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2004 DIGILAW 605 (JHR)

Manki Mali v. Radhika Devi

2004-06-22

VISHNUDEO NARAYAN

body2004
JUDGMENT Vishnudeo Narayan, J. 1. This appeal as the instance of the defendant-appellant has been directed against the impugned judgment of reversal and decree dated 21.9.1988 and 30.11.1988 respectively passed in Title Appeal No. 56 of 1970 by Shri Bharat Prasad Sharma, 4th Additional District and Sessions Judge, Hazaribagh whereby and whereunder the judgment and decree dated 25.6.1970 and 3.7.1970 passed in Title Suit No. 798 of 1965/47 of 1967 by Additional Munsif, Hazaribagh was set aside and the appeal was allowed the suit of the plaintiff was decreed. 2. The plaintiff-respondent had filed the said Title Suit for declaration of his title and confirmation of possession over the suit property detailed in Schedule B of the plaint and in the alternative for recovery of possession. A relief for permanent injunction restraining defendant Nos. 1 to 7 from disturbing the possession of the plaintiff in respect of Schedule B land was also sought. 3. This suit has a very chequered history. Initially the suit was dismissed on contest vide judgment dated 30.5.1968 and decree dated 13.6.1968 by the Additional Munsif and the plaintiff preferred Title Appeal No. 71 of 1968/11 of 1970 before the appellate Court below and the said appeal was allowed setting aside the impugned judgment and decree of the trial Court and the suit was remanded for a fresh decision in accordance with law for consideration afresh of both the documentary and oral evidence. Thereafter the learned trial Court again dismissed the suit vide its judgment and decree dated 28.6.1970 and 3.7.1970. The plaintiff preferred Title Appear No. 56 of 1970. The said appeal was allowed and the impugned judgment of the trial Court was set aside and the suit of the plaintiff was decreed vide judgment and decree dated 12.3.1973 and 24.3.1973. The defendant preferred Second Appeal No. 257 of 1973 before this Court. This Court vide judgment dated 4.12.1981 allowed the appeal and judgment and decree of the appellate Court below was set aside and the case was remanded to the appellate Court below with a direction to record the finding as to whether the plaintiffs have succeeded in proving the settlement of 1922 in favour of defendant No. 8 and in case the Court below finds that the settlement was made in 1922 the suit will have to be decreed provided of course, it is not barred by time. The appellate Court below vide impugned judgment dated 21.9.1988 again allowed the appeal and judgment and decree of the learned trial Court was set aside and the suit of the plaintiff was decreed. 4. This appeal before this Court has been preferred by the defendant- appellant against the impugned judgment of the appellate Court below on remand. 5. During the pendency of the appeal on remand before the appellate Court below a petition was filed on 12.5.1986 to admit the Hukumnama of the year 1922 (4th of Asadh Sambat 1979) executed by Smt. Janki Devi daughter of Sita Kuer and Uchaiti Devi daughter of Chameli Devi in favour of defendant No. 8 Bhagan Mahto which was brought on the record of Title Suit No. 798 of 1965 on 2.5.1968 from the custody of defendant No. 8 and after hearing the parties the said Hukumnama was admitted into evidence and marked Ext. 8 vide order dated 21.9.1988 in pursuance of the order dated 3.8.1987 after impounding the said document. 6. The case of the plaintiff, in brief, is that Khata No. 27 of village Jagdishpur was recorded in the name of Dhanu Mahto in the cadastral Survey Records of Right and after the survey operation said Dhanu Mahto died issueless and the landlords Nageshwar Singh. Most. Chameli Devi, Kasida Kuer and Most. Sita Kuer resumed the possession of land of Khata No. 27. Most. Chameli Devi died leaving behind a daughter Most. Uchaiti Devi. Most. Sita Devi died leaving behind a daughter Janki Devi whereas Most. Kashida Kuer died issueless. Nageshwar Singh aforesaid settled with defendant No. 7 Bansidhar Upadhyay several plots of Khata No. 27 by virtue of a registered patta dated 27.9.1924 and the total area of the land settled with defendant No. 7 is 2.14 acres only but by mistake the area was wrongly mentioned in the said registered patta as 3.12 acres. Kashida Kuer died issueless. Nageshwar Singh aforesaid settled with