Jharkhand High Court
Mohi-Ud-Din Kalal vs Asir-Ud-Din Ali on 28 July, 2022
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
S.A.No.61 of 2012
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No.61 of 2012
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(Against the judgment dated 19.03.2012 {decree signed on 03.04.2012} passed by learned Principal District Judge, Giridih, in Title Appeal No.03 of 2011)
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1. Mohi-Ud-Din Kalal, Son of Late Chudu Kalal,
2. Jabbar Kalal, S/o- Late Chudu Kalal
3. Bibi Sarifan, W/o Rehmat Kalal
4. Jumman Kalal, D/o Late Ahmed Kalal,
5. Bano Kalal @ Bano Khatoon, D/o Rahmat Kalal Sl. No. 1 to 5 all residents of Mouja Rangamati, P.O. : Rangamati, P.S. : Nimiaghat, District: Giridih.
.... .... .... Appellants / Appellants /Plaintiffs Versus
1. Asir-Ud-din Ali, Son of Late Mohit Miyan, Resident of Lakshmantunda, P.O.: Lakshmantunda P.S.: Dumri, Present P.S. :
Nimiaghat, District: Giridih.
2. Binita Devi, W/O Teklal Sao,
3. Gorwa Devi @ Aena Devi, D/o Sadhu Sharan Sao and W/o Mahabir Prasad Sao,
4. Surendra Sao, S/o Sarju Sao,
5. Baijnath Sao, S/o Sarju Sao,
6. Sankar Lal Sao, S/o Sarju Sao,
7. Mahabir Prasad, S/o Girdhari Prasad Sao,
8. Laljee Prasad, S/o Bhairo Sao,
9. Punit Chand Sao, S/o Late Devi Sao,
10. Reshmi Devi, W/o Khoso Sao,
11. Sarju Sao, S/o Hulash Sao,
12. Sikandar Ansari, S/o Baksha Miyan,
13. Nemuna Khatoon, W/o Sikandar Ansari,
14. Deleted 1 S.A.No.61 of 2012
15. Deleted.
Sl. No.2 to 15 all residents of Village Lakshmantunda, P.O. and P.S. : Nimiaghat, District: Giridih .... .... .... Respondents / Respondents /Defendants
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For the Appellants : Mr. Sudhir Kumar Sharma, Advocate
Mr. Prabhash Ch. Sinha, Advocate
For the Respondents : None
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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 has been preferred against the concurrent judgment and decree of dismissal passed by the Principal District Judge, Giridih in Title Appeal No.03 of 2011 dated 19.03.2012 by which the learned first appellate court dismissed the appeal and confirmed the judgment and decree passed by the trial court being the court of Munsif in Title Suit No.18 of 1977 dated 14.12.2010 by which the learned trial court dismissed the suit of the plaintiff file with prayer for:-
(i) declaration of Raiyati right of the plaintiff over the suit land
(ii) if during the trial, the plaintiff be dispossessed or deemed to have been dispossessed then Khas possession be given to the plaintiff over the suit land
(iii) cost of the land and
(iv) other reliefs.
3. The brief facts of the case is that the plaintiffs got the suit land under his plough and with investment reclaimed and converted the same to a cultivable land and on that basis the original plaintiff became entitled to assessment of land and the landlady of the village accepted the rent from the plaintiff. The original plaintiff claimed that he has been in possession of the suit land for much more than twelve years and by virtue of reclamation and possession of more than twelve years, the plaintiff has 2 S.A.No.61 of 2012 acquired indefeasible right over the suit land by virtue of adverse possession. It is the further the case of the plaintiffs that after vesting of Zamindari in the State of Bihar, the State of Bihar accepted Raiyati interest of the plaintiff over the suit land and issued rent receipts but the defendants maliciously and with ill-motive, approached the Sub- Divisional Magistrate, Giridih and the defendant managed to transmit the record of the suit land to the Land Reform Deputy Collector, Giridih and the Land Reform Deputy Collector, Giridih by his order dated 14.02.1977 wrongly and illegally without any jurisdiction ordered for cancellation of Jamabandi and rent receipts running in the name of the plaintiffs. The undisputed fact remains that the original plaintiff executed a gift-deed dated 21.08.1957 in respect of the suit land in favour of Habib Miyan- the head of the Mosque and the plaintiffs suppressed this fact in the plaint.
