Jharkhand High Court
(Deleted) vs Tubias Kandir on 17 November, 2022
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
1 S.A. 125 of 1992
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No. 125 of 1992
(Against the judgment and decree dated 29.09.1992 passed by the
learned 2nd Additional District Judge, Jamshedpur in Title Appeal no.
19 of 1987 )
1. (Deleted)
2. Anem Danial Kandir
3. Markus Kandir
4. (i) Sahil Johnson Kandir
4. (ii) Salil Kandir,
Both 4(i) and 4(ii) are sons of Late Emanul Kandir, R/o Road No. 6,
Jawahar Nagar, Azadnagar, P.O. & P.S.- Azadnagar, Dist.- East
Singhbhum
Sl. No. 2 and 3 are sons and legal heirs of Late Manmasi Kandir, by
faith Christian (Munda by caste) Residents of village - Dimnia, P.S.-
Tamar, District- Ranchi at present residing at Mango, Tola- Gitilpi, P.S.-
Mango, District- Singhbum
......Plaintiffs/ Appellants/Appellants
Versus
Tubias Kandir, son of Late Narcus Kandir, by faith Christian (Manda),
resident of Dimnia, P.S.- Tamar, District- Ranchi at present residing at
Mango, Tola- Gitilpi, P.S.- Mango, District- Singhbum
.....Defendant/Respondent/ Respondent
For the Appellants : Mr. Manjul Prasad, Sr. Adv.
Mr.Abhay Shankar, Adv.
Mr. Baban Prasad, Adv.
For the Respondent : Mr. Binod Kr. Jha, Adv.
Mr. Amar Kr. Sinha, Adv.
Mr. K. K. Ambastha, Adv.
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
By the Court:- Heard the parties.
2. This Second Appeal under Section 100 of the Code of Civil Procedure is preferred against the judgment and decree dated 29.09.1992 passed by the learned 2nd Additional District Judge, Jamshedpur in Title Appeal no. 19 of 1987 by which, learned First Appellate Court in a judgment of concurrence has dismissed the appeal filed by the 2 S.A. 125 of 1992 appellants.
3. The case of the plaintiff in brief is that the plaintiff and the defendant no. 1 are the sons of late Markas Kandir and they belonged to Munda caste. The plaintiff, defendant no. 1 and their eldest brother-Nicodim Kandir have inherited the properties of their father. The brother of the plaintiff namely Nicodim Kandir is in-charge of family properties and he is doing cultivation and all the properties are enjoyed by the sons of Markas Kandir, having joint interest and common possession. It is further case of the plaintiff that during the life time of his father, the plaintiff shifted to Jamshedpur, in the year 1941 and was doing his petty business of vegetables and agricultural produces. The plaintiff further pleaded that in the year 1944, the plaintiff got employment under the Indian Cable Company Ltd. The defendant no. 1 is the youngest of all the brothers and the plaintiff brought him to Jamshedpur in the year 1949 while he was aged about 12 years and got him admitted in a school at Jamshedpur and later on, at Ranchi. The plaintiff arranged an employment for the defendant no. 1 under Indian Tube Company on 15.09.1959, by his approaches and efforts. In the year 1941, the plaintiff purchased 2 Bighas, 10 Kathas of Dihibari land. Further the plaintiff purchased 10 Khatas of land by oral sale for Hriday Bhuiya and came in possession of the said land exclusively. The plaintiff saved money and in the year 1956 purchased 5 kathas of land for homestead purpose by registered sale deed no. 4715 dated 30.01.1956 from Samu Gour and got possession of the said land. The plaintiff then pleaded that the year 1960, Kali Charan Bhuiya and Khoku Bhuiya, son of late Hriday Bhuiya, created trouble for the plaintiff in enjoyment of the aforesaid land and the plaintiff filed one Title Suit No. 336 of 1960 in the court of Munsif, Jamshedpur for declaration of title and recovery of possession with respect to 10 kathas of land. At the intervention of well-wishers of the plaintiff and sons of 3 S.A. 125 of 1992 Hriday Bhuiya, the said case was compromised on 08.07.1960 and the compromise decree was prepared with respect to the said land concerned in favour of the plaintiff. The plaintiff next pleaded that there was a Survey Settlement Operation in Mango area and the name of the plaintiff was recorded being in exclusive possession of the same. The Government of Bihar cancelled the survey of 1964 and fresh Survey Operation was started. The plaintiff's said land was recorded under several new plot numbers but wrongly the name of the defendant no. 1 has also been included as Khatedar