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2002 DIGILAW 395 (JHR)

Ramdhan Mahto v. Mostt. Bati

2002-03-20

GURUSHARAN SHARMA

body2002
JUDGMENT: Gurusharan Sharma, J.-Plaintiffs are appellants. Admittedly, Sukhwa Mahto, Laldeo Mahto and Sawna Mahto were sons of Rungtu Mahto, plaintiffs are grand son of Kartik Mahto, being son of Jangal, whemas defendants 1 to 3 are grand daughter of Sukhwa Mahto and defendant no. 4 is son of Kartik Mahto. 2. Plaintiffs filed suit for declaration of their title along with defendant no. 4 and for recovery of possession by evicting defendants 1 to 3 from the suit lands, described in Schedule to the plaint. 3. Suit lands comprised total area of 12.04 acres of Revisional Survey Khata No. 15, situated in village-Chitudih, wthin Bundu Police Station of Ranchi district. 4. It is not in dispute that Revisional Survey Khata No. 35 was carved out from Cadastral Survey Khata No. 23, which was exclusively recorded in the name of Sukhwa Mahto in the cadastral survey khatian, Ext. G. Sukhwa Mahto died leaving behind a son, Sonararn Mahto, who died leaving behind his widow, Mastt. Jharmo a son, Haradhan Mahto and three daughters, defendants 1 to 3. 5. In the Revisional Survey Record of rights, Ext. G, finally published Revisional Survey khata No. 35, was recorded in the name of Haradhan Mahto, son of Sonaram Mahto and Kartik Mahto, son of Rungtu Mahto having equal shares and in its remarks column over Revisional Survey Plot Nos. 15, 16, 158,278,285,325,358,362,380,381,383, 390 and 423 possession of Haradhan Mahto alone was shown. Exclusive possession of Kartik Mahto was shown in respect of Revisional Survey Plot No. 389 and possession of both Haradhan Mahto and Kartik Mahto was shown in respect of plot nos. 422 and 424. 6. Haradhan Mahto died and after his death by registered sale deed dated 1.7.1940 Mostt. Jharmo transferred entire area of Revisional Survey Plot Nos. 16,/158, 278, 282, 268, 325, 358, 362, 380, 381, 383 and 390 in favour of her three daughters, defendants 1 to 3. In Ext. C it was recited that vended lands were her raiyati lands allotted in her share. Thereafter some time in the year 1970 Mastt. Jharmo died. 7. According to plaintiffs, suit lands were ancestral properties belonging to Rungtu Mahto and was jointly recorded in the revisional khatian in the names of Haradhan Mahto and Kartik Mahto. Haradhan Mahto had no issue and as such after his death plaintiffs succeeded to his estate as reversioners. His mother, Mostt. Jharmo died. 7. According to plaintiffs, suit lands were ancestral properties belonging to Rungtu Mahto and was jointly recorded in the revisional khatian in the names of Haradhan Mahto and Kartik Mahto. Haradhan Mahto had no issue and as such after his death plaintiffs succeeded to his estate as reversioners. His mother, Mostt. Jharmo had no right to transfer the same. 8. On the other hand, according to defendants suit lands were acquired by Sukuwa Mahto alone and as such after death of Haradhan Mahto, his mother Mostt. Jharmo inherited the same and transferred the lands to her daughters in the year 1940. They challenged the revisional survey entry, wherein name of Kartik Mahto cropped in as co-sharer of Haradhan Mahto to the extent of half interest. 9. Trial court dismissed the suit holding that lands in question were self acquired property of Sukuwa Mahto and was never joint property of Haradhan Mahto and Kartik Mahto, Kartik Mahto was not co-sharer in the suit property on the basis of Ext. G/6 and it cannot be said that he was a member of joint family and got half share in the suit property. 9. Plaintiffs, therefore, filed Title Appeal No. 98 of 1982, which was dismissed by impugned judgment and decree dated 2.4.1987 and the findings recorded by the trial court were affirmed. 10. At the time of admission of this Second Appeal following substantial question of law was framed : "Whether the learned lower court misdirected himself in law in so far as it failed to analyse oral and documentary evidence adduced 'on behalf of the respondents?" 11. It cannot be denied that after death of Haradhan Mahto, his mother Mostt. Jharmo possessed the properties left by him and defendants 1 to 3 are her daughters. 