Jharkhand High Court
Balkishun Ram vs The State Of Jharkhand Through Deputy ... on 7 April, 2025
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No. 380 of 2017
1. Balkishun Ram, son of late Laxman Pasi
2. Mahendra Kumar, son of Balkishun Ram
Both resident of Churihar Mohalla, within Ward No.12 of
Chatra Municipality, P.O. - Chatra, P.S. - Chatra, District -
Chatra ... ... Plaintiffs/Appellants/Appellants
Versus
1. The State of Jharkhand through Deputy Commissioner, Chatra,
P.O. + P.S. and District - Chatra
2. Sub Divisional Officer, Chatra P.O. + P.S. and District Chatra
3. Etwariya Devi, wife of Dharam Rana, Village Pakaria, P.O. -
Chatra, P.S. - Chatra, District - Chatra
4. Kunti Kumari, daughter of late Dharam Rana, wife of Rajdeo
Rana, resident of Barabagi, P.O. & P.S. & District - Chatra at
present resident of vill - Pakariya P.O. + P.S. and District
Chatra
5. Balo Paswan, son of Chhedi Paswan
6. Most. Sita Devi, wife of late Sohrai Paswan
7. Binod Paswan, son of late Sohrai Paswan
8. Pawan Paswan, son of late Sohrai Paswan
9. Nitu Kumari, Daughter of late Sohrai Paswan
10.Gudiya Kumari, daughter of late Sohrai Paswan
11.Ranju Kumari, Daughter of late Sohrai Paswan
12.Kanchan Devi, daughter of Sohrai Paswan
13.Prem Devi, daughter of late Sohrai Paswan
14.Rameshwar Paswan, son of Anchhu Paswan
Sl No.5 to 14 all are resident of Mohalla - Dhangartoli of
Chatra Town, within Ward No.2 of Chatra Municipality, P.O.
& P.S. - Chatra, District - Chatra
15.(a) Kesho Prasad (Son)
(b) Naresh Prasad (Son)
(c) Suresh Prasad (son)
(d) Sarita Devi (Daughter)
(e) Rita Devi (Daughter)
All residents of Mohall - Chatra Chowk, within Ward No.10 of
Chatra Municipality, P.O. & P.S. - Chatra, District - Chatra,
Jharkhand (Substituted vide order dated 20.02.2023)
16.Ashama Khatoon, wife of late Sakhawat Hussain
17.Wajahat Hussain, son of Late Sakhawat Hussain
18.Md. Sakil, son of Late Sakhawat Hussain
19.Md. Shanwaj, son of Late Sakhawat Hussain
Sl. No. 16 to 19 all are residents of Villag Diwankhana Mohalla
(Khaini Gola), P.O. & P.S Chatra, District - Chatra.
20.Md. Khurshid, son of Late Sakhawat Hussain resident of
Mohalla Pagmal, P.O.+P.S.+District Hazaribagh.
21.Roshan Khatoon, daughter of Late Sakahawat Hussain, wife of
Md. Ashalam, resident of Mohalla Noor Nagar of Chatra Town,
P.O.+P.S.+District Chatra.
22.Nusharat Khatoon, daughter of Late Sakhawat Hussain, W/o
name not known to the appellants, resident of Karbala Chowk
Ranchi, P.O.+P.S.+ District Ranchi.
23.Anjum Arrah, D/o Late Sakhawat Hussain, resident of
Diwankhana, P.O.+P.S.+ District Chatra.
24.Dolly Arrah, daughter of Late Sakhawat Hussain, w/o name
known to the appellant, resident of Noor Nagar, P.O.+P.S.+
District - Chatra.
25.Sultan Ahmad, son of Late Habib Mian, resident of Village
Chatra Mouza Diwankhana Mohalla (Khaini Gola), Chatra
Nagar Piperpati, P.O. & P.S. Chatra, District - Chatra.
26.Nasima Khatoon, wife of Late Abdul Manan Mian
27.Md. Rizwan
28.Md. Irfan
29.Md. Shamsher
30.Md. Nausad
Sl. No. 27 to 30 all sons of Late Abdul Manan Mian (added
vide order dated 21.08.2014).
