Jharkhand High Court
M/S Sahara India Commercial ... vs Uday Shankar Paul on 30 June, 2022
Author: Gautam Kumar Choudhary
Bench: Gautam Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
First Appeal No. 43 of 2012
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1. M/s Sahara India Commercial Corporation Ltd. , Sahara India, Sector, 2, Kapurthala Complex, P.O. & P.S.- Aliganj, Dist- Lucknow (U.P.)
2. The Regional Manager, M/s. Sahara India Commercial Corpn. Ltd. Sector- IV, City Centre, PO.- Sector- II, P.S. - Sector-IV, Bokaro, District- Bokaro.
3. M/s. Karmyogi Grih Nirman Swalambi Sahakari Samity Ltd., Bhuli, P.O.- Bhuli, P.S. B. Polytechnic, Dist- Dhanbad.
.... .... .... Appellants Versus
1. Uday Shankar Paul, S/o Late Nirmal Kumar Paul
2. Bani Brata Paul, S/o Late Nirmal Paul
3. Smt. Nanda Laha, W/o Late Sunil Kumar Laha
4. Smt. Krishna Dey, W/o Joytsna Kr. Dey
5. Ratna Das, W/o Shri Rabindra Nath Das
6. Rabindra Nath Paul, S/o Late Murlidhar Paul
7. Shri Binoy Krishna Paul
8. Amiya Kumar Paul Both sons of Late Satyanarain Paul, all residents of Puran Bazar, Dhanbad, P.O. Purana Bazar, P.S. Bank More, District Dhanbad at present residing at Khejuritala, No.2, Mahishila Colony, Asansol, P.O. Asansol, P.S. Asansol, District Burdwan, No.2 at present residing at Kanchan Nagar, P.O. + P.S. Kanchan Nagar, District Burdwan
9. Shri Banibrata Paul, S/o Shri Nirmal Kumar Paul, resident of Purana Bazar, Dhanbad, P.O. Purana Bazar, Dhanbad, P.S. Bank More, District Dhanbad, at present residing at Khejuritala, No.2, Mahishila Colony, Asansol, P.O. Asansol, P.S. Asansol, District Burdwan
10. Dhirendra Nath Dutta
11. Nimai Ch. Dutta Both sons of Late Surendra Nath Dutta
12. Krishnendu Shekhar Ch. Dutta
13. Swarup Kumar Dutta Both sons of Kailash Ch. Dutta
14. Narain Ch. Dutta
15. Jiwan Chandra Dutta Both sons of late Anil Ch. Dutta, Village Ranguni, P.O. Bhuli, P.S. Katras, District Dhanbad
16. Smt. Chanchala Kumari, W/o Sri Jai Prakash Roy
17. M/s. A to Z Properties through its proprietor Smt. Chanchala Kumari
18. Jai Prakash Roy, S/o Ujagar Prasad Roy
19. M/s. Bhavesh Commotnade Pvt. Ltd. through its Director, Triloki Singh, having its registered office at No.3, Salket Place, Barrackpur, P.S. Barrackpur, Town and District Howrah, West Bengal
20.The State of Jharkhand
21.Deputy Commissioner, Dhanbad
22. Deputy Commissioner, Bokaro cum Regional Director, Jharkhand Industrial Area Development Authority
23. M/s Asarfi Hospital Limited through one of its Director Udai Pratap Singh, S/o Nayan Prakash Singh, Khatal Road, Dhaiya, Damodarpur, 2 F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 P.O. ISM, Dhanbad, P.S. Dhanbad, District Dhanbad .... .... .... Respondents WITH Contempt Case (Civil) No.700 of 2012
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M/s Karmayogi Grih Nirman Swalambi Sahakari Samity Ltd., Bhuli, P.O. Bhuli, District Dhanbad through Manish Kumar Singh, S/o C.P. Singh, resident of Baramuri, P.O. & P.S. B. Polytechnic, District Dhanbad .... .... .... Petitioner Versus
1. State of Jharkhand
2. Rabindra Nath Paul S/o Late Murlidhar Paul
3. Binoy Krishna Paul @ Bnay Krishna Paul
4. Amiya Kumar Paul (Both respondent Nos.2 & 3 sons of Late Satyanarain Paul)
5. Bani Brata Paul
6. Uday Shankar Paul Both respondent Nos.4 & 5 sons of Late Nirmal Kumar Paul) All residents of Purana Bazar, Dhanbad, P.O. Purana Bazar, P.S. Bank More, District Dhanbad
7. Ajay Kumar Hembrom S/o not known, The Registrar, Sub Registry Office, Dhanbad
8. Tarun Kanti Ghosal S/o Late Shishir Kumar Ghosal, resident of Devipara Hirapur, P.O., P.S. & District Jharkhand .... .... .... Opposite Parties WITH Civil Revision No.30 of 2014
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1. Smt. Chanchala Kumari, wife of Jai Prakash Roy, resident of House of J.N. Choudhary, Gali No.8, Jai Prakash Nagar, P.O., P.S. & District Dhanbad
2. M/s A to Z Properties, through its Proprietor, Smt. Chanchala Kumari, wife of Jai Prakash Roy, resident of House of J.N. Choudhary, Gali No.8, Jai Prakash Nagar, P.O., P.S. & District Dhanbad.
3. Jai Prakash Roy, son of Late Ujagar Prasad Roy, resident of House of J.
N. Choudhary, Gali No.8, Jai Prakash Nagar, P.O., P.S. & District Dhanbad (Plaintiff Nos.1 & 2 being represented by lawful attorney Sri Jai Prakash Roy-plaintiff No.3) .... .... .... Plaintiffs/Petitioners Versus
1. Ravindra Nath Paul, son of Late Murlidhar Paul,
2. Vinay Krishna Paul
3. Amiya Kumar Paul, both sons of Late Satya Narayan Paul
4. Bani Brata Paul
5. Uday Shankar Paul Both sons of Late Nirmal Kumar Paul All residents of Pathar Kothi, Purana Bazar, P.O., P.S. & District Dhanbad 3 F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 Tarun Kanti Ghoshal, son of Late Shishir Kumar Ghoshal (constituted attorney of Defendant Nos. 1 to 5), resident of Devipara (Telipara), Hirapur, P.O., P.S. & District Dhanbad .... .... .... Respondents CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY For the Appellants : Mr. Sudarshan Srivastava, Advocate Mr. Sidharth Sudhanshu, Advocate For the Respondent Nos.1-9 : Mr. Rahul Kumar Gupta, Advocate Mr. Lukesh Kumar, Advocate Mr. Kundan Kumar Jaiswal, Advocate For the Respondent Nos.10-15 : Mr. M.K. Laik, Sr. Advocate Ms. Mohua Palit, Advocate For the Respondent Nos.16-18 : Mr. Amar Kumar Sinha, Advocate Mr. Kundan Kumar Ambastha, Advocate For the Respondent No.19 : Mr. Manjul Prasad, Sr. Advocate Mr. Dilip Kumar Prasad, Advocate Mr. Arbind Kumar Sinha, Advocate For the Respondent Nos.20-21 : Mr. Praveen Akhouri, S.C. (Mines)-I Mr. Deva Kant Roy, A.C. to S.C. (Mines)-I For the Respondent No.22 : Dr. Ashok Kumar Singh, Advocate For the Respondent No.23 : Mr. Ashish Kumar Shekhar, Advocate
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CAV ON:12.05.2022 DELIVERED ON: 30.06.2022 F.A. No. 43 of 2012
1. Appeal is preferred against the judgment and decree dated 15.12.2011/06.01.2012, in T.S. No.76 of 2006 by Senior Civil Judge-I, Dhanbad.
2. Defendant Nos. 1 to 3 are the present appellants. Respondent Nos.1 to 9 are the Plaintiffs including their legal representatives. Respondent Nos.10 to 15 are the intervenor defendants (D-5 to D-10) from whom the D-1 to D-3 claim to derive title by sale. Notices were issued on respondent Nos.10-15 vide order dated 15.04.2015 and substituted service was effected by publication of notice in the newspaper which were declared to be validly served on these respondents. Respondent No.20 State of Jharkhand, Respondent No.21-D.C., Dhanbad and Respondent No.22- Jharkhand 4 F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 Industrial Area Development Authority (JIADA) have been impleaded vide order dated 29.11.2019. Respondent No. 23 is M/s Asarfi Hospital Pvt. Ltd in whose favour 11.92 acre of Gairabad Khas Khata land was transferred by Respondent No.22 has been impleaded vide order dated 03.03. 2022. Claim of R-23 depends on the State claim over the plots transferred to it.
3. Respondent Nos.16 to 18 impleaded in this appeal vide order dated 05.10.2012, claim their title on the basis of compromise decree passed in T.S.92 of 2010 for specific performance of agreement brought against R1 to R5 of the present first appeal from whom R 19 claim title on the basis of registered deed of sale. The subject matter of property is part of the suit property of T.S. 76/2006. Their inter-se dispute is not the subject matter of the present appeal, but shall be decided on the basis of the final outcome of Civil Revision No.30 of 2010 arising out of Title Suit No.92 of 2010 which has been heard along with this appeal.
4. Proforma defendant No.4 is Banibrata Paul against whom no relief has been claimed.
5. The suit was originally filed by Shri Nirmal Kumar Paul (since dead) now the legal representatives, Rabindra Nath Paul, Binoy Krishna Paul and Amiya Kumar Paul impleading M/s Sahara India Commercial Corporation Ltd (Defendant Nos.1 and 2), M/s Karmayogi Grih Nirman Swawlambi Sahakari Samiti (D-3) and Shri Banibrata Paul (D-4) as proforma defendant. Later Dhirendra Nath Dutta and Others (D-5 to D-10) were impleaded in the suit on their petition under Order 1 Rule 10 vide order dated 17.07.2009. Nirmal Kumar Paul after his death during the pendency of the suit was substituted by Bani Brata Paul and others.
5
F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14
6. The parties will be referred by their placement in the original suit and shall include the legal representatives substituted at different stages. The parties who have been impleaded in appeal shall be referred to accordingly.
7. The plaintiffs (R-1 to R-9) and proforma defendant Banibrata Paul, brought the suit for the declaration of right, title, interest and possession of their respective shares in the suit property as mentioned in Schedule-'A' and also for the declaration that the defendants had not acquired right, title and interest by virtue of the sale deeds and have no right to interfere with their peaceful possession and any sale made in respect of Schedule 'A' property or any portion thereof made by the Judgment debtors of Execution Case No. 366 of 1931, 492 of 1935, 144 of 1938, 138 of 1940 and 140 of 1940, is null and void.
8. A further prayer has been made confirming the possession of the plaintiffs and proforma defendant over the land as mentioned in Schedule-'B' and for permanent injunction restraining the defendant, his persons, his agent, contractor etc. from making construction over any part of the land as mentioned in Schedule-'B', so that there should not be any obstacle in the possession of the plaintiff and proforma defendants.
9. Schedule 'A' and 'B' lands have been detailed in the plaint, comprising a total area of 85.49 acres and 1.50 acres respectively.
10. The plaintiff's case is that the suit land falls under Mauza-Ranguni under Katras Police Station originally belonged to and was in possession of (i) Chandra Mohan Dutta, S/o Late Sri Hari Dutta, his nephew (ii) Shambhu Nath Dutta, S/o Late Suryamohan Dutta and (iii) Shashibala Dasi, W/o Late Srishtidhar Dutta, all these three brothers had 2-2 Annas permanent tenure 6 F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 holder's interest in the entire mauza, which was entered in the Cadastral Survey Record of Rights which was finally published in the year 1925.
11. Chandra Mohan Dutta mortgaged 2-Annas, i.e. his share of land to the ancestors of the plaintiff-Murlidhar Paul and Haribol in lieu of loan and in default of payment of loan amount the ancestors of the plaintiff filed Mortgage Suit No. 61/1928 in the Court of Sub-Judge, Dhanbad which was decreed on 23.11.1929. In Execution Case No. 492/1935, the entire 2-Annas mortgaged land of Chandra Mohan Dutta was auctioned which was purchased by decree holder himself. And on 18.06.1937, the Court delivered him the possession and since then the ancestors of the plaintiff came in peaceful possession over the said plot.
12. Shashibala Dasi, who was a sharer of 2 Annas had inherited disputed property and other properties from Chandramohan Dutta and she was issueless. Under the circumstances, after the death of Chandramohan Dutta his son-Surendra Nath Dutta inherited her property. The mortgaged loan could not be completely realized by the decree holder and in such circumstances; Murlidhar Pal and Haribol Pal filed Execution Case No. 144/1938 for the recovery of remaining dues as per decree. The Court did auction-sale of entire 2-Annas share of land of Shashibala Dasi under Khewat Nos. 2/12, 24, 30, 34, 35 and 55 as well as individual share of Shashibala Dasi in Izmail Khewat Nos. 36, 41, 42, 49, 56, 57, 76 and 77 on 18.03.1939 for remaining loan and the Court delivered its possession on 07.04.1939 to the plaintiffs, who were purchasers. And since then, the ancestors and later on successors and at last plaintiff came in peaceful possession over land. Even after the auction sale by
(i) Chandra Mohan Dutta and (ii) Sashibala Dasi in Execution Case Nos. 492/1935 and 144/1938, the loan could not be re-paid completely. 7
F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14
13. Therefore, the ancestors of plaintiffs filed Execution Case No. 138/1940 against Surendranath Dutta & others. Out of them Arpana Dasya, the daughter-in-law of Chandramohan Dutta & others filed an objection in the above suit, in which the Court accepted the objection and decree holder Murlidhar Pal & others filed Title Suit No. 08/1941 under Order-21, Rule-63 of Civil Procedure Code in the Court of Sub-Judge which was decreed on 19.09.1942 and thereafter, the possession was obtained of the said properties on 17.03.1943 and thus Murlidhar Paul and Haribol Paul became the owner of the entire interest recorded in the name of Chandra Mohan Dutta & Sashibala and they remained in Khas possession on the entire disputed land.
14. Further case of the plaintiffs is that Shambhunath Dutta, the son of another brother of Chandramohan Dutta, had mortgaged his 1 Aana share out of his 2 Aana share to the ancestors of plaintiffs and had taken loan which was not paid in time and therefore, the ancestors of plaintiffs filed a Title Suit (Mortgage) No. 23/1930 in the Court of Sub-Judge, Dhanbad against Shambhunath Dutta, which was decreed in favour of the ancestors of plaintiffs and an Execution Case No. 366/1931 was filed, in which 1 Anna share out of the 2 Anna share of Shambhunath Dutta mentioned in Khewat Nos. 2/11, 23, 29, 40, 41, 42, 43, 49, 53, 54, 57, 66, 76 and 77 had been sold in auction which was purchased by the ancestors of plaintiffs and they got possession over it on 20.08.1932. In this way, Shambhunath Dutta got possession on his 1 Anna share out of 2 Anna share from Murli Pal and his brother. As the loan amount was not completely re-paid Title (Mort) Suit No. 23/1930 was filed in the Court of Sub-judge Dhanbad which was decreed and his interest was decreed and purchased by the decree holders in Execution Case No. 140/1940 and the possession of the same was delivered to the 8 F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 ancestors of plaintiffs on 03.06.1942 and since then they are in possession on the said land.
15. To sum up, Plaintiffs Murlidhar Pal and Haribol Pal purchased and came in specific possession over 6 Anna permanent tenure holder's right and interest of the tenure-holder of Chandra Mohan Dutta, Sashibala and Shambhu Nath Dutta in mouza Ranguni and came in Khas possession of the suit land by diverse act of possession. Later on, partition took place among the brothers in which Schedule-A land came in the exclusive share of Murlidhar Paul. After his death the property was inherited by his widow Ambika Bala Paul, daughter-in-law Latika Bala Paul and three sons Satya Narain Paul, Nirmal Kumar Paul (P-1) and Rabindra Kumar Paul (P-2).
16. In the year 1956, the compensation amount under Sections 5, 6 and 7 of Bihar Land Reform Act, 1950 was paid to the heirs of Murlidhar Pal and Haribol Pal and rent was fixed treating the plaintiffs as Raiyat and also M. Form for the specific possessed land was issued, in which the name of the plaintiffs and their successors are as follows:-
Name M. Form No. Thoka No. 1. Smt. Ambika Bala Pal 387-62/63 49 2. Smt. Latika Bala Pal 388-62/63 51 3. Sri Satyanarayan Pal 389-62/63 52 4. Sri Rabindra Kumar Pal 391-62/63 54 5. Sri Nirmal Kumar Pal 390-62/63 53 6. Sri Haribol Pal 394-62/63 58 On the basis of the return filed by Satyanarayan Pal and his co-sharer in the Compensation Case No. 565/1955-56, an objection was raised by Kailash Chandra Dutta and others in the Court of Additional Collector, Dhanbad, on 24.09.1964 claiming fixation of rent of 4 Khewat Nos. 79, 81, 82 and 57 which were not sold and by order dated 19.02.1965. It was held that entire 9 F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 interest of Chandramohan Dutta, Shashi Bala Dutta and Shambhunath Dutta in all the land of village Ranguni mauza have been sold and the application of the above mentioned objectors was rejected.
17. Latika Bala Pal died issueless, whose property was received by the proforma respondent Banibrata Paul as an executor on 04.03.2005 in a testamentary suit and final will. In this way, the above mentioned plaintiffs have been using the land mentioned in the schedule.
18. The proposed Sahara City Home of the present Respondent No. 1 was advertised in a Bangla newspaper on 29.12.2004, which was corresponded to the suit land, then the plaintiffs gave a legal notice on 18.02.2005 and the Defendant No. 1 was forbidden to purchase land from any person whose right or possession is not available in the said land. But despite knowing the address of the real owner, the defendants purchased and sold the land by void sale deeds and the plaintiffs came to know about it on 03.04.2006. On 07.05.2006, the plaintiffs came to know that the defendants are in the process of putting materials on the Schedule 'B' plot of the plaintiffs for the construction of the building for which they have no right. In such situation, the cause of action of this suit arose on 03.04.2006 and 07.05.2006.
19. Defendant No. 3-Karmyogi Grih Nirman Swalambi Sahkari Samiti Ltd. has filed separate written statement. It has been pleaded that Defendant Nos.1 and 2 have no concern with the suit property. It has been pleaded that the suit was bad for non-joinder of the Duttas who are the heirs and descendants of the recorded tenant Chandra Mohan Dutta from whom the defendant no.3 derived title. (The Duttas have been later impleaded as Defendant Nos.10 to 14 on their application under Order 1 Rule 10) It is contended that Duttas being the vendors of Defendants, their non- 10
F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 impleadment was deliberate and with ulterior motive. The suit is barred by limitation as the Duttas and purchasers from the Duttas are in possession of the property detailed in the Schedule 'A' of the plaint for over 100 years by exercising various acts of possession like construction of house/structures etc. The suit is barred by limitation as the vendors of the defendant No.3 the Duttas are in possession of the Schedule 'A' land for more than 100 years. There are 26 transferees who have purchased the land detailed in the Schedule 'A' of the plaint from the Duttas between 1964 to 2005 and those purchasers have got their land mutated in the revenue records, constructed house and are living with their families on those plots. The possession of the Duttas has been established in various judicial and quasi-judicial proceedings, referred to hereinafter including an order passed in an application under Order 39 Rule 1&2 C.P.C. in Title Suit No.26 of 2003. The suit is Section 34 of the Specific Relief Act, as the plaintiff have never been in possession of the suit land.
The suit is barred under by res-judicata as the matter is directly and substantially in issue in the present to that in Title Suit No. 26 of 2003.
The claim of title is based on purchase of some portion of the suit land detailed in items Nos. 1 to 5 of the Schedule 'A' of the plaint from Dhirendra Nath Dutta, Krishnendu Dutta, Swaroop Kumar Dutta and other members of the Dutta family whose predecessor namely Chandra Mohan Dutta etc. were Khatiani raiyat and Duttas have been in possession of the property detailed in Schedule 'A' of the plaint.
