Jharkhand High Court
Bhim Mahto vs Dularchand Mahto on 8 August, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No.113 of 2020
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1. Bhim Mahto, son of late Dhani Mahto, aged about 62 years, resident of Village & P.O.-Bhelwara, P.S.-Bishnugarh, Dist.-Hazaribagh
2. Kabilashwa Devi, wife of late Kheman Mahto, aged about 55 years, resident of Village-Harlang, P.O. & P.S.-Gomia, Dist.-Bokaro
3. Kadmi Devi, wife of Kanhaiya Mahto, aged about 60 years, Village- Khetku, P.O. & P.S.-Bagodar, Dist.-Giridih
4. Dashiya Devi, wife of late Phulo Mahto, aged about 58 years, resident of Village-Hesla, P.O. & P.S.-Bagodar, Dist.-Giridih
5. Shanti Devi, wife of Dilo Mahto, aged about 54 years, resident of Village-Chano, P.O. & P.S.-Bishnugarh, Dist.-Hazaribagh
6. Parbatiya Devi, wife of late Premchand Mahto, aged about 50 years, resident of Village & P.O.-Bhelwara, P.S.-Bishnugarh, Dist.- Hazaribagh
7. Phaguni Devi, wife of Ghanshyam Mahto, aged about 52 years, resident of Madhuban, P.O.-Madhuban, P.S.-Dumari, Dist.-Giridih
8. Lilawati Kumari, daughter of late Premchand Mahto, aged about 48 years, resident of Village & P.O.-Bhelwara, P.S.-Bishnugarh, Dist.- Hazaribagh .... .... .... Appellants Versus
1. Dularchand Mahto, son of Etwari Mahto
2. Ravi Shankar Mahto, son of Dularchand Mahto
3. Dileshwar Mahto, son of Dularchand Mahto
4. Kailash Mahto, son of Dularchand Mahto
5. Rasho Mahto, son of Dularchand Mahto
9. All resident of Village & P.O.-Bishnugarh, P.S.-Bishnugarh, Dist.- Hazaribagh
6. Mahesh Mahto, son of Premchand Mahto
7. Tahal Mahto, son of Premchand Mahto
10. both resident of Village & P.O.-Bishnugarh, P.S.-Bishnugarh, Dist.-
Hazaribagh
... .... .... Respondent
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For the Appellants : Mr. Yogendra Prasad, 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 appellant.
2. This second appeal has been preferred under Section 100 of Code of Civil Procedure against the judgment and decree of affirmance dated 20.01.2020 passed by the learned District Judge-I, Second Appeal No. 113 of 2020 1 Hazaribagh in Title Appeal No.10 of 2018 whereby and where under, the learned first appellate court has dismissed the appeal on contest.
3. The brief fact of the case is that the plaintiffs filed Title Suit No. 83 of 1991 with a prayer for declaration of title over the suit land, permanent injunction and consequential relief.
4. The case of the plaintiffs in brief is that the original plaintiff was married to Dhani Mahto who was hereditary settled raiyat of village- Bhelwara. The General Manager, Wards & Encumbered Estate, Hazaribagh of Sikari Estate granted a patta in the name of the original plaintiff in respect of gairmajaruwa khas land measuring 2.20 acres. The original plaintiff deposited rent under the said patta from 1934 to 1953. The original plaintiff with huge investment got 0.06 acres of plot no. 858 amalgamated with adjoining plot no. 831 which she purchased along with other lands through sale deed dated 23.01.1968. On 16.01.1961 the son of the original plaintiff noticed the defendants along with others in the eastern portion of the suit land. On being enquired they found that the defendants were trying to acquire the portion of the suit land forcibly. The original plaintiff through her son lodged a complaint on 18.01.1991 in the court of S.D.M., Hazaribagh for initiation of the proceeding upon which the proceeding under Section 144 Cr.P.C. was initiated against the seven persons including the defendants. The S.D.M., Hazaribagh called for a report from the Circle Officer of Bishnugarh Circle and directed to maintain status quo. The S.D.M., Hazaribagh restrained both the parties from going upon the lands Second Appeal No. 113 of 2020 2 but in-spite of such order, the defendants constructed mud and khaprail (Tile Roofed) house over the said land. The proceeding under Section 144 Cr.P.C. was disposed of on 22.06.1991. A petition was filed by the plaintiffs for converting the proceeding under Section 144 Cr.P.C. into 145 Cr.P.C. The plaintiffs then filed the suit under Section 6 of Specific Relief Act, 1963.
