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2004 DIGILAW 284 (JHR)

Ajay Kumar Modi v. Somar Mahto

2004-03-17

VISHNUDEO NARAYAN

body2004
JUDGMENT Vishnudeo Narayan, J. 1. This appeal at the instance of the plaintiffs-appellant stands directed against the impugned judgment and decree dated 13.2.1989 and 23.2.1989 respectively passed in Money Appeal No. 1 of 1986 by Shri Uma Shankar, 1st Additional District Judge, Hazaribagh whereby and whereunder the Judgment and decree dated 29.3.1986 and 17.4.1986 passed in Money Suit No. 10 of 1984 by Munsif, Hazaribagh was affirmed and the appeal was dismissed. 2. The plaintiffs-appellant had filed the said money suit for realisation of Rs. 1963.75 paisa along with interest @ 12% per annum from the defendants- respondent. 3. The case of the plaintiffs-appellant, in brief, is that Plot Nos. 344, 349 and 406 having an area of 10 decimals, 48 decimals and 47 decimals respectively appertaining to khata No. 41 detailed in Schedule--A of the plaint was recorded in the name of Lakhi Mahto in the Survey Records of Right and his son, namely, Moti Mahto inherited the said land after the death of the said recorded tenant and he sold the said land in favour of one Prasadi Modi by virtue of sale deed dated 25,9.1943. The said Prasadi Modi died issueless and his brothers, namely, Mathura Ram Modi and Moti Ram Modi succeeded the said land and they sold the said land in favour of the plaintiff-appellant Chameli Devi vide sale deed dated 13.2.1970 and she came in possession over the said land and got her name mutated and paid rent to the State. The plaintiff-appellant Chameli Devi sold half of the said land detailed in Schedule-A of the plaint in favour of the plaintiff- appellant Ajay Modi and Dhirendra Modi, both sons of Kishori Modi vide sale deed dated 15.12.1980 and they came in possession over the said land along with Chameli Devi and they were also mutated in respect thereof 18 decimals of land out of plot No. 349 was acquired vide L.A. Case No 14 of 1978-79 and Notification dated 29.12.1979 under Section 4 of the Land Acquisition Act (hereinafter referred to as the said Act) was published in the District Gazette on 1.1.1980 and the award was prepared in the name of the defendant-respondent Nos. 1 to 3 who are the sons of Moti Mahto aforesaid for Rs. 1293.75 paisa and the amount of compensation was received by them on or about 12.9.1981. It is alleged that the defendants-respondent Nos. 1 to 3 who are the sons of Moti Mahto aforesaid for Rs. 1293.75 paisa and the amount of compensation was received by them on or about 12.9.1981. It is alleged that the defendants-respondent Nos. 1 to 3 had no right, title, interest or possession over 18 decimals of land aforesaid and they were not at all entitled to receive the said compensation and they have surreptitiously received the said amount of compensation in league with the Land Acquisition Authorities and inspite of legal notice sent to them by registered post they did not refund the same amount to the plaintiffs-appellant. 4. The case of the defendants-respondent Nos. 1 to 3, inter alia, is that the land of khata No. 41 stands recorded in the name of their ancestor in the Survey Records of Right and they have right, title, interest and possession thereon and 18 decimals out of plot No. 349 was acquired vide IA Case No. 14 of 1978-79 and possession in respect thereof was delivered to the CCL and these defendants are in possession over the rest of the land of khata No. 41 and the sale deed dated 25.9.1943 and 13.2.1970 are fictitious sale deeds without consideration and these sale deeds were never acted upon and thus defendants-respondent are still in exclusive cultivating possession of the land of khata No. 41 and the plaintiffs-appellant have never acquitted any right, title and interest in the said land and they are also not in possession over the same. It is further alleged that defendant-appellant Chameli Devi had no right and title and the sale deed dated 15.12.1980 has been created in favour of the plaintiff-appellant Nos. 1 and 2 to make out a case for claiming the compensation amount and the said sale deed is without consideration and has seen in the light of the day after the issuance of the notification under Section 4 of the said Act. The further case of these defendants-respondent is that after proper enquiry and investigation and with the knowledge of the plaintiffs-appellant and their alleged vendors the amount of compensation has been rightly paid to these defendants-respondent. 5. The case of the defendants-respondent Nos. The further case of these defendants-respondent is that after proper enquiry and investigation and with the knowledge of the plaintiffs-appellant and their alleged vendors the amount of compensation has been rightly paid to these defendants-respondent. 