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2004 DIGILAW 723 (JHR)

Bulaki Ram v. Jatru Mahali

2004-07-20

VISHNUDEO NARAYAN

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JUDGMENT Vishnudeo Narayan, J. 1. This appeal at the instance of the plaintiffs-appellant stands directed against the impugned judgment and decree of reversal dated 31st March. 1990 and 10.4.1990 respectively passed in Title Appeal No. 32 of 1988 by Shri Shyama Prasad Singh. 2nd Additional District Judge, Hazaribagh whereby and whereunder the appeal was allowed and the judgment of the trial Court passed in Title Suit No. 116 of 1985 was set aside and the suit of the plaintiff was dismissed. 2. The plaintiffs-appellant (hereinafter referred to as to the plaintiffs) had filed the said suit for declaration of their title and confirmation of the possession in respect of plot No. 1053 having an area of 10 decimals appertaining to Khata No- 12 situate in village Kurum, P.S. Ramgarh, District Hazaribagh. 3. The case of the plaintiffs, in brief, is that the suit plot originally belonged to one Mangri Mahli son of Barju Mahli and (he said Kangri Mahli executed a sale deed dated 16.1.1947 for consideration in favour of one Jaswa Mundain of village Chhatar Mandu, P.S. Ramgarh in respect of the suit-land besides other plots and Jaswa Mundain came in possession over the same. It is alleged that said Jaswa Mundain died issueless having no legal heirs in the month of March, 1948 and the then landlord Mahta Devendra Nath Singh resumed possession of the suit land besides other land after the death of Jaswa Mundain and the suit land became his bakast land. One Ram Prasad Singh got settlement of the suit land besides other plots from the then landlord by means of sada hukumnama followed by rent reciepts and he came in cultivating possession over the suit land and he paid rent to the then landlord and, thereafter, to the State and in the return said Ram Prasad Singh was shown as raiyat of the suit land. The defendant Nos. 1, 2 and 3 who are the sons of Kangli Mahli aforesaid did not arise any objection regarding his mutation in respect thereof. The further ease of the plaintiffs is that Ram Prasad Singh aforesaid executed a sale deed dated 22.4.1974 in respect of the suit land in favour of the plaintiffs and since then the plaintiffs are in cultivating possession over the same. It is alleged that Kangali Mahli. The further ease of the plaintiffs is that Ram Prasad Singh aforesaid executed a sale deed dated 22.4.1974 in respect of the suit land in favour of the plaintiffs and since then the plaintiffs are in cultivating possession over the same. It is alleged that Kangali Mahli. the father of the defendants knowing fully well that he has already transferred the suit land to Jaswa Mundain in the year 1947 and after concealing the real facts regarding the title and possession of the plaintiffs thereon collusively filed a petition before the LRDC, Hazaribagh under Section 46 (4-A) of the Chotanagpur Tenancy Act (hereinafter referred to as the said Act) giving rise to Restoration Case No. 53 of 1983 on 28.3.1982 for restoration of the suit land in his favour impleading one Janodhi Mian as opposite party who has in fact no interest in the suit land and these plaintiffs were not in know of the said case nor any notice of the said case was ever served upon them and Kangali Mahli got an order of restoration in his favour on 25.5.1983 and the plaintiffs came to know for the first time on 9.9.1985 in respect of the order dated 25.5,1983 when the Circle Officer, Ramgarh tried to disturb the possession of the plaintiffs and the said order is not binding upon the plaintiffs and the Circle Officer is bent upon to give effect to the order dated 25.5.1983 which has cast a cloud on their title and hence the necessity of this suit. 4. The case of the defendant-respondent No. 1 to 3 (hereinafter referred to as the defendants) infer alia, is that Khata No. 12 stands recorded in the Survey Records Right in the name of Baiju Mahli, Gangwa Mahli and Manbodh Mahli sons of Sabura Mahli in equal shares and both Gangwa Mahli and Manbodh Mahli died issueless ill the state of jointness. Baiju Mahli had two sons namely, Bhairwa and Kangli as per the genealogy given in Schedule A of the written statement and the defendants are the sons of Kangli Mahli aforesaid. Bhairwa Mahli had a son Ugan Mahli. It is alleged that about 50 years ago there had been an amicable partition amongst the heirs of the recorded tenant in which the suit plot along with other land came in exclusive cultivating possession of Kangli Mahli Jaswa Mundain along with her husband Mithu Munda. Bhairwa Mahli had a son Ugan Mahli. It is alleged that about 50 years ago there had been an amicable partition amongst the heirs of the recorded tenant in which the suit plot along with other land came in exclusive cultivating possession of Kangli Mahli Jaswa Mundain along with her husband Mithu Munda. who are the residents of district Ranch! had come to village Chhattar to work as labourer and Kangali Mahli gave them land through registered sale deed dated 16.1.1947 and the