5. The case of the defendants on the other hand is that the suit is not maintainable on various technical grounds. The defendants denied the case of the plaintiffs about settlement of the land in favour of the plaintiffs. The defendants pleaded that the land being gairmajaruwa khas land of ex-landlord after vesting of zamindari. The state government became the owner of the land and the defendants have been coming in peaceful possession of the suit measuring 1.90 acres prior to vesting of zamindari by oral permission of ex-landlord through their ancestors and the rest of the plots are under reserved forest and the defendants had two old mud house upon the western portion of the land, under their possession. Besides construction of the house, the defendants have planted bamboo trees in the land under their possession and also planted Mahuwa trees, Kendu trees and Bahera trees. In the year 1989, the defendants along with family members constructed brick house demolishing the earlier old house which was damaged due to heavy rain. It is next pleaded that Circle Officer, Bishnugarh found possession of the defendants over the suit land since long time and recommended to the L.R.D.C. for new settlement in favour of the defendants and L.R.D.C. sent the settlement record to Second Appeal No. 113 of 2020 3 the S.D.M., Hazaribagh, who also approved the proposal of the circle officer and accordingly, the circle officer settled the land in the name of the defendants with map and parcha. The defendants claimed that the ancestors of the defendants were in peaceful possession over the suit land since 1930 and their possession has remained undisturbed and keeping in view the long possession in mind, the State settled the land in their favour. The defendants pleaded that the proceeding under Section 144 Cr.P.C. was dropped because of vagueness of the boundary. After amendment the defendants also filed additional written statement.
6. On the basis of rival pleadings of the parties, the learned trial court settled the following eight issues:-
(I) Is the suit maintainable in the present form? (II) That the plaintiff got cause of action for the suit? (III) Is the suit undervalued and the court fee paid is sufficient?
(IV) Is the suit hit by law of specific relief Act? (V) Is the suit barred by law of limitation, adverse possession, estoppel, acquiescence?
(VI) Is the suit bad for non-joinder of necessary party? (VII) Is the plaintiff entitled to reliefs prayed for? (VIII) Is there any other relief or reliefs to which the plaintiff is entitled to?
7. In support of their case, the plaintiffs examined altogether four witnesses and proved the documents which have been marked Ext. 1 to Ext. 5/a. On the other hand from the side of the defendants, the defendant examined altogether eight witnesses being D.W. 1 to D.W. 8 and proved the documents which has been marked Ext. A to Ext. E.
8. The learned trial court first took up issue nos. IV and VI together and after considering the evidence in the record came to the conclusion that as the plaintiffs have failed to bring into Second Appeal No. 113 of 2020 4 evidence any documents to the effect that the General Manager, Wards & Encumbered Estate was authorized for any settlement nor the plaintiffs could bring any documents to show that any return was filed by the General Manager on behalf of ex-landlord at the time of vesting and held that the plaintiffs have failed to establish their case. The learned trial court also held that the suit is bad for non-joinder of necessary party; the suit is barred by provision of Specific Relief Act, as though the plaintiffs were in possession of the suit land, he merely filed the suit for declaration without any consequential relief and answered the issue no. IV and VI against the plaintiffs. The learned trial court next took up the remaining issues and answered the same against the plaintiffs and dismissed the suit.
9. Being aggrieved by the judgment and decree passed by the learned trial court, the plaintiffs-appellants filed Title Appeal No.10 of 2018 in the court of Principal District Judge, Hazaribagh which was ultimately heard and disposed of by the learned first appellate court by the impugned judgment and decree.
10. The learned first appellate court on the basis of the materials in the record and submissions before it, framed the following points for determination :-
"(i) Is the suit is maintainable in its present form?
(ii) Have the plaintiffs got any cause of action for the suit?
(iii) Whether the plaint of the plaintiff is barred by Specific Relief Act?
(iv) Whether the suit is barred for non-joinder of necessary parties?
(v) Whether the plaintiffs has title upon the land mentioned in schedule B of the plaint?
(vi) Whether the plaintiffs are entitled for any other relief or reliefs as sought for?"Second Appeal No. 113 of 2020 5
11. The learned first appellate court firstly took up point for determination no. (iii) and (v) together and went on to make independent appreciation of the evidence in the record and came to the conclusion that since Dulari Chand Mahto and his son has not been impleaded as party in the suit so the suit is bad for non- joinder of necessary party. The learned first appellate court further held that the learned S.D.M., Hazaribagh and two other officers of the Government who were involved in the settlement of the land to the defendants were also the necessary party. The learned first appellate court also considered that the plaintiffs have failed to prove title over the schedule B property on the basis of Ext.3 which is the sada hukumnama and decided the point for determination in favour of the defendants and against the plaintiffs. The learned first appellate court next took up the point for determination nos.
(i), (ii) and (vi) together and on the basis of the finding of the other points for determination and considering the documents put forth by the defendants being Ext.-B- parcha issued by S.D.O., Hazaribagh also Ext. C series- the rent receipts and Ext.D- the certified copy of the Register-II settlement of Schedule B property with other property to the defendants, found and held that the present suit is not maintainable in its present form and plaintiffs have no valid cause of action to sue the defendants and the plaintiffs are not entitled to any relief as claimed in the suit and any other reliefs and affirmed the judgment and decree passed by the learned trial court and dismissed the appeal.