5. The case of the defendants-respondent Nos. 5 and 6 in their written statement, inter alia, is that 36.33 acres of land was acquired by the State for mining operation of Kedla South Colliery which include 18 decimals of plot No. 349 of khata No. 41 of Village-Kedla and Notification dated 29.12.1979 under Section 4 of the said Act was published on 1.1.1980 in the District Gazette and subsequently declaration dated 3.4.1981 under Section 6 of the said Act was published on 16.4.1981 in the District Gazette and Land Acquisition Case No. 14 of 1978-79 under Section 11 of the said Act was initiated and the defendants- respondent Nos. 1 to 3 being the interested persons had filed objection under Section 5 of the said Act and after observing all formalities of law, the award was prepared in the name of defendant Nos. 1 to 3 and the CCL authority deposited the sum of Rs. 1293.75 paisa being the amount of the award which was already paid to them without any objection by the plaintiffs-appellant at any relevant time and actual physical possession of 36.33 acres of acquired land of the said village including the area of 18 decimals of plot No. 349 was delivered to the C.C.L. on 28.8.1981 and the suit filed by the plaintiff is not maintainable due to the non-joinder of the State of Bihar as party defendant. It has also been alleged that the plaintiffs-appellant have not filed at any relevant period any objection either under Section 5 or 9 of the said Act and they have also not filed any objection petition to the Collector under Section 30 of the said Act for settlement of the dispute as to the apportionment of the compensation to the persons interested in the land and the Land Acquisition Court is only empowered to decide the question of title of party under Section 31 of the said Act. Their case further is that there is no proper description of the area of 18 decimals of land of plot No. 349 under acquisition and the plaint suffers from vagueness and the land transferred by plaintiff-appellant Chameli Devi in favour of the other two plaintiffs-appellant after the notification under Section 4 of the said Act is void and the suit is also not maintainable as money suit unless a regular title suit is filed for declaration of title of the plaintiffs-appellant for claiming compensation according to law. 6. In view of the pleadings of the parties the following issues have been framed by the trial Court : (i) Is the suit maintainable in its present form? (ii) Have the plaintiffs cause of action for the suit? (iii) Is the suit barred by law of limitation and also barred under Section 30 of the Land Acquisition Act ? (iv) Is the suit bad for non joinder of CCI DC Hazaribagh and State of Bihar and misjoinder of defendant Nos. 4 to 7 ? (v) Is the suit land given in Schedule A of the plaint vague? (vi) Are the plaintiffs entitled to a decree for Rs. 1763.75 paise along with interest @ 12% p.a. on account of compensation ? (vii) To what relief or reliefs the plaintiffs are entitled to ? While deciding issue Nos. (iii), (iv), (v) and (vi) the learned Trial Court in view of the oral and documentary evidence on the record has held that the suit is not maintainable In its present form and is barred by law of limitation and also under Section 30 of the said Act and it also suffers due to the non- Joinder of necessary parties such as C.C.L., D.C. Hazaribagh and State of Bihar and the description of 18 decimals of land under acquisition is vague and thus the plaintiffs-appellant have no valid cause of action for the said suit and is not entitled and the money suit of the plaintiff-appellant was dismissed. 7. Aggrieved by the judgment and decree by the trial Court, the plaintiff- appellant preferred Money Appeal No. 1 of 1986. The lower appellate Court on reappraisal and reappreciation of the evidence oral and documentary on the record affirmed the judgment and decree of the Trial Court and dismissed the appeal. 7. Aggrieved by the judgment and decree by the trial Court, the plaintiff- appellant preferred Money Appeal No. 1 of 1986. The lower appellate Court on reappraisal and reappreciation of the evidence oral and documentary on the record affirmed the judgment and decree of the Trial Court and dismissed the appeal. The appellate Court below came to the finding that the suit of the plaintiff-appellant is not barred under Section 30 as well as under Section 31 of the said Act and it is not bad for the non-joinder of the necessary parry i.e. C.C.L. Deputy Commissioner. Hazaribagh and the State of Bihar and the suit also does not suffer from vagueness regarding the identity of 18 decimals of plot No. 349. However, the learned appellate Court below affirmed the finding of the Trial Court that the suit is barred by law of limitation as the compensation amount was paid to the defendant-respondent on 12.8.1981 and the suit was filed after the statutory period of limitation which is three years of the payment of the compensation amount to the defendants-respondent and accordingly the appeal was dismissed. 8. The Court admitted the appeal for hearing only on the substantial question of limitation. 