Jharkhand High Court
(B) Ram Lakhan Mehta vs The State Of Jharkhand Through Deputy ... on 22 September, 2022
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
SA No. 180 of 2003
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Second Appeal No. 180 of 2003
(Against the judgment dated 07.03.2003 passed by learned IInd
Additional District Judge, Hazaribag in Title Appeal no. 35 of 1995)
1. (a) Gouri Shankar Mehta
1. (b) Ram Lakhan Mehta,
Both S/o Late Barho Mahto, R/o village & P.O.- Surejpura, P.S.-
Padma, District- Hazaribag
2. Mosmat Binchy @ Mosmat Bihandy Devi, wife of Late Darshan
Mahto @ Durchan Mahto
3. Mahendra Mahto
4. Manoj Kumar
5. Surendra Kumar
Sl. No. 3 to 5 sons of Late Darshan Mahto
6. Anita Kumari @ Amita Kumari, daughter of Late Darshan
Mahto, all residents of village- Daru Kashmar, P.S.- Mandu,
P.O.- Mandu, District- Hazaribag
... Plaintiffs/Respondents/ Appellants
Versus
1. The State of Jharkhand through Deputy Commissioner, Hazaribag
2. Divisional Forest Officer, East Division, Hazaribag ... Defendants/ Appellants/Respondents For the Appellant : Ms. Ganga Kumari Kachhap, Adv.
For the Respondent no. 1 : Mr. Praveen Akhauri, S.C. (Mines I)
: Mr. Divakant Roy, A.C. to S.C(Mines I)
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
By the Court :- Heard the parties.
2. This Second Appeal under Section 100 of the Code of Civil Procedure has been preferred against the judgment and decree dated 07.03.2003 passed by learned Additional District Judge, II, Hazaribagh in Title Appeal no. 35 of 1995 whereby and where under learned First Appellate Court by a judgment of reversal allowed the appeal and dismissed the suit of the plaintiff which was decreed by learned trial court being the Munsif Hazaribagh vide its judgment dated 29.04.1995 in Title Suit no. 127 of 1991.
3. The case of the plaintiff in brief is that the suit land was 1 SA No. 180 of 2003 recorded as gair mazarua khas of the Malik during cadastral survey in the year 1933. After the cadastral survey in the year, 1933, Bulasi Mahto being the father of the plaintiff no. 1 and Pokhan Mahto being the father of the plaintiff no. 2, were given 8.10 acres of the suit land in joint settlement. The settlees broke the land, developed it and made the same cultivable by clearing the bushes and paid rent to the landlord. The plaintiffs after their father, continued in possession of the suit property. The name of the settlees stand entered as Raiyat in the Zamindari return filed by the ex- landlord. There was a proceeding before the Forest Settlement Officer, Hazaribagh for release of the suit land and the suit proceeding was registered as Case No. 255 /60-61 and the case was disposed of on 27.06.1961 and it was held that the lands are household land and did not contain the forest land. The Raiyati rights of the settlees was established from much before the forest notification of the Bihar Government. The forest officials have instituted false case of unauthorized breaking of forest land being the case no. 475 / 86 which resulted in acquittal of the plaintiff by judgment dated 27.07.1991. As on 03.07.1991, the forest officials tried to prevent the cultivation by the plaintiffs and also threatened to destroy the paddy if grown. The plaintiffs served a notice under Section 80 of the CPC upon the defendants by registered post through the advocate of the plaintiffs and no redressal of the grievance appeared on the floor, hence, the plaintiff filed suit for declaration of title over the schedule A property, cost of the suit and other reliefs.
4. The defendant nos. 1 and 2 in their joint written statement, challenged the maintainability of the suit on various technical grounds and that no valid notice under Section 80 of the CPC was served before filing the plaint. The defendants denied claim of settlement of land in favour of the plaintiffs and one of the reasons being the concerned Hukumnama does not 2 SA No. 180 of 2003 disclose the date of granting of the same jointly in the name of Bulashi Mahto and Pokhan Mahto nor the plaintiffs disclose the name of the ex-landlord. The defendants further pleaded that it is not known that as to how the ex-landlord sold the land to the father of the plaintiffs. The defendants specifically pleaded that after operation of Bihar Land Reform Act 1950, the entire land of gairmazarua and waste lands, vested into the State. The defendants further pleaded that no record in the department is available to support contention of the plaintiffs and no release of the suit land was ever made to the plaintiffs. The defendants also pleaded that the Forest Settlement Officer is not supposed to go against the statute and principles of law. The defendants denied the title of the plaintiffs over the suit land.