20. The factum of mortgage suit and following execution proceeding have not been denied in para 10, 12, 13, 14 & 15 of the written statement of D3, but is contended that predecessor-in-interest of the answering defendant was never dispossessed from any portion of Schedule 'A' of the plaint. 11
F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14
21. With regard to post-vesting state of affairs it is contended that the plaintiffs and their predecessor-in-interest in collusion with the then revenue authorities got their names incorporated in the ' M' forms as detailed in para 9 of the plaint. On getting to know about this, the defendants and their predecessors filed application for fixation of rent in respect of land in respect of Schedule 'A' land under Ss 5, 6 & 7 of the Bihar Land Reforms Act, 1950 which were registered as Rent Fixation Case Nos.1(3) /81-82 and 2(3)/81-82. It was held in this case that plaintiff or their predecessor-in-interest were not in possession of this land. Rent was directed to be fixed in the names of defendants and their predecessor in interest, pursuant to which fresh 'M' forms were prepared and Thokas were also created in their names. The order passed by competent authority has never been challenged and has attained finality and the defendants have since then being rent to the State Government. At no point of time rent was ever received by the State Government from the plaintiffs and their predecessor-in-interest in pursuance to the issuance of M Forms in 1965 in different rent fixation cases.
22. The specific defence with respect to the claim of the plaintiff over the suit land on the basis of different execution cases is that predecessor-in- interest of the defendants were never dispossessed. The defendants and their ancestors are in continuous possession on the land.
23. Defendant Nos. 5 to 10 are the Duttas, the heirs and descendants of the tenure-holders of Chandra Mohan Dutta, Sambhu Nath Dutta and Shashi Bala Dasi the mortgagors who had mortgaged their interest in the Zamindari through the two mortgage deeds with the Murlidhar Paul and Haribol Paul. Defendant No. 3 claim title claim title from D-5 to D-10. They had been impleaded in the suit on the basis of their interlocutory application under 12 F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 Order 1 Rule 10. Petition of these defendants dated 01.08.2009 to treat their petition under Order 1 Rule 10(2) C.P.C. as written statement was allowed. Pleadings of these defendants proceed in the line of the pleadings of the defendant No.3 that the plaintiffs never came in actual possession in pursuance to the execution case and the M Form was issued collusively in favour of the plaintiffs. They have contested the suit mainly on the ground that all judgments and decree of the cases by which the plaintiffs claim to have purchased the share of the predecessor-in-interest of these defendants were ex-parte decrees passed in mortgage suits as such they were void and these decrees were never implemented. They were only paper transaction and the Pal family had never come in possession on land mentioned in Schedule. It is also contended that there is no clarity about the land sold on which they came in possession by the mortgage and execution suits. With regard to the M Form issued in favour of the Pauls, it is contended that the same has been issued in connivance with the Revenue Department. It is further pleaded that when this came to their knowledge they filed Rent Fixation Case Nos.1 (III)/81-82 and 2 (III)/81-82 under B.L.R. Act before the Circle Officer in year 1981 in which it was held that the rents were wrongly assessed and M form was only issued in favour of the Pauls and the rent was assessed in favour of the Duttas (D-10 to D-15) and M Form was issued in their favour. In pursuance to this order the names of the Duttas was entered in Register-II. These defendants being in continuous possession over the suit land exercised different acts of possession and sold the land's detailed in the interlocutory petition/written statement to different purchasers starting from 1964 to 2003 before the institution of the present suit. Plaintiffs filed Misc. Case No. 05/2004-2005 against Defendant Nos.5 to 10 before Deputy Collector, 13 F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 Dhanbad for cancellation of Jamabandi opened in year 1981-1982 and issued M. Form, in which the Deputy Commissioner, Dhanbad passed an interim order on 10.02.2009 and ordered that the Circle Officer, Baghmara had no jurisdiction to issue the M. Form. The defendants filed a writ petition against this order in the High Court. M Forms were issued and Rent Fixation Case Nos. 387/62-63, 388/62-63, 389/62-63, 390/62-63, 391/62-63 and 394/62-63 were decided in favour of plaintiffs but this was not an evidence of possession in favour of the plaintiffs. The plaintiffs had earlier filed a revenue case being Misc. Case No.5/2004-05 before Additional collector Dhanbad, against the present petitioners in respect of Schedule 'A' land seeking cancellation of Jamabandi of Duttas including the present petitioners. By filing such a case, he admitted the status of the Duttas as occupancy raiyats. In the recent revisional survey, name of Duttas and their transferees have been recognised.
24. Proforma Defendant Latika Bala Paul died issueless and her property was inherited by Banibrata Paul, son of Nirmal Kumar Paul who could not be joined as plaintiff and was therefore arrayed as Proforma Defendant.
25. Following issues have been framed on basis of statement of both sides-
i. Whether there is any cause of action in the instant suit?
ii. Whether the suit is maintainable?
iii. Whether this suit is affected by mis-joinder and non-
joinder of the parties?
iv. Whether this suit is barred by the Law of Limitation?
v. Whether this suit is barred by Section 34 of Specific Relief
Act?
vi. Whether this suit is undervalued?
vii. Whether the plaintiffs are entitled for this declaration that
they have title and possession on the schedule land? 14
F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 viii. Whether the plaintiffs are entitled for this declaration that defendants have not acquired any right, title, interest and possession on Schedule-A land due to vicious purchase? ix. Whether the plaintiffs are entitled for declaration of decree that the sale made by the judgment debtor-Chandramohan Dutta, Shambhunath Dutta, Shashibala Dasi and their successors of Land Fixation Case No. 366/1931, 492/1935, 144/1938, 138/1940 and 140/1940 for land mentioned in Schedule-A or its share is null and void?
x. Whether the plaintiffs are entitled for the reliefs as prayed? xi. Whether plaintiffs are entitled for any other relief or reliefs based on the Principles of Equity?
26. On the basis of the oral and documentary evidence, the learned Trial Court recorded a finding of fact with respect of main Issue No.VII to X in favour of the plaintiffs and other issues have also been decided in favour of the plaintiffs and the suit has been decreed.
27. Appellant Nos. 1 and 2 are Sahara and the Regional Manager of Sahara India Commercial Corporation, Appellant No.3 is the contesting Defendant no.3 Karmyogi Grih Nirman Swalambi Sahkari Samity. Appellant Nos. 1 & 2 had appeared before the Court below, but had not filed their written statement.
28. Challenge to the Judgment and decree follows on the ground that the said Court auction sale and consequent delivery of possession, comprising of several plots of land in a single day was not as per the procedure laid down under the Code of Civil Procedure specially under Order XXI, Rule 72(A), Rule 82-99 specially Rule 85 and 94 of Order XXI. The said order indicated collusion and was vitiated by fraud.
Sri Sudarshan Srivastva, learned Counsel on behalf of the appellant submits that that the trial Court ought to have considered the bar under 15 F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 Section 35 of the B.L.R. Act, 1950 and accepted the entries of revenue demand register as they stood since the year 1982. The learned Court below failed to formulate an issue for determination of possession of parties. The learned Court below also failed to appreciate the non-joinder of necessary party by the plaintiff went to the root of the matter. After the order passed in 1982, enaction on the part of plaintiff amounted to waiver/acquiescence and estoppel. P.W. 1 has specifically stated that they were not in possession of the suit lands.
29. From the pleadings of the parties following admitted position emerge as these facts have not been specifically denied:
a. Suit land originally belonged to and was in possession of Chandra Mohan Dutta, Shambu Nath Dutta and Sashibala Dasi. b. Chandra Mohan Dutta took loan by mortgaging his 2 Anna interest in the said Mouza from Murlidhar Paul leading to Mortgage Suit No. 61 of 1928 against Chandra Mohan Dutta which was decreed on 23.11.1929 and the said decree was put to execution in Execution Case No. 492 of 1935 and the property was auction sold. (para 10 of W.S. of D-3) c. The entire mortgage debt was not satisfied and therefore Murlidhar Paul and Haribol Paul filed Execution Case No. 144/38 and the entire interest of Sashibala Devi inherited i.e. Khewat Nos. 2/12, 24, 30, 34, 35 and 55 and her interest in Ejmal Khewat Nos. 36, 41, 42, 49, 56, 57, 76 and 77 of Mouza Ranguni was sold and sale certificate 18.03.1939 was granted. (Para 12 W.S. of D-3).16
F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 d. Execution Case No. 138 of 1940 was filed against Surendra Nath Dutta for realisation of the rest of the decretal dues which was allowed. Murlidhar Paul & Hari Bole Paul filed Title Suit No. 8 of 1941 Under Order 21 Rule 63 C.P.C. of the Court of Sub- Judge which was decreed on 19.09.1942. (Para 12 of W.S. of D-
3) e. Murlidhar Paul and his brother filed Mortgage Suit No.23 of 1930 against Shambhu Nath Dutta which was decreed and his -1-
as interest in Khewat Nos. 2/11, 23, 29 40 to 43, 49, 53, 54, 57, 66, 76 & 77 was auction sold and purchased by the decree holders in Execution Case no. 140/40 (Para 14 of W.S. of D-3). f. After vesting of the intermediary interest under Bihar Land Reforms Act, 1950 on 01.01.1956 the M forms were issued in the name of the plaintiffs. Issuance of M forms is admitted in para 17 of W.S. of D-3 but contended that issuance of M Forms was by collusion with revenue authorities.
30. The point of dispute is about possession pursuant to the auction purchase in the mortgage suit and execution case, as it is contended on behalf of the defendants that all the mortgage suits were decreed ex-parte, were void and collusive decrees and the execution cases were never acted upon and notwithstanding these documents Duttas as well as their successors including the present petitioners continued to be in possession of the schedule land as well as other lands of Mouza Ranguni.
31. Before proceeding further, it will be appropriate to consider the case of Respondent No.20-State of Jharkhand, Respondent No.21-D.C., Dhanbad and 17 F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 Respondent No.22-Jharkhand Industrial Area Development Authority (JIADA) have been impleaded vide order dated 29.11.2019. These respondents were impleaded on the Interlocutory Application No.10491 of 2019 filed on behalf of Respondent Nos. 1 to 9 the legal representatives of the Plaintiffs under Order 1 Rule 10 of the C.P.C. during the pendency of appeal. The petition for impleading the State as a party was allowed as because the State Government had initiated fencing work over the 30 acres of land and publication of the same had been made in the newspaper. Further the State Government had transferred 11.92 acres of land in favour of JIADA (R-22) claiming that land of Mouza No. 226, Khata Nos.66, 71 old/209 new, Plot No.603 old/ 570 new, 584 old/620 new, 604 old/568 new measuring 11.92 acres of Ranguni, Circle Baghmara District Dhanbad was gairabad khata land. These lands were claimed by the Plaintiffs and was part of the suit land and therefore the petition for their impleadment was allowed.
32. Considering the fact that the State had been impleaded at the appellate stage, therefore while considering I.A. No.2520 of 2022 which was filed on behalf of R-20 to R-21 for deleting their name from the cause title of the memo of appeal, State was directed to file a detailed and particularized affidavit stating chronologically the claim of the State to the part of the suit land, with details thereof. In pursuance to it, supplementary affidavit dated 13.04.2022 has been filed on behalf of these respondents. The State has claimed 11.92 acre of land under Mouza No. 226, Khata No.66, 71 old/209 new), plot no 603 old/570 new, 584 old/620 new, 604 old/568 new of Ranguni, Circle Baghmara District Dhanbad. The claim of State is posited on the ground that as per the cadastral survey Khatian the transferred land is recorded as gairabad malik and land of type bandh and gora III and has 18 F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 vested in the state on or before the date of vesting with enactment of B.L.R. Act, 1950. As per the revisional survey khatian the transferred land appears as unabad Bihar/Jharkhand Sarkar and land of type Gora III. Thus, both in Cadestral Survey (1928) and Revisional Survey (2007) records, the transferred land has been recorded as belonging to the state and not as raiyati land. Neither draft nor final publication of revisional survey Khatian was challenged in accordance with law as prescribed under Section 83(1) & (2) of the C.N.T. Act, for the transferred land. The order in Rent Fixation Cases No. 2(3)/81-82 of the Circle Officer Baghmara and subsequent issue of M Form pertaining to one of the three plots of the transferred lands Khata No.66, Plot No.603 in favour of Krishnendu Kumar Dutta and Swarup Kumar Dutta S/o Kailash Chandra Dutta and the other two plots out of the three plots of the transferred land bearing Khata No.66, Plot No.604 and Khata No.71, Plot No.584 in favour of Nimay Chandra Dutta S/o of Surendra Nath Dutta was quashed by the order of the D.C., Dhanbad in Misc. Case No.05/2008 dated 10.02.2009 and subsequently on 14.07.2009/25.08.2009. It is stated on affidavit that no other M Forms has been issued and no rent fixation has been done in connection to the land transferred to JIADA bearing Mouza Name Ranguni- Mouza No.226, Khata No.209 and Plot Nos 570 , 620 and 568 total area 11.92 acres. This land was subsequently leased to R-23 by R-22.
33. In view of the above, the main point for determination in the instant appeal is as follows:
A. Whether, the predecessor-in-interest of the plaintiffs (R-1 to R-9) acquired title and possession of the suit land in the Court auction sale in the execution proceeding arising out of the mortgage suits 19 F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 of the Zamindari interest of Defendant Nos.5 to 10 (R-10 to R-15) in the year 1928-41?
B. Whether the Court auction resulted in transfer of proprietary interest of the tenure holder or mere right to collect the land revenue?
C. Whether the suit land as claimed in the plaint was transferred by the said Court auction sales?
D. Whether the Court auction purchase was followed by actual delivery of possession of the schedule land in favour of the predecessor in interest of the plaintiff?
E. Whether the claim of the State with respect to the three plots measuring 11.92 acre of land under Mouza No. 226 Khata No.66, 71 old/209 new), Plot No.603 old /570 new, 584 old/620 new, 604 old/568 new of Ranguni, Circle Baghmara, District Dhanbad land valid?
F. Whether the relief claimed for title and declaration of all the sale deeds to be void which were executed by the judgment debtors of the mortgage suit and consequent execution suits can be allowed, when the transferees have not been impleaded in the suit?
34. The following documents have been adduced on behalf of the plaintiffs:
a. Exhibits 1 Certified copy of final decree issued by the Court of Sub-judge at Dhanbad in Mortgage Suit No. 23/1930.
b. 1/A, which are certified copy of final decree for balance amount of sale in Mortgage Suit No.23/1930.20
F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 c. 1/B, 1/C which are certified copies of final decree and judgment in Mortgage Suit Case No.8/1941. 1st para of internal page 41/48 states, "I have stated above that in the remark column of each of the 6 Mokrari Khewat Nos. 22/1, 37/1, 34, 24, 23 and 40 that each of the Mokrari Khewat represented 1/- share of Mouza Ranguni. The total share recorded under those Khewats made up 6/- share in village Ranguni. The 2nd las paragraph of the same page mentioned "therefore, on reference to the Khewats, it appears that entire village Ranguni was in Mokrari". d. Exhibits 2 and 2/A, sale certificate and delivery of possession in Execution Case No.492/1935 in favour of Murlidhar Paul & Haribol Paul against Chandra Mohan Dutta.
e. Exhibit 2/B and 2/C-Sale Certificate and Delivery of possession in Execution Case No.144/1938 in favour of Murlidhar Paul & Haribol Paul against Surendra Nath Dutta.
f. Exhibit 2/D Sale Certificate in Execution Case No.138/1940 in favour of Murlidhar Paul & Haribol Paul against Surendra Nath Dutta, Nand Gopal Dutta & Jatial Dasya.
g. Exhibit 2/E& F Sale Certificate and D.P. in Execution Case No.140/1940 in favour of Murlidhar Paul & Haribol Paul against Shambhu Nath Dutta.
h. Exhibit 2/G order of delivery of possession in Execution Case No.366/1931 in favour of Murlidhar Paul & Haribol Paul against Shambhu Nath Dutta.
i. Exhibit 3, Order sheet of Compensation Case No. 391/56-
57.
j. Exhibit 3/A--Order dated 5.3.1965 in Case No. 43 B/1956-57.
21
F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 k. Exhibit 3/B-C Order sheets of Ad-interim Compensation Case No.9/64-65 dated 06.03.1965.
l. Legal notice Exhibit 4.
m. Reply to 4A-C reply to legal notice.
n. 4/D notice issued by lawyer on behalf of plaintiffs. o. Exhibits 5-5/D rent receipts of the year 1961-62-63-64 in the name of Rabindra Nath Paul, Ambika Bala Pal, Nirmal Pal, Satya Narayan Pal, Latika Bala Pal with respect to land of Mouza Ranguni, Jamabandi Nos. 51, 49, 54, 58,
52. p. Ext 5/E Rent receipt of Jamabandi No. 51 in the name of Rabindra Nath Paul for the year 1981-82.
q. Ext 5/f Rent receipt of Jamabandi No. 49 in the name of Ambika Bala Pal for the year 1981-82.
r. Ext 5/g Rent receipt of Jamabandi No.54 in the name of Nirmal Kumar Pal for the year 62-63.
s. Exhibit 6 certified copy of judgment in L.A. Case Nos.104, 106, 107, 130, 131, 132/1985.
t. Exhibit-7 Certified copy of order in Miscellaneous Case No.5/2008- By order dated 25.8.2009 the D.C., Dhanbad quashed the order of C.O., Baghmara in Rent Fixation Case No.-1 & 2(iii)/81-82.
u. Exhibit 8 certified copy of Khewats.
v. Exhibit 8-8/1 Khewat.
w. Exhibits 8/2 to 8/9 certified copies of Continuous Khatiyan with respect to land.
x. Exhibit 9- C.C. of order sheet of Case No.565/1955-56 in which the objection raised by Kailash Chandra Dutta and others was rejected and compensation was ordered in favour of Satya Narayan Paul, Nirmal Kumar Paul, Rabindra Nath Paul S/o Murlidhar Paul, Latika Bala Paul and Ambika Balla Dasi. It had been contended in this case 22 F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 by the objectors that everything of the village Ranguni had been sold in favour of the opposite party except Khewat Nos.79, 81, 82 and 57 of Village- Ranguni.
y. Exhibit 9/A certified copy of report of the Circle Inspector submitted before Compensation Officer in which it was reported that the opposite parties were in possession for last 25 years and had been paying rent to the state since 1950 and before that to the outgoing landlords are entitled to compensation as the applicants as also their predecessor-in-interest have lost all interest by auction sale.
z. Exhibit 10-10E certified copies of M Forms issued under Sections 5,6 and 7 of the B.L.R. Act, 1950 in the name of Satya Narayan Paul S/o late Murlidhar Paul, Nirmal Kumar Paul, Smt Latika Bala Paul , Haribol Paul in case nos 389, 390 388, 394/1962-63 with respect to lands of village Ranguni.
