed the said title suit for declaration of his title and confirmation of possession over the suit land bearing plot Nos. 160. 161, 163 and 290 appertaining to the "dar-raiyati" khata No. 4 situate in village Banjari PS Daltonganj now Chainpur District Palamau fully detailed in Schedule A of the plaint.
3. The case of the appellant in brief is that khata No. 11 of village Banjari stands recorded in the name of Nayak Tell in the cadastral Survey Records of Right and it consisted of five plots i.e. plot Nos. 160, 161, 162, 163 and 290 having an area of 1.24 acres, 90 acres, 6 acres, 30 acres and 1.78 acres respectively, the total area being 4.28 acres and Dildar Jolha was recorded as dar-raiyati in respect of all the plots aforesaid except plot No. 162 under dar-raiyati khaia No. 4 under the receded tenant Nayak Teli of khata No. 11 and the area of dar-raiyati khata as 4.22, acres. Nayak Teli aforesaid died leaving behind his major son Deni Teli @ Ramdeni Teli and minor son Dukhi Teli and finding the land of ratyatt khata No. 11 non profitable, the said Deni Teli as self and guardian of Dukhi Teli surrendered their right in respect thereof to the landlord i.e. Khas Mahal authority on account of non-payment of rent against him for which a certificate case was pending. Dildar Jolha had died leaving behind his two sons Ganu Mian and Shekhawat Mian who were in cultivating possession of the suit land and, thereafter Shekhawat Mian died issue less and Ganu Mian continued in cultivating possession over the same exclusively. There was rent suit filed by Khas Mahal, Deputy Collector against Deni Teli, the son of the recorded tenant Nayak Teli. The said Ganu Mian, the father of the appellant Ibrahim Mian deposited Rupees 26/8/0 pie and Rupee 1/5/0 pie vide Challan No. 16, dated 30.11.1937 and Challan No. 4, dated 30.11.1938 respectively in favour of the Khas Mahal Deputy Collector in Case No. 177 of 1936-37 and prior to that he had also deposited a sum of Rs. 4/- on 30.11.1932 and Ganu Mian had become the raiyatt of khata No. 11 and the darraiyati of khata No. 4 and his right as raiyatt was recognized by the landlord over the holding and he was mutated and, thereafter, he was paying rent of the holding to the landlord and got rent receipts and he paid the rent so long he was alive. Mis case further is that Ganu Mian has neither surrendered his holding not made any kind of transfer in respect of the holding aforesaid to anybody much less the contesting respondents. The said Ganu Mian died about 30 years prior to the suit and thereafter, the appellant paid the rent of the suit plots. The appellant constructed house over four decimals of the land of plot No. 290 and also dug a kuccha well after his ancestral house over the land of khata No. 8 fell down and he used the remaining land of plot No. 290 as Garbhari which remained in his possession. He transferred 0.50 acres out of plot No. 161 by executing a sale deed in favour of Dil Mohammad Mian and after his death his widow Nagia Bibi transferred the said land to Isa Khalifa (defendant No. 7). The appellant also transferred 9 kathas out of plot No. 290 to defendant No. 9 Taj Mohammad and the land so transferred by him out of the aforesaid two plots are not the subject matter of this suit. At the stage of khanapuri in the recent Revisional Survey the respondents with a view to lay false claim over the suit land lodged Sanha before Chainpur Police Station and got a favourable report submitted by the Officer Incharge of the said Police Station on 19.08.1983 on the basis of which a proceeding under Section 144 of the Code of Criminal Procedure vide Miscellaneous Case No. 358 of 1983 was initiated between respondent Mansaf Mian as 1st party and defendant No. 8 Matbar Mian and others as 2nd party in respect of the plot No. 163 and 290 of khata No. 11 besides other lands and the said proceeding was decided against the 2nd party aforesaid and in the said proceeding it has been stated by the respondents that they claim the suit property on the basis of Sada agreement purported to have been executed by Ganu Mian in favour of Butan Mian the father of the contesting respondents but in fact Ganu Mian had never obtained any amount from Butan Mian nor has he executed any Sada agreement in his favour and the said Sada agreement is a forged and fabricated document and Butan Mian had no concern at all with the suit land and having a cloud cast on the title of the appellant he had filed the said suit.
