Jharkhand High Court
Puran Saw vs Narayan Mahato on 28 August, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No.114 of 2021
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(Against the judgment dated 04.10.2021 passed by learned Additional District Judge-V, Bokaro in Civil Appeal No.23 of 2018)
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1. Puran Saw, aged about 65 Years, son of Late Ghanu Saw.
2. Bandhu Saw, aged about 75 Years, Son of Late Banwari Sao.
3. Chaman Sao, aged about 55 Years, Son of Late Kanshi Saw.
All are resident of Singhpur, P.O. & P.S.- Kasmar, District- Bokaro.
.... .... .... Plaintiffs/Appellants/Appellants.
Versus
1. Narayan Mahato.
2. Surendra Nath Mahato
3. Niranjan Mahto.
4. Rajendra Mahto
5. Sidheshwar Mahto.
Sl. Nos.(1) to (5) all sons of Late Ghanenah Mahto, resident of Village- Singhpur, P.O. & P.S.- Kasmar, District- Bokaro.
6. Geeta Devi, D/o Late Ghanenath Mahto, W/o Ram Kumar Mahato, resident of Chandrapura, P.O. & P.S.- Petarbar, District- Bokaro.
7. Anil Mahto
8. Sunil Mahato
9. Nitai Mahto Sl. Nos.(7) to (9) all sons of Late Janki Mahto.
10. Nageshwar Mahto, S/o Late Uday Mahto
11. Sarveshwar mahto, S/o Laljee Mahto
12. Saligram Mahto, S/o Late Praphul Mahto
13. Bar Babu Mahto, S/o Late Praphul Mahto
14. Govind Mahto 1 S.A. No.114 of 2021
15. Bishwanath Mahto
16. Kailash Mahto Sl. Nos.(14) to (16) all sons of Late Babu Mahto.
Sl. Nos. (7) to (16) all resident of Village- Bhawanipur, P.O. & P.S.- Kasmar, District- Bokaro.
17. Bhuneshwar Mahto
18. Bindeshwar Mahto
19. Shaktidhar Mahto
20. Dinesh Mahto Sl. Nos.(17) to (20) all sons of Late Laljee Mahto.
21. Umesh Mahto, son of Late Uday Mahto.
22. Nandlal Mahto, son of Late Uday Mahto.
23. Srikant Mahto, son of Late Babanlal Mahto.
Sl. Nos. (17) to (23) all resident of Village- Bhawanipur, P.O. + P.S.- Kasmar, District- Bokaro.
.... .... .... Defendants/Respondents/Respondents
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For the Appellants : Mr. Atanu Banerjee, Advocate
Mr. Satish Kumar, Advocate
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PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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By the Court:- Heard the learned counsel for the appellants.
2. This Second Appeal filed under section 100 of the Code of Civil Procedure, 1908 has been preferred against the judgment of concurrence dated 04.10.2021 passed by learned Additional District Judge-V, Bokaro in Civil Appeal No.23 of 2018 whereby and where under the learned first appellate court has dismissed the appeal.
2 S.A. No.114 of 2021
3. The brief facts of the case is that the plaintiff filed Partition Suit No.61 of 2006 in the court of Civil Judge (Junior Division), Bermo at Tenughat with a prayer for preliminary decree to the extent of 10.16 acres of land in favour of the plaintiff be passed by appointing a Survey Knowing Pleader Commissioner; being the share of the plaintiff carved out of the suit land and for preparation of final decree. The case of the plaintiff in brief is that the suit land was recorded during the last cadastral operation in village Choli in the name of Girdhari Teli. Girdhari Teli had also some lands in village Ashlabera under Khata No.9. The co-sharers of Girdhari Teli left their share in favour of Girdhari Teli and shifted to other village. The minor son of Girdhari Teli namely Nandana Teli could not take care of the lands and could not pay the rent to the landlord, so the landlord filed the suit for the same in which ultimately 4.21 acres of land of Khata No.9, 10 and 11 were sold in auction which were purchased by Pradhan Jagarnath Singh Deo. The certificate holders continued in possession of the land without partition by metes and bounds. The plaintiff is the descendant of Girdhari Teli and they remained in possession over the entire plot of the suit land of Khata No.9 and 10. The auction purchaser landlord might have transferred the land purchased in auction by him to the ancestors of the defendants, hence, the defendants were cultivating the lands of plot Nos.102, 103, 105 and 106 without partition by metes and bounds. When the new survey came in operation, the defendants became hostile and demanded partition beyond their share. After vesting of Jamindari, rent could not be paid by the plaintiff or his ancestors but the defendants also did not pay the rent. As the defendants disturbed the 3 S.A. No.114 of 2021 cultivation work of the plaintiff over the suit land, hence, the plaintiff filed the suit.