Sl. No. 26 to 30 all are resident of Village Diwankhana Mohalla
(Khaini Gola), Chatra Nagar Piperpati, P.O. & P.S. - Chatra,
District - Chatra.
31.Suleman Mian, son of Late Habib Mian, resident of Village
Chatra Mouza Diwankhana Mohalla (Khaini Gola), Chatra
Nagar Piperpati, P.O. & P.S. - Chatra, District - Chatra.
... ... Defendants/Respondents/Respondents
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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Appellants : Mr. Ayush Aditya, Advocate
For the State : Mr. Sanjay Kr. Tiwary, Advocate
For the Respondent Nos.4 to 9
And 11 to 14 : Mr. Rajiv Nandan Prasad, Advocate
: Mr. Sushant Kumar Sinha, Advocate
---
17/07.04.2025 Heard the learned counsels appearing on behalf of the
appellants.
2. This appeal has been filed against the judgement dated 12.06.2017 (decree dated 24.06.2017) passed by learned District Judge-V, Chatra in Title Suit No.15 of 2012 whereby the appeal has been dismissed. The appeal was filed by the plaintiffs against the judgement dated 30.03.2012 (decree dated 12.04.2012) passed in Title Suit No.15 of 2005 by learned Munsif, Chatra whereby the Title Suit No.15 of 2005 has been dismissed.
23. This appeal has been admitted vide order dated 22.10.2019 framing two substantial questions of law and one additional substantial question of law as framed vide order dated 20.03.2025 . This this appeal has been finally heard on following three substantial questions of law:-
i. Whether the judgment of learned court below is vitiated for not at all considering the Exhibit - 10 i.e. the order passed in Compensation Case No.14/53-54 where the name of ancestors of the appellants/plaintiffs finds mentioned?
ii. Whether the judgment of the appellate court below will survive in view of the judgment in AIR 1968 (Pat.) 302 (Full Bench) or not.?
iii. Whether the suit was barred by the provisions of Sections 31 and 34 of the Specific Relief Act?
4. However, during the course of arguments, the learned counsel for the appellants has submitted that Section 31 of the Specific Relief Act has nothing to do with the present case.
5. The suit was filed seeking a declaration of the plaintiffs' right, title and interest over the suit land shown in "Schedule A" after adjudication. A further relief was prayed that the plaintiffs' possession over the suit land be found and confirmed and if the plaintiffs be found dispossessed, during the pendency of the suit, then the possession be restored through the process of court. Arguments of the appellants/plaintiffs
6. The learned counsel for the appellants, while giving the foundational background of the case, has submitted that the suit land was "gair majurwa khas" land of ex-landlord namely Mahant Brahm Prakash Dash, and by virtue of settlement through Sada hukumnama of the year 1946, he settled the land in favour of Badamia Devi @ Badamia Pasin followed by delivery of possession coupled with the zamindari rent receipts (Exhibit - 2) with respect of Khata No.21, Plot No.106, area 5.44 acres and land of Khata No.18, area 1.46 acres total area 6.90 acres. He has submitted that Exhibit - 2/a would correspond 3 to the date 13.04.1951 and Exhibit - 2 would correspond to the date 02.03.1954 both of which were zamindari rent receipts and the first rent receipt issued in favour of the plaintiffs by the State was Exhibit 1/o which is dated 03.08.1956.
7. The learned counsel has further submitted that the ex-landlord filed return under the provisions of Bihar Land Reforms Act, 1950 showing that the settlee namely Badamia Devi @ Badamia Pasin in possession and the State authorities placing reliance upon the said return assessed the compensation payable to the zamindar vide Compensation Case No.14 of 1953-1954 and the said document was exhibited as Exhibit - 10. He has further submitted that the settlee Badamia Devi @ Badamia Pasin continued in possession and got her name mutated and the State issued rent receipts in her favour vide Exhibit - 1 series.
8. In a family dispute, a partition suit was filed bearing Partition Suit No.19 of 1987 by one Butta Pasi against the plaintiffs and in the said partition suit it was recorded that the plaintiffs were in possession of the property.