4. Defendant-respondent Nos. 7, 8 and 9 have filed their written statement stating inter alia, therein that they are in possession of the lands transferred to them by virtue of the sale deeds for consideration executed by the appellant and the contesting respondents have no right, title and possession over the land which they have acquired by purchase. It is alleged that defend ant-respondent No. 7 Isa Khalifa has purchased 50 decimals in plot No. 161. 34 decimals in plot No. 160 and 15 decimals in plot No. 163 from Nagia Biwi, the transferee of the appellant by virtue of the sale deed dated 10.10.1963 and he is in possession over the same and paying rent to the State and defendant-respondent No. 8 Matahar Mian has purchased 27 decimals of land of plot No. 160, 38 decimals of land of plot No. 160 and again 40 decimals of plot No. 160 by virtue of the sale deeds dated 07.12.1956. 21.08.1956 and 23.03.1957 respectively either executed by the appellant or his brother Ismail and he is in possession over the same and paying rent to the State. Defendant-respondent No. 9 Taj Mohammad has purchased 35-1/2 decimals of land of plot No. 290 from the appellant by virtue of the registered sale deed dated 10.07.1969 and he is in cultivating possession over the same and paying rent to the State.
5. The suit has been contested by defendant-respondent Nos. 1 to 6 who have filed their written statement jointly. Their case, inter alia, is that Deni Tell and Dildar Jolha had no means to cultivate the land of khata No. 11 and to pay the rent to the Khas Mahal authority and a certificate case No. 177 of 1986- 87 was initiated against them for realization of the rent and in order to save the land of khata No. 11 being auctioned in the said proceeding. Deni Teli and Ganu Mian allowed Butan Mian to cultivate the land of khata No. 11 and Ganu Mian took Rs. 44/- from Butan Mian for payment of certificate amount and he executed a deed of agreement on 30.11.1937 in respect thereof and thereafter. Deni Teli for self and on behalf of his minor brother Dukhi Sah surrendered the land of khata No. 11 in favour of Butan Mian and Ganu Mian and also filed a petition on 08.10.1941 before the Khas Mahal authorities. Dalton-ganj stating therein that Butan Mian and Ganu Mian are in exclusive possession of the land of khata No. 11 and after the enquiry the Khas Mahal authority re-settled the land of khata No. 11 with Butan Mian and Ganu Mian half and half on the existing rent on 30.10.1941 vide settlement case No. VIII/572 of 1941-42 and the Khas Mahal accordingly, corrected the Khas Mahal khatian deleting the name of Nayak Teli and substituting Butan Mian along with Ganu Mian and after the death of Butan Mian the contesting respondents are coming in exclusive possession over half of the area i.e. 2.14 acres of land of khata No. 11 and they stand mutated in respect thereof and paying rent and getting rent receipts and thus contesting respondents are in possession of the half of the land of dar raiyati khata No. 4 in his own right having title and interest therein. Their further case is that the appellant and his brother Ismail have already transferred their entire half area of khata No. 11 to deferent persons but all the purchasers are not in possession of their purchased land. It is alleged that the eastern portion of plot No. 290 and northern portion of plot Nos. 163. 160 and 161, the total area being 2.11 acres are in possession of these respondents and the appellant or his vendors have no concern in respect thereof.
6. In view of the pleadings of the parties the learned Trial Court has framed the following issues for adjudication in this case.
(i) Is the suit as framed maintainable?
(ii) Has the plaintiff got cause of action of the suit?
(iii) Is the suit barred by law of limitation and adverse possession? .
(iv) Is the plaintiff entitled to a decree for declaration of title and confirmation of recession as proved for?
(v) To what relief or reliefs the plaintiff is entitled to get?
7. While deciding issue No. (iv) the learned Trial Court on the basis of the evidence on the record has held that the purchasers from the appellant and his brother are in possession of the definite area of the land purchased by them and they have purchased 2.39-1/2 acres of land of the aforesaid four plots of dar-raiyati khata No. 4 and thus the possession of the respondents over half of the land of the dar-raiyati khata No. 4 is doubtful and the petition of relinquishment filed by Denl Teli before the Khas Mahal authority as well as the deed of agreement are fraudulent documents and the dar raiyati right is not transferable and in view of the findings aforesaid the title of the appellant was declared in respect of the suit land and his possession over the same was confirmed and accordingly, the suit was decreed.
