Jharkhand High Court
Satyadeo Tewari vs Most. Jamwanti Kuar on 22 November, 2022
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
Second Appeal No. 58 of 2014
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No.58 of 2014
(Against the Judgment and decree dated 06.02.2014 passed by the learned
Principal District Judge, Palamau at Daltonganj in Title Appeal No. 29 of 2011)
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1. Satyadeo Tewari
2. Manoj Tewari
3. Sunil Tewari @ Sushil Tiwari Sl. No.1 to 3 are sons of Late Jamuna Tewari and resident of Village- Golhana, P.O. Nawadih, P.S. Paton, Dist. Palamau
4. Bedwanti Devi, W/o Sri Anuragh Narayan Tewari, Resident of Village- Golhana, P.O. Nawadih, P.S. Paton, Dist. Palamau
5. Smt. Ramla Devi, W/o Shri Ram Sewak Tewari, Resident of Village- Golhana, P.O. Nawadih, P.S. Paton, Dist. Palamau .... .... .... Appellants Versus
1. Most. Jamwanti Kuar, W/o late Keshaw Tiwari
2. Rajendra Tiwari, S/o late Keshaw Tiwari
3. Arvind Tiwari, s/o late Keshaw Tiwari,
4. Praveen Tiwari, s/o late Keshaw Tiwari Sl. No.1 to 4 all residents of Village Golhana, P.O. Nawadih, P.S. Pandwa, Dist. Palamau
5. Kusum Devi, D/o late Keshaw Tiwari and W/o Nawal Upadhyay, resident of Village- Dokra, P.O. Chando, P.S. Chainpur, Dist. Palamau
6. Sobha Devi, D/o late Keshaw Tiwari and W/o Sri Binay Tiwari, Resident of Village- Jonr, P.O. Jonr, P.S. Daltaonganj, Dist. Palamau
7. Kiran Devi, D/o late Keshaw Tiwari, W/o Shri Mukesh Pandey, Resident of Village- Barkagawan, P.O. Rajwadih, P.S. Daltonganj, Dist. Palamau
8. Kashinath Tewari, S/o late Ramadhar Tewari, Resident of Village- Golhana, P.O. & P.S. Paton, Dist. Palamau
9. Rajdeo Dubey, son of late Kewal Dubey
10. Lakhpati Dubey, s/o late Adhar Dubey
11. Sachida Nand Dubey, s/o late Law Dubey
12. Hridayanand Dubey, s/o late Jugeshwar Dubey
13. Bharath Dubey, s/o late Jugeshwar Dubey Sl. No.9 to 13 all are residents of Village Kokarsha, P.O. & P.S. Patonj @ Paton, Dist. Palamau ... .... .... Respondents
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For the Appellants : Mr. Rajeev Ranjan Tiwary, Advocate
For the Respondents : Mr. Shoe Kr. Singh, Advocate
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PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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1
Second Appeal No. 58 of 2014
By the Court:- Heard the parties.
2. This second appeal has been preferred under Section 100 of Code of Civil Procedure against the judgment and decree dated 06.02.2014 passed by the learned Principal District Judge, Palamau at Daltonganj in Title Appeal No. 29 of 2011 whereby and where under, by the said judgment of reversal, the learned first appellate court has allowed the appeal and decreed the suit of the plaintiffs and declared that deed nos.125 and 126 dated 06.01.2004 to be void documents creating no title to the respondents purchaser/original defendant nos.9 and 10 or to their successors and that the plaintiffs have right, title, interest and possession over the suit land and set aside the judgment and decree passed by the learned trial court being the court of 1st Additional Munsif, Palamau in Title Suit No.7 of 2004 dated 23.06.2011 by which the learned trial court has dismissed the suit of the plaintiffs.