9. In the year 1992, the defendants tried to dispossess the plaintiffs forcefully on the basis of settlement made by the State vide Settlement Case No.27 of 1960-61 in favour of defendant no.3 with respect to 2 acres of land of plot no.106, khata no.21 and other defendants i.e. defendants nos. 4,5, and 6 also claimed settlement vide Settlement Case No.27 of 1986-87 to the extent of 1 acre each by the State authorities. On account of such claim put forth by the defendants nos.3,4,5 & 6, a proceeding under Sections 144/145 Cr.P.C was initiated and ultimately plaintiffs filed the suit seeking the aforesaid relief.
10. The learned counsel has further submitted that the State, who were the defendant nos.1 and 2, filed a written statement admitting that the suit land was "gair majurwa khas" land of ex-landlord. However, the State denied the fact that the settlement was made by ex- landlord in favour of Badamia Devi @ Badamia Pasin and stated that it was not correct to say that her name was mentioned in the return.
4The State also denied issuance of any rent receipt in her favour and also asserted that if any rent receipt is produced, the same would be forged and fabricated. So far as the other defendants are concerned, they were claiming the land by virtue of settlement made by the State as mentioned above.
11. The learned counsel has also submitted that the trial court as well as the first appellate court while recording findings has not at all considered Exhibit 10 i.e. the order passed in Compensation Case No.14 of 1953-1954 where the name of ancestors of the appellants / plaintiffs was mentioned, and they have also not considered the fact that Sada hukumnama, if followed by zamindari rent receipt, can still be a document to show possession pursuant to settlement and thus the judgement passed by the Hon'ble Full Bench of Patna High Court in AIR 1968 Pat 302 (Full Bench) (Mt. Ugni and Anr. Vs. Chowa Mahto and Ors.) has been ignored and consequently, the first and second substantial question of laws are based on that.
12. With respect to first substantial question of law, the learned counsel has submitted that the plaintiffs are claiming suit land on the basis of settlement by way of hukumnama, coupled with delivery of possession and issuance of rent receipt by the ex-landlord. After vesting, the return filed by the ex-landlord and on the basis which the compensation was assessed by the State authorities (Exhibit 10) under the provisions of Bihar Land Reforms Act, 1950, was duly accepted. In the said return, the name of Badamia Devi @ Badamia Pasin was clearly mentioned with respect to the land which was settled by the ex-landlord (Exhibit 10) and the same was followed by mutation and issuance of rent receipts by the State authorities.
13. In the judgment of the learned trial court, Exhibit 10 has been mentioned but the same has not been considered and the suit has been dismissed . The learned trial court, having not dealt with Exhibit 10, has not given any finding regarding Exhibit 10. Even the first appellate court, after formulating the point of determination, has not even mentioned about Exhibit 10 i.e. compensation case under the provisions of Bihar Land Reforms Act,1950 and has straightaway 5 concluded that Exhibit 10 is not a reliable document and has dismissed the suit.
14. The learned counsel has also referred to the evidence of P.W. 7, which has been relied upon by the respondents to show that there is cutting and overwriting in Exhibit 10, has submitted that the learned first appellate court has specifically recorded that P.W. 7 had no correct knowledge of the relevant fact and he is not a reliable witness. The learned counsel has also submitted that from perusal of Exhibit 10, it can be seen that there is no cutting or overwriting so far it relates to the suit property involved in this case.
15. The learned counsel has submitted that it is apparent that both the courts have failed to take into consideration Exhibit 10 which is a document under Bihar Land Reforms Act,1950 and has further relied upon the judgement passed by Hon'ble Supreme Court reported in (2007) 14 SCC 138 (Abdul Raheem Vs. Karnataka Electricity Board and Ors.) paragraph 12 and 14.
