Jharkhand High Court
Shankar Mahto vs Basant Devi on 23 July, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No.108 of 2020
(Against the Judgment and decree dated 28.01.2020 passed by the learned
District Judge-II, Giridih in Civil Appeal No. 12 of 2009)
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1. Shankar Mahto, s/o late Tejo Mahto, age 44 years, 2 (a) Kaushal Kumar Kushwaha @ Khoshi Mahto, aged about 38 years, s/o late Tulo Mahto, r/o Village-Parsan, P.O. -Khijarsota, P.S.- Dhanwar, Dist.-Giridih 2 (b) Debki Devi, aged about 55 years, d/o late Tulo Mahto, w/o Kartik Mahto, r/o Village-Dhurgargi, P.O. -Tara, P.S.-Jamua, Dist.-Giridih 2 (c) Bisni Devi @ Tahli Devi, aged about 52 years, d/o late Tulo Mahto, w/o Kishun Mahto, r/o Village-Dhurgargi, P.O. -Tara, P.S.-Jamua, Dist.-Giridih 2 (d) Radhiya Devi, aged about 48 years, d/o late Tulo Devi, w/o Basudeo Mahto, r/o Village-Baramo, P.O.-Pardih, P.S.-Jamua, Dist.-Giridih 2 (e) Nageshwari Devi, aged about 45 years, d/o late Tulo Mahto, w/o Jai Narayan Prasad Verma, r/o village-Bhanodih, P.O.- Serghara, P.S.-Jamua, Dist.-Giridih 2 (f) Prameela Devi, aged about 42 years, d/o late Tulo Mahto, w/o Birendra Prasad Verma, r/o Nawada, P.O.-Gurhai, P.S.- Jagdispur, Dist.-Deoghar 3 (a) Sudama Devi, aged about 56 years, w/o late Bandhan Mahto 3 (b) Ram Kishore Prasad Verma, aged about 30 years, s/o late Bandhan Mahto 3 (c) Pintu Kumar, aged about 24 years, s/o late Bandhan Mahto 3 (a) to 3 (c) are r/o Village-Parsan, P.O. -Khijarsota, P.S.-Parsan, Dist.-Giridih 3 (d) Kanchan Devi, aged about 27 years, d/o late Bandhan Mahto, w/o Mithlesh Prasad Verma, r/o Village-Barmasia, P.O.-Tara, P.S.-Jamua, Dist.-Giridih 3 (e) Soni Kumari, aged about 23 years, d/o Late Bandhan Mahto, w/o Bisundeo Prasad Verma, r/o Village-Bishanpur, P.O. & P.S.-Jamua, Dist.-Giridih
4. Khosi Mahto, son of Tulo Mahto, age 34 years
5. Bhuneshwar Mahto, son of late Daulat Mahto, age 50 years
6. Balo Mahto son of Somar Mahto, age 70 years
7. Ritlal Mahto s/o Somar Mahto, age 51 years Appellant nos.1, 4 to 7 are resident of Village-Parsan, P.O.-Dhanwar, P.S.-Dhanwar, Dist.-Giridih .... .... .... Appellants Versus
1. Basant Devi, w/o late Dukh Haran Mahto
2. Sachidanand Prasad Sinha, s/o late Dukh Haran Mahto
3. Baikunth Prasad Sinha, s/o late Dukh Haran Mahto
4. Sudhir Prasad Sinha, s/o late Dukh Haran Mahto Second Appeal No. 108 of 2020 1
5. Janardan Prasad Sinha, s/o late Dukh Haran Mahto
6. Bimla Devi, w/o Pramod Kumar, d/o late Dukh Haran Mahto r/o Vill+P.O.+P.S.-Gola, Dist.-Ramgarh
7. Ranjan Sinha, w/o Rajesh Kumar d /o late Dukh Haran Mahto , r/o Vill-Karawa, P.O.+P.S.-Nobatpur, Dist.-Patna (Bihar)
8. Baso Devi, w/o late Dukh Haran Mahto
9. Sachidanand Prasad Sinha, s/o late Dukh Haran Mahto
10. Shantoshi Prasad Srivastava, s/o late Moti Mahto
11. Suresh Prasad Verma, s/o late Moti Mahto
12. Most. Kunti Devi, w/o late Moti Mahto
13. Smt. Parmila Devi, d/o late Moti Mahto
