Jharkhand High Court
Bipin Prasad vs Bishambhar Lal on 6 May, 2024
Author: Gautam Kumar Choudhary
Bench: Gautam Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S. A. No. 184 of 2022
1. Bipin Prasad
2. Subhashini Devi
3. Pramita Devi
4. Sunita Devi
5. Amita Devi .... .... Appellants
Versus
1. Bishambhar Lal
2. Bharat Lal
3. Renuka Devi
4. Muktesh Kumar
5. Subhash Kumar
6. Nitesh Kumar
7. Dharmesh Kumar
8. Aradhana Devi
9. Pushpa Devi .... .... Respondents
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CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
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For the Appellants : M/s Satish Kumar & Hemant Kr. Gupta, Advocates For the Respondents : Mr. Atanu Banerjee, Advocate
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Oral Order 07 / Dated : 06.05.2024
1. The instant second appeal has been filed under Section 100 of C.P.C. by the defendants against the judgment of affirmance by which the right, title and interest over the suit property has been declared in their favour Plaintiff/Respondents.
2. The case of the plaintiffs is that the suit land was originally recorded in the name of Udit Patwa who was in possession during his life time. After his death, his heirs succeeded to the property. In 1960 there was partition by metes and bounds with respect to land of Khata No. 9 of Village Hossir, PS Gomia, District Bokaro. In the said partition, a land of Plot No. 4966 of Khata No. 9 measuring 14 ½ decimals was allotted to Rameshwar Patwa who constructed three houses over the same. Said Rameshwar Patwa died leaving behind sons namely Bishambhar Lal, Bharat Lal and Sushil Kumar (plaintiff nos. 1, 2 and 3) who inherited the property.
3. On the request made by the defendants in 1978 to the father of the plaintiffs, a house was provided for residential purpose to the defendants with an assurance to vacate the same as and when required and in this way, he was inducted in the 1 said premises fully detailed in Schedule-A of the plaint. The cause of action arose in 2001 when the defendants refused to vacate the house.
4. The case of the defendants is that the recorded tenant Udit Patwa being the ancestor of the plaintiffs in December, 1911 orally sold the land measuring an area of 0.06 acres out of 0.20 acres to Girdhari Patwa, grandfather of the defendants Ashwani Kumar for a valuable consideration of Rs.30/- and was put in Khas possession of the same. After purchase, a mud built house was constructed in 1912 and they have been in continuous possession over the same with their family members consisting one room with mud build and tiles roofs covered veranda towards eastern southern corner of said oral purchase land of area 0.06 acres in plot No. 4966. After death of Nageshwar Patwa, Ashwani Kumar succeeded and inherited the property. It is further pleaded that the defendants had applied for Basgit Parcha for the said oral purchase of land which was granted, but by mistake wrong Plot No. 4610 was mentioned in the Basgit parcha, which was subsequently corrected as Plot No. 4966.
5. On the basis of the pleadings of the parties, following main issue was framed:
Issue No. VII -- Whether the plaintiffs have got valid right, title, interest and possession over the suit land, described at Schedule-A of the plaint?
6. Learned Trial Court answered the issue in favour of plaintiffs by recording a finding that the rent receipt and Basgit Parcha produced on behalf of the defendants relates to Plot No. 5966 whereas the dispute is with regard to Plot No. 4966. On this finding, the suit was decreed and eviction was ordered by the Trial Court
7. Learned First Appellate Court concurred with the finding and affirmed the judgment and degree passed by learned Trial Court.
8. Learned First Appellate Court formulated the following points for determination:
i. Whether the Trial Court has rightly decided Issue No. VII? ii. Whether the Trial Court has rightly decided Issue No. VIII and the plaintiffs are entitled for a decree for eviction against the defendants? iii. Whether the Trial Court has rightly decided Issue No. III as to whether the suit was barred by law of limitation and adverse possession?
9. Learned first appellate Court, answer these issues in favour of the plaintiffs. It 2 was held that defendants had been in permissive possession of the Suit land which was proved by oral and documentary evidence. There was an admission in plea of the defendant that Udit Patwa was the recorded tenant of land from whom it is claimed that it was purchased by the ancestor of defendants. This amounted to admission in pleading by the appellants regarding the title of the appellants.
10. Defendants/appellants appeared to have taken two contradictory pleas. On one hand, it has been claimed in their pleadings that the suit property was orally sold to them by the recorded tenant Udit Patwa, who admittedly, is the ancestors of the plaintiffs. No title can pass by an oral sale in view of Section 17 of the Registration Act read with Section 54 of Transfer of Property Act. Once it is admitted in pleading that the land in question was a Raiyati land, the same cannot be claimed to be settled by the Government under the provisions of Bihar Privileged Persons Homesteads Act, 1947.
11. Considering these aspects and also the discrepancy appearing in the settlement paper (Basgit Purcha), the learned Courts below decreed the suit against the appellant/defendant.
12. In this view of the matter, I do not find any substantial question of law involved for admitting this appeal.
The second appeal, accordingly, stands dismissed. Pending I.A., if any, stands disposed of.
(Gautam Kumar Choudhary, J.) AKT/Satendra Uploaded 3