Jharkhand High Court
Khublal Yadav S/O Late Jadu Yadav vs Ajay Agarwalla S/O Sri Rajendra Prasad ... on 10 February, 2022
Author: Ananda Sen
Bench: Ananda Sen
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No. 219 of 2019
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1. Khublal Yadav S/o late Jadu Yadav
2. Manoj Yadav S/o Sri Khublal Yadav
3. Dinesh Yadav S/o Sri Khublal Yadav All residents Near Mahabir Mandir, in front of Jharia Firebricks & Pottery Works (P) Ltd., P.O. & P.S. Dhansar, District Dhanbad.
... Appellants
-versus-
Ajay Agarwalla S/o Sri Rajendra Prasad Agarwalla, resident of 3-D, Ashok Nagar, P.O. Dhansar, P.S. Bankmore, District Dhanbad, representing Jharia Firebricks & Pottery (P) Ltd., having its Office at Dhansar, P.O. Dhansar, P.S. Bankmore, District Dhanbad.
... Respondent
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CORAM : HON'BLE MR. JUSTICE ANANDA SEN
THROUGH VIDEO CONFERENCING
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For the Appellants: Mr. Pratyush Kumar, Advocate
For the Respondents: Mr. Amar Kumar Sinha, Advocate Mr. Lukesh Kumar, Advocate
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6/ 10.02.2022 Heard learned counsel for the parties.
2. Appellants have preferred this appeal under Section 100 of the Code of Civil Procedure, against the judgment dated 03.06.2019 and decree following thereupon signed on 15.06.2019 passed by District Judge XIV, Dhanbad in Civil Appeal No.133 of 2017 whereby the said appeal was dismissed, thereby affirming the judgment dated 23.09.2017 and decree dated 03.11.2017, passed by the Addl. Civil Judge (Junior Division) V, Dhanbad in Title Suit No.57 of 2006 by which the suit was decreed in favour of the plaintiff- respondent.
3. Case of plaintiff/respondent is that possession of the suit property was delivered to the plaintiff after they purchased the land from the rightful owner vide registered Sale Deed No.8340 dated 22.08.1955 after payment of valuable consideration to the vendor, whereafter, the plaintiff got their name mutated and paying rent to the State. The suit property was mortgaged and the original deed is kept with the Banker. In January 2002 the defendants approached the plaintiff as they wanted to start a tea shop over the suit property and assured the plaintiff to vacate the same as per desire of the plaintiff. On being promised by defendants that they will supply tea in factory premises and pay rent of tea shop, the plaintiff allowed the defendants to -: 2 :- run a tea shop on the suit property without any rent. On 19.03.2006, defendants started digging foundations over the suit land and declare that they will start construction work. When the defendants became adamant despite objection by the plaintiff, the plaintiff gave written complaint to the police station, on which no FIR was lodged, instead the report was sent to Sub Divisional Magistrate, Dhanbad. On the basis of the said report a proceeding under Section 107 of the Code of Criminal Procedure, being M.P. Case No.480 of 2006 was initiated.
4. On notice, defendants had appeared and filed their written statement. The defendants raised issue over the locus of the plaintiff stating that the plaintiff has not filed any paper to show that he is one of the Directors of M/s Jharia Fire Bricks and Pottery Works (P) Ltd. and he has no locus to file the suit. It is their case that the firm and its directors are necessary party. According to the defendants, the plaintiff has not acquired any title over the suit property rather the defendants have title coupled with continuous possession over the suit property. It is further case of the defendants that the plaintiff has not furnished information regarding the total area of the suit property and as to who was the rightful owner of the said plot. It is further case of the defendants that though the plaintiff claimed that plot No.183 has already been mortgaged with Bank, yet, no date of mortgage has been mentioned. According to the defendants, plot No.183 is under Khata No.1 and not under Khata No.2, as wrongly mentioned in the plaint. It is further case of the defendants that B.P. Agarwalla and sons was actual owner of the suit property, who owned and possessed the suit property. He has sold 2 Katha of land of plot No.183 vide sale deed No.11356 dated 30.11.1990 to Smt. Prabhawati Devi wife of Sri Dharam Nath Lal. According to the defendants, purchased property contains two dwelling houses. Prabhawati Devi was in possession of the suit property. She has sold the suit property in favour of Khublal Yadav through registered sale deed No.1533 on 21.03.2002 and since then Khublal Yadav is in possession of 1.65 acres of the suit property. His name was mutated vide Mutation Case No.1795(III) of 2004-2005. He is paying rent to the State vide mutation order dated 18.03.2005. According to the defendants, the alleged mortgage of land under Khata No.2 has no concern with the property owned by defendants. Defendants pleaded that story of starting tea shop is baseless story. Defendant Nos.2 and 3 have unnecessarily been made party in this case. Defendants further pleaded that -: 3 :- Khublal Yadav is the absolute owner and he is in possession of 1.56 acres of land on plot No.183. According to the defendants, plaintiff has filed the suit for the part area of plot No.183 under Khata No.2, whereas Khublal Yadav owned and possessed land and house in Khata No.1. After purchase of the suit property, Khublal Yadav has his tea shop in the portion of the purchased property and in part he is also residing. It has further been pleaded by the defendants that plaintiff has started a proceeding under Section 107 of the Code of Criminal Procedure. Plaintiff has no cause of action and he should be non suited.
5. On the basis of pleadings of the parties, following issues were framed by the Trial Court: -
1. Is the suit as maintainable in its present form?
2. Is there any cause of action for the present suit?
3. Is the suit bad for mis-joinder and non joinder of the parties?
4. Is the plaintiff entitled for a decree for right, title, interest and confirmation of possession in respect of schedule land?
5. Is the plaintiff entitled for a decree for permanent injunction in favour of him and against the defendant for the schedule land?