4. The case of the defendants on the other hand is that the defendants have been in possession of the suit land continuously for more than 40 years and the plaintiffs never possessed the same. The defendants claimed that the defendants including the suit land, have been in possession of about 5 acres 45 decimals of land on the basis of reclamation and settlement. The plaintiffs made a different pleading than the one pleaded in Title Suit No.118 of 1958 which they lost. Besides the substantial pleading the defendants also pleaded that the suit of the plaintiff is not maintainable on various technical grounds as well.
5. On the basis of the rival pleadings, the learned trial court altogether framed the following eleven issues:-
(i) Is the suit in its present form, maintainable?
(ii) Whether the plaintiff has any cause of action for the suit?
(iii) Whether the suit is properly valued and Court fee paid, is sufficient?
(iv) Is the suit barred by Principle of Res-judicata?
(v) Is the suit hit by the Principle of waiver and principle of acquiescence?
(vi) Has the plaintiff right, title and interest over the suit property?
(vii) Is the plaintiff entitled to any of the relief as claimed in the 3 S.A.No.61 of 2012 plaint?
(viii) Whether the present suit has been abated on or about 25.11.2009?
(ix) Is the suit barred by adverse possession and prescription?
(x) Whether the sale deed executed by legal representative of original plaintiff in favour of defendant no.2 to 11 for some portion of the suit land is illegal, invalid, inoperative, collusive, fake and void ab initio, which is not binding upon defendant no.1, 12 and 13?
(xi) Whether the sale deed executed by Asiruddin in favour of defendant no.12 and 13 dated 07.09.2009 is legally valid and whether he had right to transfer three decimals of land in plot no.2018?
6. The learned trial court first took up issue No.(viii) and held that the suit has not abated.
7. Thereafter, the trial court took up issue No.(iii) and held that the suit is properly valued and Court fee paid is sufficient.
8. In respect of issue Nos.(iv), (v) and (vi), the trial court after considering the evidence in the record i.e. six witnesses examined by the plaintiff and the documents which were marked Ext. 1 to 7 and also seven witnesses examined by the defendants and the documents which were marked Ext. A to I/1 and also considering the undisputed fact that the head of the Mosque in whose favour the plaintiff executed a deed of gift dated 31.03.1957 filed Title Suit No.118 of 1958 in the court of Munsif but the said suit was dismissed vide judgment dated 14.07.1960 in which the plaintiff was the proforma defendant while the original defendant of this suit was the defendant No.1 but no appeal has been filed by any of the parties against the judgment of dismissal passed in the said Title Suit No.118 of 1958. The plaint of Title Suit No.118 of 1958 has been marked Ext. E and the written statement filed by the plaintiff of this suit in Title Suit No.118 of 1958 was marked Ext. F/2. The trial court took note of the fact that in his written statement filed in Title Suit No.118 of 1958, the plaintiff of this suit who was the proforma defendant in Title Suit No.118 of 1958 admitted that he has gifted the suit land to the Mosque and in his 4 S.A.No.61 of 2012 deposition in Title Suit No.118 of 1958 which was marked Ext. J/2, the plaintiff also supported the said factum of gift of the subject matter land of Title Suit No.118 of 1958 dated 14.07.1960 which was marked Ext. G and decree in that suit shows that the parties of Title Suit No.118 of 1958 and this suit were the same and the subject matter of dispute was also the same and as such the said issue between the parties has been decided in Title Suit No.118 of 1958 and the said judgment has reached finality as no appeal was preferred against it, hence the present suit is barred by the principle of res-judicata.
9. The learned trial court has also held that as the plaintiff has gifted his title in respect of the suit land by way of a registered deed which is admitted by the plaintiff in the said Title Suit No.118 of 1958. Hence, admittedly the right, title and interest over the suit land of the plaintiff of this suit has been transferred to the plaintiff of Title Suit No.118 of 1958 being Mohit Miya, hence whatever title and interest the plaintiff of this suit had over the suit land, had extinguished and decided the issue Nos.
(iv), (v) and (vi) against the plaintiff.