35. The following documentary evidences have been adduced on behalf of Defendant Nos.5-10:
g. Exhibit A-A/5 are rent receipts issued in the name of Smt. Lakshmi Kumari Debya prior to the vesting regarding payment of rent to the zamindars and relates to the period (1938 to 1952) . h. Exhibits A/6-A/7, A/9 year 2004-05,A/8, 2005-2007,A/10 year 2005-06, A/11-12,A/15 rent receipts year 88-89,90-91, A/13- 14,A/16 87-88, A/6-rent receipts in the name of Nimai Chandra Dutta for the year 2004-2005.
i. Exhibit B Certified orders passed in Misc. Case No. 5/2008 relied upon by the plaintiff as Exhibit- 7.
j. Exhibit B/1 and B/2 certified copy orders passed by circle officer Baghmara in Misc. Case No.1(3)/81-82 in which Jamabandi Nos. 124-128 and 158 were created in favour of the Duttas. This proceeding was initiated on the basis of the application filed by 23 F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 Anil Kumar Dutta S/o Shambhu Nath Dutta for rent rent fixation of different plots under Khata Nos.13, 49, 50, 54, 52, 82, 67, 71, 74, 75, 60, 61 and 62 of mouza Ranguni for rent fixation. Vide order dated 21.02.1982 the long standing Jamabandi Nos. 49, 51, 52, 53, 54 and 58 and in the name of Nirmal Chandra Paul, Latika Bala Paul, Ravindra Nath Paul was cancelled and rent fixation was made in favour Nararyan Chandra Dutta and Jeevan Chandra Dutta with respect to different plots under Khata Nos. 67, 13, 49, 50, 54, 52, 82, 71 was created except 2.12 acre of kanali 1.83 decimal baid, 1.64 decimal Gora I, 0.51 decimal, Gora II, 0.31 decimal Gora III, 6.46 decimal homestead total 12. 92 decimal gair majurwa aam. The M Roll was directed to be issued accordingly.
k. Exhibit B/2 certified copy orders passed by circle officer Baghmara in Misc. Case No.2(3)/81-82 in which Jamabandi Nos. 124-128 and 158 were created in favour of the Duttas. Jamabandi Nos.58, 52, 51, 54, 53 and 49 of mouza Ranguni was cancelled and the rent fixation was made in favour of Krishnendu Sekhar Dutta, Swarup Kumar Dutta, Dhirendra Nath Dutta and Nimai Chandra Dutta.
l. Exhibit B/3 certified copy of order sheet of Misc. Case No.5/08. m. Exhibit B/4- Order under Section 144 Cr.P.C. passed in M.P. Case No. 1627/02.
n. Exhibit B/5 Order dated 31.5.2010 in Case no 485/2007 in the Court revenue officer Dhanbad Dhirendra Nath Dutta and Others Versus Rabindra Nath Paul.
o. Exhibit C- Certified copy of Continuous Khatiyan of Mouza Ranguni published in 2007.
p. Exhibit D attested copy of Khewat Mouza No.226, Village Ranguni.
q. Exhibit E certified copy of Zamindari Return in Case No.391- 1956-57.
24
F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 r. Exhibit F- Certified copy of order passed by Hon'ble High Court in W.P.(C) No.3772/2008 Writ was filed for cancellation of jamabandis in favour of the Duttas.
s. Exhibit G Notice form of Pharma Project, Mouza Ranguni 3/04-
05. t. Exhibit G/2, G/3 & G/4 all notice Forms of Pharma Project, Mouza Ranguni 03/04-05.
u. Exhibit H, H/1, H/2, H/3, H/4 Form M 1 issued in case no. 1-2(3) 1981-82.
List of Exhibits in Title Suit No.76 of 2006 on behalf of defendant No.3:-
I. C.C. of sale deeds Exhibit a - 2367/05- Vendor- Dhirendra Nath Dutta a/1 - 8653/05- Vendor- Harihar Singh and Others a/2 - 2327/05- Vendor- Krihnendu Kumar Dutta and Sri Swarup Kumar Dutta a/3 - 2365/05- Vendor- Nimai Chandra Dutta a/4 - 8650/05- Vendor- Birendra Kumar Singh a/5 - 2328/05- Vendor- Kedar Nath Singh a/6 - 11505/05- Vendor- Krishnendu Dutaa and Swarup Kumar Dutta a/7 - 2450/05- Vendor- Jai Mangal Singh & Another a/8 - 3615/05- Vendor- Nimai Chandra Dutta a/9 - 9917/05- Vendor- Dhirendra Nath Dutta a/10 - 2757/05- Vendor- Krihnendu Sekhar & Swarup Kumar Dutta a/11 - 1322/05- Vendor- Krihnendu Sekhar & Swarup Kumar Dutta a/12 - 6833/05- Vendor- Krihnendu Sekhar & Swarup Kumar Dutta a/13 - 2537/05- Vendor- Krihnendu Sekhar & Swarup Kumar Dutta a/14 - 4020/05- Vendor- Dhirendra Nath Dutta& Nimai Chandra Dutta 25 F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 a/15 - 2758/05- Vendor- Krihnendu Sekhar Dutta & Swarup Kumar Dutta a/16 - 2185/02- Vendor- Dhirendra Nath Dutta& Nimai Chandra Dutta a/17 - 5205/02- Vendor- Dhirendra Nath Dutta a/18-14690/64 - Vendor -Aparna Dasya & Nidhi Bala the vendor claimed the property by virtue of gift deed from one Chandra Mohan Dutta vide Deed No. 2088 of 1934 a/19 - 14691/64- Vendor- Aparna Dasya &Nidhi Bala the vendor claimed the property by virtue of gift deed from one Chandra Mohan Dutta vide deed no. 2088 of 1934 a/20 - 17755/68- Vendor- Kailash Chandra Dutta and Others the vendor claimed the property by virtue of inheritance a/21 - 17757/68- Vendor- Anil Kumar Dutta,the vendor claimed the property by virtue of inheritance from his father Sambhu Nath Dutta a/22- 20954/73- Vendor- Kailash Chandra Dutta, Dhirendra Nath Dutta and Nimai Chandra Dutta a/23- 947/75- Vendor- Kailash Chandra Dutta and Dhirendra Nath Dutta a/24 - 14689/64- Vendor- Aparna Dasya & Nidhi Bala the vendor claimed the property by virtue of gift deed from one Chandra Mohan Dutta vide deed no. 2088 of 1934 a/25 - 6884/92- Vendor- Nimai Chandra Dutta the vendor claimed the property by virtue of issuance of M-form in 2.3.81 a/26- 1251/2008- Vendor - Nimai Chadra Dutta the vendor claimed the property by virtue of inheritance from his grandfather Chandra Mohan Dutta a/27-2756/05- Vendor- Krishnendu Sekhar Dutta and Swarup Kumar Dutta the vendor claimed the property by virtue of gift deed from one Chandra Mohan Dutta vide deed no. 2088 of 1934 II. Exhibit b to b/05 certified copy of orders in Case Nos.444/07, 445/07, 450/07, 459/07, 454/2007, 451/2007.26
F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 III. Exhibit c- Order sheet & plaint and report of Pleader Commissioner-
Plaintiffs and defendant Nos.5 to 10 compromised the Title Suit Nos. 5 to 10 (Duttas) to the Title Suit No. 26 of 2003 have compromised the suit after passing the judgment and decree in Title Suit No.76 of 2006 and this relates to small part of land measuring 75 decimals on which Duttas constructed their house. Para 5 of the term of compromise refers that defendants specifically acknowledge that initially their predecessor-in-interest were owners of six annas in entire lands of Ranguni Mouza which was subsequently acquired by the predecessor-in-interest of the plaintiff in auction conducted by the Court of Sub Judge, Dhanbad in multiple suits and execution cases thereof by which they became absolute owners. ?
IV. Exhibit d to d/31 Mutation Case Nos.801(III)2005-2006, 607(III)2005- 06, 656(III)05-06, 603(III)05-06, 604(III)2005-06 of C.O., Baghmara Case Nos.481(III)07-08, 450(III)07-08, 449(III)07-08, 451(III)07-08, 452(III)07-08, 483(III)07-08, 482(III)07-08, 453(III)07-08, 800(III)05- 06, 608(III)05-06, 797(III)05-06, 803(III)05-06, 799(III)05-06, 798(III)2005-2006, 650(III)05-06, 657(III)05-06, 655(III)05-06, 605(III)2005-2006 of C.O., Baghmara. Case Nos.180/07, 224/07, 159/07,204-205/2007.
V. Exhibit e certified copy of order passed by the Court of Deputy Commissioner, Dhanbad in Misc. Case No.05/08.
VI. Exhibit f to f/2 certified copy of Khewat No.54, 49, and 57 27 F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 VII. Exhibit g to g/3 certified copy of Deed No.2032 dated 18.04.2002, 5869 dated 29.05.2010 and deed no.7549 dated 12.08.1991 and Deed No. 332 dated 18.01.1994.
36. For better appreciation, the chronology of events is set out as here under:-
[1928] Mortgage Suit No.61/1928 was decreed on 23.11.1929. [1935] Execution Case No.492 of 1935 arising out of Title (M) Suit No.61/1928 auction purchase of 2 Annas share followed by delivery of possession on 18.06.1937. Exhibit-2 certified copy of sale certificate in Execution Case No.492 of 1935 Murlidhar Pal and Hari Bol Pal Versus Chandra Mohan Dutta certifying that the decree holders declared the purchaser in public auction on 15.04.1937 arising out of Mortgage Suit No.61/1928 with respect to two Anna share of the defendant in the Village Ronguni. Exhibit 2/A is the receipt of delivery of possession. [1938] Auction purchase by Hari Bol Paul and Murli Dhar Paul of share of Shashibala Dasi of her 2 Annas share in Execution Case No.144/1938 arising out of Mortgage Suit No.61 of 1928 followed by delivery of possession on 18.03.1939. Exhibit 2/B is sale certificate in Execution Case No.144/1938. (1) Murlidhar Pal (2) Haribol Pal Versus Surendra Nath Dutta description of property the lands recorded in the name of Shashi Bala Dasi- Khewat Nos.2/12, 24, 30, 34, 35 & 55 and Ejmali Khewat Nos.36, 41, 42, 49, 56, 57, 76 & 77 with total ownership. Exhibit 2/c is certificate of delivery of possession. [1930] Title Suit (Mortgage) No.23/1930 by the ancestors of the plaintiffs against Shambhunath Dutta, who had mortgaged one Anna 28 F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 share out of his two Anna share while taking loan and in Execution Case No.366 of 1931, the delivery of possession was given to Murlidhar Pal Exhibit 2/G. For the balance amount, Execution Case No.140/1940 Murlidhar Pal Versus Shambhu Nath Dutta arising out of Mortgage Suit No.23 of 1940 was filed for the one Anna share of Shambhu Nath Dutta which was delivered to the ancestors of the plaintiffs on 03.06.1942.
[1940] For the balance amount, Execution Case No.140/1940 arising out of Mortgage Suit No.23 of 1940 Murlidhar Pal Vs. Sambhu Nath Dutta Ext.-2/E certificate of delivery of possession dated 22.06.1942. Description of property 1 Anna share out of 2 Anna share under settlement Thana No. 226 Khewat Nos.-2/11, 23, 29, 40, 41, 42, 43, 49, 53, 54, 57, 66, 76 and 77 and Plot Nos. 299, 300, 422, 423 under Khewat No.77 Ejmal and new bandh and bara bandh sahit of the share of 52 and 56 Khewat ownership. This sale certificate also includes part of Plot No.500 of Khewat No.43, Plot No.1877 of Khewat No. 228 of Mouza No.228.
[1940] Execution Case No. 138 of 1940 Murlidhar Pal and Haribol Pal Vs. (i) Surendranath @ Tarni pd Dutta S/o late Chandra Mohan Dutta & (ii) Nand Gopal Dutta (iii) Srimatiy Jatila Dasya widow of Devendra Nath Dutta arising out of Mortgage Suit No.61/1938. In this case the objection Aparna Dasya daughter-in-law of Chandra Mohan Dutta was accepted and consequently decree holder Murlidhar Pal & Others filed Title Suit No. 08/1941 under O21 R 63 which was decreed on 17.03 1942. Exhibit 2/D. 29 F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 POST VESTING / BLR Act 1950 [1965] Rent was fixed and M. Form was issued in the name of plaintiffs and their successors as follows Exhibit 10-10/E:-
Sl. Name M. Form Thoka
No. No. No.
1 Ambika Bala Pal 387-62/63 49
2 Latika Bala Pal 388-62/63 51
3 Satyanarayan Pal 389-62/63 52
4 Ravindra Kumar 391-62/63 54
Pal
5 Nirmal Kumar 390-62/63 53
Pal
6 Hari Bol Pal 394-62/63 58
[1965] Compensation paid to Murlidhar Pal and Hari Bol Pal under Sections 5, 6 and 7 of the B.L.R. Act. Exhibit 3- 3C, 9 & 9/A are the order on the return dated 04.01.1957 filed by Murlidhar Pal and Hari Bol Pal for claim of compensation. After due enquiry and on the basis of the final verification report submitted by Circle Inspector, Baghmara in respect of Sri Haribol Pal, the compensation assessment roll was prepared in Form G and the certificate was issued as provided under Section 29 of the B.L.R. Act on 12.05.1964. In the order dated 17.09.1963, the report of the Circle Inspector regarding the payment of compensation and the assets and liability of the intermediaries has been extracted which refers to the Pals. The objectors namely Kailash Chandra Dutta and Others filed objection against the compensation assessment roll made in favour of Ravindra Nath Pal and Others which is evident from the order dated 24.09.1964 (Exhibit 3/C). A specific report was called for on these Khewats and the objection was overruled 30 F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 and rejected. The compensation roll was finally prepared in favour of Pals.
[1965] After vesting of intermediary interest, the plaintiffs filed returns in terms of Section 3(a)(c) of the B.L.R. Act with respect to their intermediary interest which was registered as Case No.565/55-56 before the Collector of District Manbhum (Exhibit 9). The names of the intermediary were Ambika Bala Paul, Satyanarayan Paul, Ravindra Nath Paul, Nirmal Kumar Paul and Latika Bala Paul as they were recognized as intermediaries of Village Ranguni. The compensation assessment roll was prepared in favour of these five intermediaries mentioned above and the same was approved for publication. After considering the objection filed by Kailash Chandra Dutta the Compensation Officer vide order dated 19.02.1965 (internal page 10 of Exhibit 9), passed final order with regard to the said compensation to Satyanaryan Paul in respect of intermediary rights of Khewat mentioned in the return of Village Ranguni. The Compensation Officer finally concluded that Satyanarayan Paul, Nirmal Kumar Paul, Ravindra Nath Paul, Latika Bala Paul and Ambika Bala Dasi, the ex- intermediaries in the present compensation case, were entitled to the compensation amount. This order being passed under Section 26 of the Bihar Land Reforms Act was appealable in terms of Section 27 of the said Act. But the order was never challenged by any quarter. [1981] 125-128 and 154 opened in Rent Fixation Case Nos.1(iii)/80-81 and 2(iii)/80-81 in respect of the suit lands by Circle Officer in favour of Krishnendu Dutta, Dhirendra Nath Dutta and Nimai Chandra Dutta Baghmara vide order dated 16.07.1982 after cancelling the Jamabandi 31 F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 Nos. 49, 51, 52, 53, 54 and 58 running in the names of ancestors of Bani Brata Paul who had filed Misc. Case No. 5/2004-05 through the constituted power of attorney holder. Exhibit B/1 & B/2. [2008] W.P.(C) No.3772 of 2008 was preferred by Bani Brata Paul (R-
2) for issuance of direction for passing appropriate order in Misc. Jamabandi Cancellation Case No. 5/2004-2005. Vide order dated 07.08.2008 (Exhibit F) direction was given to the Deputy Commissioner to take up the said file and disposed of the same in accordance with law within a period of four months.
[2009] Vide order in Miscellaneous Case No.05 of 2008 by order dated 10.2.2009 and 14.07.2009/25.08.2009 Collector, Dhanbad set aside the order of the Circle Officer, Baghmara and restored the Jamabandi created in favour of respondent Nos.1-9. The State was impleaded as a party in this proceeding. (Ext 7) [2006] Title suit filed by the Plaintiffs.
[2012] Suit decreed and appeal filed.
[05.10.2012] Respondents no. 16 to 18 impleaded.
[06.07.2018] Deputy Commissioner, Dhanbad vide letter no.2692 dated 6.7.2018 transferred Plot No.570, 620 and 568 under Khata No. 209 of mouza Ranguni measuring 11.92 acres to JIADA corresponding to Plot Nos. 603,604 of Khata No.66 and Plot no.584 of Khata No.71. [14.12.2018] Respondents No. 19 impleaded.
[29.11.2019] Respondent Nos.20 to 22 impleaded.
[15.07.2019] 9.55 acres was allotted to Respondent No.23 (M/s Asarfi Hospital).
32
F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 [06.10.2020] In compliance to the order dated 29.11.2019 passed in this appeal, D.C Dhanbad rejected the application filed by Respondent Nos.1 to 9 against transfer of 11.92 acres of land to JIADA in Mic Case no. 1/2020 [28.10.2020] After passing the order on 29.11.2019, Deputy Commissioner, Bokaro Cum Regional Director JIADA, directed Asarfi Hospital Limited to immediately start work.
21.01.2021 Registrar Dhanbad executed lease deed in favour of Asarfi Hospital Limited.
[03.03.2022] Respondent No. 23 impleaded.
37. In any claim for declaration of title the source of title and the mode of devolution of title need to be established. The pleadings must state the complete facts in a chronological order. Similarly, the defendant must respond to each averment separately and also state his version. There should be neither misrepresentation, nor concealment in the pleadings. The requirement of sanctity in the pleadings has been reinforced by Order 6 Rule 15(4) requiring the person verifying the pleadings shall also furnish an affidavit in support of his pleading. This requirement of affidavit has been inserted by C.P.C. Amendment Act, 1999, w.e.f. 01.07.2002 to be supported by affidavit was introduced. The purpose of inserting this provision is to discourage cases being set up or defended on false and misleading pleading. The need to maintain the integrity of the process is fundamental to ensure the inviolability of the result. In Sciemed Overseas Inc. v. BOC India Ltd., (2016) 3 SCC 70 the Hon'ble Apex Court has reiterated emphasis on precisely this aspect. It has been held.
28. In Suo Motu Proceedings against R. Karuppan, Advocate, In re [Suo Motu Proceedings against R. Karuppan, Advocate, In re, (2001) 5 SCC 289: 2001 SCC (Cri) 876] this Court 33 F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 had observed that the sanctity of affidavits filed by parties has to be preserved and protected and at the same time the filing of irresponsible statements without any regard to accuracy has to be discouraged. It was observed by this Court as follows: (SCC p. 293, para 13) "13. Courts are entrusted with the powers of dispensation and adjudication of justice of the rival claims of the parties besides determining the criminal liability of the offenders for offences committed against the society. The courts are further expected to do justice quickly and impartially not being biased by any extraneous considerations. Justice dispensation system would be wrecked if statutory restrictions are not imposed upon the litigants, who attempt to mislead the court by filing and relying upon false evidence particularly in cases, the adjudication of which is dependent upon the statement of facts. If the result of the proceedings are to be respected, these issues before the courts must be resolved to the extent possible in accordance with the truth. The purity of proceedings of the court cannot be permitted to be sullied by a party on frivolous, vexatious or insufficient grounds or relying upon false evidence inspired by extraneous considerations or revengeful desire to harass or spite his opponent. Sanctity of the affidavits has to be preserved and protected discouraging the filing of irresponsible statements, without any regard to accuracy."
38. Section 101 of the Evidence Act casts the burden of proof on the party who desires the Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove the existence of those facts. Once the Plaintiff has discharged burden, the onus shifts on the other side to dispute the facts so proved. It has been held in Lakshmana Vrs. Venkateswarlu, AIR 1949 PC 278:
"The initial burden of proving a prima facie case in his favour is cast on the plaintiff ; when he gives such evidence as will support a prima facie case, the onus shifts on to the defendant to adduce rebutting evidence to meet the case made out by the plaintiff. As the case continues to develop, the onus may shift back again to the plaintiff."
39. Here since the plaintiffs have brought the declaratory suit for title, therefore the burden of proof is on them to plead and proof their title by leading evidence on the point. The claim of title of the Plaintiffs over the suit land is based on Court auction purchase in execution cases arising out of different mortgage suits filed in the period 1928 to 1941 discussed in the earlier part of the Judgment.
40. Defendants have not disputed these judicial proceeding but contend that the decree and orders had not been acted upon. There is a presumption under Section 114 (e) of the Evidence Act that Judicial and official acts have been 34 F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 regularly performed. In order to rebut the presumption one has to plead and lead credible contrary evidence.
