Jharkhand High Court
(D) Pradip Kumar Gupta vs Union Government Of India on 4 August, 2022
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
S.A.No.171 of 2012
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No.171 of 2012
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(Against the judgment dated 18.08.2012 {decree signed on 31.08.2012} passed by learned District Judge-I, Chatra, in Title Appeal No.33 of 2004)
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1. (a) Chandra Shekhar Lal Gupta
1. (b) Vivekanand Gupta
1. (c) Raj Kumar Gupta
1. (d) Pradip Kumar Gupta 1(a) to 1(d) all sons of Late Sheo Narayan Gupta, R/O Gandauri Mandir Chatra, P.O., P.S. and District- Chatra.
.... .... .... Plaintiffs / Appellants /Appellants Versus
1. Union Government of India, through Chief Secretary, Central Government, at New Delhi, P.O. and P.S. New Delhi.
2. State of Jharkhand through the Deputy Commissioner, Chatra, P.O. & P.S. Chatra, District Chatra.
3. Postal Superintendent of Hazaribag, P.O. & P.S. Hazaribag, District Hazaribag.
4. Postal Inspector, Chatra, P.O. & P.S. Chatra, District Chatra.
5. Kamal Kishore Lal Gupta.
6. Dilip Narain Lal Gupta Both sons of Late Nand Lal Gupta.
Both resident of Chatra, Ward No.3, Post Office, Police Station and District Chatra.
.... .... .... Defendants / Respondents / Respondents
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For the Appellants : Mr. Yogendra Prasad, Advocate
For the Respondents : None
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PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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1
S.A.No.171 of 2012
By the Court:- Heard the learned counsel for the appellants.
2. This Second Appeal under Section 100 of the Code of Civil Procedure has been preferred against the judgment and decree dated 18.08.2012 passed by learned District Judge-I, Chatra, in Title Appeal No.33 of 2004 by which the learned first appellate court dismissed the appeal and did not find any error in the impugned judgment and decree dated 30.04.2004 passed by Munsif, Chatra in Title Suit No.13 of 1994.
3. The brief facts of the case is that the plaintiff/appellant filed the suit for declaration of title and possession over the suit land i.e. Schedule 'B' land and the also prayed for confirmation of possession over the suit land. Further, the plaintiffs prayed for a decree of the permanent injunction to be passed in favour of the plaintiff to restrain the defendants not to interfere with the peaceful possession over the suit land along with the cost of the suit and other reliefs.
4. It is the case of the plaintiff that as his ancestors possessed the suit land consequent upon the ex-landlord being the Raja of Ramgarh has settled the suit land in favour of Gandauri Sao- the ancestor of the plaintiff and in token of settlement issued a 'Sanad' which was marked Ext. 4. Rent receipts were also issued. The daughter of Gandauri Sao namely Payar Kumari used to look after him. Gandauri Sao executed a registered Hibanama on 29.07.1838 by which half of the income and property was to be appropriated by Payar Kumari for maintenance of the three Gandauri Temples and the remaining half share should be appropriated for the maintenance for Payar Kumari. Payar Kumari accepted the Hibanama. Payar Kumari died leaving her only daughter Montor Kumari who inherited the property of Payar Kumari. After her marriage Montor Kumari gave birth to Mohan Lall and after the death of his parents, Mohan Lall came in possession over the entire suit property. Mohan Lall constructed a Katcha Khaporposh house in the south-east portion of the boundary wall of Gandauri temple in the year 1910 for his own purpose. The Postal Department approached Mohan Lall to give the said house on rent for post office and Mohan Lall gave the said house measuring about 7 decimals to the Post Office. In the survey settlement operation in the year 2 S.A.No.171 of 2012 1912 at Chatra, no Khatiyan was prepared for Gandauri mandir and its surrounding area because the same had fallen within Chatra Municipality. Subsequently, the house became dilapidated and the Postal Department left the house and shifted the post-office to the house of Gulab Sao. Subsequently, the entire house of Mohan Lall collapsed and no sign of house remained but the land remained in personal enjoyment and possession of Mohan Lall. Mohan Lall could not pay the rent of the said settled land. Due to that ex-landlord Maharaja Kamakhya Narayan Singh Bahadur instituted Money Suit No.52 of 1940 against Mohan Lall for realization of arrears of rent and the suit was decreed in favour of the landlord. Mohan Lall executed registered Dekhali Rehan for seven years in favour of Murali Manohar of Chatra with respect to 2 annas share of the property of village Gopalpur. Mohan Lall later on got his name mutated in the Serista of ex-landlord the Raja of Ramgarh and paid rent and got rent receipts. After Mohan Lall, his three sons namely Nand Lall Gupta, Kishori Lall Gupta and Gopal Lall Gupta came in possession of the suit land. Nand Lall Gupta being the eldest brother, was living at Chatra and was looking after and maintaining deities of the three temples of Gandauri mandir as well as its surroundings area. The two brothers of Nand Lall Gupta left their right, title, interest and possession in favour of Nand Lall Gupta for the benefit of the joint family. After vesting of Zamindari, the State of Bihar recognized Mohan Lall as tenant and issued rent receipt in his name. Nand Lall Gupta died leaving behind his six sons out of whom Ram Krishna Lall died and Moti Lall, Madan Narayan Lall and Shyam Narayan Lall became mentally unfit and they did not have any interest in the suit land or the Gandauri temple and its surrounding land. Kamal Kishore Lall Gupta and Dilip Kumar Gupta became teachers and rendered their services out of Chatra town hence, they also did not have any interest in Gandauri temple and its surroundings and its maintenance and Rag-Bhog. The plaintiff- Sheo Narayan Lall is the only son of Nand Lall Gupta who is in the physical possession of the said temple and surrounding land. The defendant Nos.1 to 4 wanted to grab the suit land with false claims that the suit land belongs to them because a post office has been shown over the suit land in the survey village map.
