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2012 DIGILAW 124 (PAT)

Lakhan Sao v. Parwati Devi

2012-01-20

V.NATH

body2012
JUDGMENT (Per: HONOURABLE MR. JUSTICE VIJAYENDRA NATH) 1. Heard the learned counsel appearing for the appellant as well as for the respondents. 2. This appeal has been preferred against the judgment and decree dated 30-9-1986 passed by the Additional District Judge, Nawadah in T.A.No. 5/86/4 of 85 by which he has reversed the judgment and decree dated 22-12-1984 passed by Subordinate Judge, Nawadah in T.S.No. 95 of 1978. The parties in this appeal shall be henceforth referred by their rank in the title suit. 3. The plaintiff filed the suit for declaration of his title over the suit land fully described in Schedule IV of the plaint. The plaintiff’s case, in short, was that the common ancestor, Chaman Teli, had three sons, namely, Meghu Sao, Khero Sao and Chamari Sao, out of whom Meghu Sao died issueless. Khero Sao died leaving behind two sons, namely, Sanichar Sao and Nunu Sao, out of whom the branch of Nunu Sao became extinct. The third son, Chamari Sao, had left behind three sons, namely, Jagu Sao, Prasadi Sao and Bihari Sao. With regard to the lands of Chaman Teli, an amicable partition took place between the branches of Khero Sao and Chamari Sao in which Sanichar Sao and Nunu Sao, both sons of Khero Sao on the one hand and Jagu Sao, Prasadi Sao and Bihari Sao, the three sons of Chamari Sao on the other got their shares. After the extinction of the branch of Nunu Sao, Sanichar Sao became the owner of the entire land and he also acquired some land by settlement. The plaintiff, Lakhan Sao, is the son of the eldest daughter of Sanichar Sao out of his five daughters. Admittedly, Lakhan Sao had no male issue. Sanichar Sao died leaving behind his widow, Paro Telin as his sole heir, who came in possession of the estate of Sanichar Sao. She executed gift deeds on 6-6-1952 and 19-8-1978 in favour of the plaintiff and put him in possession of the gifted land. The lands covered by the two gift deeds had been mentioned in Schedule III of the plaint out of which the plaintiff has claimed to have transferred some lands and the remaining lands of the gift deeds which the plaintiff had claimed to be in his possession had been described in Schedule IV of the plaint. The lands covered by the two gift deeds had been mentioned in Schedule III of the plaint out of which the plaintiff has claimed to have transferred some lands and the remaining lands of the gift deeds which the plaintiff had claimed to be in his possession had been described in Schedule IV of the plaint. It is the further case of the plaintiff that the defendant nos. 5 to 7(sons of Chamari Sao) sold lands of Schedule IV by two registered sale deeds in favour of defendant nos. 1 to 3 which led to a proceeding under section 145 Cr.P.C. where the possession of the plaintiff had been declared. However, again at the instance of the purchaser-defendant nos. 1 to 3 another proceeding under section 145 Cr.P.C. had been started and hence the plaintiff filed the suit. 4. The defendant nos. 1 to 3 and defendant nos. 5 and 6 controverted the facts asserted by the plaintiff and challenged the validity of the deeds of gift executed by Paro Telin in favour of the plaintiff. They asserted that the plaintiff had no exclusive right, title and interest over the property and he had never been in possession over the suit property and even after the order under section 145 Cr.P.C. the defendants had dispossessed the plaintiff and planted paddy crops in the suit land. 5. In view of rival cases of the parties, the trial court framed issues, which included the issue regarding the lands mentioned in Schedule-II of the plaint, being the self- acquisition of Sanichar Sao or the joint acquisition of the joint family consisting of Sanichar Sao, Nunu Sao, Jagu Sao, Bihari Sao and Prasadi Sao, and further whether the plaintiff had valid title to the suit lands. The trial court, after considering the evidence and submissions of the parties, has recorded the following main findings: (i) The lands of Schedule-II of the plaint had been acquired by Sanichar Sao as the Karta of the joint family which included Jagu Sao, Prasadi Sao and Bihari Sao. (ii) The descendants of Chaman Sao had title over 31.45 ½ acres of land out of which 28.05 acres were the ancestral land recorded in the name of Chaman Sao and 3.46 acres were the lands acquired by Sanichar Sao. (ii) The descendants of Chaman Sao had title over 31.45 ½ acres of land out of which 28.05 acres were the ancestral land recorded in the name of Chaman Sao and 3.46 acres were the lands acquired by Sanichar Sao. Out of the total 31.45 ½ acres of land, the contesting defendants had only 10.34 ½ acres of land, which, according to them, had fallen in the share of Jagu Sao, Prasadi Sai and Bihari Sao. (iii) From the Schedule given by the contesting defendants, it is evident that they did not claim the entire area of plot nos. 3, 227, 38, 40, 41, 48, 71, 226, 241, 244, 37, 111, 213, 34, 137 and 215. There is no specific evidence from their side and there are no demarcation of those plots to distinguish their shares in those plots. (iv) From the certified copy of the order under section 145 Cr.P.C., it appears that Hari Sao, father of the plaintiff, was declared to be in possession of plot nos. 34, 37, 226, 216, 241, 244, 48 and 71 against Jagu Sao, Bihari Sao and others. (v) The plaintiff is found in possession of the suit lands and has valid title over the lands mentioned in Schedule-IV of the plaint. 