41. Order 34 of C.P.C. lays down the procedure for suits relating to mortgages of immovable property. Elaborate procedural safeguards are laid down so that the mortgagor has sufficient opportunity to pay the amount in a suit for foreclosure. Under Rule 2(a) preliminary decree for sale is passed if the plaintiff succeeds for the principal and interest on the mortgage. If the defendant pays the amount within six months, the Court shall retransfer to the defendant the property. The court can extend the time for payment from time to time for good cause. Under Rule 3, where before a final decree debarring the defendant from all right to redeem the mortgaged property has been passed, the defendant makes payment into Court the due amount, the Court may order re-transfer of the property to the defendant. Rules 4 & 5 are regarding preliminary and final decrees in suit for sale where provision is made that before the confirmation of sale the defendant makes payment into Court of all amount due, order the plaintiff to deliver up the documents referred to in the preliminary decree.
After passing of the final decree, the stage is set for execution of the final decree. Under Order 21 Rule 94 where a sale of immovable property has become absolute, the Court shall issue a certificate that the property was sold at a Court auction and the sale was made absolute. Under Rule 95, the Court shall, on the application of the purchaser or any person whom he may appoint to receive delivery on his behalf in possession of the property.
42. Here in the present case following evidence has been led on behalf of the plaintiff on the factum of transfer of title and possession consequent upon the mortgage suit and Court auction sale:
35
F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 I. The final decree in Mortgage Suit No. 61 of 1928 was put to execution in Case Number 492/1935 and Execution Case No. 144/1938, sale certificate was issued and delivery of possession was affected is evident from Exhibit-2, 2/A and 2/B. II. Delivery of possession was made consequent upon Title Suit No. 8/1941 is evident from Exhibit 2/D. III. Delivery of possession was affected pursuant to Title Suit (Mortgage) No. 23/1930 and Execution Case no. 366/1931 Exhibit 2/E, 2/F and 2/G. IV. Execution Case No. 144/1938 Exhibit 2/B and 2/C. V. Execution Case No.138/1940- Exhibit 2/D. VI. Execution Case No. 140/140 Exhibit 2/E-F. VII. Execution Case No.366/1931 Exhibit-2/D. VIII. Exhibit 3/C-The objectors namely Kailash Chandra Dutta and Others appeared and filed objection against the compensation assessment roll made in favour of Ravindra Nath Pal and Others which is evident from the order dated 24.09.1964.
43. The ancestors of defendants Nos. 5 to 10 at different stages had unsuccessfully contested the claim of the plaintiffs in execution cases and their objections were dismissed on merit. Exhibit 1/C which is the judgment delivered in Title Suit No. 8 of 1941 under Order 21 Rule 63 of C.P.C. arising out of Claim Case No. 54 of 1940 filed in Execution No. 138 of 1940 between Murlidhar, Aparniya Dasya and others. In Execution Case No. 138 of 1940, claim was made by defendant No. 3 Surrendra Dutta, defendant No. 4, Nand Gopal Dutta and Jetila Dasya and defendant No. 5 widow of deceased son Chandra Mohan Dutta which was registered as Claim Case No. 54 of 1940. Arising from that case Title Suit No. 8 of 1941 was filed. In this case, it was finally held as follows:
"On consideration of the evidence as a whole and in the facts and circumstance, I accept the evidence of PW1 to the effect that the deed of gift was Benami and collusive document and that was brought into existence to defraud the plaintiff as correct." 36
F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 The suit was finally decided in favour of the ancestors of the present plaintiff. It was, inter alia, held by the Court that 6 Anna share of the entire village Ranguni inclusive of all lands of the village appertaining to that share was given in Mokarari to Sri Hari Dutta under Patta and that 2 Anna of share of Chandra Mohan which he held in Mokarari right related to share to that extent in entire village Ranguni and that was not exclusive of property included within Khewat No. 2/10 (Nishkar), Khewat Nos. 28, 51, 52 (Jalshashan) recorded in his name in his interest in properties of Khewat No.
77. Further, 2 Anna share of Shashibala which she held in Mokarari right to share to the extent in the entire village Ranguni and that was not exclusive of properties within Khewat Nos. 2/12 (Nishkar) Khewat Nos. 30, 55 and 56 (Jalsasan) recorded in her name and her interest in properties of Khewat No.
77. In this case, the learned court of Sub Judge vide order dated 19.09.1942 concluded that the plaintiff had got title of properties bearing Khewat Nos. 2/10, 22/1, 28, 51, 52 of Plot Nos. 502 and 503 and also to the share to the extent of 1/6 in Plot No. 299 and 300 and to the extent of 2/6 in Plot No. 422, 423 of Village Ranguni and the plaintiffs were in possession of those properties from before filing of the claim case. Khewat Nos. 79, 81 and 82 were liable to be auction sold in execution of the decree that the plaintiffs had obtained against Chandra Mohan.
POST VESTING
44. After coming into force of the Bihar Land Reforms Act, 1950 (Hereinafter called the BLR Act) the estates or tenures of a proprietor or tenure holder became vested in the state from the date of notification. Thus, the intermediary interest of the proprietors and tenure holders got vested in the state. Under Section 6 of the BLR Act, the land in Khas possession of 37 F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 intermediary was permitted to be retained by them on payment of rent as raiyats having occupancy right. It further provides that the relevant rules for preparation of rent roll under Rules 7B, Collector may, on receipt of a report or of his own motion, by a written order served in the manner provided in Rule 3, require each outgoing proprietor or tenure holder of an estate or an industrial undertaking of an estate or tenure vested in the State to file an application before him in Form K furnishing therein a complete and accurate statement and description of all such lands lying with his jurisdiction, as may be deemed to have been settled. Further after holding the settlement proceeding, the rent role was prepared under Rule 7(i) as fair and ground rent under the signature of the Collector. Here in the present case, the return was filed by the ex-tenure holders and following due process of law the rent role was prepared which has been adduced into evidence and marked as Ext.10 series. The ancestors of the plaintiffs were accepted as tenant by the State after the vesting of intermediary rights is established not only by the issuance of M forms but also the rent receipts issued in their names regarding which the following evidence is led by the plaintiff:
I. Exhibits 10-10 E- which is the certified copy of M forms issued under sections 5, 6 and 7 of the BLR Act 1950 in the name of Satya Narayan Paul, Nirmal Kumar Paul, Smt Latika Bala Paul, Haribol Paul with respect to the lands of village Ranguni.
II. Rent receipts of the year 1961-62-63-64 with respect to the lands of Mouza Ranguni Jamabandi Nos. 51, 49, 55, 58 and 52 Exhibits 5-5/D III. Rent receipt of Jamabandi No.51 in the name of Rabindra Nath Paul Ext. 5/E IV. Rent receipt of Jamabandi No.49 in the name of Ambika Bala Pal Ext. 5/F 38 F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 IV. Rent receipt of Jamabandi No.54 in the name of Nirmal Kumar Paul Ext. 5/g Be it noted that the M Forms issued in favour of the plaintiffs has never been challenged or even questioned by the issuing state authorities. What has been disputed in the Supplementary affidavit filed by the Deputy Commissioner, Dhanbad in this appeal, is issuance of M Forms issued with respect to certain plots claimed by the State and not the issuance of M-forms in favour of plaintiff as such.
45. Chapter V Sections 19 to 31 of the BLR Act, lays down procedure for assessment and payment of compensation to the ex-intermediaries. Section 19 provides that the compensation officer, shall in the case of estate or tenure which has vested in the State, under Section 3-A on receipt of an application by the collector under Clause (6) of Section 3-B, prepare in the prescribed form a compensation assessment roll containing the gross asset and the net income of each proprietor and tenure holder of estate and compensation to be paid in accordance with the provisions of this Act to such proprietor or tenure holder. Under Section 26, after the amount of compensation including the amount assessed as an annuity under clause (3) of section 24 to be paid in respect of the interests of the intermediaries which vested in the State, had been determined, the compensation officer to prepare the compensation assessment roll. Under Section 27, the appeal is to be presented within two months and Section 29 makes provision for final publication of Compensation Assessment-roll. Under Section 29, when a Compensation Assessment-roll has been finally published the compensation officer shall make a certificate stating the fact of such final publication and date thereof and such certificate shall be conclusive proof of such publication.
39
F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 Exhibit 9 Series is the order-sheet of Compensation Case No. 565 of 1955-56 which was initiated under Section 3(a) of the BLR Act by Satya Narayan Paul, son of Murlidhar Paul for intermediary interest in Village Ranguni under Khewat Nos. 49, 53 and others, P.O. Topchachi. It is submitted by the learned Counsel Sri Rahul Kumar Gupta that the final order after verification was passed on 19.02.1965 in which K.C. Dutta appeared and raised objection. Learned Revenue Court noted in the order that the objectors Kailash Chandra Dutta and others during the course of their argument agreed that everything of Village Ranguni were sold in favour opposite party except Khewat Nos. 79, 81, 82 and 57 of Village Ranguni. In this respect a specific report regarding four Khewats was called from the Circle Officer, Baghmara who in his report dated 15.02.1965 submitted that these Khewats were in the possession of the Pauls and they are in physical possession over the above Khewats and paying rent thereof. Old Khewat of Village Ranguni bearing Nos. 79 and 81 were recorded in the name of Chandra Mohan Dutta. 82 was Ijmal with Khewats 28, 51 and 81. Khewat Nos. 28, 51 and 81 were in the name of Chandra Mohan Dutta. Khewat 57 was Ijmal with Khewat 28, 29, 30, 51, 53 and 55. It has been noted in the order that these Khewats were in the name of Chandra Mohan Dutta, Sambhu Nath Dutta, and Shashi Bala Dasi. Since all the properties of Chandra Mohan Dutta, Sashi Bala and Sambhu had been purchased by Murlidhar Paul and Hari Bol Paul thus all four Khewats were thus owned by Murlidhar Paul and Hari Bol Paul. The Compensation Officer concluded that Satya Narain Paul, Nirmal Kumar Paul, Rabindra Nath Paul, Latika Bala Paul and Ambika Bala Paul the ex-intermediaries in the present compensation case were legally entitled to obtain compensation in the case. The objection of Kailash Chandra Dutta and others were rejected and 40 F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 compensation was finally paid to the plaintiffs with respect to village Ranguni. Exhibit 9 is the order sheet of Case No. 565/1955-56 and Exhibit 9/A is the report of the Circle inspector submitted before compensation officer in which it was reported that the opposite parties were in possession for last 25 years and had been paying rent since 1950.
46. Another evidence relied upon by the plaintiff on the point of their actual physical possession is the acquisition of land by the BCCL and subsequent payment of compensation to the plaintiffs. Exhibit 6 is the copy of the judgment dated 20.12.08 passed by the Sub-Judge-II, Dhanbad-cum-L.A. Judge in L.A. Reference Case Nos. 104/85, 106/85, 107/85, 130/85, 131/85, 132/85. These reference cases appertained to Plot Nos.805 under Khata No.36, Plot Nos. 832, 835, 839, under Khata No. 69, Plot No. 842 of Khata No. 10, Plot No.892 Khata No.68, Plot Nos.911, 931, 936, 963, 964, 966 and 929 appertaining to Khata No. 226, plot 804 and 829 of appertaining to Khata No. 46 and 101 of mouza Ranguni. The reference case was allowed in favour of Binay Krishna Paul and others against Birendra Kumar Singh, Tarkeshwar Singh, Keshab Prasad Singh, Julum Singh, Keshar Prasad Singh and others. The matter involved payment of compensation of these lands acquired by BCCL. The opposite parties in these cases had claimed to have purchased the land from the Duttas and the Pauls claimed the land on the basis of the decree in the mortgaged suit from the Duttas. Learned Court below passed the order in favour of the applicant and has specifically stated in paragraph-23 of the judgment that the disputed land was falling in the share of applicant and not in the share of Surendra Dutta and his sons so transfer made by these venders had got no value at all. The learned Court noted that the disputed land had fallen in share of applicants not in the share of Surendra Nath Dutta and his 41 F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 sons Kailash Nath Dutta, Dhirendra Nath Dutta and Anil Kumar Dutta. So, transfer made by these defendants got no value at all. The judgment in Land Acquisition Case has never been challenged by the opposite parties.
47. To sum up, the plaintiffs have led incontrovertible evidence of the Judicial orders passed by the Civil and Revenue Courts, on the point of transfer of title and possession pursuant to the mortgage suit and the execution proceeding therefrom. These evidences include the judgments and orders passed in mortgage suits and execution proceedings, certificates of court auction sale and delivery of possession. As discussed above, in Execution Case No.138 of 1940 arising out of arising out of Mortgage Suit No. 61/1928 the daughter-in-laws of Chandra Mohan Dutta raised claim on certain properties on the basis of a registered deed of gift dated 9.6.34 executed by Chandra Mohan Dutta in their favour. Consequent upon it, Murlidhar Paul and Haribol Paul filed Title Suit no.8 of 1941 which was finally decided in favour of the plaintiffs by holding that the deed of gift was benami and collusive document and was brought into existence to defraud the plaintiffs. After vesting of the intermediary interest in the state compensation was paid to the plaintiffs who were accepted as the tenure holders at the time of vesting. Predecessor of defendants No.5 to 10 appeared before the compensation officer and raised objection, which was rejected. Further evidence on possession is the issuance of M forms accepting the plaintiffs as tenants, rent was accepted and rent receipt was issued. Apart from this on payment of compensation to the plaintiffs for the lands acquired by BCCL, objection was raised by parties who claimed to have purchased the land from the defendant Nos.5 to 10. The learned the Special Judge land acquisition, while deciding 42 F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 the land reference cases, held the plaintiffs to be the owner of the land and not the Duttas from whom the opposite parties claimed to have acquired title.
48. Against these evidence on transfer of title and possession pursuant to the mortgage suit and Court auction sale, the contesting defendants have raised basically three pleas of defence. Firstly, the Court auction sale was ex- parte and the procedure was not followed in the mortgage suit and execution proceeding.
Secondly, in the Court auction sale the title of the land was not transferred, but only the share of the tenure holder's interest which was limited to collection of land revenue can be said to have been transferred.
Thirdly, the Court auction sales did not result in transfer of actual physical possession of the land over which the defendants exercised various acts of possession. M forms were issued in favour of the plaintiffs in collusion with revenue authorities.
49. Regarding the first plea it is stated that mortgage suit and execution proceeding are judicial proceeding and any judgment and order passed need to be challenged as per the provision of law within the period prescribed. Having failed to challenge them, the orders passed in these proceedings attained finality and it is not open to the appellants to raise the plea now that procedural formalities in the mortgage suit and its execution were not observed. This plea accordingly stands rejected.
50. One legal point that has been raised during the argument in appeal, but not in the pleading before the Court below is that what was purchased in the auction sale was the intermediary interest in the share of judgment-debtors, who were tenure-holders and that did not confer title on the land, but only the right to collect rent as per the definition of the tenure holder under the Chota 43 F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 Nagpur Tenancy Act, 1908 (Hereinafter called CNT Act). In view of Section 3(XXVII) read with Section 5 of CNT Act and Section 2(jjj), (jjjj), (q) and 2(r) of the B.L.R. Act, 1950, 'Tenure' means the interest of the Tenure holder and 'Holder' means a person who has acquired from the proprietor a right to hold land for the purpose of collecting rents or bringing under cultivation by establishing tenants on it. Similar corresponding provisions have also been envisaged under the B.L.R. Act, 1950. Any mortgagee over such property would not get interest more than that of the mortgager. The consequence of the auction purchase before vesting was limited to conferring a right to collect rent and not the absolute ownership over such property.
51. In order to fully comprehend the effect of the auction sale and what was purchased by the ancestors of the plaintiffs, it is to be understood what did the 'interest of the tenure-holder' signify and how it was looked and interpreted in the contemporary records immediately following the said sale. Meaning of 'tenure-holder interest' will depend on the nature of tenancy that was in force in Bengal-Bihar and Orissa at the relevant time.
52. A brief foray into the history of tenancy law will be needed to answer the question raised regarding the nature of tenure-holder's interest. "Lord Cornwallis introduced in 1793 Regulation VIII or 'decennial settlement' of land revenue in Bengal which had two main features. The Zamindars were declared proprietors of the areas over which their revenue-collection extended. It has been noted by B.H. Baden-Powell in his book "The land system of British India VI" at page 400-401 that proprietary right, however, was a limited one; it was subject to the payment of revenue to the Government and to liability to have the estate sold at once on failure to pay; and it was 44 F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 subject, on the other hand to the just, to the just rights of the old and original cultivators of the soil, the raiyats, dependant taluqdars and others.
2nd The assessment were declared to be unalterable for ever that is in perpetuity.
The proprietary interest of the Zamindars thus resulted in the concomitant rights of free hereditary succession, sale and mortgage, but subject to the loss of their property on failure to pay the revenue on fixed date. Before vesting the Zamindars who were the tenure-holders and the tenants were two distinct classes having distinct rights and liabilities under the tenancy law. While the zamindars were invested with proprietary interest, the occupancy right of tenants were protected under the tenancy law, subject to the conditions laid down therein. After the vesting of intermediary interest, the proprietary right of the tenure holder got vested in the state and the tenure holder was accepted as tenant with respect to the land in their Khas possession. What got vested in the state under Section 3 of the BLR Act was the intermediary interest, which meant the estate, interest in building, trees, forests, fisheries etc as detailed under Section 4 except that in the Khas possession of the intermediary as stated in Section 6. Since the Zamindars had a proprietary interest over the land on which their right to collection of land- revenue extended, therefore the sale resulted in loss of title and not merely the right of collection of land revenue. The argument of the appellant that the consequence of the auction purchase was limited to conferring a right to collect rent and not the transfer absolute ownership over such property, is not the correct legal proposition. This will be borne out by the subsequent events that followed the auction sale after vesting in which the plaintiffs were accepted as tenant by issuing of M Forms and accepting rent by the State. 45
F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 POSSESSION
53. Coming to the third plea that has been strongly raised in the pleadings as well as in the argument on behalf of the appellant is that the Court auction sale did not affect the physical possession of the ancestors of the Defendant Nos.5 to 10, who were the judgment-debtors in the execution proceeding. The judgment debtors of the mortgage suit continued in possession which was acknowledged and confirmed in Rent Fixation Case Nos. 1(iii)/80-81 & 2(iii)/ 80-81 with respect to suit lands Jamabandi Nos. 49, 51, 52, 53, 54 and 58 running in the name of the Pals was cancelled and Jamabandi Nos. 125-128 and 154 were opened (Exhibits B/1 and B/2).
54. The above order passed by the Circle Officer, Baghmara does not hold ground as the same has been set aside by the Deputy Commissioner, Dhanbad in Misc. Case No. 5/08 Vani Brata Pal Versus Smt. Anita Dutta & Others vide orders dated 10.02.2009 and 14.07.2009 (Exhibit-B).
The proceeding under this case was initiated under the order of the High Court dated 7.07.08 in W.P.(C) No.3772/2008 (Exhibit-f), wherein the Deputy Commissioner, Dhanbad was directed to recall Misc. Jamabandi cancellation case 5/2004-2005 in his own file and dispose of the case within four months.
The learned deputy Commissioner formulated two questions to decide the case in order dated 10.2.2009.
I. Was circle officer empowered for rent fixation in the year 1981 - 82? Is order passed by the circle officer in Case No.1 (3)/81-82 legal and within the jurisdiction?
II. Even if the circle officer was empowered to fix up the rent, is it legal to cancel the Jamabandi opened long back on the basis of M-Roll? 46
F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 Both the questions were answered in the negative. The Deputy Commissioner held that order passed for creation of Jamabandi Nos.125 to 128 and 154 in Case No.1(3)/81-82 was without jurisdiction under the circular issued by the Revenue Department of the State of Bihar No.5LF/RC- 1073/69-9563 dated 08.10.1969. Under this circular, the power of circle officer regarding creation of new Jamabandi were abolished and only the Sub Divisional Officer was empowered for the same.