14. Smt. Sudama Devi, d/o late Moti Mahto
15. Smt. Reshmi Devi, d/o late Moti Mahto
16. Smt. Manju Devi, d/o late Moti Mahto
17. Most. Radhiya Devi, w/o late Radhey Shyam Mahto
18. Basanti Prasad, s/o late Radhey Shyam Mahto
19. Jai Prakash Verma, s/o late Radhey Shyam Mahto
20. Amit Kumar s/o late Radhey Shyam Mahto
21. Sunita Devi, d/o late Radhey Shyam Mahto
22. Anita Devi, d/o late Radhey Shyam Mahto
23. Sahdeo Mahto, s/o late Fuleshwar Narayan Mahto
24. Rama Mahto, s/o late Fuleshwar Narayan Mahto
25. Lachho Mahto, s/o late Fuleshwar Narayan Mahto
26. Kaili Devi, d/o late Fuleshwar Narayan Mahto Respondent nos.1 to 5, 8 and 9 are resident of Village-Ledha Simar, P.O.-Shali Baddiha, and respondent no.10 to 26 all are resident of Village-Dhirosingha, P.O.-Remba, P.S.-Hirodih, Dist.-Giridih
27. Most. Kalwa Devi, w/o late Bimal Mahto, resident of Village- Garaidih, P.O.-Donwa, P.S.-Birni, Dist.-Giridih
28. Girija Devi, w/o Jugal Mahto, r/o Village-Parsan, P.O.-Khijarsota, P.S.-Dhanwar, Dist.-Giridih
29. Sumitra Devi, w/o Jageshwar Mahto (earlier not known) r/o Village- Bhekhro, P.O.-Kodamri, P.S.-Hirodih, Dist.-Giridih
30. Somar Mahto, s/o late Mohar Mahto, r/o Village-Parsan, P.O.+ P.S.- Dhanwar, Dist.-Giridih ... .... .... Respondents
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For the Appellants : Mr. Rahul Kumar Gupta, Advocate For the Respondents : Mr. Joran Jedan Sanga, Advocate : Mr. Ramakant Tiwari, Advocate : Mr. Shailendra Kr. Singh, Advocate
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PRESENT HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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By the Court:- Heard the parties. 2 This second appeal has been preferred under Section 100 of Second Appeal No. 108 of 2020 2
Code of Civil Procedure against the judgment and decree of reversal dated 28.01.2020 passed by the learned District Judge-II, Giridih in Civil Appeal No. 12 of 2009 whereby and where under, the learned first appellate court has allowed the appeal and set aside the judgment and decree of dismissal of Title Suit No. 18 of 1998 passed by the learned Sub-Judge-IV, Giridih dated 27.02.2009 and declared that the plaintiffs have right, title, interest and possession over the schedule 'A' land of the plaint and further directed the defendants to remove the structure situated on schedule 'B' lands which is part and parcel of the schedule 'A' land within two months from passing of this order otherwise, the plaintiffs were at liberty to get the same removed through the process of the court.
3 The brief fact of the case is that the plaintiffs-respondents filed Title Suit No. 18 of 1998 in the court of Sub-Judge-IV, Giridih with a prayer for declaration of right, title and interest over the schedule 'A' land of the plaint and to give vacant possession of schedule 'B' land of the plaint after removing the construction made thereon.