5. On the basis of the rival pleadings of the parties, learned trial Court settled the following six issues :-
i. Is the suit maintainable in its present form? ii. Has the plaintiff any cause of action?
iii. Has the plaintiff properly valued the suit land? iv. Is the suit suffers from want of valid notice under section 80 of CPC?
v. Is the alleged Hukumnama of the year 1933 is valid, operative and binding on the defendants?
vi. Is the plaintiffs entitled for a decree with respect to title over the suit land?
6. Learned trial Court first took up issue no. 'iii' and decided the same in favour of the plaintiff. Learned trial court next took up issue no. 'iv' and also decided the same in favour of the plaintiffs. The learned trial court further took up issue no. 'v' and after considering the evidence in the record i.e. the oral testimony of the six witnesses examined by the plaintiffs and five witnesses examined by the defendants, as also relying upon the documents which have been marked as Exhibits 1 to 7 on behalf of the plaintiffs and the documents marked as Exhibits A to C on behalf of the defendants, came to conclusion that Hukumnama in favour of the ancestors of the 3 SA No. 180 of 2003 plaintiffs, which was issued in the year 1933 is valid, effective and binding upon the defendants. Lastly, the trial court took up issue nos. 1, 2 and 6 together and decided the issue nos. 1, 2 and 6 in favour of the plaintiffs and decreed the suit.
7. Being the aggrieved by the judgment and decree passed by learned Munsif, Hazaribagh, the defendants preferred Title Appeal No. 35 of 1995 which was ultimately heard and disposed of by learned Additional District Judge, II, Hazaribagh being the First Appellate Court. Learned First Appellate Court framed the following points for determination in the appeal :-
"Whether learned trial court has rightly decreed the suit in favor of the plaintiffs - respondents no. 2 or not, on the basis of the evidences oral and documentary adduced and produced by him?
8. Learned First Appellate Court made an independent appreciation of the evidence in the record and considered that Hukumnama by virtue of which, the settlement of the land, is claimed, is an unregistered document though the same is compulsorily registrable and in absence of registration, the said Hukumnama is not admissible in evidence nor the same can be the basis of the title. Learned First Appellate Court also took note of the fact that the plaintiff has not disclosed the date or month of Hukumnama nor the name of the ex-landlord who allegedly made the settlement by Hukumnama. Learned First Appellate Court also took note of the fact that the plaintiff failed to file proof of rent receipt granted by the ex- landlord nor the plaintiff could prove Zamindari return. Though the plaintiff has filed certain government rent receipts vide Exhibit 3 series but could not produce any order of mutation or any copy thereof. The First Appellate Court also observed that no supporting document as to the entry in the revenue record could be filed by the plaintiff and in absence of the documents, mere production of the rent receipts created doubt in the mind of the learned appellate court below 4 SA No. 180 of 2003 regarding the genuineness of the documents being the rent receipts. To disbelieve the rent receipt concerned Exhibit 3, the learned First Appellate Court also took note of the fact that though Exhibit 3, was stated to be the rent receipt dated 31.03.1953 but by that date, the estate had not vested under Bihar Land Reforms Act and vesting of the estate of the ex- landlord particularly in the district of Hazaribagh was published on 02.05.1953, therefore the rent receipts on 31.03.1953 could not have been granted. Learned First Appellate Court found the discrepancy in the amount of rent paid in different rent receipts as the said amount was mentioned as Rs. 2.25 in Exhibit 3/A whereas the said amount was mentioned as Rs. 3.25 in Exhibits 3 and 3/C. Learned First Appellate Court doubted the veracity of the Exhibit 6, which is the certified copy of the release order passed by forest officials as the certified copy of same was obtained from the civil court. Learned First Appellate Court also took note of the fact that in the year 1961, the forest settlement officer had no power to pass an order for release of the land declared as protected forest. Hence, such purported order passed by the Forest Settlement Officer was apparently without jurisdiction. Learned First Appellate Court also took note of the contradictions in the oral evidence of the plaintiff and his witnesses. Learned First Appellate Court also went on to hold that there is no proof of service of notice under Section 80 of CPC and the suit for mere declaration of title without any consequential relief was barred under Section 34 of the Specific Relief Act, though erroneously it has been printed as Section 43 of the Specific Relief Act in the impugned judgment and basing upon such findings, learned First Appellate Court concluded that learned trial court wrongly decreed the suit on contest and set aside the judgment and decree passed by learned trial court and allowed the appeal.