12. It is submitted by the learned counsel for the appellants by Second Appeal No. 113 of 2020 6 relying upon the judgment of Hon'ble Patna High Court in the case of Mt. Ugni & Anr. vs. Chowa Mahto & Ors. reported in (1968) AIR (Patna) 302 that therein the Full Bench of Hon'ble Patna High Court has held that unregistered hukumnama though inadmissible can be looked into to show the nature and character of possession hence, it is submitted that both the courts below has committed grave illegality by not looking into the hukumnama. It is next submitted by the learned counsel for the appellants that both the courts below have failed to consider the evidence in the record put forth by the plaintiffs in their correct perspective particularly the Ext.2 which is the certified copy of the letter issued in connection with Section 144 Cr.P.C. proceeding by the Circle Officer, Bishnugarh to the S.D.M., Hazaribagh wherein he intimated that there is documents to show that plaintiffs was paying land revenue in respect of the suit land and the defendants does not have any documents in respect of the land which was the subject matter of Section 144 Cr.P.C. proceeding. Hence, it is submitted that the judgment and decree passed by both the courts below be set aside and the suit of the plaintiffs be decreed after formulating appropriate substantial question of law.
13. Having heard the submissions made at the Bar and after carefully going through the materials in the record, it is pertinent to mention here that it is a settled principle of law that the plaintiff has to stand on his own legs. It is also a settled principle of law that in a private suit between two private persons; who so ever is having a better title, has to succeed. The plaintiffs claimed title on Second Appeal No. 113 of 2020 7 the basis of the settlement made by the General Manager, Wards & Encumbered Estate. As rightly observed by the courts below there is no material in the record that General Manager was authorized on behalf of the Estate to make such settlement. There is no Register II entry or any return submitted by ex-landlord showing settlement of the land in question in favour of plaintiffs or their ancestors and pitted against the same is the documents of settlement of land in favour of the defendants which has been marked Ext. B, C and D.
14. Under such circumstances, this Court does not find any illegality in both the courts arriving at the concurrent finding of facts that the plaintiffs have failed to establish their title over the schedule B land of the suit.
15. So far as the improper appreciation of the evidence in the record made by both the courts below is concerned, it is a settled principle of law as has been held by the Hon'ble Supreme Court of India in the case of Municipal Committee, Hoshiarpur vs. Punjab State Electricity Board & Ors. reported in (2010) 13 SCC 216, para 28 of which reads as under :-
"28. If a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eye of the law. If the findings of the Court are based on no evidence or evidence which is thoroughly unreliable or evidence that suffers from the vice of procedural irregularity or the findings are such that no reasonable person would have arrived at those findings, then the findings may be said to be perverse. Further if the findings are either ipse dixit of the Court or based on conjecture and surmises, the judgment suffers from the additional infirmity of non-application of mind and thus, stands Second Appeal No. 113 of 2020 8 vitiated. (Vide Bharatha Matha v. R. Vijaya Renganathan [(2010) 11 SCC 483 : AIR 2010 SC 2685]."
and the same has been reiterated by the Hon'ble Supreme Court of India in the case of Bharatha Matha and Another vs. R.Vijaya Renganathan and Others reported in (2010) 11 SCC 483 and which has also been reiterated by the Hon'ble Supreme Court of India in the case of K.N. Nagarajappa and Others vs. H. Narasimha Reddy reported in 2021 SCC Online SC 694.
That the concurrent finding of facts can be interfered with if they are perverse. Perversity so far as it relates to interfering with the finding of facts by exercise of the jurisdiction under Section 100 and 104 of the Code of Civil Procedure is that if a finding of fact is arrived at by ignoring or excluding the relevant materials or by taking into consideration the irrelevant material or if the finding so outrageously defies the logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eyes of law or if the finding of the court is based on no evidence or evidence, which is thoroughly unreliable or the evidence that suffers from the vice of procedural irregularity or the findings are such that no reasonable person, would have arrived at those findings then the findings may be said to be perverse.
16. Now coming to the facts of the case, this Court finds that both the courts below have not relied upon any inadmissible evidence nor excluded any admissible evidence nor the finding can be said to be outrageously defies the logic, so as to suffer from the vice of irrationality nor the finding are based on no evidence or Second Appeal No. 113 of 2020 9 evidence, which is thoroughly unreliable or the evidence that suffers from the vice of procedural irregularity nor the findings are such that no reasonable person, would have arrived at those findings.
17. Under such circumstances, this Court is of the considered view that there is no substantial question of law involved in this appeal and there is no justification to interfere with the concurrent finding of facts arrived at by both the courts below.
18. Accordingly, this second appeal being without any merit is dismissed but under the circumstances without any costs.
19. Let the copy of the Judgment be sent to the learned court below forthwith.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 8th August, 2024 AFR/ Sonu-Gunjan/-
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