Research › Search › Judgment

Jharkhand High Court · body

2003 DIGILAW 17 (JHR)

Jeerawati Devi v. State Of Bihar

2003-01-06

M.Y.EQBAL

body2003
M.Y. Eqbal, J. 1. This second appeal filed by the plaintiff is directed against the judgment and decree dated 7.3.1987 passed by Additional District Judge, Palamau in title appeal No. 29/85 where by he has confirmed the judgment and decree passed by Sub-Judge, Palamau dismissing the title suit No. 56/82. 2. The plaintiffs/appellants filed the aforementioned suit for declaration of title in respect of the vacant possession of the property as mentioned in Schedule A of the plaint which comprised khata No. 89 plot No. 84 measuring are of 85 decimals in village Rehla Khurd P.S. Rehla District Rehla, Palamau. 3. The case of the plaintiffs/appellants is that the suit land was recorded as gairmazarua malik in survey operation in the year 1917. One Late Ramautar Das and his sons Jagarnath Das and Baijnath Das and his brother late Lakshman Das were and are the Dehi and Kayami raiyat of village Rehla Khurd. Jirwa Deviu is wife of Jagarnath Das. During the time of ex- intermediary 40 years ago Ramautar Das, his brother and the plaintiffs came in possession of the part of plot No. 84 khata No. 89 over the area of 85 decimals (another suit land). Plaintiffs further case was the late Ramautar Das and Lakshman Das and the plaintiffs once constituted a joint family but in course of time they all became separate having separate house, mess and separate cultivation over the suit land. It is alleged that the above named person time to time took settlement of the land from the ex-landlord. They also approached the revenue authority for making raiyati settlement in their favour. However, after inquiry in the year 1972-73, 24 decimals of land out of the suit land was settled by the Deputy Commissioner, Palamau by order dated 13.1.1973 and rent receipts were issued. At the same time 3 decimals of the suit land was also settled to one of the plaintiff and settlement parwana was issued by the revenue authority. In this way 85 decimals of land was settled by the Revenue Authority in favour of the plaintiffs and they came in possession of the same. However, in the year 1980 because of some objection made by the villagers the D.C.L.R. passed the order dated 30.6.1980 modifying the previous settlement and ultimately settlement in respect of the 45 decimals of land was cancelled by the Commissioner, Palamau. 4. However, in the year 1980 because of some objection made by the villagers the D.C.L.R. passed the order dated 30.6.1980 modifying the previous settlement and ultimately settlement in respect of the 45 decimals of land was cancelled by the Commissioner, Palamau. 4. Aggrieved by the said decision of the Commissioner plaintiffs filed aforesaid suit after serving notice under Section 80, CPC. The defendants State of Bihar and the Revenue Authority appeared in the suit and filed their written statement alleging inter alia that the suit is not maintainable as barred under the provisions of Section 258 of the C.N.T. Act. The case of the defendants was that the settlement of 40 decimals of land in favour of the plaintiffs is valid and the settlement in respect of the remaining 45 decimals of land was cancelled for the reason that plaintiffs never exercised their right title, interest and possession over the said land. The trial Court framed the following issue for consideration : "1. Is the suit maintainable as framed. 2. Have the plaintiffs any cause of action for the present suit. 3. Is the suit barred by the principle of estoppel waiver and waiver and acquiscnence. 4. Is the suit barred by law of limitation. 5. Have the plaintiffs title to the suit land and can the defendants interfered with in any way to the raiyati right of the plaintiffs in the suit land. 6. Is some portion of land under dispute treated to be the land for public use. 7. To what other relief or reliefs if any plaintiffs are entitled. 5. The trial Court while deciding issue Nos. 5 and 6 analyzed the entire evidence adduced by the parties and came to a finding that plaintiffs have acquired right title and possession only over 40 decimals of land and they have no right title and possession over the remaining 45 decimals of land. The trial Court further held while deciding issue Nos. 2 and 7 came to the following finding : "Issue Nos. 2 and 7--From the above facts, findings and evidence we find that the right title and possession of the plaintiffs over 40 decimals land only is declared. Although in the present suit 45 decimals land is only in dispute and the suit would have been filed only for that land and not for the whole land. 2 and 7--From the above facts, findings and evidence we find that the right title and possession of the plaintiffs over 40 decimals land only is declared. Although in the present suit 45 decimals land is only in dispute and the suit would have been filed only for that land and not for the whole land. Any way so far 40 decimals land is concerned their right title and possession has been recognized and there is no dispute about it but the plaintiffs have no cause of action over 45 decimals of land over which the demand has been cancelled. Hence they have been cancelled. Hence they have no cause of action regarding this 45 decimals of land. So it is according." 