On the second question, it was held to be illegal on considering the ratio decided by the High Court in W.P. (C) No.3772 of 2008 that Jamabandi having once been made cannot be cancelled unless the right title interest of the parties in the dispute is decided by the appropriate Court.
The Deputy Commissioner by order dated 10.02.2009 and 14.07.2009/25.08.2009 cancelled the order passed in Rent Fixation Case Nos. 1 & 2(iii) 80-81 and Jamabandi No. 125 to 128 and 154 were also cancelled. Furthermore, Jamabandi of Plot No.631 and 632 of Jamabandi No. 49, Khata No. 62 belonging to Jamabandi No.52 and Kahata No. 83 appertaining to Jamabandi No. 53 were also ordered to be cancelled. This cancellation was ordered considering the submissions made by the Government Advocate that Plot No.631 and 62 under Khata No.74 of Jamabandi No.49 had been transferred as sairat to the concerned department. In Rent Fixation Case No.388/62-63 under Sections 5, 6 and 7 of the BLR Act in which order was passed for fixation of rent of Khata No.34, 36, 41, 44, 46, 61, 65, 66, 71, 73, 74, 102 and 105 total area 14.52 acres but Khata No.62 and 65 has got entry in the said order aam rasta but Jamabandi had been opened of this Khata also. The petitioner had not submitted any reply on this Jamabandi therefore prayer 47 F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 of the government advocate was allowed and Khata No.62 belonging to the Jamabandi No.52 was cancelled.
Considering the submission of the government advocate that in case no.394/62-63 order passed for fixation of rent under BLR Act of Khata No.41, 52, 61, 65, 66, 71, 74, 83, 99, 106, 107 and 63 total area 11.87 acres but in Jamabandi No. 53 area 12.62 acres had been recorded. Further Katha no.83 was recorded as Abad Malik but this Khata had also been shown in Jamabandi No. 53. The Khata No.83 under Jamabandi No.53 was cancelled.
55. From the above order of the Deputy Commissioner, it is evident that due to large scale malpractices, the power of the Circle Officer to open and cancel Jamabandi was annulled way back in 1969. Despite this order, the Circle Officer in 1981-82 for reasons best known to him, not only initiated the proceeding but also passed the illegal order without jurisdiction in favour of the appellants (D-5 to D-10) and issued M Forms while cancelling the long standing Jamabandi running in the name of the plaintiffs. It was not a case of improper or error in exercise of jurisdiction, but was one without any jurisdiction and had all the attributes of malafide which was rightly set aside by the Deputy Commissioner. This order is non-est in the eye of law and cannot be the foundation of any claim based on it. This one illegal order passed by the Circle Officer, unsettled the state of affairs, paved the way for transfer of land resulting in train of events in which third party interests were created by the number of sale-deeds executed by defendant Nos. D-5 to D-10, on the basis of the opening of Jamabandi in their name and by further transfer to different parties.
56. One important evidence that has been adduced on behalf of the plaintiffs is the M-Forms which are Rent Rolls issued by the State after 48 F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 vesting (Exhibit 10 series). Vesting of intermediary interest took place 1956 under the BLR Act 1950, and rent rolls (M Forms) were issued under Rule 7-I of the Bihar Land Reform Rules, 1951 by the State accepting the plaintiffs as tenants. A detailed procedure has been laid down in for determination of fair and ground rent has been laid down from Rules 6 to 7-I of the Bihar Land Reforms Rules, 1951.
Rule 6 provides that in determining the rent payable by a proprietor or tenure-holder in respect of lands left in his possession under Section 6, the Collector shall have regard to the average rate of rent.
Rule 7 B deals with the form and manner of application under form K by the outgoing proprietor of tenure holder of an estate or tenure vested in the State.
Rule 7 C provides that separate proceeding to be started in each case. Rule 7 E makes provision for holding enquiry, irrespective of any claim or objection. As per this enquiry a report has to be prepared by the Collector himself or through a Circle Inspector and prepare a report to include the (ii) description and extent of lands used for agricultural or horticultural purposes, referred to in Sub-section 1 of Section 6, which are found on enquiry to have been in Khas possession of the outgoing proprietor or tenure - holder on the date of vesting.
(i) Description and extent of the proprietors private land under a temporary lease.
(ii) Description and extent of the landlord's previous lands under a temporary lease.
49
F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14
(iii) Description and extent of lands used for agricultural or horticultural purposes, referred to in Clause (b) of subsection 1 of section 6.
(iv) Description and extent of lands used for agricultural or horticultural purposes and in the possession of a mortgage, referred to in close C of subsection 1 of section 6 which are found on enquiry to have been in Khas possession of outgoing proprietor or tenure holder immediately before the execution of the mortgage bond.
(v) Description and extent of buildings or structure together with the lands on which they stand etc. Rule 7-G- The collector shall consider the report of enquiry held under rule E or F and pass an order fixing the fair and equitable rent of the lands referred to in subsection 1 of section 6 in Khas possession of the outgoing proprietor or tenure - holder.
Rule-I-The fair rent on the ground rent did remind under these rules in each proceeding together with the requisites particulars to be entered in form M - rent roll under the signature of the collector.
Rule 8 provides the provision for appeal.
After following the elaborate procedure, the M forms with respect to the land claimed by the State has been issued in the name of the plaintiffs and their ancestor. As discussed earlier the plaintiff claim of title is based on Court auction purchase and subsequent delivery of possession which is proved beyond any shade of doubt. After vesting they were accepted as tenants and M forms were issued under Rule 7-B of the Bihar Land Reforms Rule 1951 and Jamabandi was opened. These were part of judicial proceeding as held in 1985 SCC OnLine Patna 117 wherein it has been held that proceeding under Section 6 of the Act is judicial in nature and this has been reiterated in 2009 50 F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 SCC OnLine Patna 1400. It is of no avail at this stage to just turn around and say that no such M forms were issued. As a matter of fact the State in its supplementary affidavit has nowhere disputed the issuance of M forms, what has been averred is that M-Forms were not issued with respect to the lands claimed by the state.
57. Now coming back to the question of lawful possession of the defendants, particularly D-5 to D-10 from whom the other contesting defendants claim title, it is argued that defendant Nos. 5 to 10 were in possession of the suit land and while exercising the right of possession, executed registered sale deeds in favour of several persons and the transferees came in possession and their names have been duly mutated in the government records and they had been paying rent to the state. The instant suit has been filed without impleading all such transferees whose right will be affected by any such decree passed in favour of the plaintiff. Exts. A to A/24 adduced into evidence on behalf of defendant No.3, are the certified copies of the sale deeds and Ext. D series are the mutation orders passed in such cases.
58. The matter for consideration is whether the execution of different sale deeds by the defendants in favour of the other defendants and parties not impleaded in the suit and the mutation of their names can be regarded as exercise of bonafide rights of lawful possession?
59. Learned Counsel on behalf of R-1 to R-9 points out during the course of argument that the sale deeds exhibited on behalf of defendants relates to a total land of 4.96 acres out of which there are three sets of sale deeds. First, is those sale deeds by which the land is claimed to have been purchased from Duttas whose title to the suit land got extinguished pursuant to the Court auction sale. Second, are those which were executed by the parties in favour 51 F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 of the defendant no.3, who had lost their claim over land in acquisition reference case which has been adduced into evidence. Thirdly, are sale deeds executed by those persons who purchased the same through the gift deed holder who had lost their right over property in Title Suit No.08/1941. These sale deeds were executed by those having no valid title will be apparent from the table given below:
Sl. Exhibits Remarks
No.
1 a, a/2, a/3, Certified copy of sale deed no. 2367 These deeds were
a/6, a/8, dated 19.03.2005; executed by the
a/9 (area 0.37 Acres) Duttas in favour of
Certified copy of sale deed no. 2327 defendant no. 3
dated 18.03.2005;
(area 0.35 Acres)
Certified copy of sale deed no. 2365
dated 19.03.2005;
(area 0.37 Acres)
Certified copy of sale deed no. 11505
dated 24.12.2005;
(area 0.37 Acres)
Certified copy of sale deed no. 3615
dated 24.04.2005;
(area 0.37 Acres)
Certified copy of sale deed no. 9917
dated 28.10.2005;
(area 0.37 Acres)
2 a/1, a/4, Certified copy of sale deed no. 8653These sale deeds
dated 13.09.2005; were executed by
(area 0.37 Acres) those in favour of
Certified copy of sale deed no. 8650Def. No. 3 who had dated 13.09.2005; lost their claim over (area 0.37 Acres) the land in Land Acquisition Reference Case (Exhibits 6 of Plaintiff) 3 a/5, a/7 Certified copy of sale deed no. 2328 These sale deeds dated 18.03.2005; were executed by (area 1.65 Acres) those who purchases Certified copy of sale deed no. 2450 the same through the dated 21.03.2005; gift deed holder, who (area 0.37 Acres) lost their right and title over the property in Title Suit No. 08/1941.
(Exhibits 1/C of Plaintiff) Total area purchased by the Def.
No. 3 as per exhibits are 4.96 Acres.
52
F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 4 a/10 to Sale Deeds Executed in favour of These all Sale Deeds a/24 some other persons and not are hit by the Decree Defendant No.3 passed in Title Suit No. 08/1941 (Exhibits 1/C of Plaintiffs) 5 g to g/3 Certified copy of Deed No. 2032 These Deeds were dated 18/04/2002, 5869 dated executed by the Dutta 29/05/2010 and Deed No. 7549 dated in favour of other 12/8/1991 persons and not the Def. No. 1 to 3.
6 a/25 to Certified copy of Deed No. 6884, These Deeds were
a/27 1251 and 2756 executed by the Dutta
in favour of other
persons and not the
Def. No. 1 to 3.
60. The purchasers entered into the contract of sale with the Duttas with full knowledge about the claim of the plaintiffs, will be apparent from the testimony of such purchasers. They were fully aware that Duttas their vendors had not come in actual physical possession but they got the lands executed with full knowledge that Pals had a bonafide claim over the land in question. In this regard, the testimony of D.W.1-Manish Kumar Singh at para 59, 60 and 62 has been referred to wherein it has been deposed by this witness that although they had come in actual possession of 72 acres of land but it was lying fellow at present and no boundary wall or fencing has been put on the said land. Meaning thereby that the said purchasers had not come in physical possession of the land. Further, the purchasers were not ignorant about the knowledge of claim of Pals over the suit land as D.W.2- Rahul has deposed in para 65-70 that Pals had a claim over the suit land and they had come to meet him several times. First in Hotel Sushant in the year 2003, thereafter they have met 5-6 times. He had gone to meet Nirmal Pal (since dead) on 29.06.2003 at his native residence in Asansol where he met Nirmal Pal, R.N. Pal and Vanivrat Pal. There were several meetings with them and their lawyer, who had informed him about the legal claim of Pals. Even the 53 F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 defendants were fully aware of earlier rent fixation cases. It has come in deposition of Nimai Chand (respondent no.11/defendant no.6) has deposed in para 14 that after abolition of Zamindari in 1956, the plaintiff and their ancestors had got the rent fixation illegally in their name in Rent Fixation Case No.387, 388, 391, 390, 394/62-63. In para 46 of the cross-examination, he deposed that he was not party in L.A. Case No.104/85 but he had appeared in that case as witness on behalf of Julum Singh and Keshav Prasad Singh. He also deposed in para 55 that Jamabandi Nos.125 to 128 and 154 has been cancelled by the order of Deputy Commissioner. In para 37, he has deposed that he was son of Nidhu Bala Dasi. D.W. 3-Kedar Nath Singh has deposed in para 26 that he was aware that there was 4-5 cases between the ancestors of Dhirendra Nath Dutta. He executed sale deed in favour of defendant no.3 which has been marked as Exhibit A/5 for 1.65 acres.
61. In view of the above discussion, I am of the considered view the claim of title and lawful possession by the defendants is not tenable either in fact or in law. From the discussion in the earlier part of the judgment, it is abundantly clear that the right title and interest of defendants No.5 to 10 and their ancestors were completely extinguished in mouza Ranguni as a result of the Court auction sale in execution proceeding arising out of the mortgage suit. The objections of the predecessor-in-interest of D5 to D10, was raised without success in the case for the payment of compensation to the ex-intermediaries. The objection raised by the daughter-in-laws of Chadra Mohan Dutta in Execution Case No. 138/1940 arising out of Mortgage Suit No. 61/1928 was rejected. The plaintiffs were accepted as tenants by the Govt after vesting and rent roll in M-form was issued in their father. Thereafter, they paid rent to the state till the order of C.O., Baghmara passed in Rent Fixation Case No. 1- 54 F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 2(iii) 81-82. Land was acquired by BCCL and compensation was alo paid to them. These are unimpeachable documentary evidence of possession. Against these documentary evidence adduced on behalf of the plaintiffs, in the mass of evidence adduced on behalf of the defendants not a chit of paper has been filed as evidence of possession immediately after the auction sale or after vesting. One Zamindari return has been filed, but there is no evidence that after vesting defendants were accepted as tenant and rent roll was issued in their name. Most of the sale deeds which have been adduced into evidence as Exhibits a to a/27 are after the passing of the illegal order in rent fixation case in the year 1982 which opened the flood gate for the execution of sale deeds by the defendants.
62. Contesting defendants are either the heirs and descendants of the tenure holders who had lost the title and possession in the Court auction sale or those who claim to derive title from them. As discussed earlier, predecessor-in- interest had unsuccessfully raised objection in suit and proceeding following the auction. A fresh round of litigation was initiated by the Duttas by starting rent fixation case no.1-2(iii) 1981-82 in which the illegal order was passed without jurisdiction and subsequently set aside by the Deputy Commissioner in Misc Case No.5/2008. The order of the Revenue Court whereby Jamabandi was opened in favour of D-5 to D-10 did not confer to them any title and sale by them without having any title was a wrong committed by them. It has been held in Ashok Kapil v. Sana Ullah, (1996) 6 SCC 342 at page 345" But can the respondent be assisted by a court of law to take advantage of the mischief committed by him? The maxim "Nullus commodum capere potest de injuria sua propria" (No man can take advantage of his own wrong) is one of the salient tenets of equity. Hence, in the normal course, the respondent cannot 55 F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 secure the assistance of a court of law for enjoying the fruit of his own wrong". When they were not the owners, for them to execute sale deeds thereby creating third party interest being fully cognizant the actual state of affair, was a wrong and now cannot take advantage of it. There is also the principle nemo debt quod non habet. It has been held in Maria Margarida Sequeira Fernandes v. Erasmo Jack de Sequeira, (2012) 5 SCC 370 "52. Truth is the foundation of justice. It must be the endeavour of all the judicial officers and Judges to ascertain truth in every matter and no stone should be left unturned in achieving this object. Courts must give greater emphasis on the veracity of pleadings and documents in order to ascertain the truth.
53. Pleadings are the foundation of litigation. In pleadings, only the necessary and relevant material must be included and unnecessary and irrelevant material must be excluded. Pleadings are given utmost importance in similar systems of adjudication, such as, the United Kingdom and the United States of America".
I. Possession is an incidence of ownership and can be transferred by the owner of any immovable property to another such as in a mortgage or lease. A licensee holds possession on behalf of the owner.
II. Possession is important when there are no title documents and other relevant records before the Court, but, once the documents and records of title come before the Court, it is the title which has to be looked at first and undue weightage be given to it. Possession cannot be considered in vacuum".
M. Siddiq (Ram Janmabhumi Temple-5 J.) v. Suresh Das, (2020) 1 SCC 1 1194. Several decisions of this Court have interpreted the provisions of Section 110. Section 110 is based on the principle that possession in and of itself may raise a presumption of title. But this applies when the facts disclose no title in either of the disputants in which case, as it is said, possession alone decides. Hence, on the other hand, it is also well settled that the presumption cannot arise when the facts are known.
63. The sale deeds and mutation orders or compensation paid in pursuant to the illegal order passed in the rent fixation case discussed above, adduced into evidence by D-5 to D-10 and D-3 cannot be accepted as evidence of title or possession in favour of the defendants/respondents or any party claiming title from them.
64. It is argued on behalf of the appellant that defendant Nos.1-3 (appellants) have purchased 55 acres of land from their vendors. The plaintiffs have not made the transferees as parties, and therefore, this case suffers from misjoinder of necessary and proper parties. The fundamental question that has 56 F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 been raised is that whether the sale deeds be declared to be void without impleading the purchasers who are a necessary party?
The answer to this legal question is answered in the exhaustive exposition of law made in Yanala Malleshwari v. Ananthula Sayamma, 2006 SCC OnLine AP 909 : AIR 2007 AP 57 by the full Bench of the High Court of AP, which has been referred to by Hon'ble the Apex Court in Deccan Paper Mills Co. Ltd. Versus Regency Mahavir Properties;(2021) 4 SCC 786. Unless and until, a person is competent to contract and entitled to transfer the property, a valid transfer of property cannot take place (Sections 5 and 7 of TP Act). As a necessary corollary, if the transfer of property is by a person without title or such transfer is opposed to nature of interest or for an unlawful object or consideration within the meaning of Section 23 of the Contract Act or transferee is legally disqualified to be transferee, title in the property does not pass to the transferee (Sections 6(h) and 8 of TP Act and Section 23 of the Contract Act). ....
What would happen when the transfer is made by a person without any valid title? What would be the situation when a sale takes place by reason of the fraud played by the transferor and transferee, which drastically affects the person with absolute title and ownership? In situations such as these, does the law contemplate only remedy of seeking declaration or cancellation of the fraudulent transfer deed or does it enable the true Owner to execute a deed nullifying the fraudulent transfer deed? When Sections 7 and 8 of TP Act contemplate that only person is competent to contract and entitled to transfer property can transfer, any other transfer (otherwise than as contemplated under Section 7 of the TP Act) must be treated as void.
INDIAN CONTRACT ACT : VOID TRANSFERS
33. The law, therefore, may be taken as well settled that in all cases of void or voidable transactions, a suit for cancellation of a deed is not maintainable. In a case where immovable property is transferred by a person without authority to a third person, it is no answer to say that the true owner who has authority and entitlement to transfer can file a suit under Section 31 of the Specific Relief Act for the simple reason that such a suit is not maintainable. Further, in case of an instrument, which is void or voidable against executant, a suit would be maintainable for cancellation of such instrument and can be decreed only when it is adjudicated by the competent Court that such instrument is void or voidable and that if such instrument is left to exist, it would cause serious injury to the true owner......
34. The discussion thus far would show that even in the matter of transfer of immovable property, there could be two situations. One, where the owner himself executes a registered transfer deed, but later feels that such instrument is void or voidable for any of the reasons as per TP Act or Contract Act. The second situation is where the true owner never executed transfer deed but such transfer (transaction) materialized between two strangers one impersonating vendor and another as vendee, where there is a possibility to presume fraud in the transaction. .....
35. If the title passed on is defective, the law gives the option to the purchaser to avoid such sale and sue for recovery of consideration and/or damages for breach and misrepresentation. In a situation there could also be a criminal charge against the spurious vendor for cheating under Penal Code, 1860. Even in a case where the vendor has no title at all but the purchaser was made to believe that what is passed on is a valid title in the property demised under the instrument, the vendee has remedy in civil law as well as criminal law.......
57
F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14
36. What would be the remedy for the person who actually and factually holds a valid title to a property in respect of which a fraudulent transfer was effected by deceitful vendors and vendees or deceitful vendors and genuine vendees, who parted with consideration. The legal maxims 'nemo dat quod non habet' and 'nemo plus juris ad alium transferee potest quam ipse habet' postulate that where property is sold by a person who is not the owner and who does not sell under the authority or consent of the real owner, the buyer acquires no title to the property than the seller had. The Indian law recognizes this principle in various provisions of various statutes which in pith and substance deal with Contracts, Transfer of property and Specific relief (See Sections 17, 18, 19, 20, 23, 25 and 29 of the Contract Act; Sections 6(h), 7, 25, 38, 42 to 48, 52, 53 and 55 of TP Act and Sections 13, 15, 17, 21, 31 and 34 of the Specific Relief Act).....
