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2009 DIGILAW 514 (JHR)

Izhar Ulfat v. Krishna Munda

2009-04-08

R.K.MERATHIA

body2009
JUDGMENT : This second appeal has been filed against the judgment and decree dated 29.11.2003 passed by the learned Additional District Judge, Fast Track Court No. VII, Hazaribagh in Title Appeal No. 28 of 1993 confirming the judgment and decree dated 27.3.1993 passed by learned Munsif, dismissing the Title Suit No. 105 of 1998. 2. Mr. Anwar, learned senior counsel, appearing for the appellants, assailed the impugned judgment on various grounds. 3. The plaintiff-appellants filed this suit for declaration of title over the suit land described in Column No 3 of Schedule A and for declaration that the order of Collector dated 30.12.1985/2.1.1986 passed in Restoration Case No. 279 of 1982/ 36 of 1983 and the orders of appellate and revisional authority were without jurisdiction and were obtained by fraud. Declaration was also sought that in the event of acquisition of suit land, the plaintiffs were entitled to have the award and compensation roll prepared in their names. 4. Regarding Issue No. 5, whether the plaintiffs/appellants had title over the suit property, the trial court, inter alia, held as follows:- “I am constrained to find that the alleged surrender deed, which is the foundation of the case of plaintiffs, is an illegal and void document and it cannot create any right, title and interest in favour of ex-land lady. Consequently, the alleged settlement in favour of Jainul Abedin, although could not be proved by the plaintiffs, also cannot create any right, title and interest in favour of Jainul Abedin and likewise Gaya Ram Bhandari is also devoid of any right, title and interest in such suit land in view of fact that he also claims his title through Jainul Abedin only. Thus, this important issued is decided against the plaintiffs.” Regarding Issue No. 3, whether the suit was barred under the provisions of Chota Nagpur Tenancy (C.N.T.) Act, the trial Court held as follows:- “…….Hence I am further constrained to hold that on the date of application for restoration by Chhatu Pahan, the title of plaintiffs was not perfected for being in allegedly continuous possession for more than 12 years.” “17. Thus, from the discussions made above, it is gathered that the plea of fraud taken by plaintiffs to have been played upon by the defendant No. 1 before the court in restoration case No. 279/1982 could not be substantiated. Thus, from the discussions made above, it is gathered that the plea of fraud taken by plaintiffs to have been played upon by the defendant No. 1 before the court in restoration case No. 279/1982 could not be substantiated. Under such situation it can be said well that present suit is also barred U/s. 258 of the C.N.T. Act and hence, this court is not competent to entertain the present suit also and this issue is decided against the plaintiffs.” 5. The plaintiffs/appellants preferred appeal. The learned lower appellate court dismissed the appeal after considering the contentions raised and evidences adduced on behalf of the parties. However, while doing so it was observed by the learned lower appellate court that the trial court went into technicality about the document of surrender of land made in favour of ex-landlady (Ext.-10). However, the learned lower appellate court concurred with the findings of the trial court that it rightly held that plaintiffs/appellants have failed to prove that the land has been settled by the ex-landlady in favour of Jainul Abedin. It further held that the Sada Hukumnama, which was the basis of the case of the plaintiffs/appellants, was a manufactured document and the same could not be relied upon. Such difference of opinion between the learned trial court and the learned lower appellate court with regard to deed of surrender (Ext-10) is insignificant as both the courts concurrently held that the plaintiffs failed to prove that they derived right, title and interest on the basis of the Sada Hukumnama. It further held that the plaintiff/appellants failed to prove that Chhatu Pahan was not the occupancy Raiyat. Their further plea that they were not given opportunity to place their case before the authorities under C.N.T. Act in the restoration case was found not tenable and it was also held that no fraud was committed upon the plaintiffs. In my opinion, no substantial question of law is involved in this appeal. Accordingly, this second appeal is dismissed. However, no costs.