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2002 DIGILAW 1253 (JHR)

Dharamdeo Singh v. Laukraj Singh

2002-12-13

M.Y.EQBAL

body2002
JUDGMENT M.Y. Eqbal, J. 1. This second appeal at the instance of the plaintiff-appellant is directed against the judgment and decree dated 25.1.1988 passed by 6th Additional District Judge, Palamau, in Title Appeal No. 21/86 whereby he has dismissed the appeal and allowed the cross-objection filed by the defendants-respondents and set-aside the judgment and decree passed by the Subordinate Judge, Palamau, in Title Suit No. 63/83. 2. The plaintiff-appellant filed the aforementioned suit for declaration of title and recovery of possession over the suit land which comprised within khata No. 54 of Village Manasoti, P.S. Daltonganj in the District of Palamau. 3. The plaintiff-defendant Nos. 5 to 7 are the grandsons of Bhaju Singh while defendant Nos. 3 and 4 are the sons of Bhaju Singh. Bhaju Singh alleged to have purchased the land from Durgi Singh son of Sheodayal Singh who was admittedly recorded raiyat in respect of the suit land. The plaintiffs case, inter alia, is that he being one of the heirs of Bhaju Singh, has got title over the suit land and he has been coming in lawful possession of the same since 1973. The plaintiffs further case is that his father Latmu Singh and his uncle Deowan Singh had mortgaged the entire suit land for a sum of Rs. 200/- with defendant Nos. 1 and 2 for a period of 2 years. Subsequently, when the plaintiff and other heirs of Bhaju Singh wanted to redeem the mortgage, defendant Nos. 1 and 2 refused. Accordingly on 31.3.1976 the plaintiff filed a petition under Section 71 Chotanagpur Tenancy Act for recovery of possession of the suit land but it was dismissed on 19.7.1976. The appeal preferred by the plaintiff was also dismissed on 16.2.1982. It was alleged by the plaintiff that during the pendency of the aforesaid appeal defendant Nos. 1 and 2 had delivered possession in favour of the plaintiff in respect of portion of the suit land which was duly intimated to the appellate Court. 4. The contesting defendant Nos. 1 and 2 filed their written statement, inter alia, stating that Bhaju Singh could not pay rent and, therefore, he surrendered the entire lands of Khata No. 54, Subsequently, the ex-landlord settled the entire suit land with Nirachchal Singh, father of the defendant Nos. 4. The contesting defendant Nos. 1 and 2 filed their written statement, inter alia, stating that Bhaju Singh could not pay rent and, therefore, he surrendered the entire lands of Khata No. 54, Subsequently, the ex-landlord settled the entire suit land with Nirachchal Singh, father of the defendant Nos. 1 and 2 in the year 1936 and since then the settlee and after his death, these defendants have been coming in exclusive possession of the entire suit property and paying rent, at first, to the ex- landlord and then to the defendant - State of Bihar. These defendants have totally denied that the property was ever mortgaged by the plaintiffs father to the defendants or to their father. The trial Court framed the following issues for consideration. "1. Is the suit maintainable as framed? 2. Has the plaintiff any cause of action for the suit? 3. Whether the land was surrendered by Bhaju Singh as alleged? 4. Whether the land was settled to Nirchhal Singh, father of the defendants 1 and 2 in the year 1936? 5. Is the suit barred by law of limitation? 6. Has the plaintiff perfected his right, title and possession over the suit land? 7. To what relief or reliefs if any the plaintiff is entitled?" 5. The trial Court disbelieved the plaintiffs case that the suit land was mortgaged in favour of the father of defendant Nos. 1 and 2. The trial Court has also disbelieved the defendants case of surrender of the suit land by Bhaju Singh and subsequent settlement by the ex-landlord in favour of the Nirachchal Singh. However, the trial Court held that the suit was barred by limitation but at the same time decreed the suit in part in respect of portion of the suit land by accepting the case of the plaintiff that part of the suit land was handed over by the defendant Nos. 1 and 2 to the plaintiff. 6. Dissatisfied with the said judgment the plaintiff filed the aforementioned appeal and defendant Nos. 1 and 2 also filed a cross-objection. The lower appellant Court affirmed the finding of the trial Court by holding that the suit filed by the plaintiff-appellant was barred by limitation. The lower appellate Court further differed with the reasoning given by the trial Court in partly decreeing the suit. 1 and 2 also filed a cross-objection. The lower appellant Court affirmed the finding of the trial Court by holding that the suit filed by the plaintiff-appellant was barred by limitation. The lower appellate Court further differed with the reasoning given by the trial Court in partly decreeing the suit. Para 10 of the appellant Courts judgment is quoted herein below : "The plaintiff has claimed his continuous and continuing possession over Schedule B and D properties by pleading that during pendency of the appeal of the land restoration case the plaintiff had Jiled a petition to the effect that these contesting defendants have relinquished their possession over Schedule B property of the plaint in favour of their plaintiff. In their W.S. these defendants denied their knowledge of any such petition filed by the plaintiff and further asserted that the entire appeal was dismissed on 16.2.1982, which would mean that appellate Court had not allowed the aforesaid petition Jiled by the plaintiff. Admittedly, the plaintiff had filed the aforesaid case under Section 71, C.N.T. Act on 31.3.1976 which was numbered as L.R. Case No. 29/76 and the C.C. of order (Ext. F/2) shows that it was dismissed on 19.7.1976. Thereafter, the plaintiff Jield the appeal which was numbered as XV/26 of 79-80 and admittedly this was also dismissed on 16.2.1982, vide C.C. of order (ext. 10) or (Ext. F/1). Now, the C.C. of petition of the plaintiff dated 9.12.1980 (Ext. 5) shows that in that appeal the plaintiff had filed the petition claiming that these defendants had vacated their possession over the Schedule B property of this plaint in favour of the plaintiff. The learned trial Court relied upon that petition and accordingly he had decreed the suit in part, to the extent of the share of the plaintiff over Schedule B of the plaint. 