4 The case of the plaintiffs in brief is that Harilal Mahto and others acquired a land of an area of 84.29 acres in village-Parsan from the landlord- Tikait Sangh Bahadur Singh. During the last survey and settlement operation, the total purchased land was recorded under raiyati khata no. 10 of the said village and separate kabjawari was also recorded against different plots according to their purchased lands and possession thereof. The suit land being plot no.761 consisting of area 4.63 acres was purchased by Mohar Mahto and Kabjawari was Second Appeal No. 108 of 2020 3 mentioned in the name of Mohar Mahto. The rent was jointly payable as the landlord did not agree to take separate rent. The deity Jharkhand Nath Mahadev Sthan was situated over plot no. 758 which is contiguous over plot no. 761. Mela was celebrated in the said plot no. 758. Many people used to assemble at the said deity and they used to assemble in the plot no. 761 thereby destroying the crops grown by Mohar Mahto. Therefore, Mohar Mahto requested landlord to take surrender of the land of plot no. 761 and the same was taken and the rent was reduced. Mohar Mahto executed a registered deed of surrender on 26.03.1941 and the landlord came in possession over the same as a bakasht land. After death of Tikait Sangh Bahadur Singh, his son Tikait Jagdish Narayan Singh inherited his property and after him Tikait Shyam Sunder Singh came in possession of the property and after vesting of zamindari, Tikait Shayam Sunder Singh became the statutory raiyat. Tikait Shyam Sunder Singh sold the suit land being the plot no. 761 to the plaintiff nos.1 to 4 and Phuleshwar Narayan Mahto by virtue of registered deed of sale dated 17.06.1964 which has been marked Ext.1 on behalf of the plaintiffs and put the plaintiffs in possession of the same. After that the plaintiffs reclaimed the eastern portion of the said plot and grew paddy crop therein. The name of the plaintiffs was mutated in Jamua Anchal and the plaintiffs paid rent in Jamau Anchal and obtained rent receipt. After death of Phuleshwar Narayan Singh, his property was inherited by the plaintiff nos. 5 to 10 being his only legal heir and the plaintiff nos.5 to 10 came in possession over the suit land along with other plaintiffs. The plaintiffs used to collect toll from the people who setup stalls during the mela Second Appeal No. 108 of 2020 4 from the parti land. In the night of 17.03.1996 the defendants trespassed upon the suit plot and started to make construction of two houses. The said construction was objected to by the plaintiffs which resulted in a proceeding under Section 144 Cr.P.C. vide Case No. 456/1996 and in the said proceeding under Section 144 Cr.P.C. the defendants claimed that they have constructed residential house for more than 40 years ago and reclaimed the other part of the land as a paddy land. The S.D.M., Giridih made the Rule absolute against the defendants and vacated the same in favour of the plaintiffs. Again the defendants started to construct brick built house on 3rd week of March, 1998. The plaintiffs informed the police, who stopped the work. As this act of the defendants cast a cloud on the title of the plaintiffs, hence, the plaintiffs filed the said title suit. 5 In their written statement, the defendants challenged the maintainability of the suit on various technical grounds and claimed that the suit land belongs to them. The defendants denied the case of the plaintiffs that they surrendered the suit land to the landlord and also denied execution of deed of surrender by Mohar Mahto as Mohar Mahto was not having any right to make any such surrender. They also denied that ex-landlord came in possession of the suit land and the same was treated as Bakasht land. The ancestor of the defendants used to pay the rent to the ex-landlord. The defendants also challenged the sale deed dated 17.06.1964 being tainted one as the same is fabricated and prepared fraudulently. 6 On the basis of the rival pleading of the parties, the learned trial court framed the following ten issues which reads as under:- Second Appeal No. 108 of 2020 5
(1.) Whether the suit is maintainable?
(2.) Whether the suit is barred by estoppel, waiver and acquiescence? (3.) Whether the suit is barred by limitation?
(4.) Whether the suit is bad for non-joinder of necessary parties? (5.) Whether the suit is barred by provision of Chota Nagpur Tenancy Act? (6.) Whether the raiyati of the suit land made an effective surrender of the suit land in favour of the earlier zamindar?
(7.) Whether the plaintiffs have accrued right, title and interest in respect of the sale deed dated 17.06.1964?
(8.) Whether the defendants have illegally encroached upon the suit land or the defendants have legal title over the suit land? (9.) Whether the suit has been undervalued?
(10.) Whether the plaintiffs are entitled to any other relief or reliefs?
7 The learned trial court considered the evidence in the record i.e. the deposition of 11 witnesses examined by the plaintiffs as well as the eight witnesses examined by the defendants and firstly took up issue no. (6) and considering the evidence in the record, came to the conclusion that the surrender of the questioned land could not be established beyond reasonable doubt and decided the same against the plaintiffs. The learned trial court next took up issue no. (7) and came to the conclusion that in view of the issue no. (6) having been decided against the plaintiffs, no right, title and interest has been accrued to the plaintiffs by virtue of sale deed dated 17.06.1964. The learned trial court next took up issue no. (8) and came to the conclusion that the defendants have not illegally encroached upon the suit land and the defendants have valid right, title and interest over the same and decided the said issue in favour of the defendants. The learned trial court next took up issue no. (4) and observed that as all the khatiyani raiyats have not been made party to the suit hence, the suit is bad for non-joinder of necessary party. The learned trial court further took up issue nos. (2), (3), (5) and (9) and as during the course of the argument, the plaintiffs do not put any force in respect of these issues hence, the trial court answered the said issues in the negative. Second Appeal No. 108 of 2020 6 Lastly, the learned trial court took up issue nos. (1) and (10) and held that the suit is not maintainable and the plaintiffs are not entitled to any relief and dismissed the suit.