defendant No. 7 Bansidhar Upadhyay several plots of Khata No. 27 by virtue of a registered patta dated 27.9.1924 and the total area of the land settled with defendant No. 7 is 2.14 acres only but by mistake the area was wrongly mentioned in the said registered patta as 3.12 acres. The case of the plaintiff further is that Janki Devi and Uchaiti Devi aforesaid settled Schedule A land of the plaint appertaining to Khata No. 27 besides the lands of other Khatas in favour of defendant No. 8 Bhagan Mahto and put him in possession of the same and in token of the settlement executed a Hukumnama in favour of Bhagan Mahto in respect thereof on 14th Asadh Sambat 1979 and Bhagan mahto paid rent, got rent receipts and after the vesting he paid rent to the State and getting rent receipts and her remained in exclusive possession of Schedule A land without any obstruction or hindrance from any quarter far less from defendant Nos. 1 to 7. The further case of the plaintiff is that Bhagan Mahto executed a sale deed dated 4.4.1956 in favour of the plaintiffs in respect of 1.49 acres of land of Khata Nos. 10 and 27 under khewat No. 2/2 of village Jagdishpur and Schedule-B of the plaint is in respect of the land of Khata No. 27 aforesaid which is in dispute in this case and the plaintiffs came in possession over the same by virtue of the said sale deed and is continuing in peaceful possession over the same without any obstruction or hindrance. There was a proceeding under Section 144 of the Code of Criminal Procedure which was subsequently converted into a proceeding under Section 145 of the Code of Criminal Procedure in which the possession over Schedule- B land in the plaint was declared in favour of the defendant Nos. 1 to 7, as per order dated 16.8.1963 and in the said proceeding this plaintiff as well as defendant No. 8 Bhagan Mahto and Butan Mali were not parties and defendant Nos. 1 to 6 claimed their title and possession over Scheduled-B land by virtue of a registered sale deed dated 15.2.1952 executed by defendant No. 7, Bansidhar Upadhyay in favour of said Butan Mali, the father of defendant Nos. 1 and 2 and fathers father of defendant Nos. 1 to 6 claimed their title and possession over Scheduled-B land by virtue of a registered sale deed dated 15.2.1952 executed by defendant No. 7, Bansidhar Upadhyay in favour of said Butan Mali, the father of defendant Nos. 1 and 2 and fathers father of defendant Nos. 3, 5 and 6, though the suit land detailed in Schedule B of the plaint was not covered by the said sale deed. It is also alleged that Bansidhar Upadhayay did not claim any title or possession over Schedule B, land of the plaint in the said proceeding but the learned Executive Magistrate declared him also to be in possession over the same erroneously. Hence a cloud has been cast over the title of possession of the plaintiffs by virtue of the order passed under Section 145 of the Code of Criminal Procedure. Hence this suit. 7. The case of the contesting defendants on the other hand is that Chameli Devi and Sita Kuer have died issueless and Janki Devi is not the daughter of Sita Kuer whereas Uchaiti Devi is the daughter of Nageshwar Singh aforesaid. It is alleged that the total area of land of Khata No. 27 is 3.12 acres and Nageshwar Singh has settled the entire land i.e. 3.12 acres of Khata No. 27 by virtue of the registered deed of patta dated 27.9.1924 with Bansidhar Upadhayay but due to the mistake on the part of the scribe the first page of Khata No. 27 containing some of the plots of that Khata were left out in the sale deed but in spite of that Bansidhar Upadhyay came in possession of the entire land of Khata No. 27 and paid rent. It is alleged that Butan Mali the ancestor of defendant Nos. 1 to 6 purchased half area of each of the plot of Khata No. 27 from Bansidhar Upadhyay by virtue of a registered sale deed dated 15.2.1952 and came in possession over the land purchased by him. The alleged settlement with Bhagan Mahto by a sada Hukumnama in Sambat 1979 has been purposely brought into existence to lay a false claim and said Bhagan Mahto has no right to execute any sale deed in favour of the plaintiffs. The alleged settlement with Bhagan Mahto by a sada Hukumnama in Sambat 1979 has been purposely brought into existence to lay a false claim and said Bhagan Mahto has no right to execute any sale deed in favour of the plaintiffs. The contesting defendants claims to be in continuous peaceful possession over the land of Khata No. 27 by virtue of the sale deed executed in his favour by Bansidhar Upadhayay. 