6. Is the plaintiff company entitled for the reliefs as claimed in the suit?
7. To what reliefs or reliefs plaintiff company entitled to?
6. The Trial Court decreed the suit on contest in favour of the plaintiff-respondent vide judgment dated 23.09.2017 and decree dated 03.11.2017. Aggrieved by the said judgment and decree, the defendants- appellants preferred an appeal before the First Appellate Court, which was numbered as Civil Appeal No. 133 of 2017. The First Appellate Court, by judgment dated 03.06.2019 and decree following thereupon signed on 15.06.2019 dismissed the said appeal, thereby affirming the judgment dated 23.09.2017 and decree dated 03.11.2017, passed by the Trial Court, by which the suit was decreed in favour of the plaintiff-respondent.
7. Challenging the aforesaid judgment dated 03.06.2019 and decree following thereupon signed on 15.06.2019 passed by District Judge XIV, Dhanbad in Civil Appeal No.133 of 2017 whereby the said appeal was dismissed, thereby affirming the judgment dated 23.09.2017 and decree dated 03.11.2017, passed by the Addl. Civil Judge (Junior Division) V, Dhanbad in -: 4 :- Title Suit No.57 of 2006 by which the suit was decreed in favour of the plaintiff- respondent, the defendants-appellants have preferred this second appeal before this Court.
8. Counsel for the appellants argues that the disputed land belongs to the appellants, which was purchased vide sale deed No.1533 dated 21.03.2002. He submits that the land was in possession of these defendants- appellants and that being so, prayer could not have been allowed. Prayer of confirmation of possession and in the alternative, restoration of possession could not have been allowed. He submits that nowhere it has been pleaded by the plaintiff that plaintiffs were ever dispossessed. It is submitted that the suit was filed by Ajay Agarwalla and it cannot be said that he is authorized to file the suit on behalf of the Company. He submits that the alleged resolution of Board of Directors was exhibited as Exhibit 2, but, the same was not in accordance with the provisions of Evidence Act, thus, the same could not have been exhibited. He submits that both the land, i.e., land purchased by the plaintiff and that of the defendants are different as the plaintiffs claim their land to be Plot No.183 of Khata No.2 whereas defendants claim that their land is Plot No.183 of Khata No.1. He submits that the Court below failed to take into consideration the aforesaid difference and erroneously held that both the lands are same. He submits that since the lands are distinct, the suit could not have been decreed nor the appeal by these appellants could have been dismissed.
9. After hearing the parties, I have gone through the impugned judgments passed by the Trial Court as also by the First Appellate Court. It is the case of the plaintiff that the land in question was purchased by the plaintiff Company in the year 1955 and the entire land in Plot No.183 of Dhansar was sold. Plaintiff-claims that the plot No.183 is of Khata No.2 whereas the defendants admitted that the land is in Plot No.183, but their land was purchased from Khata No.1. This dispute was well considered by the Lower Appellate Court and addressed at paragraph 14 of the judgment, wherein Exhibit 6, i.e., R.T.I. Reply was dealt. The Lower Appellate Court, after considering the documents, have held that a particular plot number cannot be recorded in two different Khatas. Thereafter, the Court, after going through the area of land and other details including boundary, has held that both the parties are claiming the same land. The Courts have held, after going through the sale deed, that sale deed No.6474 dated 23.07.1941 was executed by Charku Mochi in favour of Hari Prasad Agarwal, wherein Plot No.183 is shown -: 5 :- in Khata No.2. The sale was effected pursuant to an order passed in Misc. Revenue Case No. 2 of 1940-41 and only thereafter the land was sold to Hari Prasad Agarwal. The Courts have also concluded that the plaintiffs have proved that the said piece of land was sold by Hari Prasad Agarwal including other plots to plaintiff, i.e., Jharia Fire Bricks and Pottery Works (P) Ltd. The chain of sale from 1941 was complete till it was sold to the plaintiff. The Courts have held that the defendants claimed to be owner of the portion of same land through Prabhawati Devi. The defendants purchased the same land on 21.03.2002. The Courts have held that the defendants have failed to produce any document in relation to the property prior to 1980. Admittedly, the sale deed in favour of the plaintiff was prior to that of the defendants. Thus, both the Courts held that the plaintiff has got right, title, interest over the property in question and they are entitled to the reliefs claimed. The aforesaid question is an absolute question of fact, which has been decided concurrently by both the Courts.
10. So far as the contention of the defendants-appellants that the plaintiff has got no right to file the case and the authorization was not proved as per law, I find that the cause title reads as follows: -
Ajay Agarwalla S/o Sri Rajendra Prasad Agarwalla, resident of 3-D, Ashok Nagar, P.O. Dhansar, P.S. Bankmore, District Dhanbad, representing Jharia Firebricks & Pottery (P) Ltd., having its Office at Dhansar, District Dhanbad.
11. Defendants-appellants claim that Ajay Agarwalla had got no right to file the suit since the property belongs to the company. This Court does not agree with the aforesaid contention as from the aforesaid cause title, it is clear that Ajay Agarwalla has filed the suit as representative of the company, that means it is the company, which has filed the suit. So far as Board Resolution is concerned, both the Courts have held that the resolution is valid and in fact, there is nothing on record to suggest that while resolution was exhibited, the defendants had at all raised any objection. It is also not in dispute that Ajay Agarwalla was not one of the Directors of the company. That being so, this Court is of the view that there is no illegality in filing the suit. Both the Trial Court and Lower Appellate Court have decided the case on facts and the same is concurrent.
12. There being no questions of law involved, this second appeal is, thus, dismissed. I.A. No. 6663 of 2019 also stands dismissed.
(Ananda Sen, J.) Kumar/Cp-02