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2004 DIGILAW 468 (PAT)

Bhago Harijan v. Rajendra Mandal

2004-04-26

P.K.SINHA

body2004
Judgment P.K.Sinha, J. 1. The plaintiffs/appellants/appellants had filed Title Suit No. 184/26 of 1976/1979 for declaration that the plaintiffs had got valid right, title and interest over the suit land and that the defendants had no manner of concern over the same also praying for other reliefs. The suit was decreed by the 6th Additional Subordinate Judge, Bhagalpur in favour of the defendants, the judgment and decree coming under scrutiny in Title Appeal No. 32 of 1980 preferred by the plaintiffs which was decided by the third Additional District Judge, Bhagalpur in which the appeal was dismissed. 2. While admitting this second appeal following substantial questions of law were framed :- - "(1) As to whether Ext. 5 which is Khatian of cadestral survey demolishes the case of the defendants as according to the defendants Hari Chamar is the son of Nemani Chamar whereas Ext. 5 shows that Hari Chamar is son of Shambhu Chamar. (2) As to whether the lower appellant Court has omitted to consider Ext. 4 which is survey Khatian which proves that the plaintiffs are the descendants of Bunail Harijan. The same has vitiated the judgment and decree of the Courts below." 3. When the hearing was taken up a third substantial question of law was deemed necessary to be framed which was done under order dated 3.3.2004, as below :- - "(3) Whether the lower Courts have erred in not framing an issue and specifically deciding as to whether the defendants had perfected their title over the land in question by the doctrine of adverse possession." 4. In order to appreciate the aforesaid substantial questions of law, a brief history of the case first. The parties hereinafter will be referred to as the plaintiffs and defendants, as in the original suit. 5. The plaintiffs filed the Title suit claiming that the plaintiff No. 1, Bhago Harijan was son of plaintiff No. 2, Bachani Devi and plaintiffs No. 3 and 4 were sons of plaintiff No. 1, governed by Mitakshara School of Hindu Law. According to genealogical table, given by the plaintiffs, one Hari Chamar had a daughter, Dhania, who had a son Bunail Harijan whose wife is plaintiff No. 2 and Bhago Harijan is son of Bunail Harijan. According to genealogical table, given by the plaintiffs, one Hari Chamar had a daughter, Dhania, who had a son Bunail Harijan whose wife is plaintiff No. 2 and Bhago Harijan is son of Bunail Harijan. Hari Chamar was recorded tenant of land in Khata No. 58, Schedule-A. After the death of Hari Chamar, Dhaniya inherited his property, Hari Chamar being the only son of his father. After death of Dhaniya, Bunail Harijan and after his death, the plaintiffs have remained in possession of the suit properties. During the recent survey, entire Schedule A lands were not shown in the names of the plaintiffs but only a part of that, vice Schedule B to the plaint. In course of survey proceedings it transpired that the defendants third party (names deleted) and Saukhi Chamar and Shibbu Chamar who had no interest in the lands in Khata No. 58, sold Schedule C property to defendants second party, namely, to Shobhi Mandal and father of defendants No. 5 and 6 (Govind Mandal) vice sale deed dated 17.11.1941 and these defendants sold item No. 1 of the lands under Schedule C to defendants No. 1 and 2 whereas defendants No. 4, 5 and 6 sold item No. 2 land of Schedule C to defendant No. 3. On the basis of those sale deeds the names of defendants 1st party and defendant No. 7 (Mangal Chamar) had been recorded in respect of the lands shown in Schedules C. It was claimed that aforesaid sale deeds were invalid and were never acted upon which did not effect the right, title and interest of the plaintiffs. 6. Defendants No. 1 and 2 filed written statement. These defendants dismissed the genealogical table given in the plaint, claiming that Hari Chamar had no male issue but two daughters and one brother, namely, Bhoju Chamar who both were sons of one Nemani Chamar. Both the daughters, Dhania Devi and Ritiya Devi had died issueless, hence Bunail Harijan was not the son of Dhania Devi. Their claim was that Hari Chamar had died around the year 1912 in the State of jointness with his brother Bhoju Chamar who inherited the share of Hari Chamar and came to own the entire lands in Khata No. 58. It was denied that either Dhania or Bunail or the plaintiffs ever came in possession of the lands under Schedule A to the plaint. It was denied that either Dhania or Bunail or the plaintiffs ever came in possession of the lands under Schedule A to the plaint. These defendants have denied that the plaintiffs were descendants of Hari Chamar claiming that the plaintiffs never had any right, title or interest over the suit land. These defendants claimed that the lands in Schedule A exclusively were owned and possessed by Saukhi Chamar and others, the descendants of Bhoju Chamar who sold the same to Gobind Mandal and Shobhi Mandal by means of sale deed dated 17.11.1941 and since then the purchasers were coming in possession over the land who also got their names mutated in the sherista of the ex- landlord in respect of the aforesaid lands and obtained rent receipts. The ex-landlord also submitted return to the State of Bihar (on abolition of Zamindari) in the names of Gobind Mandal and Shobhi Mandal against the lands aforesaid and the State of Bihar also granted rent receipts in their names. Shobhi Mandal and sons of Gobind Mandal sold 1.22 acres of the aforesaid lands by two registered sale deeds dated 20.1.1971 executed in favour of Devendra Kumar and Narendra Kumar. 