8. Defendant No. 8 in his written statement has supported the case of the plaintiff. 9. In view of the pleadings of the parties the learned trial Court on remand has formulated the following issues for adjudication in this case ; (i) Is the suit as framed maintainable? (ii) Have the plaintiffs got any cause of action for the suit ? (iii) Is the suit time barred ? (iv) Have the plaintiffs got any right title and interest in the suit land and if they can get for confirmation/recovery of possession ? (v) Did Chanchli and Sita die issueless ? (vi) How much land was settled to Bansidhar Upadhayay by Shri Nageshwar Singh through the registered patta dated 27.9.1924? (vii) Is the settlement in favour of Bhagan Mahto dated Asarih Sudi 14, Sambat 1979 genuine and valid? (viii) To what other reliefer reliefs, if any are the plaintiffs entitled ? 10. In view of the evidence oral and documentary on the record the learned trial Court while deciding issue Nos. (v) and (vii) has held that Hukumnama dated 14th Asardh Sambat 1979 has not been brought on the record and Bhagan Mahto has also not taken oath in this case and no explanation has been given for non- examination of Bhagan Mahto as well as for non-production of the Hukumnama and in his view of the matter the plaintiff has failed to prove the alleged settlement of the suit land in favour of defendant No 8 Bhagan Mahto and the plaintiff has not acquired any right, title and interest in the suit property by virtue of the sale deed dated 4.4.1956 and the plaintiff was also not in possession over the suit land. While deciding issue No. (vi) it has been field that 3.08 acres of land of Khata No. 27 has been settled with Bansidhar Upadhayay by virtue of Ext. While deciding issue No. (vi) it has been field that 3.08 acres of land of Khata No. 27 has been settled with Bansidhar Upadhayay by virtue of Ext. 4, the registered deed of settlement dated 27.9.1924 and the contesting defendants have acquired valid right, title and interest in respect of the suit property by virtue of the sale deed dated 15.2.1952 executed by Bansidhar Upadhayay in favour of their ancestor Butan Mali. In view of the findings aforesaid the trial Court dismissed the suit of the plaintiff. 11. Being aggrieved by the impugned judgment the plaintiffs preferred Title Appeal No. 56 of 1970 which was allowed by the appellate Court below setting aside the judgment of the trial Court and the defendant preferred an appeal before this Court and his appeal was allowed and the judgment of the appellate Court was set aside and the appeal was remanded. In the "pendency of this appeal the Hukumnama dated 14th Asadh sambat 1979 was admitted into evidence and was marked as Ext. 8. The appellate Court on reappraisal and re-appreciation of the evidence on the record allowed the appeal filed by the plaintiff and set aside the impugned judgment of the trial Court and decreed the suit. The appellate Court below has held that the then proprietor Most. Uchaiti and Janki had right and interest in the property under khewat No. 2/2 to which Khata No. 27 belongs and they had settled 98 decimals of land of Khata No. 27 with defendant No. 8 Bhagan Mahto and they had the right to make settlement in respect thereof and the Hukumnama Ext. 8 supports the case of settlement in favour of Bhagan Mahto and since then Bhagan Mahto remained in possession over the suit property for a period of about 30 years when said Bhagan Mahto sold the suit property to the plaintiffs by virtue of the sale deed dated 4.4.1956 and the plaintiff had acquired valid right and title in the suit property and they are in possession over the same. In view of the findings aforesaid the appellate Court below allowed the appeal and set aside the impugned judgment and decreed the suit of the plaintiff. 12. In view of the findings aforesaid the appellate Court below allowed the appeal and set aside the impugned judgment and decreed the suit of the plaintiff. 12. While admitting this appeal for hearing the substantial question of law has been formulated vide order dated 2.11.1990 which runs thus : "whether in absence of proof of custody of the purported Hukumnama executed in the year 1924 in favour of the defendant No. 8 the same could have been marked as Ext. 7." 