8 Being aggrieved by the judgment and decree passed by the learned trial court, the plaintiffs filed Civil Appeal No.12 of 2009 in the court of District Judge, Giridih which was ultimately heard and disposed of by the learned first appellate court by the impugned judgment and decree.
9 The learned first appellate court after considering the materials in the record and the submissions made before it, formulated the following three points for determination for consideration:-
(I) Whether the recorded raiyat Mohar Mahto had executed a registered deed of surrender in respect to the suit land i.e. khata no. 10, plot no.
761 area 4.63 acres of mouza Jharkhandi to the exlandlord Tikait Sangh Bahadur Singh on 26.03.1941?
(II) Whether the exlandlord Shyam Sunder Singh had executed a deed of sale dated 17.06.1964 in favour of the plaintiffs in respect of the suit land and put them in possession?
(III) Whether the judgment and decree passed by the learned court below is sustainable in the eye of law or warrants any interference by this court? 10 The learned first appellate court took up point for determination nos.I and II together and made independent appreciation of the evidence in the record and considered Ext. B which is the document produced by the defendants and which is the copy of Register-II and observed that from the same it is not clear that the name of the defendants has been entered in the Register-II in respect of the suit land whereas the plaintiffs have brought the certified copy of the mutation register as additional evidence under Order XLI Rule 27 of C.P.C. which shows that the name of Dukharan Mahto has been entered in serial no. 1024 in the land of khata no. 10 Second Appeal No. 108 of 2020 7 and khata no. 01 and plot nos. 761 and 757 was purchased by plaintiffs from Tikait Shyam Sunder Singh by virtue of registered sale deed no. 8493 dated 17.06.1964. The learned first appellate court considering the evidence in the record came to the conclusion that the registered deed of surrender no.1621 dated 26.03.1941 is legal and valid document. From perusal of the deed of surrender, the learned first appellate court came to the conclusion that the deed of surrender no. 1621 dated 26.03.1941 is legal and valid document and Shyam Sunder Singh has validly transferred title to the plaintiffs by the said sale deed and took note of the documentary evidence in the record to the effect that the name of the plaintiffs have been mutated and they have been paying rent to the State and as such they are in possession over the land of schedule 'A' of the suit. The learned first appellate court observed that it is evident that the defendants have encroached upon the plot no. 761 and constructed their house; even though though they have no legal right over the same and held that the trial court has passed the judgment erroneously and set aside the same and passed orders as already indicated above.
11 At the time of Admission of this appeal, the following substantial questions of law were framed vide order dated 04.10.2023 :-
(1.) Whether the lower appellate court has recorded illegal findings while reversing the judgment of learned trial court on issue no.6 which is crux of this suit. The trial court finding that the surrender of the land was not proved as pursuant to enforcement of Bihar Land Reforms Act and the suit land was not shown in return of Bakasht land of the landlord as against it the appellate court affirmed the contention of plaintiff without any evidence?
(2.) Whether the judgment of appellate court suffers from perversity and beyond the weight of evidence?Second Appeal No. 108 of 2020 8
12 Mr. Rahul Kumar Gupta, learned counsel for the appellants submits that the learned first appellate court failed to consider the fact and circumstances of the case in its right perspective. It is then submitted by the learned counsel for the appellants that the impugned judgment is a nullity having been passed against a dead person being the respondent no.2. It is further submitted by the learned counsel for the appellants that the plaintiffs has miserably failed to establish its case and the judgment and decree passed by the learned first appellate court suffers from perversity. It is next submitted by the learned counsel for the appellants that in absence of any claim by the ex-landlord in terms of Section 6 of Bihar Land Reforms Act, 1950, the same were acted upon by the said surrender dated 26.03.1941. Hence, it is submitted that the impugned judgment and decree passed by the learned first appellate court be set aside and the judgment and decree passed by the learned trial court be restored. 13 Learned counsel for the respondents on the other hand defends the impugned judgment and decree and submits that Ext.1 is the sale deed executed by Tikait Shyam Sunder Singh in favour of the plaintiffs, Ext.2 is the rent receipt, Ext.3 is the FIR, Ext.4 is the registered deed of surrender and Ext.5 is the order passed under the proceeding under Section 144 Cr.P.C. and all these documents are sufficient to establish the case of the plaintiffs beyond reasonable doubt that the plaintiffs have right, title and interest over the suit land and the defendants does not have any right, title and interest thereof. It is next submitted that the learned first appellate court has rightly appreciated the evidence in the record. Hence, it is submitted that this Second Appeal No. 108 of 2020 9 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, it is pertinent to mention here that the registered deed of surrender, on being a duly proved, has been marked as Ext.4 by the plaintiffs. In the recital of the same, it has categorically been mentioned that the suit land was surrendered to the ex-landlord so in view of this undisputed documentary evidence in the record, this Court has no hesitation in holding that the learned trial court committed error by holding that the plaintiffs failed to establish the surrender and the evidence in the record is sufficient to establish surrender as has been mentioned by the District Judge-II, Giridih. Further, the plaintiffs proved their documents like rent receipt, copy of the FIR alleging trespassing by the defendants over the suit land, instrument of surrender by which the suit land has been surrendered by the defendants to the ex-landlord as also the Ext.-B which is the copy of Register II and Ext. C which is the Khatiyan in which also the name of the plaintiffs appear along with others. In this background, in the considered opinion of this Court certainly, the learned trial court committed a grave error in dismissing the suit.