71. In S.P. Chengalvaraya Naidu v. Jagannath, (1994) 1 SCC 1 : (AIR 1994 SC 853), quoting Lord Edward Coke (that 'fraud avoids all judicial acts, ecclesiastical or temporal',) Supreme Court of India emphasised that the Judgement or decree obtained by fraud on the Court is nullity and non est in the eye of law. It was also held that a decree/Judgment vitiated by fraud must be ignored treating it as nullity by every Court whether superior or inferior as "finality of litigation is not available when fraud is alleged". The following passage from the said Judgment is relevant here (Paras 7 & 8 of AIR).
"...... The principle of "finality of litigation" cannot be passed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The Courts of law are meant for imparting justice between the parties. One who comes to the Court, must come with clean hands. We are constrained to say that more often than not. Process of the Court is being abused. Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the Court-process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation..... A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage......
(Emphasis supplied)
77. In the considered opinion of this Court if a person sells away the property belonging to other, it would certainly be fraud on the statute. It would be adding insult to injury, if such person is asked to go to civil Court and get the subsequent sale deed cancelled or seek a declaration. Be it also noted that under common law, as discussed supra, the title of a person remains intact even if a stranger conveys that title to another stranger, which is ineffective".
65. The proposition of law that emerges from the above ratio is, Firstly, unless and until, a person is competent to contract and entitled to transfer the property, a valid transfer of property cannot take place (Sections 5 and 7 of TP Act). As a necessary corollary, if the transfer of property is by a person without title or such transfer is forbidden by law or is for an unlawful object or consideration within the meaning of Section 23 of the Contract Act or transferee is legally disqualified to be transferee, title in the property does not pass to the transferee (Sections 6(h) and 8 of TP Act and Section 23 of the Contract Act).
58
F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 Secondly, Under Section 31 of Specific Relief Act cancellation of deed can be sought in a Court only by a person who executed document and who perceives that such document is void or voidable. Under Section 34 of the Specific Relief Act even if a person is not a party to the document, he can maintain a suit for declaration.
Thirdly, relief under S. 31 would be granted only in respect of an instrument likely to affect the title of the plaintiff and not of an instrument executed by a stranger to that title.
Fourthly, in case of an instrument, which is void or voidable against executant, a suit would be maintainable for cancellation of such instrument and can be decreed only when it is adjudicated by the competent Court that such instrument is void or voidable and that if such instrument is left to exist, it would cause serious injury to the true owner.
Fifthly, fraud is a conduct which induces another person or authority to take a definite determinative stand in response to such person's conduct by words or letter. Fraud and dispensation of justice by any authority -- be it judicial or executive; do not go together.
Sixthly, if a person sells away the property belonging to other, it would certainly be fraud on the statute. It is not incumbent upon the real owner to get such sale deed induced by fraud cancelled or seek a declaration that it was void.
66. Here in the present case as discussed in the earlier part of judgment the sale deeds have been executed by defendants Nos.5 to 10 without any semblance of title, in favour of different persons. Such sale without title was a fraud and did not convey any right, title or interest to the purchasers. It was neither feasible nor the requirement of law to seek independent declaration 59 F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 with respect to such sale deed by impleading the numerous strangers who had purchased part of the suit properties from the contesting defendants. The purchasers were fully aware about the claim of the Pals. Therefore, for the reasons stated above in my considered view the suit is not bad for non-joinder of such parties.
67. From the foregoing discussion it is apparent that plaintiffs have succeeded to establish their title as purchaser in the Court auction against the contesting defendants/appellant.
68. Once the defendants have failed to establish the survival of title after 1941 Court auction sales and to prove their title or lawful possession over the suit property, the question of Suit being hit by Section 34 of the Specific Relief Act does not arise for not seeking consequential relief of possession over the property. Allahabad High Court in Balwant Singh Vs Raj Singh, (2003) 7 AIC 833 held in the suit for cancellation of the sale deed in respect of agricultural land, when the sale deed was without consideration and obtained by fraud, the relief of cancellation could not be refused . Relief of possession need not be sought for an ancillary relief.
69. As discussed earlier once the plaintiffs had proved their title and possession, the onus shifted on the appellants/defendants to prove their title which they have utterly failed to discharge. The appellants claim to derive their title and possession from D-5 to D-10, who had none and consequently their claim of title and possession fails.
Claim of the State (Respondent nos. 20-22)
70. The state (R-20-R-21) has confined its claim to three plots bearing nos 603/570, 604/568 of Khata No. 66 and Plot No. 584/620 of Khata 71 of Mouza Ranguni measuring an area of 11.92 acres which was transferred to Jharkhand Industrial Area Development Authority(R-22). Claim of R-20 to R- 60
F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 23 can be clubbed and considered together, because State is represented by R- 20 to R-21 which transferred the land in favour of R-22 JIADA which is the instrumentality of the State. R-23 is a private party in whose favour the land has been leased by the R-22 for constructing a private cancer hospital.
The claim of the state rests on the following grounds as disclosed in the Supplementary affidavit filed on 13.04.2022:
Firstly, as per the cadastral survey Khatiyan (Exhbit C) the transferred land is recorded as gair abad malik and of the type bandh and gora III and has vested in the State on or before the date of vesting. It is contended that Gora III land is defined by B K Gokhale in his final report on survey and settlement operations in the district Manbhum 1925, as the lowest class of land considered for fixation of rent and generally parati lands. Nature of land indicates that such lands can't be in khas possession.
As per the revisional survey khatian finally published in 2007 the land is Anabad Bihar/Jharkhand Sarkar and type gora III.
The above two category of land being fellow land, were never in the cultivating possession of the ex-tenure holder and at the time of vesting they were not in their khas possession and therefore, vested in the State. Secondly, Jamabandi (Register II) was not opened with respect to these plots.
Thirdly, it is argued that part of suit land being Government land, the State was a necessary party for adjudication at the stage of Trial Court but deliberately the State was not made party, therefore, it did not had sufficient opportunity to put forward his case adducing evidence at the trial stage as State has been made party only at the appellate stage. Reference is made to Exhibit 7. This order of Deputy Commissioner was passed on 10th February, 2009 in Misc. Case No.05 of 2008. In this order of Deputy Commissioner, it 61 F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 has been noted that part of the suit land is Government land. In the impugned judgment, there is reference to the order of the Deputy Commissioner and so the learned Trial Court was aware that part of the suit land was Government land still the State was not made party.
Fourthly, it is further argued that the claim of the plaintiff is based on the decree in title mortgage suit followed by Court auction purchase in the execution proceeding. It is submitted in this regard that mortgage was of six Anna intermediary interest on the Ranguni which was finally auction purchase by the plaintiffs. Further, there is no evidence on record to connect the suit land to 6 Anna intermediary interest that was purchased by the plaintiff. In the absence of these vital proofs to connect land claimed by the State to the auction purchase, a finding of the Trial Court with respect to this suit land is not supported by evidence.
Lastly, in the rent receipts (Exhibit 5 series) the total area will come to only 1.21 acres and not 85.4 acres as claimed by the plaintiffs.
71. Whether after the coming into force the BLR Act, land being claimed by the State vested in it or not is the central question? This is a question which the Courts are often confronted while adjudicating a claim of the State over the land of ex-tenure holder.
72. The plea that it did not vest is based on the nature of land as recorded in the two survey records of rights : Cadastral Survey and Revisional Survey wherein it has been recorded as Gairabaad Malik in the former and anabad Bihar Sarkar in the later survey.
73. As far the Revisional Survey of 2007 is concerned it is of no consequence, as the final publication of these entries are subsequent to the filing of the title suit and cannot be the basis of claim by the State. Firstly, 62 F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 these publications are post litem and they are not evidence of title. Even assuming that the said orders have been passed under Chapter XII of the CNT Act, when the matter is already being adjudicated before the Civil Court, then also at best in terms of Section 84 of the Chotanagpur Tenancy Act, the said entry shall be presumed to be correct until, it is proved, by evidence, to be incorrect. In the instant case, the plaintiff has clearly established his right title and interest as well as possession over the suit property and therefore any contrary entries recorded in recent survey and that too during the pendency of the instant suit would have no effect on plaintiff's right title interest as well as possession over the suit property.
74. There cannot be any quarrel with the proposition of law submitted by Dr A.K. Singh the learned Counsel on behalf of R-22 and former Chief Secretary, State of Jharkhand that under Section 6 of the BLR Act, only that land was saved which was used for agricultural or horticultural purposes and was in Khas possession of the ex-tenure holder. The land which was not in Khas possession of the ex-tenure holder got vested in the State under the BLR Act 1950 is without any doubt or dispute. Lands like gairmajurwa aam land vested in the state is also not in dispute.
It has been held in Labanya Bala Devi v. State of Bihar Patna Secretariat, 1994 Supp (3) SCC 725 at page 726, "The saving by Section 6(1)(b) is only of the lands actually used for agricultural purposes in a State or a tenure of a lessee or a temporary lessee and directly in his possession and cultivated by himself with his own stock or by his own servants or by hired labour or with hired stock that the land stands excluded and raiyati rights has been confirmed statutorily subject to the terms contained therein. The tank is said to be settled by the landholder in favour of the appellant thereby the tank was not saved. Thus the tank stands vested in the State absolutely free from all encumbrances and that, therefore, the contract, even if any, was nullified by non-obstante clause in clause 4. Thereby the pre-existing rights, if any, have been extinguished and stood divested. The appellant cannot claim any rights on the basis of the said agreement which formed basis for the declaration sought for. Under those circumstances the trial court is clearly in error in granting the declaration. The District Court rightly reversed the decree, the High Court though had not gone into this question, 63 F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 for the reasons we set out, we confirm the decree and judgment of the High Court but in the circumstances parties are directed to bear their own costs".
The term 'gairabaad malik' or 'gair mazurwa khas' land means uncultivated land not in specific possession of anyone other than the landlord. Thus, the gairabad malik land as its very nomenclature suggests is with respect to fellow land which cannot strictly speaking be held to be in Khas possession for agricultural or horticultural purposes. Whether a land was gairabad malik land at the time of vesting is a question of fact to be determined on case to case basis considering the evidence on record. Determining factor, will be whether the ex-tenure holder was in khas possession of the land on the basis of evidence on record.
75. In the present case, as per the cadastral survey record of rights the land in question was indeed gairabad malik land. But this remark is with respect to its nature at the time of cadastral survey operation which took place some times 1925-28 whereas the vesting took place in 1956. It cannot be said that land continued to be fellow in 1956, particularly when contrary evidence has been led on behalf of the plaintiff wherein the State itself accepted the predecessor-in-interest of the plaintiff to be the tenant which remained unchallenged till the final publication of revisional survey record of rights in 2007. Furthermore, when under the same and adjoining Khata of the same village, several other plots did not vest with the State, meaning they had been accepted to be agricultural land and in Khas possession of the ex-tenure holder, then how can it be said that only these three plots alone and not any other, continued to be gairabaad or fellow at the time of vesting?
76. Positive evidence has been led on behalf of the plaintiffs which falsifies the plea of the State that M forms were not issued with respect to the three plots claimed by the State. On perusal of Exhibit 10/A, which is Form M 64 F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 issued in the name of Sri Nirmal Kumar Paul in which against Khata No.66 Plot Nos.604 and 603 has been entered and Exhibit 10/B which is M Form of Smt. Latika Bala Paul in which against Khata No.71, Plot No.584 measuring an area 7.38 acres has been entered. So, the plea of the State that no M forms where issued with respect to these plots, as made in the supplementary affidavit is factually incorrect and a false statement on oath. To plead that such a M-form was issued wrongly or collusively or inadvertently is one thing and to aver that it was not at all issued is another thing. It is a false statement on oath given in a judicial proceeding.
77. Another false statement has been made in S.A by the D.C., Dhanbad in para (vi) of the S.A. dated 13.4.22, wherein it has been stated that the M form pertaining to Plot No. 603 and 604 of Khata No. 66 and Plot No.584 of Khata No. 71 was cancelled by the order of D.C Dhanbad in Misc. Case No. 5/2008 vide order dated 10.02.2009 and on 14.07.2009/25.08.2009. This statement is factually incorrect as will be evident from Exhibit B/3 that M Form of Plot No.631 and 632 of Khata No.49 was cancelled and not of the plots as stated in S.A. This is surprising as to how a responsible Govt. statement can make false statements on affidavit which is sufficient for initiating a prosecution under Section 340 Cr.P.C for perjury. However, in the present case, I leave it here.
78. The State had not staked its claim earlier, which will be evident from the order dated 10.02.2009 and 14.07.2009/25.08.2009 wherein the Deputy Commissioner in his order while cancelling the illegal Jamabandis opened in the name of the Duttas , had cancelled Khata No. 62 belonging to Jamabandi no. 52, and Khata No.83 belonging to the Jamabandi No. 53. Even at this 65 F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 stage, in 2009 the State had not claimed the plots being claimed now vide affidavit dated 13.04.2022. The basis of the later claim is that M Forms were not issued with respect to it, which has been falsified by the evidence of the M Forms. Another plea advanced at the time of argument is that the Jamabandis were not opened with respect to these plots. If it was so, what prevented the State from bringing the 1st Register II opened after the rent fixation cases on record before this Court when there was a specific order of this Court vide order dated 06.04.2022 to file detailed and particularized affidavit stating the claim of the State along with the details thereof. Again, vide order dated 25.04.2022 liberty was given to file petition for additional evidence, since it had been impleaded at the appellate stage. Despite opportunity being given, no evidence was led on behalf of any of the respondent 20 to 23. Once the evidence had been led on behalf of the plaintiffs that M forms had been issued and they were accepted as tenants, the onus shifted on the State under Section 103 of the Evidence Act to lead evidence that said plots had not been entered into Register II. Without leading any evidence on these points it cannot be contended that the said plots were not entered in register-II.
79. It has been argued on behalf of the State that returns in K Forms filed by the plaintiffs on the basis of which the rent roll was prepared and M Forms were issued have not been adduced into evidence and only the certified copy of the M forms have been adduced into evidence.
Issuance of M Forms is culmination of a rent-fixation case on filing of K forms under Rule 7-B. Once the M forms have been brought on record on behalf of the plaintiffs, the plea that K Forms were not issued does not hold any ground. Further there is presumption of fact under Section 114 (e) of the Evidence Act that Judicial and official Acts have been regularly. These 66 F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 documents cannot be simply cast away on the plea that the K Forms have not been adduced into evidence.
80. The argument of the State and the appellants that M Forms were not issued in acres but in decimals are desperate arguments to salvage a losing legal battle. It has been rightly pointed on behalf of the plaintiffs that in Misc. Case no. 5/2008 the statement of claim of the state is well reflected by the point submitted through AGP which has been adduced into evidence and marked as B/3. Here the claim of the plaintiffs has been admitted in acres. In this statement of claim following facts stand admitted:
I. Jamabandi number 49 was opened in the name of Ambika Bala Paul on the basis of Case No. 387/62-63 for the total area of 15.39 acres.
II. Jamabandi number 51 was opened in the name of Rabindra Nath Paul on the basis of case no. 391/62-63 for the total area of 27.05 acres.
III. Jamabandi number 52 was opened in the name of Latika Bala Paul on the basis of Case No. 388/62-63 for the total area of 14.52 acres.
IV. Jamabandi number 53 was opened in the name of Haribole Paul on the basis of case no. 394/62-63 for the total area of 11.87 acres. (Haribole Paul's property is not involved in the present suit) V. Jamabandi number 54 was opened in the name of Nirmal Kumar Paul on the basis of Case No. 390/62-63 for the total area of 20.09 acres.
VI. Jamabandi number 58 was opened in the name of Satya Narayan Paul on the basis of Case No. 389/62-63 for the total area of 23.91 acres.
VII. Specific Katha no.which were involved in the rent fixation proceedings where also mentioned.
67
F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 VIII. The area involved in each of the jamabandi was in acres and not in decimals.
IX. The AGP while making a specific reference to Khata no.66 and 71 in this proceeding did not claim the plots under these khatas as government land.
81. Whether the Suit is bad for non-joinder of necessary party as the State had not been impleaded in the Trial Court?
It is argued on behalf of the appellant as well as respondent Nos. 20-23 that lands which were in the nature of bandh, aam rasta and even Devsthan were included in the list of plots for which the M forms have been claimed to be issued. This point was canvassed before the Court below, but yet the state was not impleaded. It is argued on behalf of the contesting respondents that the issue is being raised by private parties who have failed to their own title or possession and is being made to further delay the case.
82. The argument appears to be attractive, but lacks substance on close scrutiny. As stated earlier the vesting took place in 1956 and M rolls were issued by the State in pursuance to the rent-fixation cases in the year 1965. The order of issuance of M Roll remained unchallenged thereafter by any quarter including the State. Even in 2009 when the jamabandi was cancelled of other plots by the Deputy Commissioner, no claim was made over these three plots, whereas the suit was filed in the year 2006, so the question of impleading the State as a party in that Suit did not arise. Mandate for notice under Section 80 CPC is with respect to suit and will not apply in the present case as at the time of filing of suit the right of the plaintiff over these plots was not under challenge by the State.
Merely because at the final stage of the trial it was argued on behalf of the private defendants that part of the suit land comprised of common land, 68 F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 road or place of worship, unsupported by any pleading or evidence could not have been the basis for impleading the state.
83. Has the State been prejudiced for being impleaded at the appellate stage without notice under Section 80 or it has deprived to plead and lead at the trial stage?
The State parties being represented by R-20 to R-22 have been impleaded vide order dated 29.11.2019 of this Court in appeal. This Court exercising its jurisdiction as first Court of appeal, being Court of fact has given ample opportunity to the State to submit their statement of claim as well as the evidence in support of it and therefore the State cannot be said to have been prejudiced for being not impleaded at the trial stage.
84. The rent rolls are valuable piece of evidence as it acts as a linchpin between the title and possession over land. The picture that finally emerges on the claim of the state over the three plots is that M forms were issued in 1965 and the plaintiffs were accepted as tenants with respect to these plots. M forms are not conclusive proof of possession and even if it is issued and there is contrary evidence to show that they had been wrongly issued with respect to government land, in such circumstance even the long standing Jamabandi could have been cancelled. The State represents the collective, which is abstract in nature and functions through its instrumentalities and functionaries. The interest of the collective is paramount and cannot be permitted to suffer on account of the acts or omissions of its functionaries, whether intentional or unintentional. So even if M-form has been issued or there is a long standing Jamabandi wrongly opened either by default or by design and there is evidence to that effect, ownership of the State can be declared in a Civil Suit. 69
F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14
85. In the present case, we have no other means to know whether the plaintiffs were in Khas possession of the ex-tenure holder or not, but by the manner in which they were treated immediately after the vesting. As discussed earlier the documentary evidence establish that the plaintiffs were accepted as tenants with respect to these plots of land and the state for more than four decades after issuance of the rent rolls remained silent. Other plots of the same Khata and adjoining Khatas have all been accepted to be raiyati land. The upshot of the discussion is that the state had never laid claim of ownership over these three plots at any time prior to 2007 when the entries were made of the State with respect to these three plots on final publication of record of rights in Revisional Survey. Even in 2009 order of cancellation of Jamabandi of other plots, the Jamabandis of these three plots were not cancelled by the Deputy Commissioner. The 2007 entries with respect to these three plots is therefore illegal.
In the absence of any contrary evidence on behalf of the State its claim over these three plots of land is not sustainable and is accordingly rejected.
86. A close scrutiny of rent rolls (M-forms) issued after vesting, shows that some plots of the suit land as claimed in the schedule of the plaint do not figure in the M forms (Ext 10 series) , and therefore declaration of title over these plots which are claimed on the basis of the Court auction sale cannot be given. These plots are:
--Plot no. 585 of Khata no. 65 Khewat 52, of item no.1 of Schedule A.
----Plot no. 641 of Khata no. 65 Khewat 52, of item no.2 of Schedule A.
