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2005 DIGILAW 213 (JHR)

Nirmala Devi v. Sanjay Sharma

2005-03-14

N.N.TIWARI

body2005
ORDER N.N. Tiwari, J. 1. This second appeal is against the judgment and decree of affirmance passed in Title Appeal No. 8 of 2003 by 1st Additional District Judg, Rajmahal whereby the Court below has dismissed the appellants appeal and upheld the judgment and decree of the trial Court. 2. The plaintiff filed Title Suit No. 26 of 1985 in the Court of Settlement Officer as per the Santhal Civils, which was transferred to the Assistant Settlement Officer. The Assistant Settlement Officer, in turn, had made a certificate and transferred the record of the said title suit to the Court of Sub-Judge-I, Sahibganj under the provision of Section 5-A of the Santhal Parganas Settlement Regulations, 1872. The suit was ultimately disposed of by learned Sub-Judge-I, Rajmahal, Sahibganj. 3. In the said suit, the plaintiff had prayed for declaration of right, title and interest and confirmation of possession over the suit property and alternatively for recovery of possession and for mense profit. The plaintiffs case is that Sarju Sharma had two sons, Sanjay Sharma and Ajay Kumar Sharma (plaintiff Nos. 2 and 3) and the family is governed by Mitakshra School of Hindu Law. Sarju Sharma, at the relevant time, was Karta of the family; the land of Plot No. 1173 measuring 2 Bighas, 11 Kattha and 8 Dhurs of Mouza Barharwa belonged to Budhu Ram Mistry. There was a partition in the family of Budhu Ram Mistry and land was allotted to different co-shares. A portion of the land was also allotted to the plaintiffs. The suit land has been marked as Plot No. 1173 C/1 and shown in red in the sketch map annexed to the plaint and has been specifically described in Schedule A of the plaint. According to the plaintiffs, they have got subsisting right, title and possession over the suit property and defendants have absolutely got no concern or any right, title, interest or possession over the same. However, a dispute arose between the parties which led to a proceeding under Section 145, Cr PC, in which possession of defendant No. 1 was declared by the Resident Magistrate by order dated 17.9.1985, which gave rise to the cause of action for the said title suit. 4. The defendants contested the suit by filing written statement. However, a dispute arose between the parties which led to a proceeding under Section 145, Cr PC, in which possession of defendant No. 1 was declared by the Resident Magistrate by order dated 17.9.1985, which gave rise to the cause of action for the said title suit. 4. The defendants contested the suit by filing written statement. It was, inter alia, contended that the plaintiffs have got no right, title and possession over the suit property and that the defendant No. 1 was put in possession of the land by the plaintiffs in pursuance of an agreement dated 24.4.1974. According to the defendants, the plaintiffs in collusion with the persons proforma defendants tried to forcibly disturb the defendants possession which led to the said proceeding under Section 145, Cr PC and the same was decided in favour of the defendant No. 1. The defendants denied the plaintiffs claim pleaded in the plaint. 5. By the trial Court, the issue relating to the right, title and possession over the suit property was decided in favour of the plaintiffs but no specific finding was given with regard to the possession. However, the plaintiffs suit was decreed. Against the said judgment and decree of the learned trial Court two title appeals were filed, one by the defendants, registered as Title Appeal No. 8 of 2003 and another by the plaintiffs which was numbered as Title Appeal No. 11 of 2003. The plaintiff was aggrieved as there was no specific finding of confirmation of possession in his favour and against the defendants issues of right, title and possession were decided. The said appeal was heard and decided by 1st Additional District Judge, Rajmahal by a common judgment and decree. The lower appellate Court in view of the ground taken by the parties, thoroughly considered the evidence on record and the relevant provisions of law and after thorough discussion and appraisal, dismissed Title Appeal No. 8 of 2003 filed by the defendant No. 1 and allowed the Title Appeal No. 11 of 2003 filed by the plaintiffs. The learned lower appellate Court confirmed the plaintiffs possession over the suit land by his impugned judgment and decree dated 28.6.2004 and to that extent modified the judgment and decree of the learned trial Court. 6. Aggrieved by the said judgment and decree this second appeal has been preferred by defendant No. 1. Mr. The learned lower appellate Court confirmed the plaintiffs possession over the suit land by his impugned judgment and decree dated 28.6.2004 and to that extent modified the judgment and decree of the learned trial Court. 6. Aggrieved by the said judgment and decree this second appeal has been preferred by defendant No. 1. Mr. Ajit Kumar, learned counsel appearing on behalf of appellants tried to make out two substantial questions of law. One, that the Settlement Officer had no jurisdiction to transfer the plaintiffs suit to a Civil Court and he wrongly exercised his power under Section 5-A of the Santhal Parganas Settlement Regulation, 1872 and next that learned Courts below have wrongly viewed the provisions of Article 65 of the Limitation Act in arriving its findings. Learned counsel submitted that the jurisdiction under Section 5-A of the said Regulation can be invoked only when the suit is filed within the provision of Regulation 5 but otherwise all the suits raising any question with regard to the land is to be determined by the Settlement Officer himself under the provisions of Santhal Civil Rules. According to the learned counsel, the said question is pure question of law and the entire proceedings of the trial Court as well as the appellate Courts are vitiated on that ground. Learned counsel next contended that the judgment and decree of the Courts below are bad in law in view of the erroneous application of the provisions of Article 65 of the Limitation Act holding that in the case, the plaintiff having based his claim on the title, he is not required to prove possession. 7. From the perusal of the records, it appears that the objection regarding grant of jurisdiction of the learned Sub-Judge was not taken at the trial stage. In view of the nature of the objection, certain facts were required to be pleaded, with necessary particular including the date of notification of the official gazette declaring the onset of the settlement in the area under Section 9 of the Regulation, 1872 and other details for attracting the bar of the jurisdiction of the civil Court. Admittedly, there is no such pleading on record nor there was any such objection by the defendant No. 1 in course of the trial. Admittedly, there is no such pleading on record nor there was any such objection by the defendant No. 1 in course of the trial. At the trial stage the parties proceeded on the clear understanding that the suit was within the ambit of the provisions of Section 5-A of the Santhal Parganas Settlement Regulation, 1972, under which the suit was transferred to the civil Court. In absence of the foundational facts in the pleading and proof on record, the said issue cannot be raised and decided in the second appeal, and in my opinion, no such question of law at all arises for consideration of this Court. 8. Regarding the adverse possession and onus to prove the same, it is now well settled that if the plaintiffs suit is based on title, as in this case as the suit land admittedly belonged to the plaintiffs ancestors and the same was not transferred to the defendants by any instrument, the onus rests on the defendants to plead and prove. No specific pleading regarding possession was thus required in the plaint. There is no error in applying Article 65 of the Limitation Act in the facts and circumstances of this case. 9. In view of the above discussion, I do not find any infirmity or illegality in the judgment and decrees of the learned Courts below giving rise to any substantial question of law to be framed and decided by this court. Accordingly, this appeal is dismissed. Appeal dismissed.