with respect to the suit land. The final Record of Rights with respect to the said land was published on 18.08.1979 and the plaintiff came to know that the name of the defendant no. 1 has also been erroneously recorded as the joint owner of the schedule A land though defendant no. 1 has no right, title and interest in respect of schedule A land as the said erroneous entry casted some clouds over the right, title and interest of the plaintiff with respect to the suit land and the plaintiff filed the suit, originally with the prayer for decree in favour of the plaintiff and against the defendant for declaring that the name of the defendant no. 1 entered in the present survey record is wrong and erroneous and to be corrected by deleting the name of the defendant no. 1 from the Record of Rights of the suit land. Subsequently, in the first appellate court, by way of amendment, the second prayer that the decree for the declaration of plaintiff's rights, title and interest over the suit land and confirmation of possession thereon and in alternative, in case, the plaintiff is found disposed from the suit land, then recovery of possession of the suit land by evicting the defendant no. 1 and also permanent injunction restraining the defendant no. 1 from causing interference from the possession of the plaintiff with respect to the suit land was added and rest two prayers were Sl. No. (c) cost of the suit and Sl. No. (d) any other relief or reliefs to which 4 S.A. 125 of 1992 the court deems fit and proper.
4. In his written statement, the defendant no. 1 besides challenging the maintainability of the suit on various technical grounds, pleaded that Nikodim Kandir has died and is no more in charge of the property at Tamar but the legal representatives of Nikodim Kandir, though necessary parties to the suit, had not been impleaded as parties. The defendant denied that the plaintiff came to Jamshedpur in the year 1941 and got the employment in the year 1944 in the Indian Cable Company. The defendant no. 1 further pleaded that his father sent him for pursing his education and the expenses of his education was borne by his father and later on, the defendant no. 1 shifted to Ranchi for higher education and again came to Jamshedpur in or about the year 1952. It is next pleaded by the defendant no. 1 that the defendant no. 1 got his employment with the Indian Tube Company by his own approaches and efforts. The defendant no. 1 specifically pleaded that 5 kathas of land out of Cadastral Survey plot no. 6 of Mauza Mango, was purchased from the joint family fund of the plaintiff and his brothers and a substantial contribution was made by the defendants. As the plaintiff was the elder brother of the defendant, the defendant did not raise any objection in getting the sale deed prepared in the name of his elder brother as purchaser and thus, the said five kathas of land belongs jointly to the plaintiff and the defendant no. 1 and both came in joint possession of the same. The defendant no. 1 further pleaded that the plaintiff with an intent to create some collusive document in connivance with Kalicharan Bhuiya and Khoku Bhuiya behind the back of the defendant, brought the Title Suit No. 336 of 1960 in the court of Munsif, Jamshedpur and the same is a collusive suit. The defendant no. 1 next pleaded that Survey Settlement Operation of Mango area between the year 1959-64 was not in accordance with law as such the same was cancelled and thus, Record of Rights prepared in 5 S.A. 125 of 1992 such cancelled settlement, had no legal recognition. The defendant no. 1 specifically, pleaded that the land belongs to the plaintiff and the defendant which are joint properties and in joint possession. The defendant no. 1 next pleaded that there has been series of proceedings under Section 83 and 89 of the Chota Nagpur Tenancy Act, 1908 in respect of the suit land against the plaintiff and the defendant and the plaintiff had full knowledge regarding joint Records of Rights, prepared in the names of the plaintiff and the defendants. The defendants pleaded that at the time of survey, the plaintiff was also present and the survey authorities after ascertaining the correct position, have recorded the lands in the joint names of the contesting parties to the suit. The defendant next pleaded that the plaintiff is not entitled to any relief.
