Jharkhand High Court
Jhari @ Jharu @ Jhori Kumr @ Jhoru Kumar ... vs Kaushalya Devi W/O Of Late Gajadhar ... on 28 November, 2022
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
Second Appeal No. 194 of 1998
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No.194 of 1998
(Against the Judgment and decree dated 23.02.1998 passed by the learned 2nd
Additional District Judge, Godda in Title Appeal No. 3 of 1994/ 16 of 1997)
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1. Jhari @ Jharu @ Jhori Kumr @ Jhoru Kumar son of the late Shabar Kumar
2. Ganki Devi @ Janki Devi wife of Lagan Kumar
3. Gandi Devi @ Jandho Devi wife of Katchahary Darbey
4. Pairia Devi daughter of Sabha Kumar
5. Gosania Kumar @ Gosan Kumar son of Sibchu Kumar
6. Sunita Devi daughter of Sibchu Kumar and wife of Congress Kumar
7. Dubey Kumar son of Katki Kumar
8. Jugal Kumar son of late Katki Kumar
9. Sugia Devi daughter of Katki Kumar
10. Tulsi Bati widow of late Hardayal Kumar
11. Chandrika Kumar @ Chandrika Kumar Dubey son of late Hardayal Kumar
12. Swarnlata Devi widow of late Prafulla Kumar
13. Bisnu Kumar @ Bishnu Prasad Singh son of late Prafulla Kumar
14. Gopal Kumar Singh son of late Prafulla Kumar
15. Gisnu Kumar Singh son of late Prafulla Kumar
16. Falguni Kumar @ Falgun Kumar son of late Prafulla Kumar
17. Shyam Kumar @ Shyamlal Kumar son of late Hardayal Kumar
18. Jaikant Kumar son of late Hardayal Kumar
19. Purnia Devi @ Purni Devi daughter of late Hardayal Kumar
20. Pusti Devi daughter of late Hardayal Kumar
21. (a) Ram Nath Kunwar 21 (b) Deep Narayan Kunwar 21 (c) Sham Deo Kunwar 21 (d) Kuldeep Kunwar All residents of Village Madhuchak, P.S. Mahagama, Dist. Godda
22. Ganesh Kumar son of Chigru Kumar
23. Ramadhar Kumar @ Ramdhar Kumar son of Chigru Kumar
24. Ramji Kumar son of Chigru Kumar
25. Kalawati Devi daughter of Chigru Kumar
26. Dhananjai Kumar son of late Hardayal Kumar
27. Henga @ Higia Devi daughter of Chigru Kumar
28. Lila Devi daughter of Chigru Kumar and W/o Masudan Rai All resident of Village Madhuchak, P.S. Mahagama, Dist. Godda .... .... .... Appellants Versus
1. Kaushalya Devi w/o of late Gajadhar Bhagat
2. Siddhinath Bhagat
3. Abated
4. Janardhan Bhagat
5. Shambhu Nath Bhagat @ Awadh Kumar Bhagat All sons of late Gajadhar Bhagat
6. Bishwanath Bhagat 1 Second Appeal No. 194 of 1998
7. Uma Kant Bhagat No. 6 and 7 are major sons of late Ramchandra Bhagat
8. Abated
9. Anil Kumar Bhagat major son of late Gajadhar Bhagat Nos. 1 to 5 and 9 are residents of Village Dwarichak and Nos. 6 to 8 are residents of Village Ghat Pathergama, P.S. Pathergama, Dist. Godda
10. Abated
11. Abated
12. Abated
13. Kudari Kumar
14. Moti Kumar Nos. 13 and 14 are sons of Ratan Kumar
15. Abated
16. Rabi Kumar
17. Kharwa Kumar
18. Abated Nos.16 and 17 are sons of late Kumhra Kumar
19. Police Kumar No.s 19 are son of late Chaturi Kumar
20. Abated
21. Akhri Devi, d/o Ramdayal Kumar
22. Abated Nos. 1, 2, 4, 5, 6, 7, 13, 14, 16, 17, 19 and 21, all residents of Village Madhuchak, P.S. Mahagama, Dist. Godda ... .... .... Respondents
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For the Appellants : Mr. Rahul Kumar Gupta, Advocate : Mr. Manoj Kr. Sah, Advocate : Mrs. Puja Kumari, Advocate For the Respondents : Mr. Purnendu Kumar Jha, Advocate (No.2, 4, 5, 6, 7 & 9)
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PRESENT HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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By the Court:- Heard the parties.