16. With respect to the second substantial question of law, the learned counsel for the appellants has submitted that the claim of the plaintiffs is based upon hukumnama coupled with delivery of possession and issuance of rent receipt by ex-landlord and after vesting, the return was filed by the ex-landlord on the basis of which compensation was assessed by the State authorities under the provisions of Bihar Land Reforms Act, 1950. He has referred to the judgment reported in AIR 1968 Pat 302 (Full Bench) (Mt. Ugni and Anr. Vs. Chowa Mahto and Ors.), paragraph 10, which is the judgment referred to in the substantial question of law itself, and has submitted that it has been held that valid raiyati interest can be claimed by hukumnama coupled with delivery of possession and issuance of rent receipt by the ex-landlord and the learned counsel has further relied upon the judgement reported in (2005) 3 JCR 211 (Kalara Kharian and Ors. Vs. Bhairo Nagasia and Ors.) paragraphs 5 and 8.
17. The learned counsel has submitted that, in the case at hand, the return filed by the ex-landlord, wherein the name of the settlee has 6 been clearly mentioned, and the State authorities placing reliance on the said return having assessed the compensation in favour of ex- landlord Exhibit 10 vide Compensation Case No.14 of 1953-1954, followed by mutation and issuance of rent receipt by the State since 1956 (Exhibit 1/o) till 2002-2003 (Exhibit 1) shows possession of the plaintiffs over the suit land at least till the year 2002 and thus it can be easily seen that the plaintiffs were in possession over the suit land since 1946 i.e. the date of settlement. He has submitted that the filing of return by ex-landlord and assessment of compensation by State authorities is done under the provisions of Sections 5, 6, 7 and 8 of Bihar Land Reforms Act,1950 and the orders passed under Sections 5, 6 & 7 of Bihar Land Reforms Act are appealable order but neither the State nor anybody else filed any appeal under Section 8 challenging Exhibit 10, and therefore Exhibit 10 has attained finality.
18. The learned counsel has submitted that both the courts have dismissed the suit on the ground that humkumnama (Exhibit 11) is not a genuine document only for a reason that Sambat is mentioned in the said hukumnama and for this sole reason, the courts have held that the document is not genuine.
19. He submits that had both the courts have not taken into consideration Exhibit 10 i.e. compensation case which was initiated on the basis of return submitted by ex-landlord bearing Compensation Case No.14 of 1953-54, which fortifies the case of the plaintiffs with respect to the grant of humuknama (Exhibit 11) coupled by delivery of possession and issuance of zamindari rent receipt which created valid raiyati interest in favour of the plaintiffs over the suit property. The hukumnama was for two khatas i.e. khata nos.18 and 21 and these two khatas find place in Exhibit 10. The learned counsel has relied upon the judgment passed by Hon'ble Patna High Court reported in AIR 1986 Pat 302 (supra) paragraph 10 and (2005) 3 JCR 211 (supra) paragraph 5 and 8.
20. With respect to the third substantial question of law, the learned counsel has submitted that the plaintiffs were in possession of the suit land from the date of settlement i.e. 1946 onwards and 7 possession of plaintiffs was more than 50 years. The State government i.e. defendant nos.1 and 2 was having no right, authority or jurisdiction to settle the land to defendant nos.3 to 7 and therefore the settlement made in favour of the defendant nos.3 to 7 by defendant nos.1 and 2 was void and without any authority or jurisdiction over the land in question. It is submitted that it is well settled that even a decree or registered document which is otherwise void ab initio need not be set aside. Such decree does not strip the right of a party, who is the real owner and was not a signatory to the document in question. Merely because the defendant nos.1 and 2 had settled the land in favour of defendant nos.3 to 7, no right will devolve upon defendant nos.3 to 7, if the vendor i.e. the State had no title to convey even if it was a registered document. He submits that the settlement was not through a registered document. He submits that such settlement by the State, who had no right, title, interest and possession over the property, is to be ignored as a worthless paper transaction only and the settlement in favour of defendant nos.3 to 7 by defendant nos.1 and 2 is void at the threshold and no step was required to be taken at all to seek setting aside of such settlements. He has relied upon the judgment passed by Orrisa High Court reported in (2005) SCC online Orisa 45 (Pragnya Rout Vs. Hemaprava Ray and Ors.) and submitted that it has been held that if the deed is void at the threshold, no steps need be taken to set it aside as the vendor may not have any title to convey. He has also relied upon the judgment passed by Hon'ble Delhi High Court in the judgment of Surinder Kaur Vs. Ram Narula & Ors. decided on 04.01.2016 in RFA (OS) No.7 of 2014 to submit that if a person does not have authority to execute a deed or having such authority under certain circumstances which did not exist, executes a deed, it is not necessary to challenge the same. It can be treated as a non-existent document.