4. The defendant Nos.1 to 11 in their joint written-statement challenged the maintainability of the suit on various technical grounds and they denied the all the averments made by the plaintiff in the plaint. They pleaded that in the execution case consequent upon the failure of the ancestor of the plaintiff to pay the rent, the entire suit land of Khata Nos.9, 10 and 11 being of area 2.57 acres, 10.28 acres and 0.36 acres of land respectively, were put in auction sale which were purchased by the ex-landlord and for which a registered sale certificate was granted and issued in favour of the ex-landlord vide deed No.155 (c) of 1992 and accordingly the delivery of possession thereof for the entire lands of Khata Nos.9, 10 and 11 of village Choli was also effected in favour of the ex-landlord; who thereafter came and continued in possession over the entire lands. The defendants further pleaded that Nandana Teli in the month of July, 1920 voluntarily abandoned the said entire lands of Khata No.9 of village Astabera and therefore the ex-landlord of the village in the last week of the month of May, 1921 having entered on the entire lands of Khata No.9 of village Astabera came in possession over the same and started cultivating there and as such it became the Bakast lands of the ex-landlord. The ex-landlord in exercise of his right, title, interest and possession orally settled the said entire abandoned lands of Khata No.9 of village Astabera along with the said entire auction purchased lands of Khta Nos.9, 10 and 11 as an area of 9.81 acres of Khata No.10 of village Choli to one Lerha Mahto, Charku Mahto and Khetu Mahto son of Mohar Mahto and put them in possession over the same and subsequently in confirmation of the said oral settlement of the lands in the said 4 S.A. No.114 of 2021 ex-landlord Pradhan Babu Jagarnath Singh Deo on getting payment of valuable Salami granted a Hukumnama on 16.05.1923 in the name of the settles, who continued their possession over the same and have in possession thereof.
5. The defendants next pleaded that under the provisions of Bihar Land Reforms Act, 1950 when the proprietorship of the said ex-landlord vested with the State of Bihar, then the State of Bihar also acknowledged the tenancy of the said settlees in regard to the settled lands and opened Jamabandi in their names and continued to realize rent from them. After the death of the said settlees, their successive descendants including the defendants have been coming in peaceful continuous possession over the said entire settled lands of Khata No.9, 10 and 11 of village Choli. Thus, the plaintiffs have valid right, title, interest and possession over the suit land.
6. On the basis of the rival pleadings of the parties, the learned trial court framed the following seven issues:-
(1) Whether the suit is maintainable in its present form? (2) Whether the suit has valid cause of action? (3) Whether the suit is barred by Law of Limitation? (4) Whether the suit is barred by the provisions of Specific Relief Act? (5) Whether the suit is barred by non-joinder and mis-joinder of the parties? (6) Whether the plaintiff is entitled to get preliminary decree of 10.16 acres of land?
(7) Whether the plaintiff is entitled to get any relief or reliefs as prayed?
7. In support of their case, the plaintiff altogether examined five witnesses besides proving the documents which have been marked as Ext.1 to Ext. 2/c. From the side of the defendants, nine witnesses have been examined and they also proved the documents which have been marked as Ext. A to Ext. E. 5 S.A. No.114 of 2021
8. The learned trial court first took up issue Nos.(1), (2) and (6) together and after considering the materials available in the record and the settled principle of law that for partition of a suit property, unity of title and possession is the foremost requirement, came to the conclusion that the plaintiff has failed to prove his unity of title and unity of possession over the suit land, thus, the suit as framed, is not maintainable in its present form and decided the issue Nos.(1), (2) and (6) in the negative and against the plaintiff.
9. The learned trial court next took up the issue Nos.(3), (4), (5) and (7) together and in view of the insufficient evidence having been adduced by the plaintiff to establish the same, answered the said issues in the negative and against the plaintiff.
10. Being aggrieved by the judgment and decree passed by the learned trial court being the Civil Judge (Junior Division), Bermo at Tenughat dated 20.04.2018, the plaintiff filed Civil Appeal No.23 of 2018 in the court Principal District Judge, Bokaro which was ultimately heard and disposed of by the learned first appellate court being the learned District Judge-V, Bokaro by the impugned judgment as already indicated above.
11. The learned first appellate court on the basis of the materials and submissions made before it, settled the following three points for determination:-
(i). Whether the Partition Suit as framed was maintainable?
(ii). Whether there was any unity of title and possession in respect of the Suit Land between the Parties?
(iii). Whether the plaintiffs proved their case before the Ld. Lower Court?6 S.A. No.114 of 2021
12. The learned first appellate court made independent appreciation of the evidence in the record and considered all the three points for determination together. The learned first appellate court also relied upon the settled principle of law that there must be unity of title and possession between the parties in respect of the suit property for maintaining the suit for partition. The learned first appellate court considered that the plaintiff is claiming the title over the suit land by virtue of inheritance being the legal heir of Nandana Teli but the plaintiff has concealed the genealogy of their ancestor; whereas it is the specific case of the defendants that the defendants are having title over the suit property through a sale certificate issued in auction vide Certificate Case No.23 of 1920-21. The learned first appellate court upon analyzing the evidence and pleadings concluded that there is complete separation of title and possession of the suit land between the defendants. Both the parties are claiming their title through different routes. The defendants are not claiming their possession as a co-sharer of the suit land. The learned first appellate court considered the deposition of the P.W.3 in para-5 of his examination-in-chief wherein he had deposed that the defendants are not having possession of the suit land. The P.W.5 who is one of the plaintiffs and who deposed on behalf of all the plaintiffs in para-24 of his examination-in-chief completely and categorically denied the facts that the defendants are having valid right, title and possession over the suit land and the same was also corroborated by the P.W.5 in para-28 of his deposition. So, the learned first appellate court concluded that the plaintiffs themselves are denying the unity of title and possession between the plaintiffs and the defendants, hence, the suit for partition is not maintainable 7 S.A. No.114 of 2021 and decided all the three points for determination in favour of the defendants and against the plaintiff/appellant and dismissed the suit.