8. Aggrieved by the Judgment and decree of the Trial Court the defendants-respondent preferred Title Appeal No. 2 of 1986. The lower appellate Court on re-appraisal and re-appreciation of the evidence oral and documentary on the record reversed the judgment of the Trial Court and allowed the appeal and dismissed the suit of the appellant. The lower appellate Court came to the finding that Ganu Mian and his brother could not have inherited the raiyati interest left behind by their father Dildar Jolha but they continued to be in possession after the death of Dildar Jolha and Ganu Mian was not recognized as tenant by the landlord and possession of Ganu Mian was that of a trespasser having no right to execute any deed of agreement in favour of Butan Mian but the truth is that Ganu Mian had executed a deed of agreement on 30.11.1937 in favour of Butan Mian giving him the right to cultivate half of the suit land and thus his possession under the law will be that of a trespasser so long it was not settled in his favour and both Ganu Mian and Butan Mian came in joint possession of the land and on surrender of the land on 8.10.1941 by fling a petition before Khas Mahal authorities by Deni Teli the suit land was re-settled with Butan Mian and Ganu Mian half and half existing rent on 30.10.1941 vide settlement case No. VIII/572 of 1941-42 and demand was jointly opened in their name and the appellant has transferred more than his half share in respect of the land of dar-raiyatt khata No. 4 and the transferees are in possession. The learned appellate Court below held that the defendant-respondent are in possession over half of the area totaling 2.11 acres, of land which Is the eastern portion of plot No. 290 and northern portion of plot Nos. 163, 160 and 161. On the basis of the findings aforesaid the appeal filed by the defendants-respondent was allowed.
9. The plaintiff-appellant preferred this appeal before this Court and while admitting the appeal for hearing this Court has formulated the substantial questions of law which runs thus :--
"whether the learned Court of Appeal below could have reversed the judgment and decree passed by the learned Trial Court inter alia on the finding that the possession of the defendant over half of the area were substantially established without considering the nature of possession of the defendants."
10. Assailing the impugned judgment it has been submitted by the learned counsel for the appellant that title and possession over the land of dar raiyati khata No. 4 till 1937 of the appellant stands admitted by the respondents and the settlement of the said land on being relinquished by Deni Teli in favour of Butan Mian and Ganu Mian half and half by the Khas Mahal authorities is tainted with fraud in view of the fact that Deni Teli in his petition of relinquishment surrendering the land to the Khas Mahal authority has fraudulently described Butan Mian and Ganu Mian as sons of Dildar Jolha and the alleged settlement in favour of the respondents is ab initio illegal and void which did confer no title upon the respondents. It has further been contended that the unregistered agreement dated 30.11.1937 purported to have been executed by Ganu Mian in favour of Butan Mian permitting Butan Mian to cultivate half of the land of the plot aforesaid shall be deemed to be the permissive possession of Butan Mian and it cannot be termed that Butan Mian had come in possession over the suit land as of his right and more so the respondents have not made out a case of adverse possession in their written statement in respect thereof and the permissive possession cannot be adverse to Ganu Mian or his descendants i.e. the appellant conferring any title in respect of the half of the land of dar-raiyati khata No. 4 upon Butan Mian or his descendants the respondents. In support of his contention reliance has been placed upon the ratio of the case of Achal Reddi v. Ramakrishna Reddiar and Ors., AIR 1990 SC 553. Lastly it has been contended that the learned appellate Court below has committed a manifest error in coming to the finding of possession of the respondents over the half of the area of dar-raiyati khata No. 4 without adverting to a finding regarding the nature of possession of the respondents over the same and as such the impugned judgment is not sustainable.
11. In contra, it has been submitted that the substantial question as formulated by this Court while admitting the appeal is in fact not a substantial question of law involved in this appeal rather it is a question of fact and no interference in the finding of fact arrived by the lower appellate Court on the basis of the evidence on the record on its re-appreciation and re-appraisal is the Code of Civil Procedure and thus there is no illegality in the impugned judgment. In support of his contention reliance has been placed upon the ratios of the case of Kondjba Dagadu Kadam v. Savitribai Sopan Gujar and Ors., AIR 1999 SC 2231; Santosh Hazarl v. Purushottam Tiwari, AIR 2001 SC 965 and Ishwar Dass Jain v. Sohan Lal, AIR 2000 SC 426. It has also been submitted that it is the duty of the last Court of facts i.e. appellate Court below to deal with all the issues and the evidence laid by the parties before recording its findings under Section 96 of the Code of Civil Procedure and the lower appellate Court has discharged its obligation properly which reflects its conscious application of mind and the finding so recorded by the lower appellate Court is well supported by reasons on all the issues arising alongwith the contention put forth and pressed by the parties before him and thus it cannot be said that the impugned judgment is based on without any legal evidence on the record or on misreading of the evidence or suffers from any legal infirmity which materially prejudices the case of one of the parties or the finding is perverse and there is no illegality in the impugned judgment and it is not open to this Court to re-appreciate the evidence and substitute its own conclusions. Lastly it has been contended that Butan Mian, the ancestors of the respondents, is the settlee in respect of the half of the land of dar-raiyati khata No. 4 by the Khas Mahal authorities and by virtue of that settlement Butan Mian had acquired valid right, title and interest therein and in such a situation the appellant has no title in respect thereof and he has also failed to prove his title and therefore, the respondents cannot be said to be in permissive possession over the suit land and, thus, the ratio of the case of Achal Reddi (supra) has no application to the facts of this case and there is no illegality in the impugned judgment requiring an interference therein.