7. It was claimed that the plaintiffs knew about the aforesaid sales made in the year 1941 and 1971. The purchasers, Devendra Kumar and Narendra Kumar got their names mutated against the suit land and obtained rent receipts from the Government of Bihar under Jamabandi No. 86 for the land in item No. 1 of Schedule C of the plaint which was amalgamated with other lands of Chhittan Mandal, their father. It was also claimed that the family of these defendants and their vendors have been coming into Khas peaceful and had cultivating possession of the lands in suit for more than 12 years openly and adversely, and to the knowledge of the plaintiffs who never raised any objection. 8. Defendant No. 3, Charitar Sah, filed a separate written statement in which similar claims were made. He also supported that the lands were owned and possessed by Saukhi Chamar and others, the descendants of Bhoju Chamar, who sold the lands by a registered sale deed in the year 1941, which purchaser remained in possession thereafter and, in his turn, sold 1.22 acres of land by two registered sale deeds on 20.1.1971 in favour of Devendra Kumar and Narendra Kumar, sons of Chhitan Mandal. Adverse possession has also been claimed. 9. Therefore, it will appear that the moot question to be decided is as to whether Hari Chamar and Bhoju Chamar were two brothers, sons of Nemani Chamar and on death of Hari Chamar in the year 1912 whether Bhoju Chamar inherited the entire suit property. It is now admitted position that Hari Chamar had died in the year 1912. If it is shown that Hari Chamar was not son of Nemani Chamar nor had a brother Bhoju Chamar but only a daughter Dhania, then on his death in or around the year 1912, the property would be inherited by Dhania. Though defendants have claimed that Hari Chamar had two daughters, but they admitted that Dhania was one of those. If Hari Chamar had no surviving brother, namely, Bhoju Chamar, then, whether he had one daughter or two daughters, they would inherit Hari Chamar and, in that case, it would be altogether a different question as to who then will inherit the daughter or daughters, in the property but this situation would nullify the claim of defendants. But if Bhoju Chamar was surviving brother of Hari Chamar, then the case of the plaintiffs, as made out in the plaint, will stand demolished on this account. However, there is definitely another aspect of this conflict in which it has clearly been claimed by the defendants that after purchase by their vendors in the year 1941, the vendors had been coming into peaceful possession over the suit land, openly and adversely to all. Therefore, their claim also is that their vendors had perfected their title also by adverse possession which title was transmitted to these defendants on their purchase of the suit property and, after five years of such purchase, in the year 1976 the suit was instituted. 10. It may be noted here that the lower Courts had not framed any specific issue about the claim of adverse possession set out by these defendants which should have been framed in view of the specific averments in their written statements. 11. No doubt the learned first appellate Court in the judgment has touched his aspect also, as to how the defendants after purchase, and their vendors from before, had been coming into possession of the suit lands openly. 12. I will first take up the substantial questions No. 1 and 2 as formulated by this Court. 11. No doubt the learned first appellate Court in the judgment has touched his aspect also, as to how the defendants after purchase, and their vendors from before, had been coming into possession of the suit lands openly. 12. I will first take up the substantial questions No. 1 and 2 as formulated by this Court. The learned first appellate Court has believed the case of the defendants that Hari Chamar had one brother Bhoju Chamar whose descendants had executed sale deeds as claimed by the defendants. For disbelieving the case of the plaintiffs and in accepting the case of the defendants the learned lower Appellate Court has discussed the evidences on the record including the documents. However, in para 14 of the judgment the learned first appellant Court has admitted that on behalf of the defendants also no document had been filed to show that Hari Chamar was brother of Bhoju Chamar. The learned lower Court did not believe the genealogical table given by the plaintiffs on the ground that it was claimed therein that Hari Chamar had only one daughter Dhaniya Devi but plaintiff No. 1 who had deposed as PW 6, had admitted that Hari Chamar had one more daughter, Ritia Devi, who had died issueless. 13. Exhibit 5/B, which is copy of the record of rights published in the beginning of the 20th century shows that Hari Chamar was son of Shambhu Chamar. The defendants had claimed that hari Chamar and Bhoju Chamar were sons of Nemani Chamar. The learned first appellate Court has noticed Exhibit 5/B in the judgment and has not noticed the discrepancy. The learned lower appellate Court has considered this anamoly in the following words :- - "The probability that Shambhu had alias name of Nemani Chamar cannot be ruled out in the facts and circumstances of the case as discussed above." 