10. Thereafter, the trial court took up issue Nos. (i), (ii) and (vii) and held that the plaintiff has no cause of action for filing the suit. Hence, the suit is not maintainable. Therefore the plaintiff is not entitled to any relief and issue No. (x) and (xi) were adjudicated by the trial court against the plaintiff.
11. In respect of issue No. (ix), the trial court observed that the claim of adverse possession is contrary to the claim of title on the basis of Hukumnama and when the plaintiff has pleaded that he is in possession by virtue of a Hukumnama, the same amounts to permissible possession and not adverse one and after considering the evidence in the record came to a conclusion that the plaintiff failed to establish the ingredients for perfection of title by way of adverse possession and dismissed the suit.
12. Being aggrieved by the judgment and decree passed by the trial court being Munsif Giridih in Title Suit No.118 of 1958 dated 14.12.2010, the appellants filed Title Appeal No.03 of 2011 in the Court of Principal District Judge, Giridih which was heard and disposed of by the impugned judgment by the first appellate court.
5 S.A.No.61 of 201213. Learned first appellate court on the basis of submissions made before it, framed the following six points for determination:-
(I) Whether the present suit is barred by principle of resjudicata?
(II) Whether the plaintiff-appellant has acquired by any right, title and interest over the suit land by adverse possession and prescription?
(III) Whether the sale deeds executed by plaintiff, during pendency of suit are binding on the interest of defendant nos.1, 12 and 13?
(IV) Whether the plaintiff-appellant has any cause of action for the suit as pleaded?
(V) Whether the suit has abated?
(VI) What other relief or reliefs the plaintiff is entitled for?
14. The first appellate court in respect of first point of determination observed that as admittedly, the plaintiff acquired the suit land through settlement but he gifted the same by way of registered sale-deed to the head of the Mosque, so, nothing remains with the plaintiff to claim the title and the admission of the original plaintiff of the suit in Title Suit No.118 of 1958 wherein he was the proforma defendant, the title and interest of the original plaintiff over the suit land has extinguished and went on to concur with the finding of the trial court that the suit is barred by principles of res judicata.
15. In respect of second point for determination, the learned first appellate court made independent appreciation of the evidence in the record and by observing that the execution of the gift deed by the plaintiff in respect of the suit land in favour of the head of the Mosque has denuded him of any right, title and interest over the suit land and also came to a conclusion that the plaintiff has failed to establish the adverse possession.
16. In respect of third point for determination, the first appellate court observed that since the main issue regarding the right, title and possession over the suit land has been decided against the plaintiff, hence, the purchasers are bound by the result of the suit under Section 52 of the 6 S.A.No.61 of 2012 Transfer of Property Act. Hence, the two sale-deeds marked Ext. A-1 and A-1/1 have no binding effect on the interest of defendant Nos.1, 12 and
13.
17. In respect of fourth point for determination, the learned first appellate court observed that the plaintiff has pleaded that cause of action for filing the suit accrued to him due to cancellation of Jamabandi standing in his favour vide order dated 14.02.1977 passed by the L.R.D.C., hence, the plaintiff would have challenged the order of the L.R.D.C. in the appropriate superior forum as prescribed under the law but the same cannot give rise to any cause of action for filing a civil suit.
18. In respect of fifth point for determination, the first appellate court concluded that the suit has not abated and in respect of sixth point for determination, the first appellate court concluded that the plaintiffs- appellants are not entitled to any relief as claimed for. Hence, the first appellate court dismissed the appeal and confirmed the judgment of the dismissal of the suit passed by the trial court.
19. Mr. Sudhir Kumar Sharma- learned counsel for the appellant submits that the learned trial court failed to appreciate the evidence in the record in its proper perspective and submitted that both the learned courts below failed to consider the fact that as the Ext. 4 goes to show that plaintiff came in possession over the suit land in the year 1970 and remained in possession over the suit land and thus, ought to have held that the plaintiff has claimed title by adverse possession. It is next submitted that as the gift deed executed by the plaintiff in favour of the head of the Mosque namely Habib Miyan was not accepted to be valid document by the learned Munsif in his judgment passed in Title Suit No.118 of 1958 as the brothers and sisters of the plaintiff have also share in the suit property and the plaintiff alone cannot execute the deed of gift in favour of the head of the Mosque. Hence, the learned courts below ought to have held that the plaintiff has right, title and interest in respect of the suit land.
