Jharkhand High Court
Mohamad Ansari vs Md. Hasan on 20 February, 2023
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
1 Second Appeal No. 247 of 2013
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Second Appeal No. 247 of 2013
1. Mohamad Ansari
2. Mohamad Anwar ... Appellants
-Versus-
1. Md. Hasan
2. Md. Wasim
3. Md. Salim
4. Naiman Bibi
5. Pulia Bibi
6. Hasina Khatoon
7. Sanji Bibi @ Rasidan Bibi (Deleted)
8. Gani Mian
9. Sk. Md. Rasul (Deleted) ... Respondents
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Appellants : Mr. Manjul Prasad, Sr. Advocate
For the Respondents : Mr. S.T. Sajid, Advocate
Mr. Saibal Mitra, Advocate
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06/20.02.2023 Heard Mr. Manjul Prasad, learned senior counsel appearing for the
appellant.
2. This second appeal has been filed being aggrieved and dissatisfied with the judgment and decree dated 03.10.2013 (decree sealed and signed on 18.11.2013) passed by the learned District Judge No.II, Palamau at Daltonganj in Title Appeal No.03 of 1997 affirming the judgment and decree dated 19.12.1996 (decree sealed and signed on 10.01.1997) passed by the learned 2nd Additional Munsif, Daltonganj in Title Suit No.53 of 1992.
3. Title Suit No.53 of 1992 was instituted by the appellants/plaintiff for declaration of plaintiff's valid title and possession over the suit properties by virtue of registered deed of Baimokasa being deed no.1175 dated 02.03.1987 executed by the proforma defendant no.3 namely Sheikh Mohammad Rasul and for other relief which the plaintiff be entitled with cost of the suit. The learned trial court after appreciating the evidence, 2 Second Appeal No. 247 of 2013 dismissed the said title suit. Aggrieved with that judgment, the appellants/plaintiff preferred Title Appeal No.03 of 1997 which was dismissed by the learned District Judge-II, Palamau at Daltonganj vide judgment dated 03.10.2013 affirming the judgment passed by the learned trial court dated 19.12.1996. Aggrieved with that judgment, the present second appeal has been filed by the appellants/plaintiff.
4. The appellants/plaintiff instituted the said title suit alleging therein that the land being Khata No.251, area 2.46 acre covered by plot Nos. 1916, 1990, 2001, 2003, 2017, 2035, 2029, 2109, 2119, 2163 and 2166 situated in village Haidarnagar, P.S Haidarnagar, formerly P.S. Hussainabad Thana No.303, District Palamau was recorded raiyati in the name of Sardar Jolha s/o Ali Mohammad Jolha of Village Haidarnagar during the last cadestral survey and settlement operation. It was further alleged that similarly the land bearing Khata No.252 Plot No.1910 (0.02), 2552 (0.48), 2592 (0.31) total area 81 decimal situated in village Haidarnagar were recorded in the name of Abdul Jolha, Neyaz Ali Jolha and Sardar Jolha having equal shares during the cadestral survey and settlement operation. In order to appreciate the relationship of parties to the suit the plaintiff has given Genealogical Table in the plaint and this suit relates only between the sons of Sardar Jolha, so in the Genealogical table only the heirs of Sardar Jolha has been given. This suit was also filed in respect of the properties of plaintiff which she got by virtue of registered Baimokasa deed executed by proforma defendant No.3 in her favour relating to plot No.2029 area 21 decimal of Khata No.251 fully described in the Schedule-A of the plaint and which was subject matter of this suit. It was further alleged that the last cadestral survey recorded tenant Sardar Jolha died in about 3 Second Appeal No. 247 of 2013 35 years ago leaving behind him his three sons, namely, Rasul Mian, Chhakan Mian and Gani Mian, who became the owner of 1/3 rd after inheritance and the aforesaid 3 sons of Sardar Jolha partitioned the land of Khata No.251 in three parts equally by metes and bounds in or about the 35 years ago after the death of Sardar Jolha. The Proforma defendant No.3 got exclusively the entire plot No.2029 area 21 decimals and entire plot No.2017 area 16 decimals and got 1/3rd share in remaining each of the plots of Khata No.251 except entire plot No.2109 area 44 decimals and 2163 area 29 decimals. These two plots were allotted in the share of the principal defendants exclusively besides 1/3rd share each of the principal defendant got in remaining plots of Khata No.252 and accordingly the proforma defendant No.3 and the principal defendants came in possession about 35 years ago as per final partition and accordingly acted upon and made construction of houses. The proforma defendant No.3 constructed the residential house in the land of plot No.2029 from the pocket of his own fund and Sk. Budhai Mian who is father-in-law of proforma defendant No.3 and father of the plaintiff also spent amount in construction of the house and the assisted the plaintiff in it. The land of plot No.1910 and 2592 total area 33 decimal of Khata No.252 in which the sons of Sardar Jolha were 1/3rd share, so 11 decimals was sold in their 1/3 share at a very small amount and all the brothers equally divided the consideration money and utilised the same personally and the same was not utilised jointly for construction of the house in plot No.2029 as it was already divided and allotted in the share of proforma defendant