3. The case of the plaintiffs in brief is that in the last survey and settlement operation before filing the suit, the suit land was recorded in the name of Sheikh Butu under khewat no.1/25 as Samilat Malikan. The land under Khewat no.1/25 consisting for the lands of Khewat no.1/17 and 1/18 and Khewat No.1/17 was recorded in the name of Bhawani Ram and Chatur Ram son of Ayodhya Ram for two shares and Adhar Ram and Matuk Ram sons of Bhagwat Ram for one share and the land of Khewat no.1/18 was recorded in the name of Mosomat Sonmati Kuer wife of Durga Ram for a share of Rs.2 paise. It is further the case of the plaintiffs that the recorded raiyat Sheikh Butu gave his lands to the khewatdars of khewat no.1/25 as he was ploughing the lands of the 2 Second Appeal No. 58 of 2014 khewatdars and it has been mentioned in the khatiyan as service tenure "waste jotene hal ke mila hai". It is then the case of the plaintiffs that the recorded raiyat Sheikh Butu never remained in the services of the aforesaid Khewatdars and ceased to render the services to the aforesaid khewatdars and accordingly, the khewatdars of khewat no.1/25 came in peaceful and exclusive possession of land of khata no.108 of plot no.252 and 253 consisting of 21 decimals of land each total measuring 42 decimals of land. The plaintiffs came under the genealogy of the khewatdar namely Ayodhya Tiwary being his grandsons. On the eve of vesting of zamindari interest into the State of Bihar, the return under Section 3B of the B.L.R. Act was submitted by the plaintiffs and Form "L" was also issued for the assessment of rent in favour of the plaintiffs and in the recent survey operation also before filing the suit, the khatiyan has been prepared in the name of the plaintiffs. The plaintiffs further pleaded that in Partition Suit No.41 of 1988 in the court of Sub-Judge-II, Palamau at Daltonganj, the defendant no.4 deposed on 18.08.93 that he has got no lands in village Golhana. The plaintiffs came to know that the defendant nos.1 to 8 have transferred the suit land to the defendant nos.9 and 10 through two registered sale deeds being sale deed nos.125 and 126 dated 06.01.2004. The plaintiffs asserted that though the defendant nos. 1 to 8 have no right and possession to transfer the suit land to defendant nos. 9 and 10, they have illegally and in a sham manner have executed the sale deeds which are void abinitio and not binding upon the plaintiffs. Hence, the plaintiffs filed the suit with the following prayers :-
(a) Declaration that sale deed no.125 and 126 dated 06.01.2004 executed and registered by the defendant no.1 3 Second Appeal No. 58 of 2014 to 8 in favour of the defendant no.9 and 10 are illegal, incorrect, void abinitio, sham and not binding to the interest of the plaintiffs.
(b) Right, title and interest of the plaintiffs may kindly be declared for the suit land upon which the defendants have got no right, title and interest and possession.
(c) Cost of the suit.
(d) Other relief or reliefs.
4. The defendant nos.1 to 8 did not contest the suit.
5. In their joint written statement, the defendant nos.9 and 10 challenged the maintainability of the suit on various technical grounds and pleaded that Most. Sonemati Kuar have only life interest in respect of khewat no.1/18 and upon her death, the right, title, interest and possession have reverted to the superior khewatdar who had granted khewat to her for life maintenance. It is further pleaded by the defendant nos.9 and 10 that Sonemati Kuar died much before 1934, so the lands of khewat no.1/18 must have reverted back. The defendant nos.9 and 10 further pleaded that there was an amicable arrangement amongst the 16 annas co-sharers in which the suit land along with some other lands were allotted to Bigan Mahto who was put in possession. In exercise of right, title, interest and possession, Bigan Mahto sold his entire interest to Ram Mahal Dubey who was put in possession. At the time of vesting, Ram Mahal Dubey had died. So his five sons came in possession over the estate of Ram Mahal Dubey who filed return under Section 3 (b) of Bihar Land Reforms Act. They also filed application in Form 'K' showing the suit land as well as some other lands in their khas possession. There was an assessment of rent proceeding vide A.R. Case No.702/1962-63. The plaintiffs did not file any appeal/suit which should have been filed within the period prescribed by law. According to law, the entire interest 4 Second Appeal No. 58 of 2014 of intermediaries vested in State and the lands found in their possession on date of vesting were to be assessed to rent under section 5, 6 and 7 of B.L.R. Act which deemed to have been settled afresh by granting 'M' Roll. The plaintiffs and their ancestors were never found in possession over the suit land on the date of vesting, nor did they file return or 'K' Form with respect of the suit land resulting non-granting of 'M' Roll. The plaintiffs were not found in possession during field bujharat and they cannot produce a chit of paper right from 1920 to date, whereas the defendant no.1 to 8 were armed with return 'K' Form and 'M' Roll with respect to the suit land followed by government rent receipts. The defendant nos. 1 to 8 sold the suit land to these defendants vide registered sale deed nos.125 and 126 both dated 06.01.2004 and they have been mutated in Sirista of the State of Jharkhand on being found in possession and on enquiry by the Revenue Officer in Mutation Case No.1072 and 1073 of 2003-04 against which no revision or appeal has been filed. Since, there was a bomb blast in Anchal Office, Patan, so, the return of Kail Dubey and others and 'K' Form have been burnt to ashes. Ram Mahal Tiwari's heirs are neither giving the original sale deed nor is he disclosing the date and year of the sale deed, so the defendants could not file the same. It is false to say that Matukdhari Tiwari had transferred his lands to others and even if the documents of the vendors of the defendants are considered to be wrong, the vendors even remained in possession from 1962-63 to 2004 i.e. more than 40 years on the basis of 'M' Roll that is in full knowledge of the plaintiffs and all concerned and thereafter these defendants are in possession and are paying rent and 5 Second Appeal No. 58 of 2014 acquired indefeasible right, title, interest and possession by lapse of time. Hence, all the interest if any of the plaintiffs, which were there during the cadastral survey, their right, title and interest vanished/extinguished in view of the above facts under Section 27 of the Limitation Act.