21. The learned counsel has submitted that the law as to whether any document is required to be challenged or not, has been ultimately settled by the Hon'ble Supreme Court in Prem Singh and others versus Birbal and others reported in (2006) 5 SCC 353 and has 8 referred to Paragraph 16 of the said judgment to submit that it has been observed that when a document is void ab initio, a decree for setting aside the same would not be necessary as the same is non est in the eyes of law as it would be a nullity. He submits that in view of the aforesaid pronouncement of the judgment by the Hon'ble Supreme Court in the case of Prem Singh (supra), there was no need to challenge the settlements made in favour of the defendant nos.3 to 7 by defendant nos.1 and 2.
22. The learned counsel has referred to paragraph 15 of the plaint and has submitted that a specific plea was taken that the settlement made by the State government in favour of the private respondents is not only illegal, without jurisdiction but also not binding upon the plaintiffs. The learned counsel has submitted that the aforesaid pleading i.e. paragraph 15 of the plaint reveal that it was the specific case of the plaintiff that the settlement was void. From perusal of Section 34 of Specific Relief Act, it is apparent that the proviso only states that where the plaintiffs being able to seek further relief than mere declaration of title, omits to do so, then in such situation the court is prohibited from making any such declaration.
23. He submits that in the present case, the plaintiffs filed a case seeking declaration of right, title and interest and the plaintiffs also played for prayed for recovery of possession, and therefore, it cannot be said that the suit was barred by Section 34 of the Specific Relief Act. He submits that the relief was seeking confirmation /recovery of possession if the plaintiffs are not found in possession of the suit property.
24. He has relied upon the judgment passed by the Hon'ble Supreme Court reported in (1973) 2 SCC 60 (Ram Saran and Anr. Vs. Smt. Ganga Devi) and has submitted that although the same case relates to the previous Specific Relief Act as it stood prior to 1963, but in the said case, only a declaration was sought, and therefore, the Hon'ble Supreme Court was of the view that the suit was not maintainable since there was no relief seeking recovery of possession. Arguments of the State 9
25. The learned counsel appearing on behalf of the State has vehemently opposed the prayer and has submitted that there are concurrent findings recorded by both the courts that the hukumnama is not the genuine document. He has also submitted that the sheet anchor of title of the plaintiffs is based on hukumnama. Once the hukumnama is found to be not genuine, then under such circumstances, filing of return by the zamindar cannot confer any title upon the plaintiffs. He has further submitted that the return of the zamindar was also disbelieved by both the courts on account of cuttings. So far as issuance of zamindari rent receipt is concerned, one of the zamindari rent receipts was of the year 1951, other was of the year 1954, the rent compensation case was filed in the year assessment 1953-1954 meaning thereby that the notification under Section 4 of Bihar Land Reforms Act, 1950 must have been issued prior to 1953. Therefore, there is no question of issuance of any subsequent zamindari rent receipt in the year 1954. The learned counsel has also submitted that if the hukumnama is not genuine then under such circumstances, any number of issuance of rent receipt by the zamindar has got no legal sanctity in the eyes of law and issuance of rent receipt by itself do not confer any right, title, interest and possession with respect to the property. The learned counsel has also submitted that entries in record of right itself do not decide the title of the parties and the title was directly in dispute before the court. The hukumnama having been found to be an illegal document therefore no reliance could have been placed on the zamindari rent receipts.