No.3. In order to prove the previous partition by metes and bounds and acted upon by the parties 4 Second Appeal No. 247 of 2013 including the principal defendants in the manner that proforma defendant No.3 sold the land of plot No.2017 area 16 decimal and plot No.2166 area 24 1/3 decimal out of 73 decimals as per his allotment to Fulzad Bibi wife of Sheikh Mohammad Gani, the principal defendant No.2 by registered sale deed No. 2629 dated 14.02.1969 for Rs.1,000/- and in which principal defendant No.2 is himself identified of his wife Fulzad Bibi. Similarly further proforma defendant No.3 executed an another sale deed for the land of plot No.2119 area 6 2/3 decimal out of 20 decimals by registered sale deed much before in favour of Fulzad Bibi w/o Principal defendant No.2 which are the clear proof of partition by metes and bounds about 35 years ago and there left nothing joint in between the sons of Sardar Jolha. It was also alleged that proforma defendant No.3 further sold the land as per his allotted share in plot No.1990 through registered sale deed area 21 decimal in favour of Kishmatia Bibi w/o Sahdin Mian of Haidarnagar long ago and she was in possession over the same similarly in plot No. 2001 and 2003 proforma defendant No.3 sold by registered sale deed long before as per his 1/3 share portion of land in his allotted share in favour of Sahdeo Kumhar of same village. All the above sale deeds are of Khata No.251. In the same manner proforma defendant No.3 executed registered sale deed in respect of land of plot No.2552 under Khata No.252 area 5 1/3 decimals out 16 decimals from the separated out of 16 decimals originally of Sardar Jolha and this sale was also made by proforma defendant no.3 in favour of Parikha Kumhar and others of same village Haidarnagar about 15 years back. All the vendees have been in possession over their purchased land and their names are being mutated in the office of C.O. and are getting the rent receipt In the above manner principal 5 Second Appeal No. 247 of 2013 defendant No.1 also executed registered sale deed in respect of the land of plot No.1990 under Khata No.251 area 7 decimals out of 21 decimals to Mansoor Mian about 2 years back which proves the separated allotment and the same are acted upon the principal defendants. The proforma defendant No.3 being exclusive owner of the properties in suit executed Baimokasa deed in lieu of Dain Mehar by registered deed vide No.1175 dated 02.03.1987 in favour of his wife Rasidan Bibi plaintiff and plaintiff is the exclusive title holder and owner in possession of the suit properties. Actually the proforma defendant No.3 orally delivered the possession of the property about 15 years back covered by deed No.1175 dated 02.03.1987 which is in suit and since then plaintiff has been in possession. The plaintiff applied for mutation and her name was mutated after due enquiry on the factum of possession and her name was mutated by the C.O. for the suit property and she has been getting the rent receipts regularly. The panches of the Muslim Committee also found the partition and confirmed the same referred by both the parties vide case No.17/92 dated 19.7.92. Parties to the suit have no land in Khata No.146 which are wrongly mentioned in the Revenue Record if any it is just a clerical mistake. In the present revisional survey the plaintiff was found in possession over the suit land and Khata was given to her for some minor technical error and revision is filed for correction also. The principal defendants who with a dishonest intention, intentionally caused and created apprehension of breach of peace, so the police Haidarnagar reported for action u/s 144 Cr.P.C before the S.D.M. Daltonganj vide Misc. Case No.141/87 and case u/s 144 Cr.P.C over 21 decimals in suit was converted u/s 145 Cr.P.C and after hearing both the parties the Court of Executive Magistrate, Daltonganj after trial on transfer of the case passed 6 Second Appeal No. 247 of 2013 the final order on 21.02.1992 by which he observed the suit property as joint property and did not pass any order and by the order advised without jurisdiction illegally to go in competent Court and dropped the proceeding and as such there was necessity for the suit. Similarly, the L.R.D.C., Daltonganj in Mutation Appeal No.XV/19 of 1989-90 filed by principal defendant No.1 against the order of Mutation vide case No.556/87-88 passed by C.O. Hussainabad in favour of plaintiff, allowed illegally giving share to the principal defendants, as if sitting and functioning as civil court. The order of the L.R.D.C. dated 18.06.1991 is not only illegal but void and without jurisdiction and hence necessary for the suit to avoid further complication for the suit property. The principal defendants on the basis of the above referred illegal orders, threatening to create trouble and taking law in their hands also. The plaintiff has got absolute title and possession of the suit property by virtue of remaining in possession for more than 30 years by virtue of Partition acted upon. The cause of action for the suit accrued on 21.02.1992, the date of order of the Executive Magistrate, Daltonganj dated 18.06.1991 the date of order of L.R.D.C., Daltonganj within the jurisdiction of the Court of Munsif, Daltonganj.