6. In view of the rival pleading of the parties, the learned trial court framed the following six issues:-
(I) Is the suit maintainable as framed?
(II) Have the plaintiffs got the valid cause of action for the suit? (III) Whether the sale deed executed and registered by the defendant no.1 to 6 in favour of the defendant no.9 and 10 for the lands vide sale deed no.126 dated 6.1.2004 and the sale deed no.125 dated 6.1.2004 are illegal, incorrect, void abinitio and sham documents and not binding to the interest of the plaintiffs?
(IV) Whether the plaintiffs have got the valid right, title and interest over the suit land?
(V) Whether the plaintiffs are entitled to the reliefs claimed for? (VI) To what relief or reliefs the plaintiffs are entitled?
7. The learned trial court considered the evidence put forth by the parties i.e. the five witnesses examined by the plaintiffs and the documents which have been marked Ext. 1 to 9 and the six witnesses who have been examined by the defendants and the documents which have been marked Ext. A to C.
8. The learned trial court first took up issue no. (IV) and considering the evidence in the record came to the conclusion that the plaintiffs have miserably failed to establish their right, title, interest and possession over the suit land. Thereafter, the learned trial court took up issue no. (III) and came to the conclusion that sale deed no. 125 and 126 dated 06.04.2004 are genuine, valid and operative document and have conveyed good right, title and interest and possession to the defendant nos.9 and 10. Thereafter, the learned trial court took up issue no. (I) to (V) 6 Second Appeal No. 58 of 2014 and came to the conclusion that the suit is not maintainable in its present form and relief sought for. The plaintiffs has no cause of action and the plaintiffs have no right to the relief claimed for. Lastly, the learned trial court took up issue no. (VI) and came to the conclusion that the plaintiffs are not entitled to any relief and dismissed the suit.
9. Being aggrieved by the judgment and decree passed by the learned trial court, the defendants filed Title Appeal No.29 of 2011 in the court of Principal District Judge, Palamau at Daltonganj 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 re-appreciated the evidence in the record and took up issue nos. (III) and (IV) together and considering the principle of law that the civil dispute are to be decided on the basis of preponderance of probabilities. The learned first appellate court considering the evidence in the record and also considering the case of the plaintiffs that the plaintiffs are the successor of the recorded khewatdars and also considering that the defendants could not produce any documents on the ground that the same were destroyed in a bomb blast in the Circle Office, Patan express suspicion as to how the document marked Ext. C was obtained. The learned first appellate court also considered the settled principle of law that the payment of rent/mutation entry in khatiyan are only for fiscal purpose i.e. payment of rent and they are not a document of title. The learned first appellate court also considered Ext. 8 with regard to Title Suit No.22 of 1966 whose decree has been marked Ext. 9 and observed that combined reading of Ext. 8 and 9 goes to show that though the same was for a different suit land but it was 7 Second Appeal No. 58 of 2014 between the family of the plaintiffs and the predecessor of defendant no.1 to 8 and the suit was ultimately decreed ex-parte. The learned first appellate court did not consider the Ext. 5 being not finally published khatiyan rather it is a draft hence under the provisions of Evidence Act no presumption is attached with this document. The learned first appellate court found fault with the learned trial court for not considering Ext. 4 on the ground that the same was not proved as per law of evidence. The learned first appellate court was of the opinion that since Ext. 4 is a public document, the same does not require any proof. The first appellate court considered Ext. 4 which is the deposition of defendant no.4 in Partition Suit No.41 of 1988 in which he deposed on 18.08.1993 that his father Ram Mahal Dubey had purchased 2 pies of land in Village Golhana and 1 ½ pie was acquired in auction and he came in possession but died in the year 1956 and the entire land of Village Golhana was sold. The learned first appellate court further considered that as far back as in the year 1993, as one of the vendors stated that his predecessor has sold all the lands then certainly, there was no land to be transferred to the defendant nos. 9 and 10 in the year 2004. The learned first appellate court observed that since the contents of Ext. 2 and 3 are admitted, they require no further consideration. Upon considering the oral as well as documentary evidence, it appeared to the first appellate court, that the plaintiffs have proved a better title then that of the defendants and the defendants have not adduced any specific evidence in assertion of their own title nor they have dared to come under the witness box nor the vendor dared to come to depose and support the case of the defendant nos. 9 and 10 nor the defendants have recited the basis of their title. The learned first appellate court also considered that simply on the basis of 8 Second Appeal No. 58 of 2014 recording of the name in the demand register, one cannot acquire a title and without the proof of the defendant nos.1 to 8 having any subsisting title, the execution of the sale deed by them in favour of the defendant nos.9 and 10 cannot confer any title upon them and allowed the appeal and decreed the suit as already indicated above.