13. Assailing the impugned judgment it has been submitted by the learned counsel for the defendant appellant that the Hukumnama alleged to have been executed by Janki Devi and Uchaiti Devi in favour of defendant No. 8 on 14th Asadh Sambat 1979 has neither been brought on the record before the trial Court and nor was it also admitted in evidence at that stage and Bhagan Mahto has also not taken oath in support thereof and the said Hukumnama has been admitted into evidence at the appellate stage by the lower appellate Court and there is no reference in the impugned judgment of the appellate Court below regarding the proof of the custody of the said Hukumnama and in the absence of proper proof of the said Hukumnama of Sambat 1979 it has been erroneously admitted into evidence and in this view of the matter the impugned judgment is manifestly erroneous. 14. In contra, it has been submitted by the learned counsel for the plaintiff-respondent that defendant No. 8 Bhagan Mahto has filed several documents including the original Hukumnama dated 14th Asadh Sambat 1979 on 2.5.1968 as per list of the documents from his custody but the said Hukumnama was not admitted into evidence due to inadvertence and the trial Court has committed an error of record in para 21 of its judgment that the Hukumnama of Sambat 1979 has not been brought on the record. It has also been submitted that during the pendency of the appeal the plaintiff filed a petition on 12.5.1986 for admitting the said Hukumnama into evidence in view of the fact that Bhagan Mahto was then dead. It has also been submitted that during the pendency of the appeal the plaintiff filed a petition on 12.5.1986 for admitting the said Hukumnama into evidence in view of the fact that Bhagan Mahto was then dead. The appellate Court below vide order dated 3.5.1987 after hearing the parties on the petition dated 12.5.1986 and its rejoinder dated 19.9.1986 ordered for admitting the Hukumnama of Sambat 1979 into evidence subject to depositing the impounded amount and a report of the Seristedar was called for in respect thereof and the plaintiff had deposited Rs. 34.65 paise as impounding fee as per the report of the Seristedar on 27.8.1987 and, thereafter, the defendant again filed a petition on 25.3.1988 for not admitting the said Hukumnama into evidence and the rejoinder was also filed by the plaintiff on 11.4.1988 and vide order dated 21.9.1988 the said Hukumnama was marked as Ext. 8 for the plaintiff and thus it is clear that the said Hukumnama has been brought on the record from the proper custody of defendant No. 8 Bhagan Mahto and the said document is 30 years old and since the requirement under Section 90 of the Evidence Act having been fulfilled the learned appellate Court below has rightly admitted the said document into evidence and there is no illegality in respect thereof and in this view of the matter the substantial question of law as formulated at the time of the admission of this appeal pales into insignificance. Referring the ratio of the ease of Kondiba Dagadu Kadam v. Savitribal Sopan Gujar and Ors., AIR 1999 SC 2213 , it has been submitted that it is not within the domain of the High Court to investigate the grounds on which the findings were arrived at by the last Court of fact being the Ist appellate Court and in a case wherefrom a given set of circumstances two inferences are possible, one drawn by the appellate Court is binding on the High Court in second Appeal and adopting any other approach is not permissible and the High Court cannot substitute its opinion for the opinion of the Ist appellate Court unless it is found that the conclusions drawn by the lower appellate Court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court or was based upon inadmissible evidence or arrived at without evidence. Thus there is no illegality in the impugned judgment. 