5. The defendant Nos.1 & 2 have filed joint written statements and contested the suit. The defendant No.3 who is proforma defendant No.3 has filed separate written statement and he supported the case of the plaintiff. The proforma defendant No.3 in his written statement contended that it is fact that the defendant No.3 got the land of Plot No.2029 0.21 acres of Khata No.251 in his name in partition among the brothers about thirty years ago after the death of Sardar Jolha, the father of the defendants. Accordingly, acquired the valid title and 7 Second Appeal No. 247 of 2013 possession in his separated land and constructed the house from the pocket of his own fund by selling and executing a sale deed for his share of land area 0.40 1/4 acres of Khata No.251 bearing plot No.2017 entire and 1/3 area of plot no.2166 on 30.10.1968, in favour of Fulzad Bibi, wife of Gani Mian, the defendant No.2 and defendant No.3 also sold the land of 1/3 of plot No.2119, under Khata No.251 to Fulzad Bibi and used the amount of consideration received by proforma defendant No.3 and used the same in construction of the house in plot No.2029, which is the land and house involved in this suit, so the properties got by proforma defendant No.3 in partition is fully acted upon and admitted by defendant No.1 & 2 by purchasing the same from defendant No.3 so now there remained nothing with defendant No.1 & 2 to dispute the title and possession of the plaintiff. This proforma defendant is the husband of plaintiff and has fully supported the case of plaintiff as per plaint and has prayed to decree the suit with cost against the defendant No.1 & 2. Defendant No.1 & 2 who are main contesting defendants have contested the suit by filing joint written statement and contended that plaintiff has got no cause of action for the suit. Suit is barred by the principles of estoppel, waiver, acquiescence as also by the Law of Limitation and by the provisions of Specific Relief Act. The suit is undervalued, suit is bad on account of non-joinder of necessary party. Fatma Bibi the daughter of Sardar Jolha is alive and in her absence the suit cannot proceed. The statement in para-1 of plaint except the area of Khata No.251 are not denied by these defendants. The total area of Khata No.251 is 2.50 acres. Para-2 is also denied. The G.T. is also not denied as given in para-3 of the plaint. It is false to state that this suit relates only between the sons of Sardar Jolha. The present suit has been 8 Second Appeal No. 247 of 2013 filed by the daughter-in-law of Sardar Jolha and the daughter of Sardar Jolha, whose name has already given above has not been made as party to this case. The proforma defendant No.3 in order to grab the share of principal defendant No.1 & 2 has executed a showy and fictitious deed of Bai-Mokasa deed while a proceeding u/s 144 Cr.P.C vide Misc. Case No.141 of 1987 was going on. Further from the recital of the deed it would clear that, Dain Mehar amount was Rs.500/-along with two Dinar whereas the suit land which is alleged to be the subject matter of deed of Bai Mokasa is not less than Rs.1 lac. Thus the deed of Bai Mokasa is showy transaction and has not acted upon for any time. The statement in para-6 of the plaint is wholly incorrect, false and motivated. Sardar Jolha died leaving behind three sons only. The truth is that Sardar Jolha died 30 years ago leaving behind his widow Churiya Bibi, three sons and one daughter Fatima Bibi who all inherited the property left by Sardar Jolha. The sons of Sardar Jolha had partitioned the lands of Khata No.251 in three equal part. about 35 years ago because in the life time of Sardar Jolha, the defendants has no right over the land of Khata 251 as such there was no occasion to partition the same in three equal parts. The alleged partition is further falsified because the mother and sister of defendants were alive at the alleged time of partition. Thus this statement is contrary to the statement made above are denied by these defendants. The statement of para-7 is totally incorrect false and motivated so denied by these defendants The entire land of Khata 251 and 252 referred above are still joint among the heirs of Sardar Jolha. The proforma