11. At the time of Admission of this appeal, the following substantial questions of law were framed vide order dated 16.03.2018 :-
(A) Whether the Learned Lower Appellate Court has totally misdirected himself in appreciating the evidences that onus lies upon the plaintiff to prove his case, but in the present the Learned Lower Appellate Court has reversed the judgment of Trial Court on the ground that defendants failed to establish their title over the suit land which is wholly unjustified and unsustainable in the eye of law? (B) Whether the Learned Lower Appellate Court has committed grave error of law in reversing the judgment of trial court without meeting the grounds given by the trial court in dismissing the Suit?
(C) Whether the Learned Lower Appellate Court have not properly considered the Ext. 2, 3 adduced by the plaintiff and Ext. C, adduced by the defendants in its true prospective and come to erroneous finding which is unsustainable in the eye of law?
12. Mr. Rajeev Ranjan Tiwary, learned counsel for the appellants submits that the learned first appellate court has misdirected itself in appreciating the evidence and failed to consider the settled principle of law that the onus lies upon the plaintiffs to prove its case and went on to reverse the judgment of the learned trial court on the ground that defendants have failed to establish the title over the suit land which is wholly unjustified and unsustainable in the eye of law. It is further submitted by Mr. Tiwary that the learned first appellate court has committed grave error of law in reversing the judgment of the learned trial court without meeting the grounds given by the learned trial court 9 Second Appeal No. 58 of 2014 in dismissing the suit. It is then submitted by Mr. Tiwary that the learned first appellate court has not considered Ext. 2 and 3 adduced by the plaintiffs and Ext. C adduced by the defendants in its true perspective and came to erroneous finding. Hence, it is submitted that the impugned judgment and decree being not sustainable in law be set aside and the judgment and decree passed by the trial court be restored.
13. Mr. Sheo Kumar Singh, learned counsel for the respondents on the other hand defended the impugned judgment and decree passed by the learned first appellate court and submits that the learned first appellate court has not observed that the defendants have failed to establish its title over the suit land rather the learned first appellate court has observed that in a civil proceeding, evidence is to be weighed in the scale of preponderance of probabilities and the party which has a better title has to succeed hence, the first substantial question of law formulated in the second appeal, does not exist; in the facts of the case. It is next submitted by Mr. Singh that the learned first appellate court has discussed at length and has given every reason for differing with the findings of the learned trial court and by a well discussed and reasoned judgment has set aside the judgment and decree. Hence, the second substantial question of law also does not exist in this second appeal. So far as the third substantial question of law is concerned, Mr. Shoe Kumar Singh submits that the learned first appellate court has discussed at length both the Ext. 2 and 3 and has categorically observed that as the contents of Ext. 2 and 3 is admitted, which is not disputed even by the respondents of this second appeal, hence, the same require no 10 Second Appeal No. 58 of 2014 consideration. It is then submitted that the learned first appellate court found Ext. C to be suspicious as since the related document were not produced by the defendants on the ground that there was a bomb blast in the Circle Office, Patan so, the learned first appellate court observed that how the copy of the particular document which has been marked Ext. C could be obtained by the defendants and the same has rightly been done by the first appellate court. It is further submitted by Mr. Singh that the judgment and decree passed by the learned first appellate court is on appreciation of facts and the learned first appellate court has every right and jurisdiction being the final court of facts to arrive at the conclusion on the basis of appreciation of evidence and as no substantial question of law is involved in this appeal, hence this appeal being without any merit be dismissed.