13. Learned counsel for the appellants submits that both the courts below have committed error by holding that there is no preponderance of probability in favour of the plaintiffs. It is next submitted that even in the suit the prayer was made for preliminary decree of partition of the property; a declaration of title could have been given to the plaintiff. It is next submitted that in the absence of any issue regarding unity of title and possession no finding could have been given by the learned trial court. It is further submitted that the defendants have failed to establish their title over the suit land and the courts below have erred by not permitting the plaintiff to challenge the title of the defendants. It is next submitted that since in the sale certificate marked Ext. 1, the area of land put in auction sale has been mentioned as 1.28 acres and not 10.28 acres of Khata No.10 and such finding of fact of the courts below is perverse. Hence, it is submitted that the judgment and decree passed by the both the courts below be set aside and the suit of the plaintiff be decreed preliminarily after formulating appropriate substantial question of law.
14. Having heard the submission of the learned counsel for the appellants and after carefully going through the materials available in the record, it is pertinent to mention here that that it is a settled principle of law that a court cannot grant a relief which is not claimed and which does not flow from the facts and the cause of action alleged in the plaint as has been held by the Hon'ble Supreme Court of India in the case of Bachhaj Nahar vs. Nilima Mandal & Another reported in (2008) 17 SCC 491 para-10 of which reads as under:-
8 S.A. No.114 of 2021
"10. The High Court, in this case, in its obvious zeal to cut delay and hardship that may ensue by relegating the plaintiffs to one more round of litigation, has rendered a judgment which violates several fundamental rules of civil procedure. The rules breached are:
(i) No amount of evidence can be looked into, upon a plea which was never put forward in the pleadings. A question which did arise from the pleadings and which was not the subject-matter of an issue, cannot be decided by the court.
(ii) A court cannot make out a case not pleaded. The court should confine its decision to the question raised in pleadings. Nor can it grant a relief which is not claimed and which does not flow from the facts and the cause of action alleged in the plaint.
(iii) A factual issue cannot be raised or considered for the first time in a second appeal." (Emphasis supplied)
15. Now, coming to the facts of the case, the plaintiff filed the suit for partition. It is needless to mention that it is a settled principle of law that a preliminary decree in a suit for partition can only be granted if there is unity of title and jointness of possession of the parties in respect of the suit property. It is the admitted case of the plaintiff as has come through his own witness including the plaintiff himself that the defendants have no title or possession over the suit land. So, the plaintiffs themselves deny the jointness of property or unity of title and jointness of possession. Under such circumstances, in the absence of any prayer of declaration of title of the plaintiff, in the considered opinion of this Court, both the courts below have not committed any error by not treading in the forbidden path to enquire about the title of the plaintiff when the plaintiff never claimed the same.
16. It is a settled principle of law that the plaintiff has to stand on its own legs and it cannot take any benefit from the weakness of the defendants. Now, the plaintiff has filed the suit for partition. The plaintiff could have only got the relief of preliminary decree of partition, had it established the unity of title and possession, which, as already discussed above, it failed. 9 S.A. No.114 of 2021
17. Under such circumstances, in the considered opinion of this Court whether or not the defendants have title over the suit land, is irrelevant so far as the outcome of the plaintiff's suit for preliminary decree for partition is concerned; as the plaintiff under the facts and circumstances of the case and on the basis of the evidence available in the record, was not entitled to the decree prayed for by them, hence, in the considered opinion of this Court, the courts below have not committed any illegality.
18. So far as the contention of the appellant that no issue regarding the unity of title and possession between the parties having been framed is concerned, true it is that the learned trial court did not frame such issue but the learned first appellate court formulated the point for determinationNo.2 which is to the effect that whether there was unity of title and possession in respect of the suit land between the parties and the learned first appellate court, after considering the evidence in the record, as already indicated above, arrived at the conclusion that the plaintiff has failed to establish unity of title and possession between the plaintiff and defendants in respect of the suit land. So, on this score also no error has been committed by the learned first appellate court.
19. After going through the materials in the record, this Court finds that the concurrent finding of facts arrived at by both the courts below is not by ignoring or excluding any relevant materials or by taking into consideration any inadmissible evidence nor the finding of facts arrived at by both the courts below can be termed as perverse.
20. Under such circumstances, this Court is of the considered view that there is absolutely no substantial question of law involved in this Second Appeal. 10 S.A. No.114 of 2021
21. Accordingly, this Second Appeal, being without any merit, is dismissed but under the circumstances without any costs.
22. Let a copy of this judgment be sent to the courts concerned forthwith.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 28th of August, 2024 AFR/ Animesh 11 S.A. No.114 of 2021