5. In view of rival pleadings of the parties, learned trial court settled the following five issues :-
(i) Is the suit as framed maintainable? (ii) Has the plaintiff got any cause of action to bring this suit?
(iii) Is the suit bad for non-joinder of necessary parties?
(iv) Is the suit barred by limitation? (v) Are the entries made in the Record of Rights (with respect
to Khata No. 796 - Suit land) published on 10.08.1979 and certified on 18.08.1979 erroneous? If so, to what relief or reliefs the plaintiff is entitled to?
6. Learned trial court first took up issue no. (iii) and disposed of the same as the said issue was not pressed before it. The trial court thereafter took up issue nos. (i) and (iv) together, and after considering the evidence in the record, as by that time, the prayer for declaration of right, title and interest was not made held that the suit as framed is not maintainable and is barred by limitation. The trial court thereafter took up issue no. (ii) and (iv) together, and after considering the evidence in the record, came to the conclusion that the there is no cause of action for the suit and 6 S.A. 125 of 1992 as the entry made in the record of rights with respect to the Khata no. 7 / 1996 - the suit land, published on 10.08.1979 and certified on 18.08.1979 are erroneous and therefore the plaintiffs are not entitled to reliefs and dismissed by the suit.
7. Being aggrieved by the judgment and decree passed by trial court, the plaintiffs filed Tittle Appeal No. 19 of 1987 which was ultimately, heard and disposed of by learned First Appellate Court by the impugned judgment. Learned First Appellate Court formulated the following three points for determination:
(A) Whether the suit as well as this appeal is barred by limitation or not as pointed out by the defendant / respondent?
(B) Whether the entries in the Record of Rights in respect of defendant no. 1 was erroneous?
(C) Whether or not the plaintiff / appellant has got exclusive right, title and possession over the suit land and he is entitled for the declaration as such?
8. Learned First Appellate Court first took up the point for determination no. (A) and after taking into the consideration that the prayer for relief made in the suit has been amended by incorporating the prayer for declaration of right, title and interest of the plaintiff over the suit land, held that the suit is not barred by limitation. Thereafter, learned First Appellate Court took up the point for determination no. (B) and (C) together and after considering the materials available in the record, came to the conclusion that the entries in the Record of Rights in respect of defendant no. 1 was not erroneous and that the plaintiff / appellant has not got exclusive right, title and possession over the suit land and the plaintiff is not entitled for declaration, as prayed for and dismissed the appeal.
9. At the time of admission of this appeal, vide order dated 25.11.1993, , following substantial questions of law were formulated:
(i) Whether the finding of the courts below will vitiate for non-
consideration of the legal position under the Benami 7 S.A. 125 of 1992 Transaction Act? and
(ii) Whether the appellate court is justified in making out a third case which was not pleaded by either of the parties?
10. Mr. Manjul Prasad, learned senior counsel for the appellants submits that as the Benami Transaction Act postulates that the person who purchases the property, is himself the owner of the same and unless the same is rebutted by adversary. So, as the plaintiff purchased the suit land by the registered sale deed exclusively which has been marked Exhibit 2 and also purchased a portion of the remaining suit land by way of oral sale followed by delivery of possession, so the both courts below erred by not returning the finding that the plaintiff is the sole exclusive owner of the suit property and thus, there is no rhyme or reason as to why the name of the defendant no. 1 could have been entered in the record of right as the joint owner of the property. It is next submitted by learned senior counsel that as it is not specific case of the defendant nor the defendant could produce any evidence in the record as to what was the quantum of purchase generated and was in existence at the time of the purchase of the said property by the plaintiff, so both the courts below have erred by making out a third case that the said property purchased exclusively by the plaintiff, was in fact the joint family property purchased in the name of plaintiff. Hence it is submitted by Mr. Prasad that the judgment and decree passed by the both the learned courts below be set aside and the suit of the plaintiff be decreed by declaring the right, title, interest and possession of the plaintiff over the suit land and for eviction of the defendant thereof.