said sale deed executed by Kangali Mahli was in violation of the provisions of the said Act and the said sale deed is without consideration as Mithu Munda agreed to work as agricultural labourer for Kangli Mahli and Jaswa Mundain and her husband never came in possession of the land as per the sale deed aforesaid. It is alleged that Jaswa Mundain and her husband had left the entire land of the said sale deed in order to avoid any litigation as it was found that the sale deed also included the lands of other co- sharers of Kangali Mahli and thus the sale deed was never acted upon by the parties and it remained a paper transaction. After the death of Mithu Munda, Jaswa Mundain began to lead immoral life. It is alleged that Kangali Mahli though transferred the suit plot through the sale deed along with other lands but the sale deed was never acted upon and the suit land always remained in possession of Kangali Mahli so long he was alive and it is false to say that the then landlord resumed possession over the suit land as there was none to look after the said suit land. The further case of these defendants is_ that the then landlord Mahtha Devendra Nath Singh had no right to settle the raiyati lands of Kangali Mahli in contravention of the provisions of the said Act when Kangali Mahli was himself alive and in cultivating possession of the suit land and the alleged hukurnnama is a collusive document brought in existence by Rain Prasad Singh. the vendor of the plaintiff in collusion with the then landlord who happens to be his uncle for the purpose of laying a false claim over the suit land and when Ram Prasad Singh could not succeed in taking possession over the suit land he transferred same to the plaintiffs. the vendor of the plaintiff in collusion with the then landlord who happens to be his uncle for the purpose of laying a false claim over the suit land and when Ram Prasad Singh could not succeed in taking possession over the suit land he transferred same to the plaintiffs. It is also alleged that the name of Ram Prasad Singh does not appear in the return submitted by the then landlord and the rent receipts standing in his name are collusive without any order of mutation and the averments made in the sale deed executed by Ram Prasad Singh is contrary to the pleadings of the plaintiff. Kangali Mahli filed restoration case under Section 46 of the said Act as Janodhi Mian was creating trouble in the cultivation of the suit land which was decided in favour of Kangali Mahli though he could not take possession as per order of the restoration proceeding as he died soon after the order and the plaintiffs had full knowledge of the said proceeding and the delivery of possession over the suit land also could not be effected in favour of the defendants after the death of Kangali Mahli as there was some defect in the description of the suit land and the plaintiffs have filed this suit to pressurize the defendants and the plaintiffs have no right, title, interest or possession over the suit land. Lastly it has been alleged that, thereafter, defendant also filed another land Restoration Case No. 173 of 1985 which was allowed in his favour and the possession was delivered to them. 5. In view of the pleadings of the parties the learned trial Court has framed the following issues for adjudication In this case :- (1) Is the suit maintainable in its present form? (ii) Have the plaintiffs got any valid cause of action for the suit? (iii) Is the suit hit under the provisions of Specific Relief Act? (iv) Have the plaintiffs got title over the suit land? (v) To what relief of reliefs, if any, the plaintiffs are entitled to? 6. (ii) Have the plaintiffs got any valid cause of action for the suit? (iii) Is the suit hit under the provisions of Specific Relief Act? (iv) Have the plaintiffs got title over the suit land? (v) To what relief of reliefs, if any, the plaintiffs are entitled to? 6. In view of the evidence oral and documentary on the record the learned trial Court while deciding issue No. (iv) has held that Kangali Mahli had admittedly executed a registered sale deed in favour of Jaswa Mundain on 16.1.1947 in respect of the suit lands besides other plots and there is no positive evidence of act of possession of Kangali Mahli over the suit land after the execution of the sale deed aforesaid and the rent receipts in the name of Ram Prasad Singh in respect of 42 decimals of land of Khata No. 12 which Includes the suit plot cannot be viewed with suspicion. It has also been held that there is no evidence worthy of acceptance that Kangali Mahli or his sons were in possession of the suit land throughout coupled with the admission of the defendants that since 1971 they are dispossessed over the same. It has also been held that the plaintiffs have been able to prove their possession as well as the possession of his vendor Ram Prasad Singh upon the suit land since 1948 and the plaintiffs have got valid title over the suit land and this issue along with other issues were decided in favour of the plaintiffs and the suit was decreed. 