2. No one turns up on behalf of the respondent nos.1, 3, 8 and 10 to 22. Hence, this appeal is heard ex-parte against respondent nos.1, 3, 8 and 10 to 22.
3. This second appeal has been preferred under Section 100 of Code of Civil Procedure against the judgment and decree dated 2 Second Appeal No. 194 of 1998 23.02.1998 passed by the learned 2nd Additional District Judge, Godda in Title Appeal No. 3 of 1994/ 16 of 1997 whereby and where under, by the said judgment of concurrence, the learned first appellate court has dismissed the appeal and also dismissed the cross objection filed by the respondents being not maintainable and barred by limitation.
4. The case of the plaintiffs in brief is that the Mahabir Bhagat owned and possessed the suit land. The lands were recorded in his name in the last survey settlement before filing the suit. Mahabir Bhagat had no issue and therefore, he adopted Ram Chandra Bhagat but after such adoption, Mahabir Bhagat was blessed with two sons Gajadhar Bhagat and Gaya Bhagat out of whom Gaya Bhagat died unmarried. Mahabir Bhagat died in the year 1944. After the death of Mahabir Bhagat, his interest of the suit land devolved by way of survivorship on his adopted son Ram Chandra Bhagat and his natural son Gajadhar Bhagat in equal proportion. Ram Chandra Bhagat died in the year 1945 and his interest in the property devolved upon his sons and widow being the plaintiff nos.6 to 8 and they continued in cultivating possession of the suit land jointly with Gajadhar Bhagat- the plaintiff no.1 and his sons being the plaintiff nos. 3 and 4. In the year 1954, some of the defendants for the first time tried to disturb the possession of the plaintiffs which led to institution of the proceeding under Section 144 Cr.P.C. vide Crl. Misc. Case No.132 of 1954 and restraint orders were passed and the same was made absolute vide order dated 22.12.1954 against the defendants but before the said order could be made absolute, the defendants forcibly and dishonestly harvested the standing paddy crop over the plot no.1 and 63 on 3 Second Appeal No. 194 of 1998 04.11.1954 and criminal case no.198 of 1956 was instituted by the Subdivisional Magistrate, Godda for the defendants having committed the offences punishable under Section 188 of Indian Penal Code for harvesting the paddy crops from the plot nos. 1 and 63 in which the defendants were acquitted as service of notice of the proceeding under section 144 of the Code of Criminal Procedure, 1973, upon them could not be proved. During the pendency of the proceeding under Section 144 Cr.P.C. before the restraint order was made absolute against the defendants on 22.12.1954 an order has been passed directing the standing crops on the disputed plots to be harvested and kept in the custody of Chaukidar. Accordingly, a proceeding under Section 107 Cr.P.C. vide Crl. Case No.184 of 1956 was instituted in which the defendants were set free. In the year 1956, the plaintiff nos. 1, 6 and 7 executed usufructory mortgage commonly known as Bhugutbandha in favour of Sri. Tarachand Marwari in respect of suit plots and the plaintiffs duly put the mortgagee in possession of the said plots but some of the defendants again forcibly harvested the paddy crops of a portion of the Bhugutbandha land and Radha Shyam Marwari, son of Tarachand Marwari lodged F.I.R. but ultimately, it was held that the dispute between the parties is of a civil nature. In the year 1959, the plaintiffs Bishwanath Bhagat, Umakant Bhagat @ Uma Prasad Bhagat and their mother Most. Jasoda Devi who are respectively the plaintiff nos.6, 7 and 8 of this suit instituted Title (Partition) Suit No. 23 of 1959 against the plaintiff nos. 1 to 4 for partition of the share of the plaintiff nos. 6, 7 and 8 of plot no. 11 being a khatiyan was kept joint by the common consent which has been described in 4 Second Appeal No. 194 of 1998 Schedule 'D' of the plaint. The final decree was passed in Title (Partition) Suit No.23 of 1959 which was put into execution in Title Execution No. 7 of 1963 and the plaintiff nos. 1 to 4 were duly put in possession of the suit plots together with the standing crops grown by the said plaintiff nos. 1 to 4 while the plaintiff nos. 6 to 8 were put in possession of plot described in Schedule 'C' of the plaint together with the standing crops grown by the plaintiff nos. 6, 7 and 8 on 03.08.1963. The plaintiffs claimed that the plaintiff no.5 was born after institution of the said partition suit and he has been in possession of the suit plot as described in Schedule 'B' of the plaint along with his father- the plaintiff no.1 and his brothers. Hence, the plaintiffs filed the suit with the following prayers :-
(a) Title of the plaintiff nos. 1 to 5 may be declared over the lands described in schedule B of the plaint and the title of the plaintiff nos. 6, 7 and 8 may be declared over the lands described in schedule C of the plaint.