defendant was idle and had no source of income as such the principal defendants who were employed in Private firms decided to construct shop for proforma defendant as such they selected the land of 9 Second Appeal No. 247 of 2013 plot No.2029 for the construction of the shop. The defendant No.1, 2 and 3 jointly in order to raise money for construction of the shop, sold land 0.11 acre of Khata No.252 for consideration and the consideration money was invested in construction of shop. Initially the defendant No.1 and 2 constructed one shop attached with one Room and after some time they also extended the said construction and in this manner at present three shops room attached with three rooms are standing over 0.07 acre in the middle of the plot No.2092. The proforma defendant has opened a cycle repairing-cum-sale of spare parts in the middle shop-room of the said construction. It is false on the part of the plaintiff that construction of plot No.2029 was from the money of the proforma defendant No.3. Shaikh Budhai Mian had no concern with the said construction nor any amount was invested in the construction. The proforma defendant got exclusively the entire plot of 2029. The statement of para 8 of the plaint with regard to transfer of 11 decimals of Khata No.252 is admitted by these defendants and rest statements with regard to division of consideration money amongst all the sons Sardar Jolha is totally incorrect and motivated. The statement in para-9 regarding transfer of the land by proforma defendant is also admitted by these defendants and rest statement are incorrect and hence denied by these defendants. The alleged recital about partition made in the deed of sale are creation of scribe. There was no document for the same nor there was any basis to write such uncalled for matter which was never in existence. The rent for the entire lands of Khata No.251 and 252 is still in the name of Sardar Jolha. In the year 1969 the proforma defendant has to execute 40¼ decimals of land being the share in plot No.2017, 2163, 2166, but at the time of preparation 10 Second Appeal No. 247 of 2013 of deed the scribes left to mention Plot No.2163 and the scriber had mentioned the entire area of plot No.2017 in order to complete 40¼ decimals in total. This fact was not detected at the time of executing the deed. After the mutation made in favour of Fulzad Bibi the defect was disclosed, thereafter it was decided amongst the defendant No.1 to 3 that Fulzad Bibi will cultivate the land of Plot No.2163 to the extent of the share of proforma defencant. Thus Fulzad Bibi was in possession of plot No.2017 only to the extent of the share of proforma defendant No.3 and rest portion are in possession of defendant No.1 & 2 .The plaintiff in collusion with proforma defendant No.3 can not take any advantage of the mistake committed by the deed writer. Thus, any statement of any recital contrary to made above are not binding upon these defendants. The statement of para-10 & 11 of the plaint are denied by these defendants. These defendants do not know about the exact area said to have been transferred to Kismatiya Bibi and Sahdev Kumhar of village Haidarnagar. The fact is that these defendants are also in possession of plot No.1990 to the extent of their shares. The purchasers from proforma defendant are in possession to the extent of the share of their vendor in each plot and it has been made clear that defendants are in possession of plot No.2017 and 1990 to the extent of their share. Thus the statement of para-12 are replied accordingly. The statement of para-13 is totally absurd. It is a fact that defendant No.1 had executed sale deed in respect of the land of plot No.1990 to the extent of the share out of the joint possession of the others. The defendant No.1 was never separated nor there was any partition amongst the brothers. The statement of para-14 is totally false and hence denied. The proforma defendant 11 Second Appeal No. 247 of 2013 in order to put the defendant No.1 & 2 in harassment executed the alleged Bai Mokasa deed in respect of the property to the tune of Rs.1 lac for small Dain Mehar. The plaintiff never acquired any title and possession over the plot No.2029. It