7. The defendants being aggrieved preferred Title Appeal No. 32 of 1988 and the learned appellate Court below on re-appreciation and -reappraisal of the evidence has held that there was no reliable documentary evidence in support of the fact that the suit land actually came in possession of the then landlord who settled the same with Ram Prasad Singh and the learned trial Court has made erroneous observation that even if there may be defect in the title of the vendor of the plaintiffs, but the plaintiffs have perfected their title by principle of adverse possession and this finding is contrary to the pleadings. It has also been held that the plaintiffs have failed to prove their title and possession over the suit land and the learned appellate Court was in error in recording the finding that the plaintiffs have proved their title and possession over the suit land. In view of the findings aforesaid the appeal was allowed and the judgment of the trial Court was set aside. 8. The plaintiffs preferred this appeal before this Court. 9. While admitting the appeal for hearing this Court vide order dated 18.7.1995 has formulated the following substantial question of law which runs thus:-- "whether the sale deed effected in the year 1947 can be challenged in the year 1985-86 invoking the provisions of Section 46 (4-A) of the CNT Act." 10. Assailing the impugned judgment as perverse and against the weight of the evidence on the record and the settled proposition of law it has been submitted by the learned counsel for the plaintiffs that Kangali Mahli has admittedly executed a sale deed in respect of the suit land besides other land on 16.1.1947 in favour of Jaswa Mundain and since then he was never in possession over the suit land which is evident from the fact that Kangali Mahli had taken recourse under the provisions of the said Act for restoration of his possession over the suit land by instituting a case bearing No. 53 of 1983 though not against the plaintiff but against a stranger, namely Janodhi Mian and in the said restoration case the possession over the suit land was never effected to him or his descendants. Elucidating further it has been submitted that this district of Hazaribagh is not a schedule area under. The Scheduled Areas (Part A States) Order, 1950. The Bihar Schedule Areas Regulation 1969 came in force w. e- f. 9.2.1969 whereby certain amendments have been made in several Acts including Chotanagpur Tenancy Act whereby Section 71-A has been inserted therein and further an amendment has also been made in Article 65 of the Schedule of the Limitation Act wherein a period of limitation of 30 years was provided in respect of immovable property belonging to a member of Scheduled Tribes. It has been submitted that Section 71-A which has been inserted in the said Act by virtue of the Regulation of 1969 has no application at all in this case in view of the fact that the plaintiffs and prior to him his vendors and his predecessor-in-interest had perfected their title over the suit land. It has also been contended that Section 46 (4-A) of the Chotanagpur Tenancy Act prescribes a period of limitation of 12 years for restoration of possession in respect of a transfer by raiyat of his right in his holding by sale and the learned appellate Court below did not consider this aspect of the matter and has committed a manifest error in dismissing the suit of the plaintiffs and the sale deed effected in the year 1947 cannot be challenged in the year 1985-86 invoking the provisions of Section 46 (4-A) of the said Act and the subsequent order passed by the Revenue Authorities in the subsequently instituted case bearing No. t73 of 1985 during the pendency of this suit for restoration of the possession of the suit- land in favour of the defendants is ab initio void and illegal. In support of his contention reliance has been placed upon the ratio of the ease of Jageshwar Teli v. The State of Bihar and others. 1994 (1) PLJR 91, and has referred its paragraph Nos. 58 and 59. Thus the impugned judgment is unsustainable. 11. In contra, it has been submitted by the learned counsel for the defendants that there is inherent inconsistencies in the averments made in the plaint as well as the evidence brought on the record by the plaintiffs which do not at all establish the acquisition of the right, title and interest In the suit land by the vendor of the plaintiffs by virtue of the settlement as claimed from the ex-landlord and the trial Court has made out a third case which de hors the pleading and the evidence on the record of the plaintiffs. It has further been submitted that the sale deed of the year 1947 was never acted upon and Kangali Mahli continued to remain in possession of the suit land inspite of the execution of the sale deed which was nothing but a mere paper transaction. It has further been submitted that the sale deed of the year 1947 was never acted upon and Kangali Mahli continued to remain in possession of the suit land inspite of the execution of the sale deed which was nothing but a mere paper transaction. It has also been contended that the plaintiffs have to prove their own case by legal evidence and they cannot take advantage of the weekness, if any, of the case of the defendants. It has also sub-milled that evidence on the record read with the sale deed (Ext. 2) executed by Ram Prasad Singh in favour of the plaintiffs recites regarding the surrender of the suit land by Jaswa Mundain but the case has been made out by the plaintiffs in their plaint that the suit land being abandoned, the then landlord has resumed possession over the same and settled the same to Ram Prasad Singh on 15.1.1948 as per Ext. 3 when in fact as per the case of the plaintiff Jaswa Mundain had died in the month of March. 