20. Having heard the submission of the learned counsel for the appellants and after carefully going through the materials in the record, it is pertinent to mention here that the plaintiff suppressed the fact in the 7 S.A.No.61 of 2012 plaint that he earlier executed a gift deed in favour of Habib Miyan- the head of the Mosque in respect of the suit land in the year 1957. The plaintiff also suppressed the fact in respect of the suit property that earlier a suit was filed by Habib Miyan being Title Suit No.118 of 1958 in the court of Munsif in which the plaintiff as well as the defendants were parties and the suit was dismissed. Having suppressed these facts in the pleadings and as there is no pleading of this nature in the suit of the plaintiff; certainly when both the courts below on the basis of the pleading and the evidence put forth by the defendant have found that the plaintiff cannot claim right, title and interest in respect of the suit land as he has already gifted the same by way of a registered gift deed and admitted the same in the Title Suit No.118 of 1958 both in his written statement as well as in his deposition in that suit. There is no way any fault can be found with the learned courts below in respect of their findings.
21. So far as the claim of adverse possession is concerned, in the plaint though in para-8 it has been pleaded by the plaintiff that by virtue of reclamation and possession of more than twelve years, the plaintiff has applied indefeasible title over the suit land by virtue of adverse possession and prescription but no prayer for declaration of right, title and interest by way of adverse possession has been made by the plaintiff in the plaint rather the plaintiff has prayed for declaration of his Raiyati rights over the suit land. It is a settled principle of law that adverse possession requires all the three classic requirements to co-exist at the same time, namely, adequate in continuity, adequate in publicity and adverse to a competitor, in denial of title and his knowledge, moreover, Animus possidendi under hostile colour of title is also required; as has been observed by the Hon'ble Supreme Court of India in the case of Ravinder Kaur Grewal & Others vs. Manjit Kaur & Others reported in (2019) 8 SCC 729 paragraph-60 of which reads as under:-
"60. The adverse possession requires all the three classic requirements to co-exist at the same time, namely, nec vi i.e. adequate in continuity, nec clam i.e. adequate in publicity and nec precario i.e. adverse to a competitor, in denial of title and his knowledge. Visible, notorious and peaceful so that if the owner does not take care to know notorious facts, knowledge is attributed to him on the basis that but for due diligence he would have known it. Adverse possession cannot be decreed on a title 8 S.A.No.61 of 2012 which is not pleaded. Animus possidendi under hostile colour of title is required. Trespasser's long possession is not synonymous with adverse possession. Trespasser's possession is construed to be on behalf of the owner, the casual user does not constitute adverse possession. The owner can take possession from a trespasser at any point in time. Possessor looks after the property, protects it and in case of agricultural property by and large the concept is that actual tiller should own the land who works by dint of his hard labour and makes the land cultivable. The legislature in various States confers rights based on possession." (Emphasis supplied) It is also a settled principle of law that a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed as has been held by the Hon'ble Supreme Court of India in the case of Karnataka Board of Wakf v. Government of India & others reported in (2004) 10 SCC 779 inter alia observed as under: (SCC p. 785, para 11) "11. Xxxxx Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show:
(a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession."
22. Now, coming to the facts of the case, the plaintiff has neither pleaded in his plaint as to who is the rightful original owner against whom he claims animus possidendi and nor is there any pleading as to on which date his possession became adverse. Because of the failure of the plaintiff to plead the essential ingredients for perfection of title by way of adverse possession and in the absence of any evidence in the record in this regard, both the learned courts below have rightly did not accept the contention of the plaintiff of having perfected his title over the suit land by way of adverse possession.
9 S.A.No.61 of 201223. After going through the evidence in the record this Court finds that both the learned courts below have made a threadbare discussion of the evidence in the record in their proper perspective and have come to a right finding and there is absolutely no substantial question of law is involved in this appeal. Hence, this appeal, being without any merit, is dismissed.
24. Let a copy of this judgment be remitted to the learned concerned courts below forthwith.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 28th of July, 2022 AFR/ Animesh 10