Jharkhand High Court
Purna Chandra Gaur vs Luthi Gaur on 5 August, 2004
Equivalent citations: AIR2006JHAR107, [2004(4)JCR405(JHR)], AIR 2006 JHARKHAND 107, 2006 (2) AIR JHAR R 608, (2004) 4 JLJR 251, (2005) 2 CIVLJ 81
Author: N.N. Tiwari
Bench: Narendra Nath Tiwari
JUDGMENT N.N. Tiwari, J.
1. This appeal has been filed by the plaintiff- respondent against the judgment and decree dated 24th February, 1990 passed by the 2nd Additional District Judge, Jamshedpur in Title Appeal No. 24/5 of 1985-88.
2. This appeal was admitted by order dated 9.2.1993 formulating two substantial questions.
(i) Whether the judgment of the learned Courts below is vitiated due to total non-consideration of the oral evidence laid by the parties?
(ii) Whether the learned Court below has committed an error of law in holding that the judgment of Title Suit No. 1592 of 1967 to which the appellant was not a party is binding upon him ?
3. The plaintiff filed Title Suit No. 393/8 of 1974-85 praying relief for declaration that C.S. plot No. 45 forming R.S. plot Nos. 5822 and 5823 and portions of 5821 and 5824 in mouza Mango measuring an area of 1-01 acres belonged to the plaintiff Purna Chandra Gour and for confirmation of his possession or in the alternative for recovery of possession, if the plaintiff is found dispossessed from the suit land at any time prior to the disposal of the suit.
4. The plaintiffs case in brief was that the suit land originally being a portion of C.S. Plot No. 45 was his khas Parti land. The plaintiff was a settled khuktattidar and Ex-landlord of village Mango. According to him, he reclaimed the suit land and a portion of C.S. plot No. 21 and has been in cultivating possession over the said lands for more than 12 years before the commencement of Survey Settlement Operations of 1964. The suit land, however, was recorded as "Anabad Bihar Sarkar", although the same was in his continuous possession. Aggrieved by the said wrong entry in survey record, the plaintiff filed an application under Section 90 of Chota Nagpur Tenancy Act, praying for correction in the record of rights and recording his name deleting the entry "Anabad Bihar Sarkar." Allowing the said petition the correction in the record of rights was made recording the plaintiffs name and subsequently rent was assessed in his name and he has been paying rent to the State of Bihar and getting receipt thereof. Subsequently the plaintiff sold a portion of plot No. 5821 to one-Lal Muni Devi by virtue of registered sale deed dated 19.11.1971. And the said purchaser has been in possession over the same by constructing to house over the land. The further case is that from 1.7.1974 the defendant, Luthi Gour started interfering with the possession of the plaintiff over the suit land and also threatening to dispossess him. Whereupon on 15th August, 1974 a panchayati was called for and before the panchayat the defendant admitted the plaintiffs possession over the suit land. But soon thereafter the defendant again raised a dispute which led to a proceeding under Section 144 of the Code, of Criminal Procedure, which was registered as Misc. Case No. 498 of 1974. Ultimately the said proceeding was erroneously decided in favour of the defendant ignoring the plaintiffs possession. The said order passed under Section 144 of the Code of Criminal Procedure, cast a cloud over the title of the plaintiff- Hence this suit.