14. Having heard the submissions made at the Bar and after going through the materials in the record, this Court finds that there is no observation by the learned first appellate court that the defendants have failed to establish their title over the suit land hence, the plaintiffs' suit has been decreed rather the learned first appellate court has well discussed the entire evidence put forth by the plaintiffs and the defendants and after appreciation of the evidence in the record came to the conclusion that the plaintiffs have proved a better title than that of the defendants. Hence, by applying the scale of preponderance of probabilities in weighing the evidence in the record, decreed the suit of the plaintiffs. Hence, the first substantial question of law whether the learned lower appellate court has totally misdirected himself in 11 Second Appeal No. 58 of 2014 appreciating the evidences that onus lies upon the plaintiff to prove his case, but in the present the learned lower appellate court has reversed the judgment of trial court on the ground that defendants failed to establish their title over the suit land which is wholly unjustified and unsustainable in the eye of law is answered in the negative.
15. So far as the second substantial question of law whether the learned lower appellate court has committed grave error of law in reversing the judgment of trial court without meeting the grounds given by the trial court in dismissing the suit is concerned, it is a settled principle of law that the judgment of First Appellate Court cannot be reversed on the ground that the First Appellate Court had not come with the reasoning of the Trial Court, as held by the Hon'ble Supreme Court of India in the case of Arumugham (dead) by L. Rs. and others v. Sundarambal and another reported in AIR 1999 SC 2216, paragraph 14 of which, reads as under :-
" 14. From the aforesaid judgment of the three Judges bench in Ramachandra Ayyar's case (AIR 1963 SC 302), it is clear that this Court held that second appellate Court cannot interfere with the judgment of the first appellate Court on the ground that the first appellate Court had not come to close grips with the reasoning of the trial Court. It is open to the first appellate Court to consider the evidence adduced by the parties and give its own reasons for accepting the evidence on one side or rejecting the evidence on other side. It is not permissible for the second appellate Court to interfere with such findings of the first appellate Court only on the ground that the first appellate Court had not come to grips with the reasoning given by the appellate trial Court. The aforesaid judgment of this Court in Ramachandra Ayyar's case (AIR 1963 SC 302) specifically distinguished Rani Hemanta Kumar Debi v. Maharaja Jagadindra Nath Roy Bahadur, (1906) 16 Mad LJ 272 (PC) rendered by the Privy Council on the ground that that was a case wherein the High Court was dealing with a first appeal. The observations made by the Privy Council in that context would not be applicable to cases where the second appellate Court was dealing with the correctness of the 12 Second Appeal No. 58 of 2014 judgment of the first appellate court which reversed the trial Court."
(Emphasis supplied)
16. Now coming to the facts of the case, the learned first appellate court in the well discussed judgment has given a sound reasoning as to why it differed from the judgment and decree passed by the learned trial court. Hence, the second substantial question of law whether the learned lower appellate court has committed grave error of law in reversing the judgment of trial court without meeting the grounds given by the trial court in dismissing the suit is also answered in the negative.
17. So far as the third substantial question of law whether the learned lower appellate court have not properly considered the Ext. 2, 3 adduced by the plaintiff and Ext. C, adduced by the defendants in its true prospective and come in erroneous finding which is unsustainable in the eye of law is concerned, this Court finds that the learned first appellate court has considered Ext. 2 and 3 in their right perspective and the suspicion raised by the learned first appellate court regarding Ext. C cannot be termed as perverse because when the defendants could not produce the connected documents on the ground that there was a bomb blast in the Circle Office, Patan and all the documents were burnt and converted into ashes; as to on what basis Ext. C was exhibited how the defendants could procure Ext. C. Hence, the third substantial question of law is also answered in the negative.
18. In view of the discussions made above, this Court is of the considered view that there is no merit in this appeal. 13 Second Appeal No. 58 of 2014
19. Accordingly, this appeal being without any merit is dismissed on contest but under the circumstances without any costs.
20. 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 the 22nd November, 2022 AFR/ Sonu-Gunjan/-
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