Jharkhand High Court
Bandhan Oraon @ Bandhana vs Ram Chandra Oraon on 7 June, 2022
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
S.A. No. 215 of 2009
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No.215 of 2009
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(Against the Judgment and Decree passed by the Additional Judicial Commissioner, F.T.C. No. VI, Ranchi in Title Appeal No. 134 of 2006)
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1. Bandhan Oraon @ Bandhana
2. Mahadeo Oraon (Both sons of Late Dhepa Oraon, resident of Malmaru, P.O. & P.S. - Ratu, District -Ranchi) .... .... .... Appellants Versus
1. Ram Chandra Oraon, son of Dukhwa Oraon, resident of Malmaru, P.O. & P.S. -Ratu, District -Ranchi.
2. The Deputy Commissioner, Ranchi.
.... .... .... Respondents
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For the Appellants : Mr. Ayush Aditya, Advocate
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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. The appellants have filed this appeal being aggrieved by the judgment and decree passed by the Additional Judicial Commissioner, F.T.C. No. VI, Ranchi in Title Appeal No. 134 of 2006 whereby and where under, the learned Additional Judicial Commissioner, F.T.C. No. VI, Ranchi has affirmed the judgment and decree passed by the trial court and dismissed the appeal.
1 S.A. No. 215 of 2009
3. The case of the plaintiff in brief is that the father of the plaintiff namely Dhepa Oraon is recorded as Sikmi Dakhalkar, of Khata No.1, Survey Plot no. 557, measuring 1.36 acres and the rent is fixed as Rs.2. It is further the case of the plaintiffs that their father was all along in possession of the suit land and has been paying rent annually to the recorded tenant Jaikan Oraon and thereafter since death of Jaikan Oraon, rent is being received by defendant annually. The defendant no.1 is the brother of Jaikan Oraon. It is further the case of the plaintiffs that the plaintiffs have been in possession of the suit land since the death of their father and have been ploughing and tilling the land and in the survey started in the year 1980, the Khata of the suit land has been prepared in the name of the plaintiff. Under the village customs and traditions, land recorded in the name of Sikmi Dakhalkar in the revisional survey and therefore, when continuously remained in his possession, the title of the land is perfected by Sikmi Dakhalkar, so the defendants have no right and title over the said suit land.
4. The case of the defendant on the other hand is that the suit land has been recorded in the joint name of Jaikan Oraon and Dukhwa Oraon who is the father of defendant no.1 and upon the death of Jaikan Oraon without leaving any issue, the defendant no.1 has been coming in possession and still in exclusive possession of the suit land without any hindrance from anyone and at no point of time, the plaintiff or his family members have ever come in possession of the suit land though the name of the father of the plaintiff was mentioned as Sikmi Dakhalkar of the suit land but the same has wrongly been mentioned, in collusion with the revisional survey staff and authorities, hence the 2 S.A. No. 215 of 2009 same is illegal and is not binding upon the defendant or his ancestors. It is also the case of the defendant that Sikmi Dakhalkar would not be valid for a period of more than five years of such induction, hence any possession of the suit land by the defendant in excess of five years from the date of induction is illegal and the same is in violation of Section 46 of the Chota Nagpur Tenancy Act.
5. On the basis of the rival pleadings of the parties, the learned trial court framed altogether 6 issues, which are as under:-
I. Is the suit maintainable in its present form? II. Have plaintiffs cause of action for present suit? III. Is the suit barred by law of limitation of adverse possession?
IV. Is the defendant Adhbataidar/Sikmidar and on that basis had been cultivating the land?
V. Whether the Sikmi right is inheritable? VI. What relief or reliefs the plaintiff is entitled to?
6. The learned trial court after considering the evidence in the record i.e. oral testimony of the witnesses put forth by both the plaintiff and the defendant as well as documentary evidence put forth by the defendant, came to a conclusion that the plaintiff was never in possession of the suit land nor the plaintiff could establish the custom pleaded by it that if a person remains in possession for twelve years as Sikmi Dakhalkar then title of such land accrues to such person and also observed that as per the law prevalent, Sikmi Dakhalkar right is not a inheritable right except in case of any prevalent custom. Hence, the trial court held that the plaintiff has failed to establish any right or title and 3 S.A. No. 215 of 2009 dismissed the suit.
