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2011 DIGILAW 960 (JHR)

Nunulal Kisku v. Hopa Kisku

2011-10-17

N.N.TIWARI

body2011
JUDGMENT The defendant is the appellant. The suit filed by the plaintiff having been decreed by the trial court and the decree confirmed by learned lower appellate court by the impugned judgment and decree, has been challenged in this second appeal by the defendant-appellant. 2. The plaintiff had filed Title Suit no.88 of 2002 in the court of learned Sub-Judge-I, Dumka seeking declaration that the plaintiff has right title and interest jointly with defendant no.1 over the suit land and the plaintiff has got½ share in the same. He had further prayed for decree for declaration that for incurring expenses in litigation, no exclusive title accrued to the defendant no.1, extinguishing the plaintiff 's title and share in the suit land. 3. The suit property was land of Plot no.840 measuring an area 2 bighas, 8 kathas, 15 dhurs appertaining to last settlement, Jamabandi no.28 of Mouza-Cheharbani, P.S. Jama, District-Dumka(Old Sanathal Pargana) corresponding to new survey, plot no.1329/840 under Jamabandi no.16 of the said village. 4. According to the plaintiff, the defendant-Nunulal Kisku is his full brother. They jointly inherited the suit land, which was original recorded in the names of Soma Kisku and Sakhai Kisku sons of Chamru Kisku. The suit land was recorded as raiyati with possession of Sakhai Kisku, in the remark column of the records of right. Sakhai Kisku died leaving behind one son-Lukho Kisku. Soma Kisku died leaving behind his four sons, namely, Koria Kisku, Manjhi Kisku, Pitho Kisku Tebru Kisku. Tebru Kisku died leaving behind his three sons, namely, Babulal Kisku, Dhana Kisku and Budan Kisku. Their male lines have also extinct by now. Pitho Kisku and Manjhi Kisku died lssueless. Koria Kisku died leaving behind Barka Kisku, who died in 1990 leaving behind two sons, the plaintiff and the defendant. The plaintiff and the defendant, thus, are the surviving legal heirs of the recorded tenant. They have half share each in the suit land. In the recent survey, names of Braka Kisku, Babulal Kisku and Budan Kisku were recorded as raiyats in respect of the suit land and the suit land was shown in exclusive possession of Barka Kisku. After the death of Barka Kisku, the plaintiff and the defendant jointly inherited and possessed the land of entire jamabandi. Both the parties are in joint possession of the said land. There was no partition by metes and bounds between them. After the death of Barka Kisku, the plaintiff and the defendant jointly inherited and possessed the land of entire jamabandi. Both the parties are in joint possession of the said land. There was no partition by metes and bounds between them. In course of survey operation, one Munshi Soren, who was stranger to the family, started claiming his possession over the suit land. The parties are Santhals and the land is non transferable as per the provisions of Santhal Pargana Tenancy Act. The dispute raised by Munshi Soren led to a proceeding under section 145 Cr.P.C. The defendant no.1 is the elder brother of the plaintiff and, as such, he was looking after the litigation. He was made party in the said proceeding. The Executive Magistrate erroneously decided possession of defendant no.1 in the said proceeding. The revision filed against the said order was without any success. The defendant no.1 on that basis started claiming the suit land exclusively. He filed a petition for demarcating the suit land before the Sub Divisional Magistrate, Dumka. The plaintiff also filed an application for demarcating the said joint land. The defendant no.1 objected to the plaintiff's application. Learned Sub Divisonal Magistrate, Dumka by order dated 5.8.1992 without interfering with the earlier position, directed the parties to take shelter of civil court. The plaintiff filed revision, which is still pending. The plaintiff, in the meanwhile, sought resort to the civil court by filing the said title suit and praying for the decree as aforementioned. 5. The defendant contested the plaintiff's suit by filing written statement. 6. It was, inter alia, stated by the defendant that the plaintiff and the defendant no.1 had amicably partitioned their ancestral property in the year 1975 in which land of plot no.840 of jamabandi no.28 was not included. Except the said land, the plaintiff and the defendant are in possession of other lands half and half. The suit plot no.1329/840 was found in possession of Munshi Soren as Kurfadar. His possession was recorded in the remark column of the survey record. The defendant fought litigation with Munshi Soren alone and order was passed in his favour. In Gantzer's settlement, Jamabandi no.28 was recorded in the name of Suna Kisku and Sakhai Kisku with their specific possession in the remark column. Both the recorded tenants were separated in mess and property. The defendant fought litigation with Munshi Soren alone and order was passed in his favour. In Gantzer's settlement, Jamabandi