15. It will admit of no doubt that Khata No. 27 of village Jagdishpur stands recorded in the name of Dhanu Mahto in the padastral Survey Records of Right (Ext. 5) and the said Dhanu Mahto has died issueless after the cadastral survey settlement and the land of Khata No. 27 was resumed by the then landlords i.e. Nageshwar Singh, Most. Chameli Devi, Kasida Kuer and Most. Sita Kuer. There is no dispute in respect of the facts that they were the proprietors in respect of land of Khata No. 27 as per khewat entry No. 2/2 in respect thereof which is evidenced from Ext. 5 read with certified copy of the khewat (Ext. 6). Nageshwar Singh had settled the land of Khata No. 27 with Bansidhar Upadhyay by virtue of the registered deed of patta dated 27.9.1924 (Ext. 4). It is relevant to mention here that the said deed incorporates the number of the survey plots under Khata No. 27 which stands settled with Bansidhar Upadhyay and the area of the aforesaid plot taken together comes to 2.14 acres. The said Ext. 4 does not include therein the suit plots mentioned in Scheduled B of the plaint. The total area of Khata No. 27 is 3.12 acres. However, in Ext. 4 it has been mentioned that 3.12 acres of land of Khata, No. 27 has been settled with Bansidhar Upadhyay. The said Ext. 4 does not include therein the suit plots mentioned in Scheduled B of the plaint. The total area of Khata No. 27 is 3.12 acres. However, in Ext. 4 it has been mentioned that 3.12 acres of land of Khata, No. 27 has been settled with Bansidhar Upadhyay. In view of the specific mention of the number of the survey plots having been settled in favour of Bansidhar Upadhyay in Ext. 4 it cannot be said that the entire land of Khata No. 27 i.e. 3.12 acres of land stands settled with Bansidhar Upadhyay Chameli Devi and Sita Kuer who were also the ex-landlords with Nageshwar Singh aforesaid had died leaving behind a daughter each, namely, Most. Uchaiti Devi and Smt. Janki Devi respectively. Ext. 1/B and Ext. F establishes the fact that Uchaiti Devi and Janki Devi are the daughters of Chameli Devi and Sita Kuer respectively and the appellate Court below has also come to the said finding in the impugned judgment. Ext. 4, the registered patta in favour of Bansidhar Upadhyay does not include the suit plots detailed in Schedule B of the plaint. The appellate Court below has held that only 2.14 acres of land of Khata No. 27 has been settled with Bansidhar Upadhyay by virtue of registered patta dated 27.9.1924 (Ext. 4). Said Uchaiti Devi and Janki Devi have settled remaining 98 decimals land of Khata No. 27 besides other lands of Khata No. 10 in favour of Bhagan Mahto and executed a Hukumnama dated 14th Asadh Sambat 1979 in respect thereof and granted rent receipts. It is equally pertinent to mention here that by calculation the period of the said Hukumnama falls to English calendar year 1922. The plaintiff claims to have acquired Schedule B land of the plaint by virtue of the sale deed dated 4.4.1956 executed, by Bhagan Mahto. Defendant claims to have acquired by virtue of the sale deed dated 15.2.1952 executed by Bansidhar Upadhyay in respect of half of each of the plots mentioned in the, said deed which have been settled in favour of Bansidhar Upadhyay by virtue of the registered patia dated 27.9.1924. This sale deed is Ext. B. This sale deed does not include therein the plot numbers mentioned in Schedule B of the plaint. This sale deed is Ext. B. This sale deed does not include therein the plot numbers mentioned in Schedule B of the plaint. Therefore, the defendant cannot be said to have acquired any right, title and interest in respect of the suit property. I have already stated above that the suit plots mentioned in Schedule B of the plaint also does not figure in the registered patta dated 27.9.1924. Therefore, neither the defendants nor their vendor Bansidhar Upadhyay had any right or interest in the suit property which the plaintiffs have acquired by virtue of the sale deed dated 4.4.1956 executed by Bhagan Mahto in whose favour there was a settlement in respect thereof by virtue of the: Hukumnama dated 14th Asadh Sambat 1979 executed by Uchaiti Devi and Janki Devi. 16. The Hukumnama (Ext. 8), which has inadvertently described as Ext. 7 in the substantial question of law formulated by this Court, is dated 14th Asadh Sambat 1979. The said Hukumnama was brought on the record before the trial Court on 2.5.1968 along with other documents as per list of the documents by defendant No. 8 Bhagan Mahto from his custody. In the appellate stage and after the death of Bhagan Mahto the plaintiff filed an application for admitting the said Hukumnama into evidence and after hearing the parties on the petition dated 12.5.1986 and its rejoinder dated 19.9.1986 the learned appellate Court below ordered for admitting the Hukumnama of Sambat 1979 into evidence subject