14. However, dismissing a document in such cursory manner cannot be accepted. It has not been denied, nor any explanation has been brought on record by the defendants as to how the name of Shambhu Chamar came in Exhibit 5/B as father of Hari Chamar. This is a very old document and in order to reject this document good reasons had to be assigned. This cannot be dismissed on conjecture that Shambhu might be the alias name of Nemani, which is nobodys case. This is a very old document and in order to reject this document good reasons had to be assigned. This cannot be dismissed on conjecture that Shambhu might be the alias name of Nemani, which is nobodys case. It has not been explained as to why, if Bhoju Chamar was full brother of Hari Chamar, the name of Hari Chamar alone was recorded in the survey Khatian. 15. Now coming to Exhibit 4 series, these are raiyati Khatian in the name of Bhagu Chamar, one of the plaintiffs. In Exhibit 4/A, Bhagu Chamar has been shown as son of Bunail Harijan Chamar by caste. In another such document which is Exhibit 4/B, again Bhagu Chamar has been shown as son of Bunail Harijan. There are many rent receipts also in the name of Bhagu Chamar, Exhibit A series. 16. Exhibit 5/B cuts at the root of the case of the defendants that Hari Chamar had a full brother Bhoju Chamar who inherited him by survivorship. This document should not have been brushed aside so casually by the learned first appellate Court. 17. It is admitted that Dhaniya was daughter of Hari Chamar. If Hari Chamar had no brother named Bhoju Chamar then his properties were inherited by Dhania. As claimed, Bunail Chamar was son of Dhaniya and the plaintiffs belonged to his branch. In the raiyati Khatians as already seen, Bhagu Chamar has been shown as son of Bunail Chamar. 18. It is significant to note that In Ext. 6 which is order of the Assistant Settlement Officer in Revision Case No. 155 of 1974 brought by Bhagu Harijan against Rajendra Mandal, defendant No. 1, Bhago Harijan had claimed that Dhania was the only daughter of Hari Chamar who had a son Bunail and the petitioner was son of Bunail. That Dhaniya had a son Bunail and the plaintiff Bhogu Harijan was his son had not been denied by Rajendra Mandal though he claimed that Hari Chamar had two daughters, Dhania and Ritiya, which Hari Chamar died prior to the year 1912 and the properties were inherited by Bhoju. 19. On record also plaintiffs have brought good evidence to show that plaintiff was the grand son of Dhaniya and son of Bunail. In this regard evidences of PWs 4, 5 and 6, the last being the plaintiff himself, may be seen. 20. 19. On record also plaintiffs have brought good evidence to show that plaintiff was the grand son of Dhaniya and son of Bunail. In this regard evidences of PWs 4, 5 and 6, the last being the plaintiff himself, may be seen. 20. Therefore, so far the contention of the plaintiffs that Hari Chamar had a daughter Dhaniya, who inherited him, the plaintiffs claiming through Bunail Chamar, son of Dhania, should not have been rejected by the learned first appellate Court in view Of the documentary and oral evidences. 21. The first two substantial questions so answered now I will deal with the substantial question No. 3/22. No doubt plaintiffs have tried to bring into evidence that Bhago Harijan was in cultivating possession of the land in suit, such as through PWs 1, 4, 5 and 6 but most important in this regard is the evidence of Bhago Harijan himself whose evidence will override the evidences of other witnesses, if he admits the case of the defendants while in the witness box. The learned first appellate Court has discussed his evidence, in so far as the actual possession over the suit land was concerned, in paragraph 14 of the judgment, as also elsewhere, The learned first appellate Court has stated that in his deposition the plaintiff had not shown as to how Bhoju and his descendants came in possession of the suit land whose possession he rather admitted by inference. The learned first appellate Court also noticed that the plaintiff as PW 6 had admitted in his evidence that he never had paid any rent either to the State of Bihar or to the ex-landlord nor he got his name mutated in the Serista either of the ex-landlord or of the State of Bihar. This witness, it was also noticed, had admitted in evidence that since the execution of Ext. B in the year 1941 the vendees had come in possession of the suit land who paid rent and also got their names mutated in the official records in respect of the suit properties. It was observed in the judgment and that there was nothing on the record to show that the plaintiffs or their ancestors had raised any objection to the execution of the sale deed or had filed any case to get the same annulled. 22. It was observed in the judgment and that there was nothing on the record to show that the plaintiffs or their ancestors had raised any objection to the execution of the sale deed or had filed any case to get the same annulled. 