6. Consequently the trial Court dismissed the suit. Dissatisfied with the judgment and decree of the trial Court plaintiffs/appellants filed appeal before the District Judge. Palamau which was registered as T.A. No. 29/85. The appellate Court affirmed the judgment and decree of the trial Court and dismissed the appeal. 7. Mr. Debi Prasad, learned Senior counsel appearing for the appellant assailed the judgment and decree of the Court below as being illegal and erroneous in law. Learned counsel submitted that both the Courts below have recorded concurrent finding of fact in respect of the title and possession of the plaintiffs over 40 decimals of land but the whole suit was dismissed instead of decreeing the suit in part. Learned counsel submitted that the trial Court has committed serious error of law in passing operative portion of the judgment and dismissed the whole suit. 8. Mr. K.K. Sahay, learned counsel for the respondent on the other hand submitted that the suit filed by the plaintiffs was not maintainable and the appellate Court rightly came to the conclusion that the same is barred by the provision of Section 258 of the C.N.T. Act. 9. As noticed above, the trial Court recorded a conclusive finding on the question of title and possession of the plaintiffs over 40 decimals of land. But the suit was dismissed. For better appreciation operative part of the judgment of the trial Court is quoted herein below : "that the suit is dismissed in terms stated above on contest with cost. Pleaders fee Rs. 16/- and pleaders clerk fee Rs. 4/- are allowed." 10. But the suit was dismissed. For better appreciation operative part of the judgment of the trial Court is quoted herein below : "that the suit is dismissed in terms stated above on contest with cost. Pleaders fee Rs. 16/- and pleaders clerk fee Rs. 4/- are allowed." 10. The appellate Court while affirming the finding of the trial Court held that there is no dispute with regard to title and possession of the plaintiffs over 40 decimals of land. Para 14 of the appellate Court judgment is quoted herein below : "It was submitted by the learned lawyer for the appellants that, admittedly, the appellants have got their title and possession over 0.40 acres of land out of 0.85 acres of the suit land and, therefore, the learned lower Court should have decreed the suit in part declaring the title and possession of the appellants over this 0.40 acres of land out of the suit land. It is true that both the sets of defendants have admitted the title and possession of the appellants over 0.40 acres of land out of the suit land. It is true that both the sets of defendants have admitted the title and possession of the appellants over 0.40 acres of land out of the suit land. But there is practical difficulty in giving even this much of relief to the appellants because the said 0.40 acres of land is not capable of defining and determining for the purpose of an award of decree. There is no boundary available on the record in respect of this 0.40 acres of land and it is not known as to from which side of the suit land this 0.40 acres of land is situated? In the circumstances, the appellants can not be given even partial relief in respect of 0.40 acres of land of the suit land. Therefore, the learned trial Court has rightly rejected the entire claim of the appellants." 11. From perusal of the judgment of the appellate Court, it appears that villagers filed joint petition requesting the D.C.L.R., Palamau for cancelling the settlement of the land on the ground that these lands were used for the public purpose. Therefore, the learned trial Court has rightly rejected the entire claim of the appellants." 11. From perusal of the judgment of the appellate Court, it appears that villagers filed joint petition requesting the D.C.L.R., Palamau for cancelling the settlement of the land on the ground that these lands were used for the public purpose. On the basis of said petition, an inquiry was made by the D.C.L.R. and a report was submitted to the effect that 45 decimals of land are not in possession of the plaintiffs and accordingly settlement was modified. The appellate Court therefore committed serious error of law in holding that plaintiffs/appellants can not be granted a decree in respect of 40 decimals of land. 12. As noticed above, the trial Court in fact decreed the suit in part in respect of 40 decimals of land and against that, no appeal or cross appeal has been filed. In-spite of the said fact and also inspite of the fact that the findings of the trial Court in respect of the title and possession of the plaintiffs over 40 decimals of land has been affirmed by the appellate Court, the appellate Court dismissed the appeal. In that view of the matter the judgment and decree passed by the appellate Court can not be sustained in law. 13. For the reasons aforesaid this appeal is allowed in part and the judgment and decree passed by the appellate Court is set aside and that of the trial Court is restored and it is held that the suit is decreed in part in respect of 40 decimals of land of khata No. 89 Plot No. 84.