Jharkhand High Court
Kalara Kharian And Ors. vs Bhairo Nagasia @ Ganesh Nagesia And Ors. on 25 February, 2005
Equivalent citations: [2005(3)JCR211(JHR)]
Author: Narendra Nath Tiwari
Bench: Narendra Nath Tiwari
JUDGMENT Narendra Nath Tiwari, J.
1. This appeal is against the Judgment and decree of reversal passed by Second Additional District Judge, Gumla whereby, the judgment and decree of the trial Court has been set aside allowing the plaintiffs appeal.
2. The plaintiffs case was that the land measuring 4.72 acres bearing Plot Nos. 559, 995 and 142 appertaining to khata No. 51, Mauza Goja Bartola, Police Station Palkot, District Ranchi was recorded in the name of Sanu Kharia in the Revisional Survey Record of rights. Subsequently, Sanu Kharia died leaving behind his son Ghasi Kharia, who succeeded to his father and came in possession of the said land (hereinafter to be referred as the suit land). In the year 1938, Ghasi Kharia surrendered the said lands before the landlord Ban Bihari Lal by virtue of registered deed of surrender dated 2.4.1938 in favour of the ex-landlord. Thereafter the landlord came in possession and in the year 1944 settled the land in favour of the plaintiffs by a Sada Hukumnama followed by rent receipts on payment of salami of Rs. 80/-. The plaintiffs, since thereafter, remained in cultivating possession, paid rent and obtained rent receipts from the landlords and after vesting of the estate from the State of Bihar. The further case is that the defendant filed a case for restoration under Section 71-A of the Chhotanagpur Tenancy Act which was registered as S.A.R. Case No. 1126 of 1976-77. They had also filed mutation case, wherein inspite of protest of the plaintiffs, the land was mutated in the names of the defendants, illegally. In view of the said facts, the plaintiffs sought declaration of their right, title and confirmation of possession and also for a declaration that the order of mutation and order the Revenue Court are wholly illegal and without jurisdiction.
3. The defendants case was that the suit was not maintainable as the plaintiffs were the strangers and they were never in possession of the lands. It was stated that the land was never surrendered and the landlord never came in possession, neither he had any right to settle the same in favour of the plaintiffs. According to the defendant, the rent receipts, if any, are all forged and fabricated and the mutation has been rightly ordered in favour of the defendant on the basis of which they have been paying rent to the State of Bihar.
4. The learned trial Court came to the finding that Ghasi Kharia had not surrendered the land in favour of the landlord and hence there was no question of settlement of the suit land in favour of the plaintiffs. The trial Court held that the story of initiation of restoration case was also not true. The trial Court decided the vital issues against the plaintiffs and dismissed the suit.
5. The Appellate Court, on thorough and detailed discussion and consideration of the oral and documentary evidence, came to the finding that Ghasi Kharia, the Predecessor-in-interest of the defendant surrendered the suit land in favour of the ex-landlord Hari Shankar Lal Shah and Ban Bihari Lal Shah by virtue of registered deed of surrender dated 2.4.1938 (Exhibit 4). The landlord, thereafter, came in possession of the suit land in favour of the plaintiff in the year 1944 on payment of salami. The said settlement was followed by rent receipts granted by the ex- landlord prior to the vesting of the estate. Some of the rent receipts were produced and marked as Exhibits 2, 2-b, 2-j. Said rent receipts have been looked into by the Lower Appellate Court who found that all the said receipts were standing in the name of the plaintiff Dasu Ram Nagesia. On the basis of the said documents, coupled with oral evidence, the Lower Appellate Court held that the plaintiffs acquired a valid title in the suit land by virtue of the said settlement and they came and remained in possession of the same. The Court below taking notice of the rent receipts, Exhibits A series, produced by the defendant, held that the said receipts were issued on the basis of an illegal order of the Revenue Courts. On the basis of the said discussions and consideration, the Lower Appellate Court has come to the specific finding that the plaintiff acquired valid title and he had been in continuous possession of the suit land. The Lower Appellate Court, thus, declared title of the plaintiff and confirmed his possession over the suit land. Learned Lower Appellate Court, thus, set aside the judgment and decree of the trial Court and allowed the appeal.
6. At the time of admission of this appeal, the following substantial question was framed :--
"Whether the learned Court of appeal below committed a serious error of law in brushing aside the admission made by the plaintiff No. 1 (PW 2) that the document of settlement has been handed over to him some 10 to 12 years back along with 8 or 9 rent receipts; on the basis whereof, the learned trial Court came to the conclusion that the said deed of settlement and the rent receipts were forged ?"
7. Mr. Lalit Kumar Lal, learned counsel appearing on behalf of the appellants submitted that the said Exhibit 4 is contrary to the admission made by the plaintiff who stated in his deposition as PW 2 that the document of the settlement was handed over to him 10 to 12 years back along with 8-9 rent receipts. Learned counsel submitted that the learned Appellate Court has not taken into consideration the said admission and has arrived at a wrong conclusion that the Exhibit 4 is a genuine document and that the plaintiffs acquired valid right, title by virtue of the settlement in their favour. Learned counsel submitted that in view of the admission of the plaintiff No. 1 (PW 2), the said deed of settlement or rent receipts must be held to be forged and fabricated.
8. From the perusal of record, it appears that the suit land was surrendered by virtue of registered deed of surrender dated 2.4.1938. The said deed has been marked as Exhibit 4. It further appears that the ex-landlord, after coming into possession and remaining in possession of the said land for about six years, settled the land by virtue of sada settlement in favour of the plaintiffs. The said sada settlement is followed by continuous rent receipts, Exhibit '2 series'. In Mt. Ugni and Anr. v. Chowa Mahto and Ors., AIR 1968 Patna 302 (FB), it has been held that any sada settlement followed by actual possession and acceptance of rent creates a valid settlement in favour of the settllee-raiyat. The said legal position has not been disputed by Mr. Lal. Once the title is vested by virtue of a valid settlement, the same cannot pass on to the defendant by an oral admission of the plaintiff depriving of his title and possession. The Supreme Court in Ambika Prasad v. Ram Ekbal Rai, reported in AIR 1966 SC 605, has held that title can not pass by mere admission. In view of the above, the learned Lower Appellate Court has rightly held that the plaintiff has got valid right, title and that the contrary findings of the learned trial Court is illegal and unsustainable. The learned Lower Appellate Court has, thus, rightly set aside the judgment and decree of the trial Court and has rightly allowed the appeal and decreed the suit of the plaintiffs.
9. The said findings have been arrived at by the learned Lower Appellate Court on due discussion and consideration of facts and evidences on record as well as the relevant provision of law. I find no infirmity in the said finding of the learned Lower Appellate Court. The substantial question framed at the time of admission is not based on any factual or legal foundation as the Lower Appellate Court has not committed any error of law in accepting Exhibit 4 and other documents in evidence even in presence of any contrary oral statement made by the plaintiff No. 1. Viewed from another angle, to constitute a statement made in deposition an admission of that party it has to be considered in entirety. A solitary line or two cannot be taken in isolation, as an admission of the party ignoring the presence of other evidences including unimpeachable documents on record, particularly, when the Court uses the same against the party, to his disadvantage. I, therefore, find no infirmity in the judgment and decree of the learned Lower Appellate Court. The question framed in this second appeal at the time of admission is answered accordingly and this appeal is dismissed. However, there shall be no order as to costs.