9. At the time of the admission of this appeal vide order dated 5 SA No. 180 of 2003 27.11.2008, the following substantial questions of law were formulated :-
1) Whether the Court of Appeal below is correct in law in holding that settlement of land by the raiyat on the basis of Hukumnama requires compulsory registration under Section 17 of the Registration Act?
2) Whether Hukumnama coupled with grant of rent-receipts by the landlord constitute a valid settlement?
3) Whether the finding on the genuineness of the rent receipts recorded by the appellate Court can be sustained in law?
10. Ms. Ganga Kumari Kachhap, learned counsel for the appellants submits that the learned First Appellate Court committed serious illegality by arriving at a finding that Hukumnama under Exhibit 5 is not admissible in evidence. It is next submitted that learned First Appellate Court committed an error of law by doubting the veracity of Exhibit 6 merely because the certified copy of the order was obtained from the civil court. It is next submitted by learned counsel for the appellant that learned First Appellate Court failed to consider the evidence in the record that the plaintiffs are in possession over the suit land till date. It is next submitted that learned First Appellate Court illegally reversed the findings of learned trial court. It is fairly submitted by learned counsel for the appellants in respect of the first substantial question of law that the settlement of land by Raiyats on the basis of Hukumnama requires compulsory registration under Section 17 of the Registration Act but it is submitted by Ms. Kachhap, that coupled with rent receipts granted by landlord, the Hukumnama, could have been used for collateral purposes by the learned First Appellate Court, which it failed to do. It is next submitted that the basis of the findings of the genuineness of the exhibit 3 series being the rent receipt, is unconscionable, hence, it is submitted that the impugned judgment and decree passed by learned First Appellate Court being without any merit be dismissed and the judgment and decree passed by learned trial court be restored.
11. Mr. Praveen Akhauri, learned Standing Counsel (Mines I) on 6 SA No. 180 of 2003 the other hand also submits that humkumnama requires compulsory registration under Section 17 of the Registration Act and in respect of the 2nd substantial question of law, relying upon the judgment of Division Bench of Hon'ble Patna High Court in the case of Mt. Ugni and another v. Chowa Mahto and other, reported in AIR 1968 Pat 302, paragraph 14 of which reads as under :-
"14. On the basis of the Full Bench decision of this Court in Ramnath Mandal's case, AIR 1964 Pat 1 and the decision of the Supreme Court in Sri Sita Maharani's case, AIR 1955 SC 328. Mr. Prem Lall laid stress that, once the unregistered hukumnama was held to be inadmissible as evidence of title, other evidence to prove the lease or its terms will be precluded under Section 91 of the Evidence Act. He, therefore, submitted that oral evidence was not admissible to prove raiyati interest on the strength of actual possession and payment of rent to the landlord. The correctness of the first part of the submission of the learned counsel cannot be doubted as it has been said by the Full Bench in Ramnath Mandal's case, AIR 1964 SC 1 that, if a lease is compulsorily registrable under S. 17 of the Registration Act and, "if unregistered, the lease will be inadmissible in evidence under Section 49 of the Registration Act and other evidence if its terms will be precluded under Section 91 of the Evidence Act." To the same effect is the observation of Jafar Imam, J., in Sita Maharani's case, AIR 1964 SC 1 that, since the hukumnama was not registered, it was inadmissible and no evidence could be given as to its terms. But it does not mean that other evidence is not admissible to prove the tenancy by proving the possession of the raiyat and payment of rent to, and its acceptance by, the landlord. Section 91 of the Evidence Act only excludes other evidence of terms of a document but not of existence, of the contract or the relationship of landlord and tenant brought about by possession and payment of rent. "(Emphasis Supplied)
12. It is submitted by Mr. Akhauri that the unregistered Hukumnama though inadmissible, could be looked into to show the nature and character of possession and the oral evidence of the terms of the lease, will not be admissible but independent of Hukumnama, as in that case, the rent receipt itself indicates the rate of rent, the area and the nature of the right of lessee, hence it was held by Hon'ble Patna High Court in that case that independent of the Hukumnama, the Raiyati settlement were inferable from other piece of evidence, hence the Division Bench of Hon'ble Patna High Court did not find any error of law that justify the interference in the Second 7 SA No. 180 of 2003 Appeal. It is next submitted by Mr. Akhauri that in this case, as independent of Hukumnama, the rent receipts themselves are doubtful having been granted before vesting of the land in State and the oral testimony regarding the possession of the plaintiff is also not convincing, as has rightly been held by learned First Appellate Court, hence, it is submitted that this appeal being without any merit be dismissed.