is falsely alleged by the plaintiff as well as falsely recited in the Bai Mokasa deed that proforma defendant delivered the possession over the entire plot No.2029 to the plaintiff 7/8 years ago from the alleged date of execution of Bai Mokasa with regard to statement in para-15 it was submitted that plaintiff got an order behind the pack of these defendants from the C.O., Hussainabad and when this fact came to the knowledge of these defendants referred Mutation Appeal No.XV/19 of 1989-90 against the order of Mutation Case No.556/87-88 and the learned D.C.L.R. Daltonganj after hearing the parties set aside the order passed in Mutation Case No. 556/87-88. The plaintiff is getting rent receipt regularly. The statement in para-16 is totally false, incorrect and imaginary, as there was never existed any partition in respect of the lands of Khata No.251 and 252 in between the brothers i.e. defendants. As such confirmation of alleged partition before the Panches of Muslim community does not arise. The statement in para-17 has got no relevancy in the present suit. The statement in para-18 of the plaint is contrary to what have been stated above are also denied by these defendants. In the revisional survey new Khata in respect of old plot No.2029 was prepared in the name of defendant No.1 to 3. However, the process of the preparation of final record of right is going on. The defendant No.1 Chhakan Mian due to old age and physical defect left the service and in order to establish his son to earn their livelihood started repairing the shop constructed over plot no.2029; the proforma defendant No.3 with dishonest intention by bringing 12 Second Appeal No. 247 of 2013 the local Police is collusion got a proceeding u/s 144 Cr.P.C in respect of entire plot No.2029 and later on the said proceeding was converted into 145 Cr.P.C and after perusing the written statement, evidence, oral and documentary, the learned Executive Magistrate, Daltonganj has rightly dropped the aforesaid proceeding on 21.02.1992 holding therein that party to the proceeding were in joint possession of the land in question. The order of the learned Executive Magistrate is valid and correct. The plaintiff never came in possession of the suit land on the basis of the deed of Bai Mokasa. On 20.1.1987 the proforma defendant No.3 filed a petition before the Police for action in respect of the suit land and the police made enquiry and submitted report on 27.01.1987 against the defendants No.1 & 2 as well as defendant No.3 and also restrained them to go over the land which was the subject matter of the suit. On the basis of the report, the learned S.D.M., Daltonganj drawn up a proceeding u/s 144 Cr.P.C. in respect of entire plot No.2029 and restrained the defendants to go over the land. In view of the restrained order the plaintiff cannot come in possession on the deed of Bai Mokasa as such a false recital about previous was recited in the deed. The statement with regard to order passed by D.C.L.R. on 18.06.1991 is correct and admitted. The order of D.C.L.R is legal, correct and within the jurisdiction. Any contrary statement made in para 20 of the plaint are also denied by these defendants. The statement in para-21 & 22 of the plaint are totally incorrect and denied. The plaintiff is not in possession of the suit land nor has acquired any title, as such there is no question of giving threatening by the principal defendants. The entire land of Khata No.251 is in joint possession of the defendants. The plaintiff is not entitled for any relief much less the relief claimed in the 13 Second Appeal No. 247 of 2013 suit. These defendants have prayed to dismiss the suit with compensatory cost as the suit was frivolous and vexatious.
6. Mr. Manjul Prasad, learned senior counsel appearing for the appellants submits that the learned courts committed serious error in not considering the admission of inter-se transaction of suit land between the parties to the suit which is strong evidence of partition and thus erred in deciding the point against the appellants/plaintiff. To buttress this argument, he relied upon the judgment passed in Ram Bahadur Nath Tiwary v. Kedar Nath Tiwari and other; (AIR 1977 PATNA 59).