12. In view of the substantial question of law formulated in this appeal as quoted above. I have no option but to enter into the facts of the case as well as the evidence on the record to consider the nature of the possession of the defendants-respondent. It is needless to say that khata No. 11 of village Banjari was a raiyati khata standing in the name of Nayak Teli in the Revisional Survey Khatiyan and it was Khas Mahal land and the State was the landlord which was managed by the Deputy Collector Incharge, Khas Mahal khata No. 11 consisted of five plots i.e. 160, 161, 162. 163 and 290, the total area of which is 4.28 acres and dar-raiyati khata bearing No. 4 out of the said raiyati khata No. 11 was carved out and this dar-ratyati khata stands in the name of Dildar Jolha, the ancestors of the appellant and this dar-raiyati khata consists of four plots i.e. 160, 161, 162, 163 and 290 having an area of 4.22 acres and said Dildar Jolha was in cultivating possession over the same till he died leaving behind his two sons Ganu Mian and Shekhawat Mtan. It is the settled principle of law that a dar-raiyati khata is neither heritable nor transferable unless there are customs prevalent in the locality which are pleaded and proved. Therefore, in the given facts Ganu Mian and Shekhawat Mian after the death of their father Dildar Jolha having been come in possession over the land of the said dar-raiyati khata shall be deemed to be that of the trespasser under the law. It is equally relevant to mention here that date of death of Dildar Jolha has not been brought on the record by either of the parties. Be the case as it may, there had been a certificate preceding bearing case No. 17 of 1936-37 initiated by Deputy Collector, Incharge Khas Mahal filed on 30.11.1932 for the recovery of the arrears of rent against Deni Teli the son of the recorded tenant Nayak Teli of khata No. 11 and during the pendency of the said proceeding Ganu Mian aforesaid had deposited the amount of rent through several challans to save the said land being auction sold. The controversy arises at this stage. According to the case of the respondents. Butan Mian paid Rs. 44/- to Ganu Mian for payment of the rent due in the said certificate case and the said Ganu Mian executed a deed of agreement on 30.11.1937 in favour of Butan Mian permitting him to cultivate the half of the land of dar-raiyati khata aforesaid and Butan Mian came in cultivating possession over half of the said land. The learned appellate Court below had come to the finding on the basis of the evidence on the record that Ganu Mian was not recognized as a tenant by the landlord i.e. Khas Mahal authorities and possession of Ganu Mian was that of a trespasser having not right to execute any deed of agreement in favour of Butan Mian but the truth is that Ganu Mian had executed a deed of agreement on 30.11.1937 in favour of Butan Mian giving his right to cultivate half of the suit land and thus the possession of Butan Mian under the law will be that of a trespasser so long if was the settled in his favour. Thus the possession of Butan Mian over the land of dar-raiyati khata No. 4 shall be deemed to be permissive one and it can never be termed as adverse to Ganu Mian, but there is a subsequent development in this case which has its telling effect on the nature of the possession of Butan Mian and, thereafter, his descendants the respondents. The subsequent event is that Deni Teli the son of the recorded tenant Nayak Teli surrendered his raiyati interest in respect of the land of khata No. 11 to the Khas Mahal authorities by relinquishing it by filing a petition on 08.10.1941 (Ext. B/2) and it has been specifically averred by Deni Teli in the said petition that the land of dar-raiyati khata aforesaid is in possession of Ganu Mian and Butan Mian after the death of Dildar Jolha and they are paying the rent of the said land and it was further averred therein that half of the land may be settled with Butan Mian. The Khas Mahal authority initiated a proceeding vide case No. VIII/572 of 1941-42 and got the matter inquired by Tehsildar Sadar and after perusal of the report accepted the surrender of the raiyati rights of Deni Teli and settled the land of dar-raiyati khata No. 4 half and half in favour of Ganu Mian and Butan Mian and the Khas Mahal khatiyan (Ext. D-2) was, accordingly, corrected. Thereafter, Ganu Mian agitated the matter before the Khas Mahal authority vide case No. VIII/634 of 1942-43 challenging, the said settlement to the extent of half of darraiyati khata No. 4 in favour of Butan Mian. The matter was again inquired by Tehsildar Sadar and notice was served upon Ganu Mian and Butan Mian and after hearing them the petition of Ganu Mian was rejected vide order dated 02.02.1943 (Ext. H-2/1), The order of the Khas Mahal authority runs thus :--
"Notice served by affixing. Both Ganu Mian and Butan Mian are present. It appears that by case No. 652 of 1941-42 half of the holding was settled with Butan and half with the applicant. Thus the contention of the applicant that the entire holding No. 11 belongs to him does not hold water. The petition is, therefore, rejected file.