26. The learned counsel has also submitted that the plaintiffs have not produced any document showing assessment of rent in favour of the plaintiffs. Rather plaintiffs had only produced rent receipt. In absence of any order assessing rent in favour of the plaintiffs, mere possession of rent receipts was not sufficient and such rent receipts will not confer any title upon the plaintiffs. He has also submitted that so far as the assessment of compensation in favour of the zamindar is concerned, the assessment order by itself does not reveal that rent of the plaintiffs was ultimately fixed. If the rent of the plaintiffs was 10 fixed, it ought to have been done by virtue of some order passed by the competent authority. He has submitted that the plaintiffs have failed to bring on record the basic documents to claim title over the property and hukumnama has been found to be not genuine document. He has also submitted that the weakness of the case of the plaintiffs is substantiated by none less than the witness produced by the plaintiffs themselves .
27. The learned counsel has also referred to paragraph 5, of examination in chief of P.W-7 and para 28 and 29 of his cross- examination to submit that the plaintiffs themselves have failed to prove Exhibit 10 as it did not even contain the signature of the landlord nor did it contain any date. The learned counsel has also referred to the evidence of PW1 and has submitted that in the year 2006, he has stated that he was 70 years of age and corresponding sambat 1946 would date back to 1889 and during that time, he was not even born, although he has deposed that the settlement was signed by the ex-landlord in his presence.
28. The learned counsel has submitted that both the learned courts have given concurrent findings regarding title against the plaintiffs after scrutinizing the materials on record. Neither the hukumnama was found to be genuine nor the return filed by the zamindar was proved and therefore no reliance can be placed on Exhibit 10.
29. The learned counsel has relied upon the judgments reported in (2014) 2 SCC 269 (Union of India and Ors. Vs. Vasavi Cooperative Housing Society Ltd. And Ors.) paragraphs 15 to 18 to submit that the plaintiffs have to make out a clear case to establish their claim and weakness of the defendants will not be a ground to decree the suit. On the same point, he has relied upon the judgment passed by the Hon'ble Supreme Court reported in (1964) SCC Online SC 313 corresponding to AIR 1965 SC 1506 para 8. The learned counsel has also relied upon the judgment reported in AIR 1955 SC 328 para 13 to submit that unregistered hukumnmana is an inadmissible piece of evidence and has also relied upon the judgment reported in 2022 (4) JBCJ 291 11 (High Court) paras 21. The learned counsel has referred to the written notes of argument submitted in this case.
Arguments of the defendants nos.3 to7
30. The learned counsel appearing on behalf of the defendants nos.3 to7 has adopted the arguments advanced on behalf of the respondent-State and submitted that the following facts are required to be looked into by this Court.
"i. The suit is barred under section 34 of the Specific Relief Act since the plaintiffs have not sought relief against settlement of suit land by the Govt. in favour of the Defendant no. 3 to 7.
ii) That since the settlement has been done in favour of Bhuneshwar Lal Agarwal in the year 1960-61 who sold the land to Chhunu Devi in the year 1978 and the original defendant no. 3 purchased the land from Chhunu Devi through registered sale deed по. 135 dated 7.1.1991 and got her name mutated in the revenue record and the settlement in favour of defendant no. 5 to 7 was made in the year 1986-87 and their name were also mutated in revenue record and there is a concurrent finding that original defendant no.3 to 7 are in possession of the suit land and therefore in absence of seeking any relief to set aside the settlement the suit is barred by the provision of section 31 of the Specific Relief Act (AIR 2010 SC 211).
iii) The Learned trial court given finding on the issue of barred under Specific Relief Act against the plaintiffs against which the plaintiffs not taken any plea ground before the first appellate court and therefore the finding on Issue no. V is final and conclusive against the plaintiffs.
Iv. There is concurrent finding of fact that the Hukumnama Ext. 11 and the return Ext. 10 and the zamindari rent receipts having not been supported with the date and jamabandi number are not genuine document and therefore no decree of right, title and interest as well as the confirmation / recovery of possession can be granted to the plaintiffs.
v) The Hukumnama is of Sambat year 1946-57 when Anand Prakash Das was Mahant and Mahant Brahm Prakash Das was the zamindar and the zamindari rent receipts are of Sambat 2007(Ext.-2) and 2009 and 2010 (Ext.-2/a) which clarifies that the Hukumnama is not followed by rent receipt issued immediately after issuance of Hukumnama and therefore the plaintiff had no possession over the suit land and hence confer no title and possession over the suit land in terms of the judgment reported in AIR 1968 Pat 302 (Full Bench).