13. Having heard the submissions made at the Bar and after going through the materials available in the record, it is pertinent to mention here that it is a settled principle of law that finding of the fact arrived at by learned First Appellate Court, being the final court of fact, can only be interfered with, if such finding has been arrived at by ignoring or excluding the relevant materials or by taking into considerations the irrelevant materials or if the findings 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 and if the findings of the court are based on no evidence or the 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 finding may be said to be perverse, as has been held by the Hon'ble Supreme Court of India in the case of Bharatha Mahta and Anr. vs. R. Vijaya Renganathan and Others reported in 2010 (11) SCC 483, which was referred to by Hon'ble Supreme Court of India in the case of K.N. Nagarajappa & Ors. vs. H. Narasimha Reddy reported in 2021 SCC online SC 694, para 16 of which reads as under :-
"16. In the judgment reported as Municipal Committee, Hoshiarpur v. Punjab State Electricity Board, this court held as follows:
"26. Thus, it is evident that Section 103 CPC is not an exception to Section 100 CPC nor is it meant to supplant it, rather it is to serve the same purpose. Even while pressing Section 103 CPC in service, the High Court has to record a finding that it had to exercise such power, because it found that finding (s) of fact recorded by the court (s) below stood vitiated 8 SA No. 180 of 2003 because of perversity. More so, such power can be exercised only in exceptional circumstances and with circumspection, where the core question involved in the case has not been decided by the court(s) below.
27. There is no prohibition on entertaining a second appeal even on a question of fact provided the court is satisfied that the findings of fact recorded by the courts below stood vitiated by non-consideration of relevant evidence or by showing an erroneous approach to the matter i.e. that the findings of fact are found to be perverse. But the High Court cannot interfere with the concurrent findings of fact in a routine and casual manner by substituting its subjective satisfaction in place of that of the lower courts. (Vide Jagdish Singh v. Natthu Singh [(1992) 1 SCC 647]; Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un-Niswan [(1999) 6 SCC 343] and Dinesh Kumar v. Yusuf Ali [(2010) 12 SCC 740].)
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 vitiated. (Vide Bharatha Matha v. R. Vijaya Renganathan [(2010) 11 SCC 483]"
14. Now coming to the first substantial question of law, it is well settled, as has been observed by the Hon'ble Supreme Court of India that in a Hukumnama wherein the settlement of the Raiyati interest with any person has been reduced to writing, requires registration and if it is not registered, it is inadmissible in evidence and no evidence could be given as to its terms and conditions as has been held by the Hon'ble Supreme Court of India in the case of Sri S. Sita Manharani and others v. Chhedi Mahto and others reported in AIR 1955 SC 328 and also reiterated by this court in the case of Mahendra Ram v. C.M.D. Tata Steel Ltd., Jamshedpur reported in AIR 2020 Jharkhand 121. So the first substantial question of law is answered in affirmative by holding that learned First Appellate Court is correct in law in holding that the settlement of land by Raiyati on the basis of Hukumnama requires compulsory registration under Section 17 of the Registration Act.