3 S.A.No.171 of 2012Hence, the plaintiff filed the suit.
5. The case of the defendant Nos.1 to 4 on the other hand is that the suit is bad for misjoinder and non-joinder of necessary parties as the Secretary of the Postal Department, Government of India and the sons of Nand Lall Gupta have not been made parties to the suit, hence, the suit is bad for non-joinder of necessary parties. The defendants further pleaded that during the pendency of last cadastral survey settlement operation the name of Keshar Hind Post Office of Central Government, Postal Department of India and that there was a post-office of Central Government of India over the suit land. It is further pleaded by the defendants that the post office was constructed by Postal Department and was running in the house situated over the suit land. The Postal Department made pucca building near Chatra Hospital and shifted there and the said tile roofed house of the post office fell down due to rain and became parit under the possession of Postal Department of Central Government and the Central Government or Postal Department is continuing the possession over the suit land.
6. On the basis of rival pleadings, the learned trial court altogether settled the following seven issues:-
(i) Is the suit as framed maintainable?
(ii) Is the suit barred under law of limitation, estoppel, waiver and acquiescence?
(iii) Is the court fee paid sufficient?
(iv) Whether the suit is bad for non-joinder and mis-joinder of necessary party or parties?
(v) Whether the plaintiff has or had any valid cause of action or right to suit?
(vi) Whether the plaintiff had or has any subsisting right, title and interest and possession over the suit property?
(vii) Is the plaintiff entitled to any other relief or reliefs, whatsoever?
7. The learned trial court first took up issue No. (vi) and considering the evidence in the record i.e. 11 witnesses examined by the plaintiff and the documents which were marked Ext.1 to 7/C as well as the 7 witnesses examined by the defendants and the map which was marked Ext. A, the learned trial court came to the conclusion that the plaintiff has no subsisting right, title, interest and possession over the suit land.
8. Then the trial court took up issue No. (iv) and held that the suit is 4 S.A.No.171 of 2012 bad for mis-joinder and non-joinder of necessary parties.
9. In respect of issue No. (iii), the trial court came to a conclusion that the suit was under-valued.
10. In respect of issue No. (ii), the trial court arrived at the conclusion that it did not find any material to adjudicate in respect of the said issue.
11. In respect of issue Nos. (i), (v) and (vii), the trial court observed that in view of findings in its judgment, the plaintiff has neither valid cause of action for the suit nor has he any right to sue in the suit as filed and thus the suit is not maintainable and dismissed the suit.
12. Being aggrieved by the said judgment and decree passed by the trial court, the plaintiff/appellant filed Title Appeal No.33 of 2004 which was ultimately heard and dismissed by the learned first appellate court by the impugned judgment and decree as already indicated above.
13. The learned first appellate court framed the following three points for determination:-
(i) Whether the plaintiff/appellant has any right, title, interest or possession in the suit property or not?
(ii) Whether the suit land was let out by Mohan Lall to the Postal Department?
(iii) Whether the suit filed by the appellant/plaintiff was bad for non-
joinder of parties?
14. In respect of first point of determination, the first appellate court made independent appreciation of the evidence in the record and considered that the 'Sanad' (Hukumnama) which was marked Ext. 4 cannot be considered to be the proof of title or ownership of the suit land. In respect of the rent receipts which were marked Ext. 5 to 5/C, the first appellate court observed that the receipts are of different area of land, the name of issuing authority has not been mentioned in the receipts, on Ext. 5/A, the date of issuance is not clear and on Ext. 5/B, the date and name in whose favour this receipt has been issued, was not visible. Hence, basing upon these reasons, the learned first appellate court observed that the same creates a doubt about the genuineness of those documents and as the burden of proving the genuineness and authenticity of these receipts was upon the plaintiff, hence, the plaintiff has failed to establish any right, title, interest and possession over the suit property.
5 S.A.No.171 of 201215. In respect of the second point for determination, the learned first appellate court considering the evidence in the record did not believe the contention of the appellant that Mohan Lall had let out the suit land on rent to Postal Department.