Sd/- A. Karim"
Said Ganu Mian did not agitate the matter, thereafter, before any superior Court against the order dated 02.02.1943 and that order has reached its finality and that cannot be reopened now. Therefore, the character of Butan Mian in relation to the half of the land of dar-raiyati khata No. 4 stands altered by virtue of the settlement in his favour by the Khas Mahal authorities and by virtue of the settlement he was recognized as a tenant in respect of the half of the land of the said khata having raiyati interest therein and thereafter his possession over the said half of the land aforesaid is by virtue of his rights as settled and he cannot be said since then to be in permissive possession over the said half land of the said khata. In this view of the mater the ratio of the case of Achal Reddi, (supra) has no application in this case. The learned appellate Court below after considering the evidence on the record in proper perspective has come to the finding that Butan Mian the ancestor of the respondent had acquired valid right, title and interest in the half of the land of dar-raiyati khata No. 4 by virtue of the settlement in his favour and in such a situation the appellant has no title in respect thereof. The learned appellate Court below has clearly adverted to the nature of the possession of the defendants-respondent over half of the land of dar-raiyati khata No. 4 in the impugned judgment while allowing the appeal filed by the respondent and setting aside the judgment of the Trial Court. The substantial question of law as formulated in this case is definitely not a substantial question of law rather it is a substantial question of fact i.e. the nature of the possession of the defendants-respondent. It is not within the domain of the High Court to investigate the grounds on which the finding were arrived at by the last Court of fact being the 1st appellate Court. It is true that the lower appellate Court should not ordinarily reject witnesses accepted by the Trial Court in respect of credibility but even where it has rejected the witnesses accepted by the Trial Court, the same is no ground for interference in second appeal when it is found that the appellate Court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate Court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the 1st appellate Court unless it is found that the conclusions drawn by the lower appellate Court were erroneous being contrary to the mandatory provisions of law applicable or is settled position on the basis of pronouncements made by the Apex Court or was based upon inadmissible evidence or arrived at without evidence. Therefore, the ratio of the case of Santosh Hazari, (supra), Iswar Dass Jain, (supra) and Kondiba Dagadu Kadam, (supra), supports the contention of the learned counsel for the respondents. It is the duty of the last Court of facts i.e. appellate Court below to deal with all the issues and evidence laid by the authorities before recording its finding under Section 96 of the Code of Civil Procedure and here in this case the lower appellate Court has discharged its obligation properly which reflects it conscious application of mind and the finding so recorded by him is well supported by reasons on all the issues arising along with contention put forth and pressed by the parties before him and thus it cannot be said that the impugned judgment of the lower appellate Court below is based on without any legal evidence on the record or misreading of the evidence or suffers from any legal infirmity which maternally prejudices the case of one of the parties or the finding is perverse. I, therefore, see no reason to disagree with the finding arrived at by the learned appellate Court below and it is also not open to this Court to re-appreciate the evidence and substitute, its own conclusion. Therefore, there is no illegality in the impugned judgment.
13. There is no merit in the appeal and it fails. The impugned judgment of the appellate Court below is hereby affirmed. The appeal is dismissed. There shall be no order as to costs in the facts and circumstances of the case.