5. The defendant appeared and contested the suit by filing a written statement disputing the plaintiffs claim. The defendant denied that the plaintiff reclaimed the suit land and other lands or he was/is in possession of the suit land at any time prior to the Survey Settlement Operation of 1964 or thereafter. Defendant asserted that he has got right, title and possession over the suit lands and the same ought to have been recorded in his name in the survey record of rights. According to the defendant, his father namely Baikunth Gour was the original inhabitant and khutkhattidar of village Mango. He being a settled raiyat reclaimed the suit land along with other lands and has been in possession of the same and after his death, the defendant being the son and legal representatives inherited the same and came in possession and he has been in peaceful cultivating possession over the said land, openly and adversely and to the knowledge of all concerned. It was stated that the suit land should have been recorded in his name but it was wrongly recorded as "Anabad Bihar Sarkar." Aggrieved by the said wrong entry, the defendant brought a suit being Title Suit No. 1592 of 1967 in the Court of Munsif, Jamshedpur praying for a declaration that entry in respect of the suit land in favour of the State of Bihar in 1964 Settlement and Survey Operation was wrong. The said suit was contested by the State of Bihar but the same was decreed in favour of the defendant vide Judgment and decree dated 30.1.1971. The Survey record was thereafter corrected deleting the entry "Anabad Bihar Sarkar" the defendant's name was recorded in the present survey record in respect of the plot Nos. 5822 and 5821 of 1964 Survey. It was stated that the plaintiff in course of survey operation had filed an objection under Section 83 of the Chota Nagpur Tenancy Act, but the same was rejected. Subsequently the rent was assessed in favour of the defendant in Misc. case No. 422 of 1972-73. It was asserted that the defendant has got a perfect and valid title and he has been in possession of the suit lands. It was further stated that he had absolutely no knowledge of any proceeding under Section 90 of Chhota Nagpur Tenancy Act, and about rectification of the entries in the record of rights in the name of the plaintiff in respect of the suit land. It was stated that any such order is illegal and without Jurisdiction and any rent receipts granted on the basis of the said order in favour of the plaintiff is also illegal. No title or possession could be legally claimed on the basis of the said order under Section 90 of Chota Nagpur Tenancy Act, or on the basis of rent receipt. The defendant also denied transfer of a portion of suit land in favour of Lalmuni Devi and asserted that same is a mere paper transaction and has been created as a colourable evidence of possession. It was further stated that defendant never admitted the plaintiffs possession over the suit land as alleged by the plaintiff. According to the defendant, order passed in the proceeding under Section 144 of the Code of Criminal Procedure was valid and legal and the rule was lightly made absolute against the plaintiff. The defendant also took the plea that the suit was neither maintainable in its present form nor the plaintiff had got any cause of action for the suit. It was averred that the suit was also barred by limitation, as the plaintiff was never in possession of the suit land much less at any time within 12 years when the suit was filed and that the suit was also bad for non joinder of the parties and same was hit by the provision of Specific Relief Act, and Chota Nagpur Tenancy Act. To sum up, the defendant claimed that he has acquired a perfect legal and valid right and title over the suit land and he has been in continuous possession over the suit land and the plaintiffs suit is liable to be dismissed.
6. The trial Court framed several issues. Both the parties led their respective evidences. The plaintiff in order to prove his case brought C S survey records of right of village Mango which were Exts. 5 to 5/d. The defendant on the other hand produced certified copy of C.S. record of rights (1911) (Ext. C/2), certified copy of village note Ext E/l and certified copy of the order dated 5.2.1953 passed by the Member. Board of Revenue in case No. 310 of 1952 Ext. E/2. The case of Board of Revenue was between the Ex-land lord of the village and the father of the defendant. In that case the Ex-land lord had sought eviction of the defendant's father from his reclaimed land which was rejected. Regarding oral evidences adduced by the parties, the trial Court found that the same was almost nil on the point of reclamation. Both sides tried to prove their respective claims on the basis of documents. One of the documents produced by the plaintiff is sale deed dated 19.11.1971 through which the plaintiff claimed to have sold a portion of the suit land to one Lalmuni Devi. Another document was the certified copy of the Judgment dated 5.8.1968 passed in case No. 282 of 1968 in a proceeding under Section 90 of the Chhota Nagpur Tenancy Act. between Purna Chandra Gour (Plaintiff) and State of Bihar (Ext. 8). The said order was passed by the Charge Officer. By the said order the plot Nos. 5821. 5822 and 5823 and other plots were ordered to be included into raiyati khala No. 105 of Purna Chandra Gour (Plaintiff). Ext. 9 is the certified copy of the order dated 4.2.1971 passed in Mutation case No. 166/70-71 by which mutation in respect of the said plots along with other plots was allowed in favour of Purria Chandra Gour, for an area of 5.61 acres of land. Ext. 6 is the certified copy of the order dated 27.10.1977 passed by the Assistant Settlement Officer in case No. 1980/76-77 under Section 89 of the Chota Nagpur Tenancy Act/between the State of Bihar and Purno Gour in which the petition filed by the State of Bihar was rejected. Ext. 1 series are the Government rent receipt granted in favour of the plaintiff in respect of 5.61 acres of land of kliata No. 105 of Mouza Mango for year 1970-71 to 1984-85.