(b) The possession of the plaintiffs over their respective plot be confirmed.
(c) in case the court holds that the plaintiffs are not in possession of the suit lands, possession may be delivered through court to the plaintiff nos. 1 to
5 over the suit land as mentioned in Schedule B of the plaint.
(d) cost of the suit and other reliefs.
5. In their joint written statement, the defendants challenged the maintainability of the suit on various technical grounds and submitted that the suit is not maintainable as the widow of Mahabir Bhagat has not been made party to the suit. The defendants did not admit the averments made in paragraph no.3 of the plaint and pleaded that Themka Man Manjhi along with other defendants are the real owners of the suit land before the defendants. The defendants further pleaded that the plaintiffs have no title nor possession over the suit land and the plaintiffs are out of possession more than 12 years and the plaintiffs have not arrayed the mortgagee of Bhugutbanda deed of 5 Second Appeal No. 194 of 1998 mortgage in the suit. It is further pleaded that Mahabir Bhagat was not able to cultivate the lands allotted to him but there was practical difficulty in cultivating the lands by himself so Mahabir Bhagat who was the karta of the family handed over the suit land to the defendants to cultivate the suit land by making the bhouli settlement. The Bhouli settlement was made with by the other defendants separately by way of oral transaction on produce land known as Bhouli settlement. Dhondho Kumar got the settlement of plot no.64, 30 and Tangi Rai got the settlement of plot no.67, Themka Marandi got settlement of plot no.49. By this Bhouli settlement, the defendants started cultivating the lands according to the settlement and used to pay rent to Mahabir Bhagat till his death and after his death to the plaintiffs and there was no dispute between the parties. The defendants are possessing the suit land by way of adverse possession. Hence, they have perfected their title by way of adverse possession after expiry of statutory period of 12 years and thus the defendants have acquired occupancy rights and perfected good title by law of prescription long before in the year 1954. Since the Bhouli settlement, the defendants has been in physical cultivating possession of the suit land till the date of filing the suit and after sometime, the defendants stopped giving any produce to the plaintiffs in or about the year 1951 as the plaintiffs lost their title over the suit land. So the plaintiffs in order to regain his lost title over the suit land brought several cases on false and baseless allegation and being unsuccessful in their attempt, the plaintiffs has brought the present suit.
6. On the basis of rival pleadings of the parties, the learned 6 Second Appeal No. 194 of 1998 trial court framed the following ten issues:-
(1.) Is the suit as framed maintainable?
(2.) Have the plaintiffs got valid cause of action for the suit? (3.) Is the suit bad for misjoinder and non-joinder of parties? (4.) Is the suit barred by limitation?
(5.) Was Ramchander adopted by Mahabir Bhagat as alleged by the plaintiffs?
(6.) Whether the lands of schedule C and D of the plaint allotted to the share of plaintiff nos. 6 to 8?
(7.) Did Mahabir Bhagat settled suit land in the year 1938? (8.) Have the defendants acquired adverse possession over the suit land? (9.) Are the plaintiffs entitled to decree relating to suit land? (10.) Are the plaintiffs entitled to any other relief or reliefs?
7. The learned trial court first took up issue nos. (2), (4), (5), (6), (7), (8) and (9) and after considering the evidence in the record came to the conclusion that late Ram Chandra Bhagat was the adopted son of Mahabir Bhagat. The learned trial court next held that the defendants did not acquire any title over the suit land. The learned trial court further held that the suit is not barred by limitation and then came to the conclusion that the plaintiffs have valid title and possession over the suit land with respect to their respective shares. The learned trial court thereafter took up issue nos. (1) and (3) and held that the suit is maintainable and answered the issue of non-joinder and mis-joinder of necessary party in the negative and decreed the suit and held that the plaintiffs have valid title and possession with their respective shares of suit land and claimed their possession as detailed in the plaint and permanently injuncted the defendants from any way interfering with the possession of the plaintiffs.