--- Plot no. 679 of Khata no. 65 Khewat 52, of item no.3 of Schedule A.
--- Plot no. 576 of Khata no. 75 Khewat 57, of item no.5 of Schedule A.
--- Plot no. 625 of Khata no. 65 Khewat 52, of item no.1 of Schedule A.
87. The plots that have been recorded as bandh, bandh jhari, and Devsthan in the cadastral survey record of right (1928) are lands of the nature which 70 F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 vested in terms of Section 4 of the BLR Act. Mere issuance M-forms with respect to such land cannot protect these lands from vesting. The case of these lands along with land which were recorded as Devsthan is different from the other three plots of land claimed by the State on the basis of its nature being gairabaad malik land. This being so, because nature of land which is fellow (gairabaad) can become arable over time, but in the absence of positive evidence, a pond or place of worship cannot be deemed to have changed by mere passage of time.
Under the circumstance, M Forms (Exhibit 10/D) issued with respect to Plot No.631 and 632 of Khata 74 which were recorded as ponds in the cadastral survey record of right (Exhibt 8/8) is not accepted.
In Plot No. 241 of Khata No. 62, there is specific mention of Devsthan and therefore the entries of M form regarding it, in pursuance to Rent fixation case no. 388/62-63 is not accepted. The Deputy Commissioner, Dhanbad vide order dated 25.08.2009 has rightly cancelled the Jamabandi of these plots.
Thus, there will not be any declaration in favour of the plaintiffs with respect to these plots.
88. It is the duty of the State to protect the land of its citizen. The officers of the State cannot conduct themselves in an illegal and unfair manner. Before granting the lease to the hospital during the pendency of the suit it was the duty of the government to verify all records and their own title and capacity to transfer which they failed.
Punjab State Power Corpn. Ltd. v. Atma Singh Grewal, (2014) 13 SCC 666
10. Few years ago only, the Central Government formulated the National Litigation Policy, 2010 with the "vision/mission" to transform the Government into an efficient and responsible litigant. This Policy formulated by the Central Government is based on the recognition that it was its primary responsibility to protect the rights of citizens, and to respect their fundamental rights and in the process it should become "responsible litigant". The Policy even defines the expression "responsible litigant" as under: 71
F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 "'Responsible litigant' means--
(i) That litigation will not be resorted to for the sake of litigating.
(ii) That false pleas and technical points will not be taken and shall be discouraged.
(iii) Ensuring that the correct facts and all relevant documents will be placed before the court.
(iv) That nothing will be suppressed from the court and there will be no attempt to mislead any court or tribunal.
2. Government must cease to be a compulsive litigant. The philosophy that matters should be left to the courts for ultimate decision has to be discarded. The easy approach, 'Let the court decide', must be eschewed and condemned.
3. The purpose underlying this policy is also to reduce government litigation in courts so that valuable court time would be spent in resolving other pending cases so as to achieve the goal in the national legal mission to reduce average pendency time from 15 years to 3 years. Litigators on behalf of the Government have to keep in mind the principles incorporated in the national mission for judicial reforms which includes identifying bottlenecks which the Government and its agencies may be concerned with and also removing unnecessary Government cases. Prioritisation in litigation has to be achieved with particular emphasis on welfare legislation, social reform, weaker sections and senior citizens and other categories requiring assistance must be given utmost priority."
11. This Policy recognises the fact that its success will depend upon its strict implementation. Pertinently there is even a provision of accountability on the part of the officers who have to take requisite steps in this behalf.
See also the SC decision in Dilbagh Rai Jarry v. Union of India, (1974) 3 SCC 554 This Court would further emphasise upon true and complete disclosures of facts and documents in a chronological order by the Govt, more particularly so in matters relating to title and immovable properties. The citizens is expected to do likewise. And accurate and complete list of dates to assist the Court and prevent any party from misleading the Court. D.B. Basnett v. LAO, (2020) 4 SCC 572 : (2020) 3 SCC (Civ) 78
19. The result of the aforesaid would be that the respondents have failed to establish that they had acquired the land in accordance with law and paid due compensation. The appellant would, thus, be entitled to the possession of the land as also damages for illegal use and occupation of the same by the respondents, at least, for a period of three (3) years prior to the notice having been served upon them. We are strengthened in our observations on account of the judgment of this Court in LAO v. M. Ramakrishna Reddy [LAO v. M. Ramakrishna Reddy, (2011) 11 SCC 648 : (2011) 4 SCC (Civ) 633] , wherein it was held that the owner can be entitled to damages for wrongful use and possession of land in respect of which no notification is issued under Section 4 of the Land Acquisition Act, from the date of possession till the date such notification is finally published.
20. We are conscious that the land is being used by the respondent State through Respondent 2 Department. That, however, does not give such a licence to the State Government. We had endeavoured to refer the matter for mediation, to find an amicable solution, but that did not fructify. We, however, would like to give some time to the respondent State to analyse the consequences of this judgment, and, in case they so desire, 72 F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 to acquire the land through a proper notification under the said Act, and to take proper recourse in law so as to enable them to keep the land. We grant three (3) months' time from the date of the judgment for the respondent State to make up their mind as to what they want to do. Would they still like to retain the land by issuing a proper notification, or would they like to surrender possession of the land. In either eventuality, the question of payment for use and occupation would still arise, which will have to be determined in accordance with law. Mesne profits would be determined by a Court Commissioner, to be appointed by the trial court, as a relief in that behalf has been sought in the plaint itself.
This Judgment will not come in the way of the State in Acquiring the property acquiring the land according to law.
89. This case displays the utility of an accurate list of events with making reference to documents. If this task had been carried out before framing the issues, this litigation could have been nipped in the bud and not lasted that long.
90. In view of the above, the main point for determination in the instant appeal is answered as follows:
I. The predecessor-in-interest of the plaintiffs (R-1 to R-9) acquired title and possession in the Court auction sale in the execution proceeding arising out of the mortgage suits of the zamindari interest of Defendant Nos.5 to 10 (R-10 to R-15) in the year 1928-41.
II. The interest that was acquired in the Court auction sale was not limited to collection of land revenue, but extended to the proprietary interest of the mortgagor tenure holder and the predecessor-in-interest of the plaintiffs stepped into the shoes of the judgment-debtors that is the predecessor-in- interest of Defendant 5 to 10 with respect to the suit land. III. The State claim by way of SA dated 13.4.2022 over the three plots of the land is not allowed. The state had no title to transfer by lease these plots to R 23. R23 is free to make a claim according to law against the State. The State is also free to acquire the land according to law. 73
F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 IV. The suit is decreed with respect to the suit land as detailed in the schedule A and B of the plaint excluding the following plots:
a. Plot no.631 and 632 of Khata 74 were recorded as ponds in the cadastral survey record of right (Exhibit 8/8). As these plots have been recorded as bandh and bandh jhari, therefore, in terms of Section 4 of the BLR Act they can be deemed to have vested in the State. Under the circumstance the M Forms (Ext 10/D) issued with respect to these plots is not accepted. b. Further Khata no. 62 plot no. 241 there is specific mention of Devsthan and therefore the entries of M form regarding it in pursuance to Rent fixation case no. 388/62-63 is not accepted. c. Plots with respect to which the plaintiffs are not accepted as tenant after vesting, as no form M-form was issued with respect to it:
i. Plot no. 585 of Khata no. 65 Khewat 52, of item no.1 of Schedule A. ii. Plot no. 641 of Khata no. 65 Khewat 52, of item no.2 of Schedule A. iii. Plot no. 679 of Khata no. 65 Khewat 52, of item no.3 of Schedule A. iv. Plot no. 576 of Khata no. 75 Khewat 57, of item no.5 of Schedule A. v. Plot no. 625 of Khata no. 65 Khewat 52, of item no.1 of Schedule A. V. The defendant nos 5 to 10 had no right, title and interest over the suit land and had no right to interfere with the peaceful possession of the plaintiffs and any sale made in respect of suit property or any portion thereof made by the Judgment debtors of Execution Case No. 366 of 1931, 492 of 1935, 144 of 1938, 138 of 1940 and 140 of 1940, or their heirs was null and void with respect to the suit land as decreed above.74
F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14
91. As far as the claim of R19 is concerned they being pendente lite transferee, their claim shall depend on the final outcome of Title Suit no.92 of 2010.
The Judgment and decree of the Court below is accordingly affirmed with the above modification.
The appeal is dismissed with cost.
92. Before parting, as postscript it will be desirable to briefly record certain facts that has engendered a spate of litigation which has consumed valuable Court hours and had driven the plaintiffs to different Courts to mitigate the cascading effect of the illegal order passed by the Circle Officer Baghmara by cancelling the long standing Jamabandi running in their name. The order of the Circle Officer was without jurisdiction and without merit as held by the Deputy Commissioner in Misc. Case No.5/2008. The order was set aside, but the mischief it had caused, gave pretext to Defendant Nos.5 to 10 to execute different sale deeds setting in third party interests, resulting in litigations impinging on the peaceful enjoyment of legal right of property by the plaintiff.
93. Respondent Nos. 10-15 are the defendants, who sold the part of suit land to different persons without any semblance of title, by procuring the illegal order in the rent fixation case by the Circle Officer Baghmara in the cases referred to above. The plaintiffs who have been impleaded as R1 to R9 have suffered protracted litigation in different forums on account wholly unwarranted and without basis in the challenge to their title made by the appellant/D3 and the respondent Nos. 10 to 15. It will be appropriate to refer to some of the decisions and observations made by Hon'ble The Apex Court that are beacon light for the Courts to curb such meritless litigation. 75
F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 In Padmawati v. Harijan Sewak Sangh, (2012) 6 SCC 460 it has been held:-
16. Before parting with this case, I consider it necessary to pen down that one of the reasons for overflowing of the court dockets is the frivolous litigation in which the courts are engaged by the litigants and which is dragged on for as long as possible. Even if these litigants ultimately lose the lis, they become the real victors and have the last laugh. This class of people who perpetuate illegal acts by obtaining stays and injunctions from the courts must be made to pay the sufferer not only the entire illegal gains made by them as costs to the person deprived of his right, but also must be burdened with exemplary costs.
17. The faith of people in judiciary can only be sustained if the persons on the right side of the law do not feel that even if they keep fighting for justice in the court and ultimately win, they would turn out to be a fool since winning a case after 20 or 30 years would make the wrongdoer as real gainer, who had reaped the benefits for all those years. Thus, it becomes the duty of the courts to see that such wrongdoers are discouraged at every step and even if they succeed in prolonging the litigation due to their money power, ultimately they must suffer the costs of all these years' long litigation. Despite the settled legal positions, the obvious wrongdoers, use one after another tier of judicial review mechanism as a gamble, knowing fully well that dice is always loaded in their favour, since even if they lose, the time gained is the real gain. This situation must be redeemed by the courts.
It is moment to ponder over what Hon'ble Mr Justice Krishna Iyer said in T. Arivandandam v. T.V. Satyapal, (1977) 4 SCC 467 at page 470
6. The trial court in this case will remind itself of Section 35-A CPC and take deterrent action if it is satisfied that the litigation was inspired by vexatious motives and altogether groundless. In any view, that suit has no survival value and should be disposed of forthwith after giving an immediate hearing to the parties concerned.
7. We regret the infliction of the ordeal upon the learned Judge of the High Court by a callous party. We more than regret the circumstance that the party concerned has been able to prevail upon one lawyer or the other to present to the Court a case which was disingenuous or worse. It may be a valuable contribution to the cause of justice if counsel screen wholly fraudulent and frivolous litigation refusing to be beguiled by dubious clients. And remembering that an advocate is an officer of justice he owes it to society not to collaborate in shady actions. The Bar Council of India, we hope will activate this obligation. We are constrained to make these observations and hope that the cooperation of the Bar will be readily forthcoming to the Bench for spending judicial time on worthwhile disputes and avoiding the distraction of sham litigation such as the one we are disposing of. Another moral of this unrighteous chain litigation is the gullible grant of ex parte orders tempts gamblers in litigation into easy courts. A Judge who succumbs to ex parte pressure in unmerited cases helps devalue the judicial process.
94. Under the circumstance, I deem it to be just and reasonable to award a cost of Rupees One lakh to the plaintiffs/LRs (R-1 to R-9) by the appellant (contesting defendant No.3). Respondent Nos.5 to 10 will be liable to pay jointly and severally Rs One Lakh to R-1 to R-9. The executing Court shall be at liberty to realize the cost as a money decree. I.A. No. 1772 OF 2014 76 F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 The present application under Order 1 Rule 10 of the C.P.C. has been filed on behalf of Vinod Singh for being impleaded in the instant appeal.
The petitioner claims title over the part of suit land by virtue of three registered deeds of sale executed in the year 1964 by Apana Dasya and Nidhu Dasya. The vendor of the petitioner derived title by the deed of gift executed by Chandra Mohan Dutta vide registered deed dated 09.06.1934. After vesting of the Zamindari, the raiyati right has been recognised of the vendor in rent fixation case no.239/63-64 and rent has been fixed in their favour and the vendor exercising their right title, interest and possession over the Suit property sold the land in the Suit property to the petitioner.
In rejoinder to this petition, it is contended that the claim of the vendor of the petitioner namely Aparna Dasya and Nudhu Bala Dasya on the basis of gift deed executed in 1934 by Chandra Mohan Dutta was under challenge in Title Suit no.08/1941 in the court of Sub-Judge Dhanbad and by order dated 19.09.19 42 it was held that the said gift deed was void as it was executed to defraud the Court auction purchaser.
The three sale deeds on the basis of which the petitioner claims to be impleaded was jointly executed in favour of Kedar Nath Singh and Jaleshwar Singh. The learned court below by order dated 5.09.2009 rejected their petition for being impleaded as they derived no right title or interest on the basis of the said deeds. This petitioner is none other than the son of said Jaleshwar Singh and as such this matter was substantially and materially decided at an early stage of the Suit against which no appeal or revision was filed in the Superior Court. The present application is therefore barred under res judicata.
77
F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 The present petitioner is claiming to derive the title from the vendors Aparna Dasya and Nudhu Bala Dasya who claim the suit property on the basis of gift deed executed by the recorder tenant Chandra Mohan Dutta. The said gift deed was considered in Title Suit no.08/1941 in the court of Sub-Judge Dhanbad and by order dated 19.09.1942 it was held that the said gift deed was a document by the Judgment debtor to defraud the Court auction purchase and was therefore null and void.
Under the circumstance, I do not find the petitioner to be a necessary or proper party and accordingly this Interlocutory application stands rejected. I.A. No. 2520 of 2022
Heard learned counsel for the State in I.A. No. 2520 of 2022 which has been filed on behalf of respondent nos. 20 and 21 under Order I Rule 10(2) read with Section 151 of C.P.C. for striking out their names from the memo of appeal by recalling the order dated 29.11.2019 passed in I.A.10491/2019.
It is submitted by the learned counsel that respondent Nos. 20 and 21 have been impleaded in the present appeal vide order dated 29.11.2019 and they were not the parties to Title Suit No. 76 of 2006. They have been impleaded in this case on the basis of the petition filed on behalf of respondent nos. 1 to 9, on the ground that the State Government had transferred 11.92 acres i.e. the part of the suit land in favour of Jharkhand Industrial Area Development Authority (hereinafter called JIADA) and despite the information given of the order of status quo dated 23.03.2012 to the Deputy Commissioner, Dhanbad the said order was not complied with and the fencing and other works were being carried out.
By the same order this Court while considering the petition under Order 39 Rule 1 and 2 of the C.P.C. filed by Respondent No.1 to 9 was pleased to 78 F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 order the authorities to maintain status quo till further orders.
Subsequently, a contempt petition has also been filed by the respondent Nos. 1 to 9 for initiation of contempt proceeding against respondent Nos. 20 to 22 for deliberate and intentional violation of the order.
It is further contended on behalf of State that authorities in exercise of the exclusive right, title, interest and possession over land in question transferred it in favour of Jharkhand Industrial Area Development Authority, Bokaro.
In the background of the above stated facts, the petition for the recall of order dated 29.11.2019 is made on the following grounds:
(i) The land transferred is owned by the State under Gairabad Khata recorded in the name of Anabad Bihar/Jharkhand in the finally published record of rights, which was never challenged by any party to the suit.
(ii) The order of impleadment at the appellate stage of the State authority without any notice is against the provision of Section 80 of the CPC.
(iii) The cause of action for filing the title suit no.76/2006 was different from the cause of action for filing the present petition to implead the respondents in the appeal.
(iv) Given the facts of this case, the decree to be passed in this present appeal shall become binding upon the State authorities i.e. respondent nos.20 and 21 in absence the pleading and evidence on record.
(v) If the respondents are not struck out of the memo of appeal, the State might lose a valuable land without an opportunity of pleading and leading evidence.
Heard learned counsel on behalf of respondent Nos.1-9 in I.A.No.2520 of 2022 filed on behalf of respondent Nos.20 and 21 for deleting the name 79 F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 from the instant appeal. The following main argument has been raised at Bar against the petition filed by the State-respondent Nos.20 and 21 for being struck out as party in the instant appeal.
Firstly, it is argued that these respondents had been impleaded vide order dated 29.11.2019 by the co-ordinate Bench of this Court which remained unchallenged either before the Hon'ble Supreme Court or by the Review Petition filed within the period of limitation before this Court under Order XLVII, Rule 1 after more than two years of being impleaded in the appeal when this appeal is at the final stage of the hearing.
Secondly, the State is trying to get itself deleted from this case in order to get away of the consequences of the order of status quo.
Thirdly, with regard to the pleas of this respondent that they had not been served notice under Section 18 of the C.P.C. Reliance has been placed on Raghunath Das v. Union of India; AIR 1969 SC 674 "8. The object of the notice contemplated by that section is to give to the concerned Governments and public officers opportunity to reconsider the legal position and to make amends or settle the claim, if so advised without litigation. The legislative intention behind that section in our opinion is that public money and time should not be wasted on unnecessary litigation and the Government and the public officers should be given a reasonable opportunity to examine the claim made against them lest they should be drawn into avoidable litigations. The purpose of law is advancement of justice. The provisions in Section 80 of the CPC are not intended to be used as boobytraps against ignorant and illiterate persons."
Fourthly, cause of action for impleading these respondents arose during the appellate stage when certain lands has been transferred by the State authorities to respondent Nos.22 and 23 which were part of the suit land. This Court had earlier passed order of status quo and unless State was made party, the status quo order could not have been implemented. Therefore, these respondents were impleaded at the appellate stage. They have been given opportunity to submit their case while order of this Court dated 06.04.2022 80 F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 when specific direction was given to respondent Nos.20 and 21 to file a detailed and particularized affidavit stating chronologically the claim of the State to the part of suit land, with details thereof. A supplementary affidavit has been filed regarding the statement of their claim. Lastly, it is submitted that part of suit land was transferred by these respondents to respondent No.22 and thereafter, respondent No.23 and therefore by deleting the name of these respondents at this stage, will lead to true anomalous result.
After having considered the rival submissions made on behalf of both the sides, I am of the view that the State as party represented by its officer cannot be struck out from the present appeal for the following reasons.
Firstly, the order of impleading the State this Court has not been challenged earlier, and this Court cannot sit in appeal over the order of its predecessor.
Secondly, the vesting took place in 1956 and M-Rolls were issued by the State in pursuance to the rent-fixation cases in the year 1965. The order of issuance of M-Roll remained unchallenged by the State. The first time the state staked its claim over the three plots being Plots No.603 & 604 under Khata No.66 and Plot No.584 under Khata 71 under Mouza Ranguni was when these plots were on final publication of Revisional Survey Record of Rights published in the year 2007 whereas the Title suit was filed in the year 2006.
Thirdly, merely because at the final stage of the argument it was argued that part of the suit land comprised of common land, road or place of worship, unsupported by any pleading or evidence cannot be the basis for impleading the state in the Trial Court.