9 SA No. 180 of 200315. So far as the second substantial question of law that whether Hukumnama coupled with grant of rent receipts by the landlord constitute a valid settlement, is concerned, the judgment of Hon'ble Patna High Court relied on by the learned standing Counsel is not applicable to the facts of the case because unlike this case, in the case of Mt. Ugni & Anr. vs. Chowa Mahto and Ors. reported in AIR 1968 Pat 302, it was a litigation between two private parties and not a case where the private party was seeking declaration of title against the State and when it was private litigation between the two private parties, in that case, it was observed by Hon'ble Patna High Court that though an unregistered Hukumnama is not admissible in evidence it can be used for collateral purpose. No doubt, the expression 'collateral' is a very vague expression and the court must decide in the case whether the purpose of which it is sought to be used, the unregistered document is really collateral. But contrary to the contention of the learned standing counsel on behalf of the State, who insisted and urged upon the Court repeatedly, to look into the unregistered Hukumnama for collateral purpose; this court is of the considered view that since the Hukumnama is not a registered one, hence, it is not an admissible evidence and no evidence can be left regarding the contents of that document as the same is marked under section 91 of the Evidence Act. It has to be remembered that it is not possible to give exhaustive list as to what are the collateral purposes but Hon'ble Madras High Court in the case of K. Panchapagesa Ayyar and another v. K. Kalyanasundaram Ayyar and others reported in AIR 1957 Madras 472, has observed thus in para 25 of which reads as under:-
"25. To sum up it is well settled in a long series of decisions which have since received statutory recognition by the Amending Act of 1929 (vide the concluding words of the new proviso to S. 49 of the Registration Act) that a compulsorily registrable but an unregistered document is admissible in evidence for a collateral purpose that is to say, for any purpose other than that of creating, declaring, assigning, limiting or extinguishing a right to immovable property.
The expression "collateral purpose" is no doubt a very vague one 10 SA No. 180 of 2003 and the Court must decide in each case whether the purpose for which it is sought to use the unregistered document is really a collateral one or is to establish directly title to the immovable property sought to be conveyed by the document. But by the simple device of calling it a "collateral purpose" a party cannot use the unregistered document in any legal proceedings to bring about indirectly the effect which it would have had if registered.
To quote Sir George Lowndes in James R. R. Skinner v. Robert Hercules Skinner ILR 51 All 771: (AIR 1929 PC 269) (Z 22) the collateral purpose to which the document is put should be nothing else than an evasion of the statute and render almost nugatory the hitherto well-established rule relating to the limited uses to which an unregistered partition deed can be put to." (Emphasis supplied)
16. Certainly in a suit by a private party against the State, a document cannot be said to be a document for collateral purpose; as the State has no role to play in grant of such Hukumnama which was claimed to have been granted before vesting of the property with the State, by somebody whose identity is not disclosed by the plaintiff-appellants and without any doubt the plaintiff-appellants intend to use the Hukumnama to establish their title over the suit land which is prohibited in law as the said Hukumnama is not a registered document. Thus it is crystal clear that an unregistered document is admissible in evidence for collateral purpose i.e., to say for the purpose other than that of creating, declaring, assigning, limiting or extinguishing a right to immovable property. The word 'settlement' used in the second substantial question of law, can be termed as an official agreement that ends an argument. If a Hukumnama is registered and is admissible in evidence, coupled with grant of rent receipts by the landlord, in a given case, may constitute a valid settlement but a general statement cannot be made that a Hukumnama which is not admissible in evidence or a grant of rent receipt, the veracity of which is doubted by the court, can constitute a valid settlement.
17. Now coming to the facts of this case, the plaintiffs have sought the declaration of their title in respect of the suit land, the word 'title' refers to the instrument that constitutes the evidence of legal right of ownership and possession of a property as in this case, the First Appellate Court has rightly 11 SA No. 180 of 2003 held that Hukumnama is not admissible in evidence, being a unregistered one and it is a settled principle of law that a land revenue receipt is not a document of title as it neither creates nor extinguishes a title, hence in the considered opinion of the court, the evidence in the record is not sufficient for the plaintiffs to establish their title in respect of the suit land. The second substantial question of law is answered accordingly.
18. So far as third substantial question of law, whether the finding on the genuineness of the rent receipt recorded by the appellate court can be sustained in law, is essentially a finding of fact and as already referred to above in the second substantial question of law, in the considered opinion of this court, such finding of learned First Appellate Court regarding genuineness of the rent receipts, cannot be termed as perverse, hence, this court does not want to interfere with the said findings of fact returned by learned First Appellate Court hence, such finding is sustainable in law. The third substantial question of law is answered in the affirmative.
19. Because of the answers to the three substantial question of law and discussion made above, this court is of the considered view that there is no merit in this appeal, accordingly, the same is dismissed on contest.
20. No order as to costs.
21. Let a copy of this Judgment along with the Lower Court Records be sent back to the Court concerned forthwith.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi.
Dated 22nd September, 2022 Smita/AFR 12