12. Before coming into force of the Hindu Succession Act, 1956, interest of Mostt. Jharmo in respect of suit properties was limited and since she died in the year. 1970 her interest had become absolute after coming into force of the aforesaid Act. 13. A perusal of the judgment under appeal it appears that two questions were framed : "1. Whether the suit property exclusively belonged to Sukhwa Mahto or the same is joint family property of Sukhwa and Kartik? 2. Whether plaintiffs have right to claim possession over the suit property as reversioner of Sukhwa Mahto?" 14. In respect of question no. 13. A perusal of the judgment under appeal it appears that two questions were framed : "1. Whether the suit property exclusively belonged to Sukhwa Mahto or the same is joint family property of Sukhwa and Kartik? 2. Whether plaintiffs have right to claim possession over the suit property as reversioner of Sukhwa Mahto?" 14. In respect of question no. 1 in paragraph 16 it was observed that there was oath against oath and oral evidence adduced on behalf of parties were not going to playa vital role in the decision of appeal. Plaintiffs' document, namely, Exts. 5 and 5/A, the objections filed in course of revisional survey were considered and the defendants' document, namely, cadastral Survey Khatian, Ext. G in respect of suit land standing in the name of Sukhwa Mahto, Ext. C/6, revisional survey khatian of Revisional Survey Khata No. 35, Ext. H, tanaja filed descendants of Laldeo Mahto, Ext. I series, purchas prepared in course of revisional survey in the name of Haradhan Mahto alone, consisting the disputed plots, Ext. J certified copy of decree of Title Suit No. 172 of 1971, whereby defendant no. 4 along with descendants or Laldeo Mahto, who had filed the suit were permitted to withdraw the suit with a liberty to file suit within the period of limitation along with order dated 18.5.1972, Ext. K passed in the said suit for withdrawal of the suit was considered and thereafter it was held that there are nothing on record to show that parties have any ancestral property out of income of which the suit lands were acquired by Sukhwa Mahto. The lands were acquired by Rungtu Mahto and were not acquired by Sukhwa Mahto alone and after death' of Haradhan Mahto, Mostt. Jharmo came in possession of the same as a legal heir. She was, therefore, entitled to transfer the suit lands by registered sale deed, Ext. C to her above said three daughters. 15. Mr. Tiwari, counsel for appellants submitted that papers, namely, Exts. Hand I series relating to the period before final publication of revisional survey Khatian were not admissible and only finally published record of rights carried presumption in favour of plaintiffs and. thereby it was established that plaintiffs' ancestors had half share in the lands of Khata No. 35. 16. 15. Mr. Tiwari, counsel for appellants submitted that papers, namely, Exts. Hand I series relating to the period before final publication of revisional survey Khatian were not admissible and only finally published record of rights carried presumption in favour of plaintiffs and. thereby it was established that plaintiffs' ancestors had half share in the lands of Khata No. 35. 16. In this regard reference may be made to a decision' in Chand Ray and others vs. Bhagwati Charan Goswami and others (AIR 1924 Pat 248), wherein it was held that presumption under finally published record of rights was rebutable and draft record of rights and proceedings leading to the record may be put in evidence or rebutting presumption in its favour. In the present case, it cannot be said that court below had wrongly admitted Exts. H and I series in evidence and considered them for the purpose of coming to a finding that Ext. G/6 was wrongly prepared and Kartik Mahto was unnecessarily added as a co-sharer along with Haradhan' Mahto in respect of lands of Khata No. 35. 17. In the facts and circumstances of the case and for the purpose of the issue involved, in presence of the aforesaid documentary evidence, which was considered by the court below, in my opinion court of appeal below did not commit a mistake in observing that oral evidence of the parties was not going to play any vital role in court's decision. Once it was found that suit properties were exclusive property of the branch of Sukhwa Mahto and Mostt. Jharmo was alive till 1970 and thereafter died leaving behind three daughters, defendants 1 to 3, plaintiffs' claim as reversioner was not justified, and they have no interest in the lands covered by Ext. C. 18. There is no merit in this appeal, it is, accordingly, dismissed, but without costs.