15 Under such overwhelming evidence, this Court is of the considered view that the learned first appellate court has not recorded any illegal finding while reversing the judgment of the learned trial court in respect of the issue no. (6); as only because the suit land was not shown in the return as bakasht land and the same is only a revenue entry cannot obliterate the surrender by the registered Second Appeal No. 108 of 2020 10 instrument made by the ancestors of the defendants nor can extinguish the right and title accrued to the plaintiffs by execution of the sale deed in their favour. Thus, this Court has no hesitation in answering the first substantial question of law in the negative. 16 So far as the second substantial question of law is concerned, it is a settled principle of law that the perversity so far as it relates to the interfering with the finding of facts by the High Court in exercise of the jurisdiction under Section 100 and 104 of the Code of Civil Procedure, that if a finding of fact is arrived at by ignoring or excluding the relevant materials or by taking into consideration the irrelevant material or if the finding, so outrageously defies the logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eyes of law or if the finding of the court is based on no evidence or evidence, which is thoroughly unreliable or the evidence that suffers from the vice of procedural irregularity or the findings are such that no reasonable person, would have arrived at those findings then the findings may be said to be perverse, as has been held by the Hon'ble Supreme Court of India in the case of Municipal Committee, Hoshiarpur vs. Punjab State Electricity Board & Ors. reported in (2010) 13 SCC 216, para 28 of which reads as under :-
"28. If a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eye of the law. If the findings of the Court are based on no evidence or evidence which is thoroughly unreliable or evidence that suffers from the vice of procedural irregularity or the findings are such that no reasonable person would have arrived at those findings, then the Second Appeal No. 108 of 2020 11 findings may be said to be perverse. Further if the findings are either ipse dixit of the Court or based on conjecture and surmises, the judgment suffers from the additional infirmity of non-application of mind and thus, stands vitiated. (Vide Bharatha Matha v. R. Vijaya Renganathan [(2010) 11 SCC 483 : AIR 2010 SC 2685]."
and the same has been reiterated by the Hon'ble Supreme Court of India in the case of Bharatha Matha and Another vs. R.Vijaya Renganathan and Others reported in (2010) 11 SCC 483 and which has also been reiterated by the Hon'ble Supreme Court of India in the case of K.N. Nagarajappa and Others vs. H. Narasimha Reddy reported in 2021 SCC Online SC 694.
17 In view of the discussions made above, and after minutely going through the materials in the record, this Court has no hesitation in holding that in the impugned judgment, the learned first appellate court has not excluded any relevant materials or taken into consideration any irrelevant material nor the finding of fact, so outrageously defies the logic as to suffer from the vice of irrationality incurring the blame of being perverse, hence, this Court is of the considered view that the judgment of the learned first appellate court does not suffer from perversity nor the same is beyond the weight of evidence in the record so the second substantial question of law is also answered in the negative.
18 In view of the answer to the two substantial questions of law, this Court is of the considered view that there is no merit in this second appeal.
19 Accordingly, this second appeal being without any merit is dismissed but under the circumstances without any costs. 20 Let a copy of this Judgment along with the Lower Court Second Appeal No. 108 of 2020 12 Records be sent back to the court concerned forthwith. 21 In view of the dismissal of this appeal, Interlocutory Application No. 6744 of 2023 is dismissed being infructuous.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 23rd July, 2024 AFR/ Sonu-Gunjan/-
Second Appeal No. 108 of 2020 13