7. Paragraph 14 of the said judgment is quoted herein below:
"14. Shri Kailash Roy submitted that there was a presumption that the properties were joint unless the same was rebutted by good and cogent evidence. According to him that presumption had not been destroyed by either of the documents. He again referred to some stray statements made by D.W. 22 wherein it was stated that only 2-4 bighas of land had been partitioned after the survey. In this connection, he referred to the various decisions reported in AIR 1954 SC 355 (Nathoo Lal v. Durga Prasad); (1973) 1 SCC 672 : AIR 1973 SC 1130 (Brij Kishore Prasad Singh v. Jaleshwar Prasad Singh) and AIR 1959 Pat 331 (Santan Narain v. Saran Narain). In the case of Nathoo Lal (AIR 1954 SC 355), in paragraph 12 of the judgment, it was observed that the law presumes in favour of continuity of possession. It was a suit for possession of a certain property. The Courts had found the plaintiff to be in possession of a house even during the lifetime of one Laxmi in whose favour a deed of gift had been executed. It was held that even if the tenant residing in the house had vacated it and the plaintiff did not lock it, his possession would be presumed to continue till he was dispossessed by some one. This decision has no application at all to the facts of the present case. The case reported in (1973) 1 SCC 672 : AIR 1973 SC 1130 (Brij Kishore Prasad Singh's case) is also on different facts. There a suit for partition had been compromised but no decree had been passed. It was held that a subsequent suit for recovery of Khas possession was not barred. The case of Santan Narain (reported in AIR 1959 Pat 331) was one in which the plaintiff's claim for partition of properties had been dismissed on the ground that the suit was barred by res judicata. The previous suit had been decreed on compromise and a preliminary decree had been drawn up in terms thereof. In the latter suit out of which appeal to the High Court was preferred, the plaintiff claimed 14 Second Appeal No. 247 of 2013 that the parties continued in joint possession according to their shares and that there had been no change in his possession as the previous partition decree proved to be infructuous. The only question urged in that case was that the present suit was not barred and that there was evidence which proved that the previous partition had not been effected and the parties continued to remain in joint possession of the disputed land as cosharers. It was held by this Court on facts, relying upon the oral evidence adduced by the parties, that they continued to remain in possession as before and the allotments made to the parties by the final decree were not brought into effect. It was further held that a co-sharer had a right to seek partition if for some reason there had not been actual breaking up of the title and possession of the co-sharer by actual possession by each of them of the specific portion of the joint property said to have been allotted to them; but the position will be different where there has been actual breaking up of the title and possession of the co-sharer. In the present case, it is clear from the evidence on record that the parties to the suit have been exercising separate possession not only over the properties admitted by the plaintiff to have been partitioned before the survey, but also over the properties claimed by the plaintiff to have remained unpartitioned after the survey. The separate dealings by the plaintiff as well as by the defendants in respect of their specific shares are ample proof of the above fact. The above decision, in my opinion, does not assist the appellant. In the present case, the defendants claimed that all the properties had been partitioned, some before the survey and some after the survey. The pre-survey partition was admitted by Shri Roy. As regards the post-survey partition, it has been shown above that the parties were not only exercising their respective possession over the property but were also during with it by executing various documents in respect of their specific shares. Thus, it must be found that the defendants had proved their case of partition of the remaining lands after the survey. Separate transactions by members of a joint family may not by themselves establish separation, but mutual transactions between two members of a family stand on an entirely different footing and they furnish a very strong evidence of separation. In order to prove partition, it must be established that the parties altered and intended to alter their title to the property and that there was a definite and unambiguous indication by the members of the family to separate and to enjoy their respective shares in severalty. In the present case, there is definite and unambiguous indication of this fact getting back to the year 1921, at least forty years before the filing of the present suit. In face of such an indication, it is not open to the plaintiff- appellant to make up and say that some of the properties still remained joint. The presumption of jointness had been sufficiently rebutted by good and cogent evidence in the present case. Having considered the facts and circumstances of this case and the evidence adduced on behalf of the parties, I have no hesitation in holding, in agreement with the 15 Second Appeal No. 247 of 2013 trial Court, that the defendants have proved their case of partition of the suit properties."
8. Learned counsel appearing for the appellants further submits that the courts have erred in deciding the suit as well as appeal and on this point, there is substantial question of law involved in this second appeal and this may kindly be admitted.
9. In view of the above submission of the learned counsel appearing for the appellants, the Court has gone through the judgments of the learned trial court as well as the appellate court and finds that the learned trial court while deciding the suit, has framed 9 issues. The learned trial court while deciding issue no.(viii), which is with regard to 'whether plaintiff acquired valid title and possession over the suit property by virtue of registered deed of Baimokasa deed no.1175 dated 02.03.1987 executed by defendant no.3 or not', the learned trial court has considered that the plaintiff has examined her husband as P.W.8, who has deposed in para 3 of his deposition that he has right to deliver properties and their properties have been given to me in partition by measurement before the Panches. The partition took place with brother and he has further deposed in para 23 that document to partition was prepared in 1957-58 and all three brothers had signed on such partition document and the learned trial court has come to the conclusion from the evidence of P.W.8 that partition took place before Panches and paper for partition has also been prepared, but no such document of partition in 1957-58 has been brought before the learned trial court which could prove that the partition had been taken place in 1957-58 and considering all these facts, this issue was decided against the appellants/plaintiff by the learned trial court and dismissed the suit.