no.28 was recorded in the name of Suna Kisku and Sakhai Kisku with their specific possession in the remark column. Both the recorded tenants were separated in mess and property. After the said settlement, Sakhai Kisku died leaving behind his son Lukhu Kisku. Lukhu Kisku also died leaving behind his widow Duli Murmu, who used to cultivate the said land through Munshi Soren. After death of Duli Murmu, Munshi Soren started claiming land as Kurfadar by manufacturing a paper. The claim was not contested by other co-sharer. The plaintiff and the defendant separated in 1975. After separation, Nunulal Kisku alone proceeded to take back plot no.840 from Munshi Soren. The dispute led to a proceeding under section 144 Cr.P.C. Subsequently, it was converted into a proceeding under section 145 Cr.P.C. In section 145 Cr.P.C., the defendant was the only party against Munshi Soren and his possession was declared. Munshi Soren had challenged the order in revision, but that was dismissed. Thereafter, the defendant filed a petition before Sub-divisional Magistrate, Dumka for demarcating the land, which was allowed. The defendant, thus, has got exclusive right and title and possession over the suit land. The plaintiff has no interest over the suit property. The suit is frivolous and liable to be dismissed. 7. Learned trial court on the basis of the said pleadings of the parties, framed several issues. 8. Both the parties led their evidences. 9. Learned trial court, after thorough appraisal of the facts, evidences and material on record, recorded its finding on almost all issues in favour of plaintiff and decreed the plaintiff's suit. 10. The defendant challenged the said judgment and decree in Title Appeal no.29 of 2006 in the court of District Judge, Dumka. 11. The said appeal was subsequently transferred to the court of 5th Additional District Judge, F.T.C., Dumka, who finally decided the appeal. 12. Learned lower appellate court heard the parties and thoroughly discussed and considered the facts and evidences on record. 13. On scrutiny of the materials and evidences on record, he formulated the points for consideration and decided the said points after due discussion and appreciation of all the aspects in favour of plaintiff-respondent and dismissed the appeal. 12. Learned lower appellate court heard the parties and thoroughly discussed and considered the facts and evidences on record. 13. On scrutiny of the materials and evidences on record, he formulated the points for consideration and decided the said points after due discussion and appreciation of all the aspects in favour of plaintiff-respondent and dismissed the appeal. Learned lower appellate court concurred with almost all the findings of fact arrived at by learned trial court. 14. In this second appeal, the defendant-appellant has assailed the judgment and decree of learned trial court mainly on two grounds. Firstly, that the courts below have failed to take into consideration that the suit was in the garb a suit for declaration of joint possession and was filed after three years of the order passed in favour of the defendant and, was hopelessly barred by limitation and secondly, though the suit was for declaration of right, title and possession, but the plaintiff had not properly valued the suit at market rate and Ad valorem court fee was not paid. The suit was, thus, not maintainable. 15. I have heard learned counsel for the appellant and perused the judgments and decree of learned courts below. From the records, I find that plaintiff had sought declaration of possession and other declaration based on title. 16. Article 65 of the Limitation Act, 1963 prescribed period of limitation for possession of property based on title. The period of limitation is 12 years from the time-when possession of the defendant becomes adverse. Admittedly, the instant suit has been filed within 12 years from the date when the possession was claimed by the defendant and after the order was passed in the proceeding under section 145 Cr.P.C. In view of the said provision of the Limitation Act, the suit is not barred by limitation. 17. So far as next ground is concerned, the suit was valued at Rs. 601/-and the Ad valorem court fee of Rs.122/-was paid thereon. Learned courts below have noted as also it is an admitted position that the land belongs to old Santhal district and the land is non-transferable as per the provisions of Santhal Pargana Tenancy Act. In view of such legal position, there is no market value of the land. It cannot be said, therefore, that the suit was not properly valued and court fee was not properly paid by the plaintiff. 18. In view of such legal position, there is no market value of the land. It cannot be said, therefore, that the suit was not properly valued and court fee was not properly paid by the plaintiff. 18. I, therefore, find no error or illegality in the impugned judgment and decree giving rise to any substantial question of law to be framed and decided in the second appeal. 19. This appeal is, accordingly, dismissed.