8. Being aggrieved by the judgment and decree passed by the learned trial court, the defendants filed Title Appeal No.3 of 1994/16 of 1997 in the court of District Judge, Godda which was ultimately heard 7 Second Appeal No. 194 of 1998 and disposed of by the learned first appellate court by the impugned judgment and decree.
9. The learned first appellate court formulated the following two point for determination for consideration:-
(i) Whether the defendants have acquired title by adverse possession and the plaintiff's suit is barred by law of limitation?
(ii) Whether Ramchandra Bhagat was the adopted son of Mahabir Bhagat or not?
10. The learned first appellate court first took up point for determination no.(i) and made independent appreciation of the evidence in the record and came to the conclusion that the defendants have failed to prove their acquisition of title by way of adverse possession and that the plaintiff's suit for declaration and/or recovery of possession in not barred by the law of limitation and accordingly, the finding of the learned trial court on this point was confirmed. The learned first appellate court next took up point for determination no. (ii) and after considering the evidence in the record came to the conclusion that the cross objection is not maintainable and hopelessly barred by limitation and dismissed the appeal.
11. At the time of Admission of this appeal, the following substantial questions of law were framed vide order dated 21.05.1999 :-
(1.) Whether the judgment of the courts below are vitiated on account of adopting wrong approach and wrong perspective by illegally placing onus of proof of title and adverse possession on the defendants? (2.) Whether the court below have failed to appreciate that the suit having been filed in the year 1963, Article 144 of the old Limitation Act was applicable which envisages onus of proof of title as well as possession within 12 years of the suit?
12. Mr. Rahul Kumar Gupta, learned counsel for the appellants submits that both the learned courts below have failed to appreciate the 8 Second Appeal No. 194 of 1998 evidence in the record in their right perspective. It is next submitted by Mr. Gupta that the suit having been filed in the year 1963, Article 144 of the old Limitation Act was applicable which envisages onus of proof of title as well as possession within 12 years of the suit is on the plaintiffs. It is then submitted by Mr. Gupta that both the courts below have adopted wrong approach and wrong perspective by illegally placing onus of proof of title and adverse possession on the defendants. It is next submitted by Mr. Gupta that both the courts below have failed to appreciate that the suit having been filed in the year 1963, Article 144 of the old Limitation Act was applicable which envisages onus of proof of title as well as possession within 12 years of the suit. Hence, it is submitted that the judgment and decree of both the courts below be set aside and the suit of the plaintiffs be dismissed.
13. Mr. Purnendu Kumar Jha, learned counsel for the respondent nos.2, 4, 5, 6, 7 and 9 on the other hand defended the judgment and decree passed by both the courts below and submits that except for the explanation mentioned in Article 65 of the Limitation Act, 1963, there is no difference in the verbatim of Article 65 of the schedule of Limitation Act, 1963 and Article 144 of the Limitation Act, 1908. It is then submitted by Mr. Jha that the courts below have not accepted the plea of adverse possession of the defendants as the defendants failed to specifically plead as to since when it commenced and as undisputedly, there was no such pleading in the written statement of the defendants, which is one of the important reasons, the other one being the admitted case of the defendants in the written statement itself that they have paid 9 Second Appeal No. 194 of 1998 half produce to Mahabir Bhagat till his death in the year 1944 and after that to the plaintiffs. Hence, their possession was definitely on behalf of the plaintiffs as bhoulidars and they having not denied the title of the plaintiffs nor having expressed their intention that they wanted to deny the title and as for perfection of title by way of adverse possession mere possession of the defendants was not sufficient, hence, the court below has rightly held that the defendants have failed to establish perfection of their title by way of adverse possession by the courts below. It is lastly submitted that 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, so far as the first substantial question of law as to whether the judgment of the courts below are vitiated on account of adopting wrong approach and wrong perspective by illegally placing onus of proof of title and adverse possession on the defendants is concerned, the concept of adverse possession has been well settled by the judicial committee of the Privy Council in 1907 in Perry vs. Clisshold (1907) AC 73, wherein, it was held as under:-
"It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the original rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the statute of Limitation applicable to the case, his right is forever extinguished and the possessory 10 Second Appeal No. 194 of 1998 owner acquires an absolute title."