16. In respect of the third point for determination, the first appellate court came to the conclusion that the brothers of the plaintiff were necessary parties to the suit and as neither any partition had taken place between the plaintiff and his brothers nor any relinquishment deed has been executed in his favour by his brothers, hence, the suit is bad for non- joinder of the parties and dismissed the appeal.
17. Mr. Yogendra Prasad- learned counsel for the appellants submits that the finding given by the learned courts below is perverse on account of non-consideration of Ext. 4 (Sanad) issued by the ex-landlord. It is next submitted that the recording of Post Office as symbol of identification in the survey map cannot be a conclusive proof of title of defendant Nos.1 to 4 over the suit land. It is next submitted that the learned first appellate court failed to appreciate the evidence in the record in its proper perspective and basing upon the evidence in the record, the learned courts below ought to have held that the plaintiff is entitled to the reliefs prayed for in the suit and ought to have decreed the suit filed by the plaintiff in the learned courts below.
18. Mr. Yogendra Prasad relied upon the judgment of Hon'ble High Court of Jharkhand in the case of Dwarika Sonar & Others Vs. Most. Bilguli & Others reported in [2003 (2) JCR 134 (Jhr)] wherein the Hon'ble High Court of Jharkhand in the facts of that case answered the substantial question of law as mentioned in para-8 and in para-10 and 12 of the said judgment as under:-
"8. This court admitted the instant appeal on the following substantial questions of law.
"(i) What will be the effect in law of the two different entries made in the two different survey settlement of records of right under Section 84(3) of the Chotanagpur Tenancy Act.
(ii) Whether Ext. 7 and 7/A being merely draft purchas, the same could have been looked into for the purpose of arriving at a finding with regard to the title of the respondent."
10. As noticed above, the admitted fact is that the revisional survey records of rights was finally published in the year, 1966 and the 6 S.A.No.171 of 2012 records of right in respect of the suit property was published in the name of the defendants. The question, therefore, that falls for consideration is as to what will be the effect in law of the two different entries made in the two different survey settlement of records of right, namely, cadastral survey and revisional survey records of right. It is well settled that if there is conflict between two entries in the records of right then the latter records or right will prevail. A similar question arose before the Supreme Court in the case of Sri Raja Durga Singh of Solon v. Tholu and Ors., AIR 1963 SC 361 where their lordships held that where there is such conflict in two entries, it is the latter entry which must prevail. It was further observed that where new entry takes the place of the old one, there shall be presumption of correctness of the new entry until and unless it is established to be wrong or substituted by another entry.
12. From perusal of the judgment it appears that the lower appellate court, ignoring the finally published revisional survey records of right, based his finding on Exts. 7 and 7/A which are the draft purchas prepared in the name of the plaintiffs in respect of the suit plot. From the discussion made hereinbefore it is well settled that it is the finally published records of right which is admissible in evidence and a presumption is attached to that entry in the finally published records of right. The court of appeal below, therefore, committed serious error of law in arriving at a finding with regard to title on the basis of draft purchas instead of finally published records of right."
19. Mr. Yogendra Prasad next relied upon the judgment of Hon'ble Supreme Court of India in the case of Hindustan Petroleum Corporation Ltd. & Another Vs. Shyam Co-operative Housing Society and Others reported in AIR 1989 SC 295 which according to this Court, is nowhere relevant to the facts of this case.
20. It is lastly submitted by Mr. Yogendra Prasad that the impugned judgment and decree passed by both the learned courts below be set aside and the suit of the plaintiff be decreed.
21. Having heard the submission made at the Bar and after carefully going through the materials in the record, it is pertinent to mention here that, it is a settled principle of law that in a Hukumnama wherein the settlement of the Raiyati interest with any person had been reduced to writing; requires registration and if it is not registered, it is inadmissible and no evidence could be given as to its terms and the contents as has been held by Hon'ble Supreme Court of India in the case of Sri S. Sita Maharani and Others v. Chhedi Mahto and others reported in AIR 1955 7 S.A.No.171 of 2012 SC 328.
22. After carefully going through the evidence in the record, this Court finds that both the courts below have appreciated the evidence in the record in their proper perspective and the learned first appellate court, for valid reasons, has raised doubts about the rent receipts and came to a conclusion that the plaintiff has failed to prove his right, title, interest or ownership in respect of the suit property. Similarly, the plaintiff has failed to prove that his ancestor Mohan Lall let out the house situated over the suit land which has been shown in the survey map as Dak-khana to the Postal Department and the first appellate court has also rightly held that the brothers of the plaintiff were the necessary parties to the suit as there is no partition between the plaintiff and his brothers and that the plaintiff has filed the suit in capacity of a co-sharer or co-owner, hence, the remaining co-sharers/co-owners were certainly the necessary parties to the suit. Accordingly, this Court is of the considered view that there is no substantial question of law involved in this appeal.
23. Hence, this appeal, being without any merit is dismissed.
24. Let a copy of this judgment be sent back to the learned concerned courts below forthwith.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 4th of August, 2022 AFR/ Animesh 8