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F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 Lastly, the State not been prejudiced for being impleaded at the appellate stage without notice under Section 80. The State parties being represented by R-20 to R-22 have been impleaded vide order dated 29.11.2019 of this Court in appeal. This Court exercising its jurisdiction in first Court of appeal, being Court of fact has given ample opportunity to the State to submit their statement of claim as well as the evidence in support of it. The plea made and the evidence in support of it on record has been duly considered.
Therefore, the interlocutory application for striking out the name of the State as party in the present appeal is rejected.
I.A. No.4184 of 2022 along with supplementary affidavit Heard learned counsel on behalf of respondent Nos.1-9 in I.A. No.4184 of 2022 filed on 10.05.2022 along with supplementary affidavit filed to I.A. No.4184 of 2022 filed on 11.05.2022 under Order XLI, Rule 27 of the C.P.C. seeks to adduce into evidence the (i) Original M Form issued in Rent Fixation Case No.391/62-63 and 387/62-63 in the name of Ravindra Nath Paul and Ambika Bala Paul (ii) Certified copy of order dated 8.11.2004 passed in Misc. Cancellation of Jamabandi case no.5/2004-05.
The photocopy of these M Forms was filed on 10.05.2022 but on the next date i.e. 11.05.2022 by way of supplementary affidavit, the original M Forms have been filed.
It is submitted by the learned counsel that the suit before the Court below was conducted by Sri Tarun Kanti Ghosal, who was power of attorney holder of respondent Nos.1-9. He was not an advocate, but his father was an Advocate and after the death of his father, his elder brother Tushar Kanti Ghosal was conducting the case. All required documents were handed over to 82 F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 power of attorney holder by the plaintiffs for the proper conduct of the case. During course of argument in this appeal, it transpired that the said power of attorney holder had only filed 'M' form relating to Nirmal Kumar Paul, Latika Bala Paul and Satya Narayan Paul but M Forms relied by Ravindra Nath Paul and Ambika Bala Paul were not filed. There is definite pleading regarding these M Forms and even Jamabandis were opened on the basis of it. Learned Collector-cum-Deputy Collector, Dhanbad in his order dated 10.02.2009 in Case No.5/2008 has taken note of these M Forms. Issuance of M Forms has not been disputed by the State except for Plot Nos.603, 604 of Khata No.66 and Plot No.584 of Khata No.71.
It is further submitted that in order/recommendation dated 08.11.2004 passed by the Land Reforms Deputy Collector, Dhanbad passed in Misc cancellation of Jamabandi Case No.5/04-05 refers to all the M forms which were issued pursuant to inquiry in terms of Sections 5, 6 and 7 of the B.L.R. Act 1950. The certified copy of the order has been kept an Annexure 2. It is submitted that the plaintiffs, even after due diligence could not produce the documents at the stage of trial.
A prayer has been made to mark it as Exhibit as public document within the meaning of Section 74 of Evidence Act. It is submitted that the document could not be adduced into evidence before the Court below on account of laches on the part of the power of attorney holder of the original plaintiffs. These documents had been handed over to him and only during the course of argument it was discovered that M form relating to Haribol Paul had been filed when his property was not involved in the instant litigation, whereas the M forms relating to Ravindra Nath Paul and Ambika Bala Paul were not filed. These M forms the issued pursuant to detail enquiry in rent 83 F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 fixation Case no.391/62-63 and 387/62 - 63.
Learned counsel appearing on behalf of respondent No.19 as well as respondent nos.16-18 raised no objection to this petition.
Learned Counsel on behalf of respondent No.23 has contested this petition and raised serious objection. It is submitted that there had been sufficient opportunity for the plaintiff to adduce these documents into evidence before the learned Court below. It was laches on their part and the power under Order XLI, Rule 27 cannot be invoked for filling lacuna of any party. The suit was filed in the year 2006 whereas these documents is being produced before this Court after lapse of 16 years. They will not have opportunity to verify whether it is original M Form or not. Since the State was not a party before the Trial Court, therefore, State had no opportunity to dispute it at that stage.
Learned counsel, Mr. Sudarshan Srivastava on behalf of the appellant submits that the appellants will not have any opportunity to rebut this evidence which has been adduced before this Court after long period. From the ground taken in the I.A. it is apparent that respondents due diligence was not exercised by these respondents for adducing into evidence these documents at the trial stage.
Before considering the plea for admitting the M-forms into evidence issued in Rent Fixation Case No.391/62-63 and 387/62-63, it shall be desirable to consider the provision as under O41 R 27 which is as under. ORDER 41 R 27 Production of additional evidence in Appellate Court--
The party in appeal is entitled to produce additional evidence whether oral or documentary in the following circumstances: 84
F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14
1. The Court from whom the appeal is preferred has improperly refused to admit evidence.
2. The party seeking to adduce additional evidence establishes that notwithstanding the exercise of due diligence, the evidence was not within his knowledge or it could not be produced by him at the time when the decree appealed against was passed.
3. The appellate court requires any document to be produced or witness to be examined to enable it to pronounce Judgment, or for any other substantial cause.
4. Wherever additional evidence is allowed the court shall record reason for its admission.
It is apparent that when other M forms had been filed, omission to bring on record these documents at the stage of trial appears to be on account of oversight on the part of the conducting counsel or the power of attorney holder. There is a manifest lack of diligence on the part of the plaintiffs to bring these rent-rolls on record.
The matter for consideration is whether these documents are required by this court to enable it to pronounce judgment or it is required for any other substantial cause?
It may be noted that issuance of M Forms in the name of Smt Ambika Bala Pal and Rabindra Kumar Pal in Rent Fixation Case No. 387/62-63 and 391/62-63 respectively has been specifically pleaded in the plaint. There has not been any denial in the written statement regarding the issuance of these M forms by the defendants, rather there is specific admission in para 17 of W.S. of D-3, but it has been contended that it was issued in collusion with revenue authorities. The State in its particularized affidavit filed before this Court on 13.4.2022, has also not expressly denied the issuance of these forms, but it has been contended that no M forms were issued with respect to the land claimed 85 F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 by the State. These M-forms are important piece of evidence to ascertain that after vesting of the intermediary interest on coming into force of the Bihar Land Reform Act 1950 who were parties accepted by the State as tenant and with respect to the Suit land or they got vested in the State. There is a substantial cause for admitting these document into evidence and if these M forms are not admitted on technical ground, it will result in miscarriage of justice. It has been held in Sanjay Kumar Singh Vs State of Jharkhand; 2022 SCC On Line SC 292 by Hon'ble Apex Court "7. It is true that the general principle is that the appellate court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order 41 Rule 27 CPC enables the appellate court to take additional evidence in exceptional circumstances. It may also be true that the appellate court may permit additional evidence if the conditions laid down in this Rule are found to exist and the parties are not entitled, as of right, to the admission of such evidence. However, at the same time, where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record, such application may be allowed. Even, one of the circumstances in which the production of additional evidence under Order 41 Rule 27 CPC by the appellate court is to be considered is, whether or not the appellate court requires the additional evidence so as to enable it to pronouncement judgment or for any other substantial cause of like nature. As observed and held by this Court in the case of A. Andisamy Chettiar v. A. Subburaj Chettiar, reported in (2015) 17 SCC 713, the admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the appellate court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. It is further observed that the true test, therefore is, whether the appellate court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced".
Learned Counsel on behalf of the appellants has argued that by appellants will not have opportunity to lead rebutting evidence in this regard. As stated above the issuance of these M forms have nowhere been disputed by any of the defendants. It has been contended that it had been issued collusively, but there is no definite pleading or evidence in this regard although other M forms had been adduced into evidence and marked as exhibits 10 to 10/C. Under the circumstance I do not find that there will be any prejudice caused to the defendants who have failed so far to show any 86 F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 evidence that there title survived after the mortgage suit and Court auction sale. I am of the considered view that two shut out these important pieces of evidence on technical ground will result in miscarriage of justice.
I find that there is a substantial cause for admitting M-forms relating to Ravindra Nath Paul and Ambika Bala Paul issued in Rent Fixation Case No.391/62-63 and 387/62 - 63 into evidence in appeal as additional evidence . The petition is accordingly allowed. Both these documents are Public Documents and therefore they are marked as exhibits 10/D-E. With regard to the second document sought to be adduced on behalf of the petitioner R1 to R 9, I do not find any special reason to allow the petition for adducing it as additional evidence at this stage and is accordingly rejected.
The interlocutory application is partly allowed as at above.
Contempt Case (Civil) No.700 of 2012
1. This application has been filed under Sections 14 and 15 of Contempt of Court Act, 1971 on behalf of the appellants to initiate contempt proceeding against the Opposite Party for deliberate violation of orders dated 23 rd March 2012 in F.A No.43 of 2012 to maintain status quo.
2. It is contended that the aforesaid order dated 23.03.2012 was passed subsequent to appearance and after consideration of submission on behalf of respondent Nos. 2,6 & 7 through Advocate before Hon'ble Court.
3. The said order of maintenance of status quo, with direction to authorities to ensure compliance of the said interim order dated 23.03.2012 has been extended from time to time by the Hon'ble Court in terms of orders dated 15.05.2012, 13.06.2012, 28.06.2012, 10.07.2012, 17.07.2012 and 26.07.2012 till the next date i.e. 08.08.2012.
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F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 By 15th May 2012 respondent Nos. 1 to 8 of the appeal had duly made their appearance in the appeal and as such aforesaid all order i.e. orders dated 23.03.2012 and all subsequent orders were well within the knowledge of aforesaid 8 respondents including opposite party Nos. 1 to 5 to the instant petition.
4. The aforesaid order dated 23.03.2012 stands duly communicated to the Registrar, Sub-Registry Office, Dhanbad, opposite party no. 6 in the instant petition through a letter along with true copies of the said order dated 23.03.2012 and impugned decree dated 06.01.2012, attached with the said letter.
5. Petitioner came to know that respondent/O.P. No. 1 to 5 of the instant petition have got executed 9 registered instruments of conveyance of properties through their constituted attorney Tarun Kanti Ghosal (Opposite Party No.7 to the instant petition) which is the subject matter of the aforesaid F.A. No. 43/2012 by the registered deed of sale on 23.07.2012.
6. The petitioner again came to know that despite service of a copy of the said supplementary affidavit upon the advocate of the said respondent Nos. 1 to 8 on 26.07.2012 at Court premises and in spite of taking adjournment for filing reply to said supplementary affidavit, another registered instrument of conveyance was executed by the respondent No. 7 to the instant petition on behalf of the respondent/opposite party Nos. 1 to 5 on 27.07.2012.
7. From the facts as aforesaid it was self-evident that respondents to the instant petition have deliberately and having full knowledge of interim order as passed by the Hon'ble Court, as well as during subsistence of the said order, deliberately violated the aforesaid orders of the Hon'ble Court, which amounts to manifest contempt of the aforesaid orders of the Hon'ble Court. 88
F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14
8. In pursuance to the notice issued, O.P. Nos. 1 to 5 & 7 have filed their reply wherein the statement made in para-1 of the contempt petition has not been expressly denied rather it is stated that the statement made in para- 1 that the statement made therein are matter of record. However, it is stated that they have not violated any order passed by Hon'ble Court, rather the petitioner in the garb of order passed by this Hon'ble Court is trying to dispossess the answering opposite party from their lawful possession.
9. I am of the considered view that present case does not warrant invoking the Civil Contempt jurisdiction of this Court, for the reason that there was a general order of status quo without any further details of the nature of the order or the subject matter of the said order. Further, the appellants have failed to establish their right, title or interest over the Suit property and therefore I do not deem just and reasonable hold the opposite parties/respondents to have committed contempt of Court.
10. The petition accordingly stands dismissed.
I .A. No. 1534 of 2022
This interlocutory application has been filed under Section 11 read with Section 12 of the contempt of Courts Act read with article 215 to the Constitution of India on behalf of respondent No.1-9 against Respondent no.20 - 22 for deliberate and intentional violation and non-compliance of order passed by this court on 09.02.2022 to maintain status quo.
Earlier in I.A. No. 4321/2020 filed by respondent Nos.1 to 9 under Order 39 Rule 1 & 2 of C.P.C. for taking appropriate action against the respondent no.20 to 22 for deliberate and intentional violation of the order dated 29 November 2019 passed by the coordinate bench of this court for maintaining status quo. By order dated 10.02.2022 the order was modified 89 F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 with a direction to the Advocate General to file counter affidavit. In the meantime, the earlier order of status quo was extended. In the peculiar facts and circumstance of the case, where the State has been impleaded in the present appeal at the appellate stage, I do not deem it just and reasonable to pass the order for disobedience of this Court's order to maintain status quo.
The interlocutory application accordingly stands dismissed. The other interlocutory application pending if any is disposed of. Civil Revision No.30 of 2014
1. The instant revision has been filed on behalf of the plaintiffs namely Chanchal Kumari and others of Title Suit No. 92 of 2010 against the order dated 05.06.2014 by which petition filed for enforcement of the compromise decree was rejected. The revisionists have been impleaded in the F.A. No. 43 of 2012 vide order dated 5.10.2012 as Respondent no.16 to 18.
2. In Title Suit No. 92 of 2010 Respondent nos. 1 to 5 namely Rabindra Nath Paul and Others of F.A. No. 43 of 2012 were the defendants through their constituted attorney Tarun Kanti Goshal.
3. Put it briefly, dispute is between the plaintiff of Title Suit No. 92 of 2010 and the plaintiffs of the Title Suit No. 76 of 2006 (R 1 to R9 of FA- 43/12) for specific performance of agreement of sale.
4. The Title Suit No. 92 of 2010 was decreed on compromise on the following terms of compromise:
I. Bayana Patra dated 24.06.08 and agreement of sale dated
05.09.2008 shall remain in force and notice for termination of agreement to sale dated 26.03.2010 and 06.04.2010 issued by the lawyer of the power of attorney holder shall stand withdrawn by defendants power of attorney holder.
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F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 II. Plaintiff shall pay an account payee cheque in the name the of defendant No.6 power of attorney holder Sri Tarun Kanti Ghosal for a sum of Rs.50,00,000 Cheque no.000011 dated 30.05.2011 bank of India Dhanbad subject to condition that after Judgment of T.S.No.76/2006 in favour of plaintiffs, the defendants of title suit no.92/10 shall encash the same after due confirmation of possession over the land in favour of plaintiffs without any hindrance and/or objection from any corner.
III. The defendant thereafter to execute and register regular sale deeds in favour of plaintiff from any portion of the suit land as per the choice of plaintiff. As soon as the said amount has been exhausted against proportionate lands so purchased by plaintiffs or her nominee the plaintiff shall issue another a/c payee cheque of ₹ 50 lakhs to the defendant and so on so forth till the entire land in the suit be purchased by the plaintiff on mode of payment has stated herein above.
IV. The owners/defendants No.1 to 5 shall authorise the plaintiffs to look after all cases both pending in the court of law or further cases and if required to that effect a memo of understanding will be executed if the parties think so.
V. Regarding rates, price of the land, it has been agreed unanimously by the parties that plaintiff shall purchase the properties in the name of her or her nominee at the rate of Rs.11,500/- per katha as per agreement to sale dated 5/10-09-08 and in addition to the said rate, the plaintiff also agreed to pay an additional amount of ₹ 3500 per Katha as presently agreed between both the parties and for withdrawal/settlement of all pending cases between them.
VI. It is agreed by defendants that if there being any agreement to sale or any other understanding made by defendant's and/or made contractual transaction of money against the land in dispute with any person, it would be sole responsibility and obligation of the defendants to sort out such matters and get the sale deeds cancelled.
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F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 VII. The plaintiffs and defendants undertake to withdraw litigations filed by them against each other.
VIII. The condition of the agreement of sale dated 5/10-09 - 2008, aforesaid shall remain in force.
5. This joint compromise petition was signed by Tarun Kanti Ghosal and Chanchal Kumari and Jai Prakash Roy on 28.05.2011 and the Learned Court below vide order held that the joint compromise petition filed by the parties shall form part of the decree and accordingly, Title Suit No.92 of 2010 has been decreed by terms of compromise and decree was signed on16.06.2011.
6. The decree holders of T.S. No. 92 of 2010 the present revisionists came to know about execution of 9 sale deeds on 23/07/2012 and one sale deed on 27/7/2012 by attorney holder in favour M/s Bhavesh Commotrade Pvt Ltd and thereafter intervened and got themselves impleaded in F.A. No. 41/2012 as Rule 16 to Rule 18.
7. Thereafter a petition was filed on 7.08.2012 on behalf of the plaintiffs/R16 to R18 under Section 28(3) of the Specific Relief Act in Title Suit no.92 of 2010 for enforcement of the compromise decree passed on 25.6.2011.
8. Defendants, filed a separate petition in Title Suit no.92 of 2010 under Section 28(1) on 26.11.2012 for the rescission of contract and by the impugned order dated 05.06.2014 the Court below rejected the petition filed by the Respondent no.16 to 18 under Section 28(3) of the Specific Relief Act, 1963 as well as the petition under Section 28(1) of the Specific Relief Act.
9. In view of the fact that F.A. No. 43/12 was pending and order of status quo had been passed by this Court, therefore no order of execution or recession of agreement of sale was be passed at that stage. 92
F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14
10. Defendants (Pauls) of Title Suit No.92 of 2010 executed sale deed in favour of Bhavesh Commotrade Pvt. Ltd. (R19) with respected to the suit land which formed part of the compromise decree, has been impleaded in the F.A. No. 42/2012 vide order dated 14.12.2018 with the rider that the applicant will be entitled to pursue such defence as where available to the original owners and such title shall remain subservient to the rights of the plaintiffs in the suit. Thus, there is absolutely no doubt about the fate of pendente lite purchasers in whose favour sale deeds have been executed by the Judgment debtors of Title Suit No.92 of 2010, which will depend on two contingency namely, the survival of their right, title and interest as the final outcome FA-43/2012 and the execution proceeding arising out of the compromise decree in TS no.92 of 2010 .
11. Now since F.A. No. 43 of 2012 has been disposed of, the stage is set for the considering the petitions filed by both the sides afresh by the executing Court in Title Suit No.92 of 2010. The executing Court must bear in mind that after the compromise decree in a suit for specific performance of agreement, it does not become functus officio. The decree passed is in the nature of preliminary decree and the suit is deemed to be pending even after that and therefore it can look into the trial Court record after passing of the decree. Law in this regard has been laid down by Hon'ble the Apex Court in the case of Bhupinder Kumar v. Angrej Singh; (2009) 8 SCC 766
21. It is clear that Section 28 gives power to the court either to extend the time for compliance with the decree or grant an order of rescission of the agreement. These powers are available to the trial court which passes the decree of specific performance. In other words, when the court passes the decree for specific performance, the contract between the parties is not extinguished. To put it clearly the decree for specific performance is in the nature of a preliminary decree and the suit is deemed to be pending even after the decree.
22. Sub-section (1) of Section 28 makes it clear that the court does not lose its jurisdiction after the grant of decree for specific performance nor it becomes functus officio. On the other hand, Section 28 gives power to the court to grant an order of rescission of the agreement and it has the power to extend the time to pay the amount or perform the 93 F. A. No. 43/12 with Cont. Case (C) No.700/12 with Civil Revision No.30/14 conditions of decree for specific performance despite the application for rescission of the agreement/decree. In deciding an application under Section 28(1) of the Act, the court has to see all the attending circumstances including the conduct of the parties.
12. Under the circumstance, the matter is remanded to the Court below for passing order on the petition of both the sides that culminated in the impugned order dated 05.06.2014. The executing court will consider the terms of the decree, the events thereafter and then pass such order as a called for by law and equity, particularly the principles of reasonableness and fairness laid down by Hon'ble the Supreme Court in Satya Jain v. Anis Ahmed Rushdie; (2013) 8 SCC 131.
Everything is left open to be decided by the executing Court. The revision petition is, accordingly, disposed of.
(Gautam Kumar Choudhary, J.) Jharkhand High Court, Ranchi Dated the 30th June, 2022 AFR / Anit