7. After discussing the said documents of the plaintiff, the trial Court held that mutation of name by itself does riot confer any title to a person and the charge officer on the basis of report of local inspection and plaintiffs cultivating possession over three suit plots and the sale deed executed by the plaintiff in favour of Lalmuni Devi, in whose name raiyati khatiyan of 1981 survey was prepared in respect of 5 decimal of land recorded as homestead land, ordered to correct survey entry in favour of the plaintiff.
8. The trial Court also considered the documentary evidences adduced on behalf of the defendant. One of such evidence brought by the defendant is the certified copy of the judgment, and decree dated 30.1.1971 passed in Title Suit No. 1592 of 1967, by the Munsif, Jamshedpur (Ext. E). The said suit was filed by the defendant against the State of Bihar seeking declaration that the entry in the survey of 1964 in the name of "Anabad Bihar Sarkar" was wrong as the suit land belongs to the plaintiff and he has been in possession of the same and he has got perfect title over the same. The said suit was decreed in favour of the defendant. The trial Court interpreted the said judgment and decree (Ext. E), that the scope of the suit was very limited i.e. it only for the declaration that the survey entry was wrong and in that suit, the title of the defendant Luthi Gour was not a material issue to be decided and it was incidentally decided. It was further held that the plaintiff being not a party to the suit, the findings of that suit cannot be binding on him. Ext. F which was the certified copy of the order under Section 83 of the Chota Nagpur Tenancy Act, in favour of the defendant was also discarded saying that the same was passed on the basis of the judgment and decree of the Title Suit (Ext. E).
9. The trial Court after discussing the evidences ultimately believed the claim of reclamation of the suit land by the plaintiff and his possession thereon for over 12 years before the commencement of Survey and Settlement operation of 1964'and held that the defendant failed to prove his claim of reclamation of the suit land by his father and as such there was no question of acquisition of perfect title over the suit land by virtue of his possession over the same. The trial Court thus found that the suit was maintainable in its present form and the plaintiff had valid cause of action and he is entitled to a decree as prayed for. The suit was thus decreed declaring that the suit land belonged to the plaintiff and defendant has got no right, title and interest or possession over the same. The plaintiffs possession was also confirmed and the defendant was restrained from interfering with the possession and enjoinment of the plaintiff over the lands in the suit.
10. Aggrieved by the said judgment and decree of the trial Court, the defendant filed a regular appeal which was registered as Title appeal No. 24/5 of 1985-88. The said appeal was ultimately heard and decided by the Second Additional District Judge at Jamshedpur by his judgment and decree dated 24th February, 1990. The defendant in the said appeal took several grounds for assailing the judgment and decree of the trial Court and as such the lower Appellate Court framed the point for consideration as to whether the findings of the trial Court were correct or not. To answer the said point the lower Appellate Court itself again thoroughly discussed the facts and examined the evidences adduced by both the parties and on thorough discussion and scanning of the documentary evidences, the lower Appellate Court recorded its findings concluding that the plaintiff-respondent failed to prove his case of reclamation of the suit plot bearing Nos. 5821 and 5822 and also failed to prove his possession over the same for more than 12 years before the commencement of Survey Settlement operation of 1964. It was further held that the defendant-appellant has been coming in possession of the suit plot Nos. 5821 and 5822. On the basis of the evidences, the claims of reclamation and possession of the defendant-appellant over those two plots were found proved and established. Except the said two plots, the lower Appellate Court has held that the plaintiff - respondent had got title and possession over the other suit plot Nos. 5823 and 5824 and also confirmed the findings of the trial Court in respect of the said two plot Nos. 5823 and 5824 and the appeal was partly allowed in favour of the defendant-appellant i.e. right, title and possession with respects to the suit plot Nos. 5821 and 5822 corresponding to plot No. 2159 has been declared and confirmed in favour of the defendant.