11. Mr. Binod Kumar Jha, learned counsel for the respondent on the other hand defends the impugned judgment and decree passed by both the courts below and submits that the plaintiff has not come to court with clean hands. It is next submitted by Mr. Jha that the land claimed to have been 8 S.A. 125 of 1992 purchased by the plaintiff was never mutated in his name rather his forcible possession over the property was marked in the remarks column of the Record of Rights which cannot take place, in case of a proper purchase of property by a person and thus, the plaintiff having failed to establish his right, title and interest over the suit property, both the courts below have rightly dismissed the suit of the plaintiff. It is next submitted by learned counsel for the respondent that the plaintiff was well aware that he was not having the right, title and interest over the property and for that reason, he did not make the prayer for declaration of right, title and interest since beginning but only on half way, through the judicial proceedings, when it became crystal clear that the suit is barred by limitation; only to save the limitation and to linger the judicial proceedings, the prayer for declaration of right, title and interest over the suit property was incorporated in the plaint by way of amendment but as the plaintiff ultimately, failed to establish his right, title and interest, the suit was bound to fail and as both the courts below have recorded the concurrent finding of facts hence in absence of any perversity in such finding of facts, there is no scope for interference in the impugned judgment and decree passed by both the courts below, in exercise of jurisdiction of 100 of Code of Civil Procedure by this court. It is next submitted by Mr. Jha that the provisions of the Benami Transaction Act, 1988 has no applicability to the facts of the case as it is neither the case of the plaintiff nor the defendants that the acquisition of the property by any of the parties to the suit was through any benami transaction. Mr. Jha further submits that the defendant has specifically pleaded that the plaintiff has purchased the suit land from the joint family fund. The admission of plaintiff who was examined as PW4 that the defendant no. 1 used to live with him for a longer period of time and used to make payment for the plaintiff for his meal, goes to show that the 9 S.A. 125 of 1992 defendant no. 1 was contributing money to the plaintiff, hence, it submitted by Mr. Jha that it cannot be said that the courts below have made out a third case rather they have accepted the second case being the case of the defendant that the plaintiff purchased the suit land out of the fund of the joint family being elder brother of the defendant no. 1 and their other brother, Nicodim Kandir had died. Hence, it is submitted that by Mr. Jha that this appeal being without any merit be dismissed.
12. Having heard the submissions made at the Bar and after going through the materials in the record, so far as the first substantial question of law that as to "whether the findings of the courts below will vitiate for non-consideration of the legal position under the Benami Transaction Act" is concerned, Section 2(a) of the Benami Transactions (Prohibition) Act, 1988 defines the 'Benami Transaction' as any transaction in which, property is transferred to one person, for a consideration paid or provided by another person. This court has no hesitation in holding that if the property is purchased by the corpus of the joint family fund, by one coparcener, the same certainly will not come within the definition of the Benami Transaction. Benami Transaction will come into play when 'A' purchases properties in the name of 'B', but if both 'A' and 'B' from joint family fund, purchase the properties in the name of 'B', such properties may not come under the definition of the Benami Transaction. Thus, this court is of the considered view that finding of the facts of the courts below is not vitiated for non- consideration of the legal position under the Benami Transaction Act, hence, the first substantial question of law is answered in negative.
13. So far as the second substantial question of law as to "whether the appellate court is justified in making out a third case which has not been pleaded by either of the parties," is concerned, this court is of the considered view that it is the 10 S.A. 125 of 1992 specific case of the defendants that the plaintiff purchased the property from the joint family fund and both the courts below has returned the said finding of the fact that the property purchased by the plaintiff, was from the joint family fund, so this court is of the considered view that when both the courts below have accepted the contention of the defendant, it cannot be said that learned trial court has made out any third case, which was not pleaded by either of the parties, as such plea was very much there in the written statement of the defendant no. 1 filed in the suit. Therefore, the second substantial question of law is answered in negative.
14. In view of the discussions made above, this appeal being without any merit is dismissed on contest but under the circumstances, without any costs.
15. Let a copy of this Judgment along with the Lower Court Records be sent back to the Court concerned forthwith.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated, the 17th November, 2022.
Smita /AFR