7. The lower appellate Court has also come to a finding that the plaintiff is out of possession of the suit property at least from 1966 and the contesting defendants were coming in hostile continuous possession over the entire suit property since 1966 and, therefore, the suit having been filed in 1983 was barred by limitation. Hence this appeal by the plaintiff. 8. Hence this appeal by the plaintiff. 8. On 14.2.1991 this second appeal was admitted for hearing on the following substantial questions of law : "Whether in view of the fact that the plaintiff being Chero by caste and thus member of Scheduled Tribe, in view of the Article 65 of the Limitation Act, 1963 as amended by the Bihar Scheduled Areas Regulation, 1969, the period of limitation would have been 30 years?" 8. Mr. K.K. Sahay leaned counsel appearing on behalf of the appellant assailed the Impugned judgment on various grounds. Learned counsel submitted that the finding recorded by the Courts below disbelieving the mortgage of the suit property is erroneous in law and based on no evidence. Learned counsel submitted that admittedly restoration application under Section 17(1), CNT Act was dismissed on the ground of limitation when it was filed within 3 years. Learned counsel further submitted that the restoration application at least under Section 46(4A) of CNT Act was maintainable inasmuch as the limitation for filing of such application is 12 years from the date of dispossession. 9. Mr. N.K. Prasad, learned senior counsel appearing for the respondents, on the other hand, submitted that on the question of mortgage and possession of the suit land both the Courts have come to a concurrent finding which needs no interference by this Court in second appeal. Learned counsel further submitted that the restoration application can not be treated as an application under the provisions of Scheduled Area Regulation inasmuch as the suit land does not situate within Scheduled Area. 10. As noticed above, the instant appeal has been admitted for hearing on the question whether in view of the fact that the plaintiff being Chero by caste and thus member of the schedule tribe, in view of Article 65 of the Limitation Act, 1963 as amended by Bihar Schedule Areas Regulation, 1969 the period of limitation would have been thirty years. 11. For deciding these questions firstly we have to find out whether the suit property falls within the schedule area. The Schedule Areas (Part A States) Order, 1950 was made by the President of India in exercise of power conferred by sub- paragraph (1) of paragraph 6 of the fifth schedule to the Constitution of India. 11. For deciding these questions firstly we have to find out whether the suit property falls within the schedule area. The Schedule Areas (Part A States) Order, 1950 was made by the President of India in exercise of power conferred by sub- paragraph (1) of paragraph 6 of the fifth schedule to the Constitution of India. The order reads as under : "THE SCHEDULE AREA (PART A STATES) ORDER, 1950 In exercise of the powers conferred by sub-paragraph (1) of Paragraph 1 of the First schedule to the Constitution of India, the President is pleased to make the following order namely :-- 1. (1) This Order may be called the Scheduled Areas (Part A States) Order, 1950. (2) It shall come in to force at once. 2. The area specified below are hereby declared to be the Scheduled Areas within the State specified. BIHAR (1) Ranchi District. (2) Singhbhum district excluding Dhalbhum Sub-Division. (3) Santhal Parganas District excluding Godda and Deoghar Sub-Division. (4) Latehar Sub-Division of Palamau District. 12. The aforesaid order was recently rescinded in so far as it relates to the area comprised in the State of Bihar, Gujarat, Madhya Pradesh and Orissa and the Schedule Areas (State of Bihar, Gujarat, Madhya Pradesh and Orissa) Order, 1977 has been made. According to which Latehar subdivision in Palamau district was declared as schedule area. 13. It has not been disputed by the counsel appearing for the appellant that village Manoosti P.S. Daltonganj in the district of Palamau does not fall within the schedule area. Admittedly, the suit property situates within the Daltonganj PS of Palamau district which is not a schedule area. 14. By virtue of Bihar Schedule Areas Regulation, 1969 certain provisions of different statutes were amended in their application to the schedule area in the State of Bihar. Besides inserting a provision of Section 71 in the Chotanagpur Tenancy Act relevant provisions of Code of Civil Procedure and Limitation Act were also amended. Under Article 65 of the Limitation Act, the period of limitation for filing suit for recovery of immovable property belonging to the member of schedule tribe and falling in the schedule area has been increased to 30 years. 15. As noticed above, the suit property does not fall within the schedule area and therefore period of limitation as amended by Bihar Schedule Area Regulation, 1969 in my opinion does not apply. 15. As noticed above, the suit property does not fall within the schedule area and therefore period of limitation as amended by Bihar Schedule Area Regulation, 1969 in my opinion does not apply. The question of law formulated is answered accordingly. 16. Coming to the merit of the case, from perusal of the judgment it appears that both the Courts have recorded a concurrent finding of fact about continuous uninterrupted and hostile possession of the defendants since 1966 and the suit was filed in 1983 i.e. about 17 years. In my opinion therefore, the Court below have rightly held that the suit filed by the plaintiff/appellant is barred by limitation. 17. For the aforesaid reasons, there is no merit in this appeal which is accordingly dismissed.