1948 and thus the case of abandonment or surrender as made out by the plaintiffs in respect of the suit land and resumption of the possession by the landlord is not at all tenable and further the right title and interest of Kangali Mahli in the suit land remained subsisting in spite of the said sale deed. Thus there is no illegality in the impugned Judgment. 12. It will admit of no doubt that Khata No. 12 of village Kurum, P.S. Ramgarh District Hazaribagh stands recorded jointly in the name of Barju Mahli, Gangwa Mahli and Manbodh Mahli all sons of Sakura Mahli by caste Mahli having equal shares in the Cadastral Survey Records of Right (Ext. C) Kangali Mahli, the father of the plaintiffs, is the son of Barju Mahli. The suit plot No. 1053 having an area of 10 decimals appertains to Khata No. 12 aforesaid. The total area of Khata No. 12 is 8.28 acres and in an amicable partition the suit plot aforesaid along with other land was allotted to the share of Kangali Mahli who was in cultivating possession over the same. Admittedly Kangali Mahli executed a registered sale deed dated 16.1.1947 (Ext. 2/A) in favour of Jaswa Mundain in respect of 43 decimals of land which includes the suit plot and other plots of Khata No. 12 aforesaid. Admittedly Kangali Mahli executed a registered sale deed dated 16.1.1947 (Ext. 2/A) in favour of Jaswa Mundain in respect of 43 decimals of land which includes the suit plot and other plots of Khata No. 12 aforesaid. There is no denying the fact that Kangali Mahli and Jaswa Mundain are the members of the Scheduled Tribes. Prior to the purchase of the suit land along with other lands by the sale deed of the year 1947. Jaswa Mundain had also purchased some land in village Kurum by virtue of the sale deed dated 5.2.1944 (Ext. 2/B) executed by Paswa Mahli son of Ashwa Mahli of village Kurum. There is recital in the sale deed of the year 1947, that possession over the suit plot besides other land was delivered to Jaswa Mundain on its execution. The learned trial Court has specifically averted to a finding that there is no positive evidence of act of possession of Kangali Mahli after the execution of the sale deed of the year 1947 upon plot No. 1053. It, therefore, appears that the case of the defendant that the sale deed of the year 1947 was never acted upon and it was a mere paper transaction was negatived by the trial Court. The institution of Restoration Case No. 53 of 1983 for restoration of possession over the suit land filed by Kan-gall Mahli aforesaid leads to the reasonable \ conclusion that Kangali Mahli was definitely not in possession over the suit land. The learned appellate Court below has not arrived at any specific finding as to whether the sale deed of the year 1947. was acted upon and it was a mere paper transaction and furthermore the learned appellate Court below in the impugned Judgment has not at all whispered a work regarding the restoration case tiled by Kangali Mahli and its consequences in the impugned judgment and without taking into consideration Hie existence of the restoration case filed by Kangali Mahli it has adverted to a finding that the plaintiffs have failed to prove his title and possession over the suit land. The plaintiffs claimed to have acquired the suit land by virtue of the sale deed dated 22.4.1974 (Ext. The plaintiffs claimed to have acquired the suit land by virtue of the sale deed dated 22.4.1974 (Ext. 2} executed by Ram Prasad Singh who has acquired the suit plot besides other plot by virtue of the hukumnam dated 15.1.1948 executed by the then landlord followed by the rent receipts and prior to that the then landlord has resumed the possession of the suit land on the death of Jaswa Mandain dying issueless and her husband having predeceased her. There is special circumstance in this case which has been considered by the trial Court and the appellate Court have not taken note of that in the impugned judgment. The special feature is that the rent receipts which have been brought on the record on behalf of the defendants are in respect of an area of 7 acres and 17 decimals (Ext. A. A/I and A/3). However, Ext. A/2 is in respect of 8 acre 28 decimals of land. The other land receipts granted by the ex-landlord prior to the vesting of the State i.e. Ext. B series do not show the area therein of the land of Khata No. 12. It is needless to say that after execution of the sale deed of the year 1947 by Kangali Mahli in favour of Jaswa Mundain in respect of 43 decimals of land including the suit plot Kangali Mahli cannot be said to have any subsisting