vi. That the P.W.1 Balkishun Ram has also deposed that the Hukumnama is of the Sambat 1946 and was prepared in his presence when he was about 25 years old. This deposition of the P.W.1 has rightly been not accepted by the learned trial court as well as first appellate court considering his age as 70 years at the time of deposition that is 20.01.2006 and even if it is presume that in the Hukumnama English calendar year 1946 is written then his age was only ten years in the year 1946 which makes his evidence false. Further the P.W.1 deposed that he 12 has made state as a party in the suit for setting aside the illegal settlement made by the state, however no relief has been sought by the plaintiff for setting aside the settlement made in the year 1960-61 and 1986-87 and therefore the suit is clearly barred by section 34 of the Specific Relief Act.
vii) That so far as the Ext. 10 is concern, P.W.7 Mahant Gopal Das said to be successor of Ex-Landlord Brahm Prakash Das has admitted in para 28 of his deposition that there are cutting and over writings without initial signature on that return and on perusal of the trial court record it would transpire that Ext. 10 has been replaced by another documents and hence rightly not relied upon by the trial court as well as first appellate court.
viii) That the settlement has been taken place in the year 1960-61 and 1986-87, the plaintiffs cannot claim relief without seeking relief to set aside such instrument that too within three years from the date of knowledge. Admittedly the plaintiff came to know about those instrument in the year 1993 but not taken any step for setting aside those instrument within three years and therefore the suit is not maintainable on this score also.
ix) That although the defendant no. 3 to 7 has been made party in the suit but no relief has been sought by the plaintiffs against the defendant no. 3 to 7 and hence the suit is bad for mis-joinder of party.
x) That on perusal of the documentary as well as oral evidence adduced by the original defendant no. 3 to 7 the learned trial court came to the conclusion that 2 acres land settle by the S.D.O. to Bhuneshwar Lal vide Case No. 27/1960-61 and again settlement made in favour of the defendant no. 5 to 7 by Case No. 27/1986-87 but no any objection was filed by the plaintiffs which clarifies that the plaintiffs where never in possession over suit land.
6. That there is a concurrent finding of fact that the Hukumnama produced by the plaintiffs are not genuine and they have also not been able to prove their actual possession over the suit land rather the plaintiffs witness have admitted the house and habitats of defendant no. 3 to 7 on the suit land and the state defendant no. 1 and 2 have supported the fact of settlement of land by grant of Parcha to Bhuneshwar Lal Agarwal and defendant no. 5, 6 and 7 and therefore the learned trial court as well as the learned first appellate court have rightly held that the plaintiffs have not got any right, title and interest over the suit land and hence the suit as well as civil appeal has rightly been dismissed and there is no substantial question of law arises in the present second appeal. The only substantial question arises is that the suit is barred under the provisions of Specific Relief act."
31. He has relied upon the judgment passed by Hon'ble Supreme Court reported in (2009) 6 SCC 160 (Abdul Rahim and Ors. Vs. Sk. Abdul Zabar and Ors.) para 29 to submit that the plaintiffs were seeking to establish his title and the same could not be established without challenging the settlement in favour of the private defendants, 13 and therefore, it was necessary for the plaintiffs to challenge the settlement but they have purposely not done so as the suit would have been barred by limitation. The learned counsel submits that in such circumstances, Article 59 of the Limitation Act would have been attracted and the suit would have failed. He has referred to Section 31 of the Specific Relief Act and has submitted that the suit was barred by the provisions of Specific Relief Act.
32. The learned counsel has also submitted that the unless the declaration is sought with regard to the settlement being void, the plaintiffs could not have assumed that the settlement was void and therefore, in absence of any such declaration, the suit could not have been decreed in favour of the plaintiffs. The learned counsel has also submitted that admittedly, the private defendants are in possession of the property.
33. Post this case for judgement on 20.06.2025.
(Anubha Rawat Choudhary, J.) Saurav/ 14