22. The learned first appellate Court, in paragraph 16 onwards of the judgment, had discussed the evidences of the plaintiffs witnesses on the point of possession and had disbelieve those giving adequate reasons. Evidence of PW 6 was further discussed noticing that deposing on 23.1.1980, PW 6 had admitted that about 40 years earlier Sobhi Mandal and Govind Mandal had purchased the suit land and after execution of the sale deed they had started cultivating the suit land. This witness also had admitted that Sobhi Mandal and sons of Govind Mandal had sold away the suit land to Devendra Kumar and Narendra Kumar about 8 years back and after that the purchasers came into cultivating possession over the suit land. PW 6 also admitted that defendant No. 3, Charitar San also had purchased some portion of the suit land and also had come in cultivating possession over the purchased portion. The plaintiff (PW 6) admitted that in the revisional survey the land was recorded in the names of the purchasers. PW 6 claimed to have filed objection during survey operation. Even if he had filed such an objection in revisional survey that was beyond the statutory period of 12 years. The first appellate Court also noticed that the plaintiff in his deposition showed his ignorance about physical features of the land in suit. About rent receipts filed by the plaintiffs the first Appellate Court noticed that those did not relate to the suit land, nor Ext. 3, one Zamindari receipt. This was also considered in the light of the admission of PW 6 that he had not paid any rent. 23. Therefore, it is manifest that the plaintiff himself had admitted that cultivating possession over the suit land was that of the purchasers after the sale deed executed in the year 1941 and of the defendants, after their purchase. The possession of purchaser through Ext. B was for a period much more than 12 years. 23. Therefore, it is manifest that the plaintiff himself had admitted that cultivating possession over the suit land was that of the purchasers after the sale deed executed in the year 1941 and of the defendants, after their purchase. The possession of purchaser through Ext. B was for a period much more than 12 years. The plaintiff in his evidence has not claimed that during this period of possession, of which he was aware, he or other plaintiffs ever had raised any objection or had taken any step to counter that, or to regain the possession. Therefore, the vendors of the defendants must be held to have perfected their title by adverse possession. That being so they had conveyed valid title over the suit land to the defendants-purchasers. 24. As already noticed above, the learned lower Courts had not framed specific issue about title by adverse possession, though that had been claimed in the written statements. The learned first appellate Court had discussed the aspect of possession but stopped sort of holding title of defendants-purchasers by adverse possession. This obviously was because the appeal was decided on other points, in favour of defendants. Therefore, the learned first appellate Court might not have considered it necessary to frame a fresh issue relating to adverse possession and to give a clear finding. 25. A question may arise as to whether the issue can be raised at this stage. 26. In the case of Govind Yadav V/s. Deoki Devi, 1980 BLJR 261, the plea of adverse possession was raised for the first time before the first appellate Court, this Court deciding the matter in the second appeal. Considering other decisions on the point this Court (paragraph 17) held that where the relevant facts for raising an issue of title by adverse possession were averred in the pleading by a party and the facts were dealt with by the trial Court and the question of adverse possession was implicit in the case made out by the party, it could succeed on title by adverse possession even though it was not specifically raised at the trial stage and no issue had been framed on that and the plea was raised at the first appellate stage. Reliance was also placed upon another decision by this Court, in the case of Shri Bhagwan Singh V/s. Rambashi Kaur, AIR 1957 Patna 157, in which it was observed that in a suit based on title extending for more than 12 years, plea of adverse possession need not be specifically pleaded as that was included in the plea of title. 27. His lordship in the aforesaid judgment also observed that it was true that in the referred cases the plea was raised for the first time in the first appellate Court but, in the absence of express plea, the point could be raised in the second appellate Court also, subject only to the condition that the plea could be determined on the basis of the facts admitted, or found to be proved by the appellate Court. 28. Possession, open and adversely against the real owners or any one claiming through them, over immovable property confers title upon the trespasser having such adverse possession, for twelve years or more, continuously, by operation of law. Such title based on law can be raised at any stage of the proceedings, even in second appeal. 29. If such plea is raised at the appellate stage and if this plea could be decided on the evidences including admissions already on record, the question of title by adverse possession can be decided at that stage also. It was in view of this stipulation of law that the learned counsels were also heard on this plea specifically raised in this Court and a third substantial question of law was formulated. As already seen, this issue or plea could be decided upon the evidences already on the record, particularly on admissions made by PW 6 in his evidence. Therefore, this substantial question of law or this issue is decided in favour of the respondents and on this score it is held that the appellants are not entitled to a decree as sought for. 30. In the result, this appeal is dismissed.