9. It has been submitted by the learned counsel for the appellants that the learned Court below has committed a manifest error in dismissing the appeal of the plaintiffs-appellant on the ground of limitation and has not weighed properly the evidence on the record and has erred in coming to the finding that the defendants-respondent had received the payment of compensation amount on 12.8.1981 whereas the defendants-respondent in the written statement have not categorically traversed the case of the plaintiffs-appellant that they had received the payment on 12.9.1981. It has also been submitted that there is a typographical error in Ext. 3/A that the defendants-respondent had received the compensation amount on 12.8.1981 whereas there is specific averment in the plaint that the defendants-respondent had received the compensation amount on 12.9.1981 and PW 1 and PW 5 have deposed on oath that the defendants-respondent has received the payment of compensation on 12.9.1981 and the suit has been filed on 11.9.1984 i.e. within the statutory period of three years of the receipt of the compensation by the defendants-respondent. It has also been submitted that the finding of the learned appellate Court below dismissing the claim of the plaintiffs-appellant on the ground of limitation is perverse and in this view of the matter question of limitation in the facts and circumstances of this case is a substantial question of law and thus, the impugned judgment is unsustainable. 10. No body appeared on behalf of the respondents to controvert the submissions made by the learned counsel for the appellants. 11. The State of Bihar has acquired 36. 33 acres of land in village Kedla which includes 18 decimals of land of plot No. 349 appertaining to khata No. 41 vide IA Case No. 14 of 1978-79 and the relevant notification under Section 4 of the said Act was published in the District Gazette on 1.1.1980 followed by the relevant notifications under Sections 6 and 9 of the said Act and in the said land acquisition case, defendants-respondent had made objection under Section 5 of the said Act and after proper enquiry the award was prepared in their favour in respect of the compensation amount regarding 18 decimals of plot No. 349. No objection was ever preferred by the plaintiffs-appellant during the pendency of the said land acquisition case for claiming the said compensation amount. The compensation amount as per award aforesaid was paid to the defendants-respondent and possession over the acquired land was delivered on 24.8.1981 to the C.C.L. Plot No. 349 along with other plots appertaining to khata No. 41 admittedly stands recorded in the name of Lakhi Mahto in the cadastral survey and defendant-respondent Nos. 1 to 3 are the descendants of the said Lakhi Mahto. Moti Mahto, the son of Lakhi Mahto is said to have transferred plot No. 349 aforesaid along with other plots to Prasadi Modi by virtue of sale deed dated 25.9.1943, who died issueless and thereafter his brothers, namely, Mathura Ram Modi and Moti Ram Modi sold the aforesaid land to appellant Chameli Devi by virtue of sale deed dated 13.2.1970 and the said Chameli Devi executed a sale deed on 15.5.1980 regarding half of the said land in favour of the plaintiff- appellant Nos. 1 and 2 i.e, after the notification under Section 4 of the said Act. 18 decimals of land of plot No. 349 is under acquition in question and its award was prepared in favour of the defendants-respondent Nos. 1 and 2 i.e, after the notification under Section 4 of the said Act. 18 decimals of land of plot No. 349 is under acquition in question and its award was prepared in favour of the defendants-respondent Nos. 1 to 3 who are the sons of Moti Mahto aforesaid and compensation was also received by them as per the award. The plaintiff-appellant has made out a case in para-11 of his plaint which runs thus :-- "That the aforesaid defendants 1 to 3 by misrepresentation and in league with the C.C.L. officials and other officials surreptitiously preferred a claim for compensation and the authorities prepared an award of compensation amounting to Rs. 1293-75 paisa in the name of the defendants and the said amount was paid by the authorities and the defendants received the same on or about 12.9.1981." Defendant-respondent Nos. 1 to 3 have controverted the statements made in para-11 of the plaint in para-14 of their written statement which runs thus :-- "That the Award of the compensation in the name of these defendants were prepared after full enquiry and investigation with the knowledge of the plaintiff and their so-called vendors, and the amount of compensation, has been rightly paid to them. The statement of fact in para Nos. 11 and 12 of the plaint have accordingly been answered and the facts contrary to the answer denied." It, therefore, appears from the averments made in the plaint quoted above that the plaintiffs-appellant have not specifically stated the date on which the amount of compensation was received by the defendants-respondent as per the award aforesaid. The averments to that effect is that the defendants-respondent have received the compensation amount on or about 12.9.1981. No document evidencing the fact of payment of the said compensation amount to defendant- respondent Nos. 1 to 3 has been brought on the record by the plaintiffs- appellant to establish the fact as to when they had received the compensation amount. The plaintiffs-appellant have not called for the relevant documents from the Land Acquition Authority in respect thereof. However, PW1 and PW 5 have deposed in paras-2 and 4 respectively of their testimony that the defendants- respondent