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Jharkhand High Court

Sheo Tahal Sahu @ Sheo Barat Sahu vs Nand Kishore Choudhary on 26 September, 2018

Author: Rajesh Kumar

Bench: Rajesh Kumar

                IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                   Second Appeal No. 564 of 2015
                                              ....

1. Sheo Tahal Sahu @ Sheo Barat Sahu

2. Rupesh Kumar Gupta

3. Suresh Prasad Gupta

4. Ram Prasad Sahu ....... .....Appellants Vrs.

1. Nand Kishore Choudhary

2. Braj Bihari Choudhary

3. Chhatarsal Choudhary

4. Hari Narayan Choudhary

5. Pramod Prasad Sahu

6. Sanjay Prasad Sahu

7. Om Prakash Gupta ...... Respondents CORAM: HON'BLE MR. JUSTICE RAJESH KUMAR For the Appellants : Mr. Om Prakash Tiwari, Adv.

                For the Resps.                 :
                                               ....
                I.A. No. 6139 of 2015

06/26.09.2018              The instant interlocutory application has been filed under Section 5

of the Limitation Act for condoning the delay of 20 days in preferring the present appeal.

In view of the reasons assigned in paragraph-4 onwards of the instant I.A., I.A. No. 6139 of 2015 is allowed and disposed of. Delay of 20 days in preferring the present appeal is, hereby, condoned.

Heard learned counsel for the appellants. The appellants are original plaintiffs.

The suit has been instituted by the plaintiffs for the following reliefs:

" That it be hold and declared that revisional survey record of right with respect to the suit property described in the schedule has been corrected published and prepared and order judgment and Decree passed by Revenue Officer, Latehar in Suit No. 3833/93, 3834/93 and 3836/93 are null, void and inoperative and plaintiffs are not bound by the same. Plaintiffs have further sought as relief that it be declared that the defendant No. 1 to 4 have got no right, title possession over the suit property. The defendant No. 1 to 4 be restrained permanently from interfering with possession of plaintiffs over the suit property."

The case has been set out by the plaintiffs in the suit instituted by them is that they have acquired right, title and interest over the suit property by execution of unregistered sale deed in the year 1931. Accordingly, they are claiming right, title and interest over the suit land.

The defendants have disputed the claim of the plaintiffs on the ground of Section 258 of the CNT Act as well as Section 34 of the Specific Relief Act and further they have claimed in line of succession from original recorded tenant and they had disputed the unregistered sale deed upon which the plaintiffs have placed reliance.

The Trial Court has framed following issues:

i) Whether the suit is maintainable as framed ?

ii) Whether the suit is barred by law of limitation, estoppal, waiver, acquiescence?

iii) Whether the suit is barred by non-joinder and mis-joinder of parties?

iv) Whether the suit suffers from non compliance of notices u/s 80 C.P.C.?

v) Whether the suit is barred u/s 258 of the CNT Act as well as 39 of the Specific Relief Act?

vi) Whether the Budhan Ram transferred the portion of plot no. 353 of Bishun Sahu and Bishun Sahu came in khas and exclusive possession over the suit land?

vii) Whether over plot no. 771,772, 789 record of right was prepared by survey operation?

viii) Whether the defendants are legal successors of the recorded tenant of C.S. Khatiyan?

ix) Whether the plaintiffs or the defendants are in right, title, possession over the suit land?

x) Whether there is valid cause of action to the plaintiff?

xi) Whether the plaintiff is entitled to any other relief?"

So far as maintainability of the suit is concerned, the Trial Court has recorded that the suit before the Civil Court is barred under Section 258 of the CNT Act.

Section 258 of the CNT Act is quoted hereinunder:

"258. Bar to suits in certain cases.- Save as expressly provided in this Act, no suit shall be entertained in any Court to vary, modify or set aside, either directly or indirectly, and [decision] order or decree of any Deputy Commissioner or Revenue Officer in any suit [application] or proceeding under Section 20, Section 32, Section 35, Section 42, Section 46, Sub-section (4), Section 49, Section 50, Section 54, Section 61, Section 63, Section 65, Section 73, [Section 74(A)], Section 75, Section 85, Section 86, Section 87, Section 89, [* * *] or Section 91 (Proviso), or under Chapter XIII, XIV, XV, XVI, or XVIII, except on the ground of fraud or want of jurisdiction [and every such decision, order or decree shall have the force and effect of a decree of a Civil Court in a suit between the parties and subject to the provisions of this Act relating to appeal, shall be final]."

From mere perusal of Section 258 of the CNT Act, it is evident that the suit is not maintainable. Argument challenging the order passed by the Revisional Authority while prayer has been made regarding record of right and for possession and for correction of the name mentioned in the record.

So far as Section 34 of the Specific Relief Act is concerned, limited finding has been recorded by the Trial Court that plaintiffs are not in possession of the suit land and no prayer for recovery of possession has been made.

So far as claim of right, title and interest over the suit land on the basis of unregister sale deed that has already been discussed also and finding has been returned that unregistered sale deed is not capable of transferring the title and accordingly, no title has passed to the plaintiffs. Accordingly that issue has also been decided against the plaintiffs. In view of the findings recorded by the Trial Court, the suit has been dismissed.

Being aggrieved the appellants-plaintiffs have filed the appeal being Title Appeal No. 02 of 2013. The Appellate Court after re- appreciating the entire issue after detail discussion, has approved the findings recorded by the Trial Court and accordingly, decree has been affirmed.

Thus the present Second Appeal has been filed. Learned counsel for the appellant has submitted that the dismissal of suit on the ground of Section 258 of the CNT Act is bad. This argument of the learned counsel for the appellants is not tenable mainly for the reason that he has challenged the order passed by the Revenue Authority, which is barred under Section 258 of the CNT Act.

So far as declaration of right, title and interest is concerned, specific findings have been recording that the plaintiffs are claiming title on the basis of un-registered sale deed, which is not tenable.

The issues have been discussed in detail and findings have been recorded by both the Court below that title cannot be transferred to the plaintiffs. It has been further recorded that the suit land is in possession of the defendants.

In view of the above discussion and concurrent findings recorded by both the Courts below, this Court finds that no substantial question of law is involved in the present second appeal and the same is hereby dismissed.

(Rajesh Kumar, J.) Kamlesh/