15. This judgment of the Privy Council was approbated by the three Judges of Hon'ble Supreme Court of India in the case of Nair Service Society Ltd. vs. K.C. Alexander & Ors. reported in AIR 1968 SC 1165.
16. Article 144 of the schedule of Limitation Act, 1908 which was the law of limitation which was holding the field before enactment of the Limitation Act, 1963, is definitely in pari meteria with Article 65 of the schedule of Limitation Act, 1963 but Article 142 of the Limitation Act, 1908 entails the burden of proving the dates of dispossession or discontinuation of the possession upon the plaintiffs who in order to succeed must show that the dispossession or discontinuation of possession was not prior to 12 years before the suit was filed but there is no difference in law regarding the ingredients to be put forth by the person claiming adverse possession right from Perry vs. Clisshold (supra) up to 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 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 11 Second Appeal No. 194 of 1998 dint of his hard labour and makes the land cultivable. The legislature in various States confers rights based on possession." (Emphasis supplied)
17. 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 has been held by the Hon'ble Supreme Court of India in the case of Karnataka Board of Wakf v. Government. of India & Others (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."
18. The plaintiffs have categorically pleaded that for the first time in the year 1954, the defendants have disturbed the possession of the plaintiffs and took away the standing paddy crops. The suit was filed on 14.08.1963. The plaintiffs have supported their contention of interference of their possession by documentary evidence of the certified copies of the orders passed in different criminal miscellaneous cases under Section 144 Cr.P.C. Under such circumstances, this Court is of the considered view that admittedly the defendants have not pleaded as to from which date, their possession became adverse and they admitted in the written statement itself that they used to give usufruct to Mahabir 12 Second Appeal No. 194 of 1998 Bhagat and after his death to the plaintiffs and on that account, both the courts below have held that the defendants could not succeed in establishing their plea of adverse possession. Hence, in the considered opinion of this Court, the judgment and decree of both the courts below are not vitiated on account of adopting wrong approach and wrong perspective by illegally placing onus of proof of title and adverse possession on the defendants as both the courts below have declared the title of the plaintiffs on the basis of the evidences put forth by the plaintiffs in support of the same and not because of the failure of the defendants to prove their plea of adverse possession. Hence, the first substantial question of law is answered in the negative.
19. So far as the second substantial question of law as to whether the court below have failed to appreciate that the suit having been filed in the year 1963, Article 144 of the old Limitation Act was applicable which envisages onus of proof of title as well as possession within 12 years of the suit is concerned, in view of the discussions made above in respect of the first substantial question of law as this Court has already come to the conclusion that in fact Article 142 of old Limitation Act, 1908 casted the burden of proving the date of dispossession or discontinuation of possession upon the plaintiffs and the plaintiffs have already proved the same hence the learned courts below have not failed to appreciate Article 144 of the schedule- I of Limitation Act, 1908 which reads as under :-
13 Second Appeal No. 194 of 1998
Article Description of Suit Period Time from which No. of period begins to run Limitati on For possession of Twelve When the possession 144 immovable property or years of the defendants any interest therein not become adverse to hereby otherwise the plaintiff.
specially provided for.
is not pari material with Article 65 of Schedule of the Limitation Act, 1963 which reads as under :-
Description of Suit Period Time from Article of which Limitat period No. ion begins to run For possession of immovable Twelve When the
65. property or any interest therein years possession based on title. of the defendant Explanation- For the purpose of become this article: adverse to the plaintiff.
(a) where the suit is by a remainderman, a revisioner (other than a landlord) or a devisee, the possession of the defendant shall be deemed to adverse only when the estate of the remainderman, revisioiner or devisee, as the case may be, falls into possession.
(b) where the suit is by a Hindu or Muslim entitled to the possession of immovable property on the death of a Hindu or Muslim female, the possession of the defendant shall be deemed to become adverse only when the female dies.
14 Second Appeal No. 194 of 1998
(c) where the suit is by a purchaser at a sale in execution of a decree when the judgment-
debtor was out of possession at the date of the sale, the purchaser shall be deemed to be a representative of a judgment-
debtor who was out of possession.
But the difference in verbatim and adding of explanation did not make any material difference in the facts of the case. Hence, the second substantial question of law is also answered in the negative.
20. In view of the discussions made above, this Court do not find any merit in this appeal.
21. Accordingly, this appeal is dismissed on contest but under the circumstances without any costs.
22. 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 28th November, 2022 AFR/ Sonu-Gunjan/-
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