to depositing the impounded amount and a report of the Seristedar was called for in respect thereof and the plaintiff had deposited Rs. 34.65 paise as impounding fee as per the report of the Seristedar on 27.8.1987 and, thereafter the defendant again filed a petition on 25.3.1988 for not admitting the said Hukumnama into evidence and the rejoinder was also filed by the plaintiff on 11.4.1988 and vide order dated 21.9.1988 the said Hukumnama was marked as Ext. 8 for the plaintiff and thus it is clear that the said Hukumnama has been brought on the record from the proper custody of defendant No. 8 Bhagan Mahto and the said document is 30 years old and since the requirement under Section 90 of the Evidence Act having been fulfilled the learned appellate Court below has rightly admitted the said document into evidence and there is no illegality in respect thereof. The contention of the learned counsel for the plaintiff as stated above in respect thereof finds support from the record of the trial Court as well as of the appellate Court. It, therefore, appears that the Hukumnama dated 14th Asadh Sambat 1979 (Ext. 8) has been brought from the proper custody of defendant No. 8 Bhagan Mahto on the record by none else but Bhagan Mahto himself. This Hukumnama is more than 30 years old. Section 90 of the Evidence Act reads thus : "90. Presumption as to documents thirty years old.--Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that persons handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the person by whom it purports to be executed and attested. Explanation.--Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be, but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable." There is presumption, of genuineness of document 30 years old which is produced from proper custody which is a sort of guarantee of the genuineness of that document arid the presumption under Section 90 is regarding its genuineness including the signature and every other part of such document which purports to be in the handwriting of any particular person is in that persons handwriting and in case of a document executed or attested that it was duly executed and attested by a person by whom it purports to be executed and attested. Plaintiff Ramphal Singh, who is the son of Nageshwar Singh aforesaid, the proprietor of Khata No. 27, has taken oath in this case as PW 9, and in para 10 has categorically deposed that the Hukumnama (Ext. 8) is in the custody of Bhagan Mahto. He has further deposed in para 11 of his evidence that settlement in favour of Bhagan Mahto by virtue of the Hukumnama (Ext. 8) is in the custody of Bhagan Mahto. He has further deposed in para 11 of his evidence that settlement in favour of Bhagan Mahto by virtue of the Hukumnama (Ext. 8) have been made two years earlier to the settlement made in favour of Bansidhar Upadhyay. Therefore, there is legal evidence on the record to show that the Hukumnama (Ext. 8) has been brought on the record from the proper custody of defendant No. 8 Bhagan Mahto on 2.5.1968 and the fact of the proper custody of Bhagan Mahto over the said Hukumnama (Ext. 8) has been duly proved as per the evidence of PW 9 Ramphal Singh, the plaintiff himself. Therefore, the learned appellate Court below has rightly admitted Ext. 8 into evidence and viewed thus no illegality at all has been committed by the learned appellate Court below in admitting Ext. 8. To sum up. Bansidhar Upadhyay and his vendees i.e. the defendant Nos. 1 to 6 did not acquire any right in respect of the suit property detailed in Schedule B of the plaint by virtue of the registered patta dated 27.9.1924. The finding of the learned appellate Court below is based on proper appreciation of the evidence on the record and it cannot be said that this finding is erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court or was based upon inadmissible evidence or arrived at without evidence and, therefore, the finding arrived at by the appellate Court below is binding on this Court in Second Appeal. In this view of the matter the substantial question of law as formulated at the time of the admission of this appeal has no relevancy at all. Thus I see no illegality in the impugned judgment. 17. There is no merit in this appeal and it fails. The impugned judgment of the learned appellate Court below is hereby affirmed. The appeal is dismissed with costs.