11. The present appeal was filed by the plaintiff against the said judgment and decree of the lower Appellate Court.
12. Mr. Lalit Kumar Lal, learned counsel appearing for the appellant emphatically argued that the judgment and decree of the lower Appellate Court is erroneous and unsustainable and both the questions of law framed at the time of admission of this appeal are required to be answered in favour of the appellant and the appeal is fit to be allowed by setting aside the judgment and decree of the lower Appellate Court. The learned counsel submitted that the lower Appellate Court has not discussed the oral evidences led by the parties and has arrived at his findings only on the basis of documentary evidences. According to the learned counsel. non-consideration of the oral evidences while deciding the appeal renders the judgment and decree of the lower Appellate Court wholly vitiated in law. With regard to the second substantial question of law Mr. Lal has submitted that the lower Appellate Court has, inter alia, based his judgment and decree passed in Title Suit No. 1592 of 1967 also erroneously holding that the same is binding on the plaintiff, although he was not a party in that suit. According to the learned counsel, the judgment and decree cannot be held to be binding on a person who is not a party and in that view, the judgment and decree of the lower Appellate Court is wholly unsustainable in law and liable to be set aside.
13. Mr. K.M. Verma learned counsel appearing for the respondents on the other hand forcefully supported the judgment and decree of the lower Appellate Court. According to Mr. Verma there is absolutely no infirmity and illegality in the judgment and decree of the lower Appellate Court and that it has been passed after thorough consideration of all the materials evidences on record. According to Mr. Verma. both parties have led documentary evidence to prove their respective title and possession. According to him, all the documents brought by the plaintiff-appellant were purposely created during the pendency of the Title Suit No. 1592 of 1967 or thereafter and the plaintiff on the basis of the said documents, mainly the order of the Charge Officer and order of mutation, had claimed title and possession. According to Mr. Verma the said order of the Charge Officer or the mutation order is not a document of title and the Revenue Officer had no jurisdiction to decide any such issue relating to title and the said orders .cannot take away the right and title of the defendant or create any title in favour of the plaintiff. According to Mr. Verma the defendant had filed the said Title Suit No. 1592 of 1967 challenging the wrong entry in the record of rights in respect of the suit land as "Anabad Bihar Sarkar" and in the said suit all the documents of title and possession were brought ort record and the decree was passed in favour of the defendant (Plaintiff in T.S. No. 1592 of 1967} declaring that in view of his title and possession the entry in survey record of rights as 'Anabad Bihar Sarkar' was wrong. According to him, the plaintiff-respondent has claimed their right and title on the basis of the order of the Charge Officer and mutation order which cannot supersede the judgment and decree of the competent Civil Court which was passed in favour of the defendant. According to him, as the Judgment and decree was with respect to the same land and for the same cause of action i.e. wrong entry in Survey record as 'Anabad Bihar Sarkar' which has been held to be illegal by the Competent Civil Court further holding that on the basis of the title and possession, the entry should have been recorded in the name of the plaintiff (defendant of the present suit), He further submitted that in that view, the Lower Appellate Court has rightly held that. the said Judgment and decree of the Civil Court is binding and has got superiority over the order of the Charge Officer and mutation order. According to him, since the findings of the Appellate Court are based on consideration of all the material documentary evidences, oral evidences which were inconsequential required no discussion Mr. Verma has fortified his argument citing a decision of this Court rendered in (Ramdhan Mahto and Ors. v. Mostt. Bati and Ors.) reported in 2002(3) JLJR 174. In the said case, this Court held that the conclusion arrived at on the basis of the documentary evidence. where oral evidence led by the parties does not play vital role the same can not be said to he an en-or and warranting any interference by the High Court in a Second Appeal, According to Mr. Verma, in the instant case. since parties have tried to prove their respective claim on the basis of the documents oral evidence does not play any consequential role and same has got no deciding effect. The learned counsel further urged that there was no whisper in the pleading of the plaintiff for assailing the judgment of T.S. No. 1592 of 1967 seeking a declaration that the same is not binding on the plaintiff. No such issue formed part of the plaint, and as such the same can not be raised and decided in the second Appeal. The learned counsel placed reliance on the decision of the Supreme Court in case of Union of India v. E.LD.. Parry (India) Ltd. reported in 2000 (1) Supreme 317 in which the Apex Court has held that an issue which did not form part of the pleadings could not be decided by the High Court. According to the learned counsel, the plaintiff had never raised this point as to whether judgment of the T.S. No. 1592 of 1967 was binding on him or not and even if same has been incidentally considered by the lower Appellate Court, it does not give rise to any substantial question of law. According to Mr. Verma the questions thus framed at the time of admission are not at all substantial question of law in the facts and circumstances of the instant case and same should be accordingly answered.