title in respect thereof. Section 46 of the said Act puts restrictions on transfer of their rights by the raiyats and it mandates that no transfer by a raiyat of his right In his holding or any portion thereof by sale, gift or any other contract or agreement or by mortgage or lease for a period exceeding five years shall be valid to any extent. It further provides that an occupancy raiyat who is the member of the Schedule Tribes may transfer with the previous sanction of the Deputy Commissioner his right in holding or a portion of his holding by sale, exchange, gift or will to another person who Is a member of the Scheduled Tribes and who is a resident within the local limits of the area of the police station within which the holding is situate. It does not appear from the materials on the record that Kangali Mahli had obtained prior permission of the Deputy Commissioner which is a condition precedent for the execution of the said sale deed in favour of Jaswa Mundain though she was a member of the Scheduled Tribes residing in village Chat-tar within Ramgarh P.S. which is evident from Ext, 2/A and 2/B and village Kurum is also within Ramgarh P.S., Further there is an admission in para 3 of the written statement that Jaswa Mundain and her husband Mithu Munda were the permanent agricultural labourer of several persons of village Kurum Ext. B/2 further supports the fact that she was possessed of land in village Kurum prior to the execution of the sale deed of the year 1947 in her favour Section 46 (4-A) is relevant in respect of the matter in controversy which runs thus ;- "46 (4-A) (a) The Deputy Commissioner may, of his own motion or on an application filed before him by occupan-cy-raiyat who is a member of the Scheduled Tribe, for annulling the transfer on the ground that the transfer was made in contravention of clause (a) of the second proviso to sub-section (1), hold an inquiry in the prescribed manner to determine if the transfer has been made in contravention of clause (a) of the second proviso to sub-section (1) : Provided that no such application be entertained by the Deputy Commissioner unless it is filed by the occupancy-tenant within a period of twelve years from the date of transfer of his holding or any portion thereof : Provided further that before passing any order under clause (b) or clause (c) of this sub-section, the Deputy Commissioner shall give the parties concerned a reasonable opportunity to be heard in the matter," I have already stated above that Ram-garli P.S. within the district of Hazaribagh is not within scheduled area under the Scheduled Areas (Part A States) Order 1950, and thus the period of 12 years of limitation shall continue to be operative in areas other than the scheduled areas as per the mandates contained under Section 46 (4-A) of the said Act quoted above and the Deputy Commissioner may of his own motion or on the application filed before him by the occupancy raiyat being the members so Scheduled Tribes annul the transfer made in contravention of the mandates contained under Section 46 (1) read (/ with proviso (a) provided the transferee has-[ not perfected his right and title in respect thereof. Herein this case at hand Kangali Malili has filed Restoration Case No. 53 of 1983 and that to against Janodhi Mian. a stranger, and not impleading the plaintiffs therein and thus the remedy, if any, of the defendants stands barred by the law of limitation as provided under Section 46 (4-A) of the said Act. Thus the order passed in Restoration Case No. 53 of 1983 as well as Restoration Case No. 173 of 1985-86 filed during the pendency of this suit are illegal. Thus the order passed in Restoration Case No. 53 of 1983 as well as Restoration Case No. 173 of 1985-86 filed during the pendency of this suit are illegal. Thus the plaintiffs and prior to him their predecessor -in-interest who remained in possession for a period more that the period prescribed under the statute i.e. the said Act of the Limitation Act acquired an indefeasible title and the right of the defendants therein stands extinguished. Section 27 of the Limitation Act Is equally relevant which mandates that at the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. The ratio of the case of Jageshwar Teli (supra) supports the contention of the learned counsel the plaintiffs and it squarely covers the matter in controversy. Thus the sale deed of the year 1947 cannot be challenged in the year 1983 by Kangali Mahll or In the year 1985 by the present defendants invoking the provisions of Section 46 (4-A) of the said Act. The learned appellate Court below has committed a manifest error in the impugned judgment without considering Section 46 (4-A) of the said Act in reversing the judgment of the trial Court. Thus the impugned judgment is unsustainable. 13. There is merit in this appeal and it succeeds. The appeal is hereby allowed. The impugned Judgment of the learned appellate Court below is hereby set aside. The Judgment of the trial Court is restored and the suit of the plaintiff is decreed. However, there shall be no order as to costs in the facts an circumstances of this case.