16 Second Appeal No. 247 of 2013
10. Aggrieved with dismissal of the suit, the appellants/plaintiff preferred Title Appeal No.03 of 1997 and the learned District Judge-II, Palamau at Daltonganj vide judgment dated 03.10.2013 has dismissed the appeal. The learned appellate court has framed 3 points to decide the appeal. Point no.
(ii) was with regard to 'Whether there was any previous partition between the parties prior to execution of Bai-Mokasa deed in favour of the plaintiff/appellant or not?' and while deciding this point, the learned appellate court has considered that P.W.8, who deposed that he has given the suit land to Rasidan Bibi (original plaintiff) against Dain Mehar. This witness has proved Exts.2 & 3. In para 3 of his evidence, he deposed that he had right to transfer the suit land which he had acquired in presence of Panches after measurement in partition, and partition had taken place with his brothers. In para 16 of his evidence, this witness has admitted that his sister Fatima Bibi is alive. In para 17, he further admitted that with regard to suit land a proceeding u/s 144 Cr.P.C. was initiated in between him and his brothers vide Misc. Case No.141/1987 and he has denied that during proceeding of the said case, he has executed Bai-Mokasa deed in the name of his wife. In para 23, he further deposed that his father died leaving behind his three sons, two daughters and one widow. The learned appellate court has further considered the evidence of PW.3 and P.W.5. P.W.5 who is plaintiff herself in para 2 of her examination-in-chief has deposed that her father-in-law Sardar Jolha died prior to 30 years and after his death, the land was partitioned among her husband and her devar. This witness was examined on 11.04.1996 and according to her, the land was partitioned in the year 1966. In para 9, she has stated that after the order passed in proceeding u/s 144 Cr.P.C., which was initiated by her Devar, this case was 17 Second Appeal No. 247 of 2013 instituted by her. In para 14 of cross-examination, she has admitted that at the time of death of her father-in-law, his widow and daughter were alive, namely, Guriya Bibi and Fatima Bibi. The learned appellate court has further considered evidence of P.W.6, who is son of the original plaintiff, who in his examination-in-chief deposed in para 1 that the partition in between his father and uncle had taken place in the year 1957 after the death of his grandfather. The learned appellate court has also considered Exts.1, 1/a, 1/b and 1/c, which are the rent receipts in the name of the plaintiff/appellants with regard to suit land. Ext.3 is Bai-Mokasa deed in question executed by Rasul Mian in favour of the plaintiff. There is recital that prior to 25-30 years after measurement, partition had taken place. The learned appellate court has further considered the additional document filed on behalf of the appellant/plaintiff and found that it does not indicate that prior to execution of Ext.3 (Bai-Mokasa deed), the suit land was previously partitioned among the husband of plaintiff/appellant and her Devar and considering all these evidences, the learned appellate court found that the husband of the plaintiff had no exclusive right, title over the suit property and he cannot transfer the suit property in favour of his wife and considering that the learned appellate court has held that the plaintiff/appellant has no title over the suit property through registered deed no.1175 dated 02.03.1987 (Ext.3).
11. So far as the contention of Mr. Manjul Prasad, learned senior counsel appearing for the appellants with regard to admission of inter-se transaction of suit land between the parties to the suit, that has already been taken care of by the learned trial court as well as the appellate court and, thereafter, the judgments have been passed.
18 Second Appeal No. 247 of 2013
12. This Court finds that the learned trial court and appellate court have considered all the materials on the record and thereafter passed the judgments. There are concurrent finding of two fact finding courts. There is no illegality and no perversity has been shown by the learned counsel appearing for the appellants. In that view of the matter, while sitting under Section 100 of the Code of Civil Procedure, this Court is not required to interfere with the concurrent finding of the learned courts.
13. Accordingly, this second appeal is dismissed.
(Sanjay Kumar Dwivedi, J.) Ajay/