14. Having heard the parties and considering the submission made by them. I find much substance in the argument of Mr. Verma. On perusal of the materials on record and judgment and decree of the Courts below I find that the parties have filed their documents to establish their respective claims. The vital evidence produced on behalf of the plaintiff was order of Charge officer (Ext-8) and order of mutation (Ext. 9) and on the basis thereof the plaintiff has claimed his title and possession over the suit land. The trial Court while considering the claim for reclamation categorically observed that the oral evidence on that point is almost Nil and the claims of the parties are to be decided on the basis of documentary evidence. The lower Appellate Court has also come to the findings that the plaintiff has based his claim on the basis of the order of the Charge Officer and mutation order and defendant has proved his case by adducing documentary evidences including the judgment and decree passed in T.S. 1592/1967, and order of mutation in his favour. In that view. the oral evidence has no vital role to play in this case and its non-consideration by the lower Appellate Court has no vitiating effect on his judgment. I accordingly hold that non-discussion and non-consideration of the oral evidence which were in consequential for deciding the real issues involved in this case. the judgment and decree of the lower Appellate Court cannot be held to be vitiated in law. Thus the first question framed in this appeal is answered in negative.
15. Regarding the second question it is evident from the record that there was no such issue in the suit as to whether the judgment of the Title Suit No. 1592 of 1967 was binding on the plaintiff or not. Therefore, any incidental observation in respect of the same does not go to the root cannot be said to be an error of law. The Judgment and decree in the said Title Suit No. 1592 of 1967 decided the issues as to whether entry in the record of rights of 1964 as 'Anabad Bihar Sarkar' was wrong and in correct and whether the suit land on the basis of the document of title and possession ought to have been recorded in the name of the defendant of the present case. The said suit was decreed by the Civil Court of competent jurisdiction holding that entry in the record of rights showing as 'Anabad Bihar Sarkar' was wrong and incorrect and on the basis of the documents of ownership and possession of the land the entry in the record of rights should have been in the name of the plaintiff of that suit i.e. defendant in the instant case. As against the said judgment and decree the Civil Court plaintiff-appellant of this case tried to prove his claim on the basis of the order passed by the Charge Officer followed by the mutation order. It is well established that the Judgment and decree of the Civil Court cannot be overthrown by the orders of Revenue Court/Officer rather the same is binding on the Revenue authorities and in that view the Lower Appellate Court has not committed any error of law in holding that the said judgment and decree of the Title Suit No. 1592/1967 was also binding on the plaintiff-appellant.
16. In view of my above discussions and findings it must be held that the two questions as framed in this appeal cannot be said to be substantial questions arising on account of any error of law warranting an interference in the judgment and decree of the lower Appellate Court. Thus this appeal fails and is accordingly dismissed. In the facts and circumstances of the case. there will be no order as to costs.