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2004 DIGILAW 717 (JHR)

Prabhu Mahato v. Bhagtu Mahato

2004-07-19

N.N.TIWARI

body2004
ORDER N.N. Tiwari, J. 1. This appeal has been filed against the judgment and decree of affirmance dated 25.11.2002 passed by the Additional District Judge, IX Dhanbad in Title Appeal No. 55 of 2000. 2. The defendant is the appellant-appellant. The plaintiff- respondent filed a suit before the Assistant Settlement Officer, Dhanbad under the provision of Section 87, of the Chhotanagpur Tenancy Act, being "case No. 673 of 1990. 3. The plaintiffs case was that the suit land appertaining to C. S. Khata No. 2, portion of plot No. 337 area 5 decimals corresponding R. S. Khata No. 45, plot No. 471 area 5 decimals of Mouza Kalyanpur was allotted to his share in Title Partition Suit No. 18 of 197.1. Since thereafter the plaintiff has been coming in possession thereof. The further case of the plaintiff was that in the recent revisional survey record of rights the suit land was wrongly recorded in the name of the defendant Prabhu Mahato which the plaintiff came to know on 5.4.1990. Thereafter the suit was filed. 4. The defendant on being noticed appeared and contested the suit of the plaintiff stating therein that he is the rightful owner of the suit land which he purchased from recorded raiyat Late Magan Mahato vide registered deed, No. 14819, dated 11.6.1971 and he has been coming in actual physical possession. The defendant thus asserted that the entry made showing him as raiyat in the revisional survey record of rights is correct and the same requires no interference. 5. The Assistant Settlement Officer after hearing the parties and after considering the evidences, both oral and documentary, adduced by the respective parties decreed the claim of the plaintiff directing the correction in the record by making entry in the name of the plaintiff in respect of the suit land. Defendant then filed a review petition which was registered as Misc. Case No. 29 of 1999 which was dismissed by the Assistant Settlement Officer on 17.11.2000. Aggrieved by the said dismissal of the review application, the defendant filed the said appeal being Title Appeal No. 55 of 2000 in the Court of District Judge, Dhanbad which was ultimately came to be heard and decided by the Additional District Judge, Dhanbad. The defendant-appellant has assailed the order passed in the review application. However, there was no appeal against the original order of Assistant Settlement Officer dated 1.7.1999. The defendant-appellant has assailed the order passed in the review application. However, there was no appeal against the original order of Assistant Settlement Officer dated 1.7.1999. The main ground of the defendant-appellant before the lower appellate Court was that the Assistant Settlement Officer did not properly consider the facts and evidence or record and he erroneously dismissed the review application filed by the defendant-appellant. 6. The plaintiff respondent contested the appeal of the appellant-defendant contending that the order passed by the Assistant Settlement Officer was sound, legal and valid and no interference is required by the appellate Court. The plaintiff- respondent contended that the suit land was allotted to him in Title Partition Suit. No. 18/71. In the said title partition suit is was specifically mentioned that 12 decimals of land of Plot No. 327 of Kliata No. 2 of Mouza Kalyanpur was allotted to the plaintiffs share and the final decree was accordingly passed. It was further submitted that the sale of the suit land by Magan Mahato to the defendant was merely a paper transaction and sale deed was executed on 11.6.1971 during the pendency of Title Partition Suit No. 18/71 and such transaction was hit Under Section 52 of the Transfer of Property Act as the same was made during the pendency of the said partition suit. The lower appellate Court thoroughly considered the facts, evidences and materials on record and after appraisal of the evidence in detail came to the finding that the total area of plot No. 337 is 17 decimals out of which 12 decimals of the land on northern side was allotted to the plaintiff in Title Partition Suit No. 18/71 and the rest two decimals of land was purchased by the plaintiff from Babni Mahtain and some portions of remaining land of plot No. 337 from Digam Mahato and that said land of plot No. 377 was allotted to plaintiff and no area of plot No. 337 was left with Magan Mahato to sell it to the defendant. It was further stated that the said transaction took place during pendency of the Title Partition Suit No. 18/1971. The defendant did riot acquire any title in the suit land. The lower appellate Court thus dismissed the appeal upholding the order of the Assistant Settlement Officer. 7. Mr. It was further stated that the said transaction took place during pendency of the Title Partition Suit No. 18/1971. The defendant did riot acquire any title in the suit land. The lower appellate Court thus dismissed the appeal upholding the order of the Assistant Settlement Officer. 7. Mr. Mukbopadhaya learned counsel appearing for the appellant again tried to raise the some ground and asserted that the defendant acquired good title over the land purchased by him from Magan Mahato who had valid title. According to him, the judgment and decree in the partition suit was not valid as the land measuring 5 decimals purchased by him has not been allotted to his share. In my considered view the said submission of the learned counsel for the appellant is devoid of any substance. 8. The lower appellate Court on scrutinizing the evidence thoroughly has found that plot No. 337 was not allotted to Magan Mahato from whom the defendant claim to have purchased 5 decimals of land. The learned counsel failed to show from the records that Magan Mahato at any stage was entitled to said land of plot No. 337 which he could have transferred in favour of the defendant. The Court below found on appraisal of evidence that the vendor of the defendant Magan Matho had no title and no share was allotted in plot No. 337. 9. I find no illegality in the said finding. The said findings have been concurrently recorded by two Courts below and there is no legal ground for interference by this Court in second appeal, I find no merit in this appeal. It. is accordingly dismissed.