had received the compensation amount on 12.9.1981., Ext. The plaintiffs-appellant have not called for the relevant documents from the Land Acquition Authority in respect thereof. However, PW1 and PW 5 have deposed in paras-2 and 4 respectively of their testimony that the defendants- respondent had received the compensation amount on 12.9.1981., Ext. 3 is the carbon copy of an application dated 1.12.1982 sent by the plaintiffs-appellant to the Project Officer, Kedla Colliery whereby a prayer was made for payment of compensation amount of 18 decimals of land of plot No. 349 under acquisition to them which has been received by the defendants-respondents Nos. 1 to 3 on 12.9.1981. No reliance can be placed upon Ext. 3 in absence of its original having been called for from the defendant-respondent Nos. 4 and 5. Ext. 3/A is the advocates notice sent on behalf of the plaintiffs-appellant to the defendants-respondent Nos. 1 to 3 in which it has been categorically stated that the defendants-respondent aforesaid had received illegally the compensation amount of Rs. 1293.75 paisa regarding 18 decimals of plot No. 349 on 12.8.1991 and directing them to refund the said amount along with interest. Therefore, there is inconsistency between the averments made in the plaint, in the evidence of PW 1 and PW 5 referred to above and the averments made in the advocates notice (Ext. 3/A) regarding the date on which the defendant-respondent Nos. 1 to 3 had received the said compensation amount, as per the award in question. It is incumbent upon the plaintiffs- appellant to establish by legal and authentic evidence on the record regarding the specific date on which the amount of compensation has been received by the defendants-respondent as per the award. Therefore, in absence of the authentic document which is available on the record in the LA Case No. 14 of 1978-79, an adverse inference has to be drawn against the case of the plaintiffs-appellant regarding the payment made on 12.9.1981 as averred and deposed by them which is inconsistent with the averments made in Ext. 3/A which shows that the said payment has been made on 12.8.1981 to the defendants-respondent. This suit has been filed on 11.9.1984 and in absence of any authentic document showing payment on 12.9.1981 to the defendants-respondent, the claim of the plaintiffs-appellant is barred by law of limitation. 3/A which shows that the said payment has been made on 12.8.1981 to the defendants-respondent. This suit has been filed on 11.9.1984 and in absence of any authentic document showing payment on 12.9.1981 to the defendants-respondent, the claim of the plaintiffs-appellant is barred by law of limitation. The statutory period of limitation in respect of money payable to the plaintiff for money paid for the defendant is only three years from the date when the money stands paid. The learned appellate Court below has elaborately dealt with in respect thereof in para-15 of the impugned judgment and has come to the finding that the plaintiffs-appellant have admitted in Ext. 3/A that money was paid to the defendants-respondent Nos. 1 to 3 on 12.8.1981 and therefore they should have filed the money suit for recovery of the amount paid to the defendants-respondent Nos. 1 to 3 within three years from 12.8.1981, but this suit has been filed on 11.9.1984 and therefore, the suit is barred by law of limitation. I see no illegality in the finding arrived at by the learned appellate Court below. The question whether suit is barred by limitation is not a substantial question of law unless the findings of the Courts below are perverse. Where the findings by the Court of facts are not vitiated by non-consideration of relevant evidence or by an essentially erroneous approach to the matter, this Court has no jurisdiction to interfere therein. Interference is only permissile when relevant material has not been considered by the Courts below or when the finding is recorded on inadmissible evidence. Finding of limitation being a finding of fact cannot be interfered within second appeal where fresh appraisal of evidence is not permissible. It is well settled that this Court while considering the matter in exercise of its jurisdiction in second appeal would not reverse the findings of fact as recorded by the Courts below unless where the finding is recorded without any legal evidence on the record or on misreading of the evidence or suffers from any legal infirmity which materially prejudices the case of one of the parties or the finding is perverse. I, therefore, see no illegality in the impugned judgment of the learned appellate Court below whereby the appeal of the plaintiffs-appellant was dismissed on the ground that their suit is barred by law of limitation. I, therefore, see no illegality in the impugned judgment of the learned appellate Court below whereby the appeal of the plaintiffs-appellant was dismissed on the ground that their suit is barred by law of limitation. Therefore, there is no substance in the contention of the learned counsel for the plaintiffs-appellant. 12. There is no merit in this appeal and it fails. The appeal is hereby dismissed. No order as to costs in the facts and circumstances of this case.