7. Being aggrieved by the judgment of the trial court, the defendant filed an appeal before the Additional Judicial Commissioner, F.T.C. No. VI, Ranchi and the same was numbered as Title Appeal No. 134 of 2006 and the said appeal was ultimately heard and disposed of by the learned Additional Judicial Commissioner, F.T.C. No. VI, Ranchi by the impugned judgment and decree. The learned appellate court below made independent appreciation of the evidence in the record and considered the settled principle of law that Sikmi Dakhalkar has lifelong interest in continuing with the possession of the suit land subject to payment of revenue to the recorded tenant except, if there is any contrary village custom or tradition but the plaintiff has failed to prove that there is any village custom or tradition to the effect that Sikmi Dakhalkar right is inheritable and plaintiff has the onus to prove the custom pleaded by him and also came to the conclusion that the plaintiff has failed to prove the hostile animus required for the ultimate plea of adverse possession of dismissed the plea.
8. Mr. Ayush Aditya, learned counsel for the appellants submits that the judgment and decree passed by both the courts below is vitiated due to non-consideration of legal effect of Khatiyan which has been marked Ext. B and the admitted case of the parties that ancestors and forefathers of the defendant -respondent were the recorded tenant and the father of the plaintiff-appellants was recorded as Sikmi Dakhalkar. It is further submitted that the learned courts below ought to have presumed the existence of customs as the onus of proving such custom was upon the defendant-respondent and thirdly, 4 S.A. No. 215 of 2009 it is submitted by the learned counsel for the appellant that the learned lower appellate court has committed an error of substantial question of law by dismissing the appeal without considering any single piece of oral evidence led by the plaintiff or the defendant although altogether nine witnesses were examined on behalf of the plaintiff and nine witnesses were examined on behalf of the defendant.
9. Having heard the learned counsel for the appellants and after going through the record, I find that the learned trial court has well discussed the evidence in the record in detail, both oral and documentary. Admittedly, the plaintiff has not adduced any documentary evidence and since the custom of Sikmi Dakhalkar inheriting the right is village specific and it was pleaded by the plaintiff, this Court has no hesitation in holding that the onus was upon the plaintiff to establish such custom. I also do not find any illegality in appreciation of the evidence in the record by either of the courts below as both the courts below have discussed and appreciated the evidences on record in their proper perspective.
10. It is a settled principle of law that High Court while exercising power under Section 100 of the Code of Civil Procedure, cannot interfere with the finding of fact recorded by the first appellate court which is the final court of fact, unless such finding is perverse, as has been held by the Hon'ble Supreme of India, in paragraph -10 of the case of Gurvachan Kaur and Others vs. Salikram (dead) through LRS., reported in (2010) 15 SCC 530 as under:-
"10. It is settled law that in exercise of power under Section 100 of the Code of Civil Procedure, the High Court cannot interfere with the finding of fact recorded by the first appellate court which is the final court of fact, unless 5 S.A. No. 215 of 2009 the same is found to be perverse. This being the position, it must be held that the High Court was not justified in reversing the finding of fact recorded by the first appellate Court on the issues of existence of landlord-tenant relationship between the plaintiff and the defendant and default committed by the latter in payment of rent." (Emphasis Supplied).
11. Thus, after going through the record, I find that no substantial question of law is involved in this appeal.
12. Accordingly, this second appeal being without any merit is dismissed but in the circumstances without any costs.
13. Let the copy of the Judgment be sent to the learned court below forthwith.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 7th June, 2022 AFR/ Sonu-Gunjan/-
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