Jharkhand High Court
Baldeo Munda vs Mardhan Lohra & Anr on 27 November, 2017
Author: Shree Chandrashekhar
Bench: Shree Chandrashekhar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 2423 of 2010
1. Baldeo Munda, son of Late Karma Munda
2. Andu Mahli, son of Ganpat Mahli
Both residents of village Hariharpur, Jamtoli, Tola Bartoli,
PO&PSBero, DistrictRanchi ... ... Defendants/Petitioners
Versus
1. Mardhan Lohra, son of late Sam Lohra, resident of village
Hariharpur, Jamtoli, Tola Bartoli, PO&PSBero, DistrictRanchi
...... Plaintiff/Respondent
2. State of Jharkhand through Deputy Commissioner, Ranchi
... ... Defendant/Respondent
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CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
For the Petitioners : Mr. Ram Prakash Singh, Advocate
For the State : Mr. Arup Kumar Dey, J.C. to G.P. I
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07/27.11.2017Aggrieved of order dated 01.05.2010 passed in Tittle Suit No. 143 of 2003 by which issue no. 5; "Is the suit land sold by the defendant no. 3 in favour of defendant nos. 1 and 2 are genuine and legal", has been reframed and issue no. 6 has been struck off vide application dated 17.04.2010 and liberty has been granted to the plaintiff to recall plaintiff's witnessP.W. 6 for marking sada sale deed of Samvat 2001, the petitioners have approached this Court.
2. Title Suit No. 143 of 2003 was instituted for a declaration and confirmation of plaintiff's right, title and possession over the suit property and for perpetual injunction against the defendants restraining them from interfering with the peaceful possession of the plaintiff over the suit land. The suit was contested by the defendants claiming that land comprised in Khata No. 52, villageHariharpur Jam Toli, P.S.Bero within Thana no. 78, DistrictRanchi is recorded as Kaiyami land in the Revisional Survey recorded in the name of father and uncle of defendant no. 3 namely, Chander Sahu and Inder Sahu. Defendants claimed that father and uncle of defendant no. 3 constructed a house over the suit property and after their death, 2 defendant no. 3 has inherited the suit property. He sold about 0.02 decimal land in plot no. 2783 in favour of defendant no. 1 and 0.02 decimal land in plot no. 2784 in khata no. 52 in favour of defendant no. 2 vide registered sale deed dated 27.04.1993. The plaintiff has claimed that defendant nos. 1 and 2 are members of Schedule Tribe. The plaintiff has asserted that in the year, 1949 the suit land was transferred in favour of his father namely, Sam Lohra by a sada sale deed for consideration of Rs. 19/ and thereafter he constructed a small house over a portion of the suit land. After the parties led their evidence in Title Suit No. 143 of 2003 the aforesaid applications both dated 17.04.2010 were filed by the plaintiff.
3. Referring to a decision in "Avinash Kumar Chauhan vs. Vijay Krishna Mishra", reported in 2009 AIR SCW 979, the learned counsel for the petitioners contends that a sada sale deed cannot be taken into evidence and that too after the suit was posted for arguments. Challenging legality of the impugned order by which issue no. 5 has been reframed, the learned counsel for the petitioners would submit that at this stage issue no. 5 could not have been reframed and, in fact, issue no. 5 was initially correctly framed.
4. Inspite of service of notice and sufficient opportunities granted, the respondent no. 1 has chosen not to appear in the present proceeding.
5. On the recast of issue no. 5 grievance of the petitioners is untenable. There is no substantial change in issue no. 5 and the recast issue no. 5, except that few words "binding over the plaintiff" have been added in the original issue no. 5. As noticed above, claim of the defendants is founded on the sale deed executed by the defendant no. 3, genuineness and validity of which has been challenged by the plaintiff. Obviously, if it is found that the sale deeds executed by the defendant no. 3 in 3 favour of defendant nos. 1 and 2 are genuine and valid, that would be held binding on the plaintiff.
6. On the issue of marking of sada sale deed, it is admitted that this document was already on record. Plaintiff has based his claim on sada sale deed executed in the year, Samvat 2001. Recall of P.W. 6 namely Mardhan Lohra is merely a formality. In so far as, the admissibility of the said document is concerned, while adjudicating the application dated 17.04.2010 the trial judge has rightly not commented on that. In fact, the stage has not yet arrived. The petitioner may challenge the admissibility of sada sale deed at the time of its marking and final hearing.
7. With the aforesaid clarification, the writ petition stands dismissed.
(Shree Chandrashekhar, J.) Tanuj/