6. The defendants filed an appeal against the aforesaid judgment and decree and the appellate court after reappraisal of the evidence, in view of the rival submissions of the parties, has come to the following main conclusions: (i) The plaintiff has failed to prove that there was partition where half and half share each was allotted to the descendants of Khero Sao and Chamari Sao. (ii) The lands mentioned in Schedule-II of the plaint were not the self-acquired property of Sanichar Sao. (iii) Paru Telin was not the sole owner of the lands gifted to the plaintiff nor she was in its exclusive possession and as such Paru Telin had no right, whatsoever, to give the joint family property to the plaintiff. As such, that deed of gift had created no right and title in favour of the plaintiff. (iv) There is no evidence that the plaintiff ever came in possession of the gifted lands. There is no evidence that the gift deed was acted upon. 7. This second appeal has been admitted for hearing on the following substantial questions of law: 1. (iv) There is no evidence that the plaintiff ever came in possession of the gifted lands. There is no evidence that the gift deed was acted upon. 7. This second appeal has been admitted for hearing on the following substantial questions of law: 1. Whether the title of plaintiff-appellant could be challenged by the defendants in the present suit after the plaintiff lost the proceeding under section 145 of the Code of Criminal Procedure in the year 1960 particularly when they did not file any suit within the period of limitation for declaration of title and recovery of possession. 2. Whether the defendants could challenge title of the plaintiff in the suit that was instituted in the year 1978. 3. Whether the finding regarding partition is erroneous in law. 8. It appears that in the first substantial question of law the words ‘the plaintiff lost’ had been inadvertently written in place of ‘the defendants lost’. After hearing this appeal on earlier occasion, the learned single Judge had referred the appeal to a Division Bench for hearing after stating in the order as follows: “….whether a defendant is estopped from pleading his rights and title in the property merely because he did not bring the suit within a period of limitation after getting adverse order in a proceeding under section 145.” 9. This appeal thereafter had been heard by a Division Bench and after elaborate hearing the order was passed on 5-5-2010. The relevant part of the order is quoted hereinbelow: “17.In view of the aforesaid Division Bench decision, it can safely be concluded that as a proposition of law, it would not be open to the defendants, when they lose in a proceeding under section 145 of the Code of Criminal Procedure, to contend that their title was not affected even after expiry of three years of the order of the criminal court. 18. Though we have answered the reference, yet whether the said principle would get attracted would depend upon the facts of each individual case. In the present case, whether the right, title and interest stood extinguished or not shall be examined by the learned single Judge while hearing the second appeal regard being had to the factual matrix.” 10. After the aforesaid judgment and observations by the Division Bench of this Court, this appeal has been heard on merits accordingly. In the present case, whether the right, title and interest stood extinguished or not shall be examined by the learned single Judge while hearing the second appeal regard being had to the factual matrix.” 10. After the aforesaid judgment and observations by the Division Bench of this Court, this appeal has been heard on merits accordingly. It has been submitted by the learned counsel for the appellant that after the decision by the Division Bench upholding his contention, there is nothing left to be decided in this appeal which, accordingly, should be allowed. It has been asserted by the learned counsel for the appellant that there is no pleading by the defendants that the suit lands were not included in the proceeding under section 1`45 Cr.P.C. in which the final order(Ext.8) had been passed in favour of the plaintiff. However, it has been submitted on behalf of the respondents that in view of the direction contained in the order of the Division Bench the question still remains to be decided as to whether the principle laid down therein is applicable to the facts and circumstances of this case. It has been urged that in the said 145 Cr.P.C. proceeding all sons of Chamari were not parties and the plaintiff was also not a party, and further Sachia Devi, wife of Prasadi Sao was also not a party to the said 145 proceeding. It has been argued that in the order under section 145 Cr. P.C., no area or boundary had been mentioned and only plot numbers have been given. As such, it has been contended that the defendants are not precluded from challenging the title and possession of the plaintiff even after the order(Ext.8) and the finding by the appellate court regarding absence of partition of the properties of Chaman Teli amongst his descendants by metes and bounds should be upheld and the findings of absence of title of the plaintiff over the suit land on the basis of gift deed should also be upheld. 11. As mentioned above, this appeal was referred to Division Bench for determining the question whether the defendants are estopped from asserting their right, title and possession in the suit property after an adverse order against them in the proceeding under section 145 Cr. P.C., which they did not challenge by filing a suit within the period of limitation. 11. As mentioned above, this appeal was referred to Division Bench for determining the question whether the defendants are estopped from asserting their right, title and possession in the suit property after an adverse order against them in the proceeding under section 145 Cr. P.C., which they did not challenge by filing a suit within the period of limitation. In view of the submissions of the parties, the Division Bench, however, has confined itself to the decision on the principle of law alone, and has refrained from determining the rights of the parties in the appeal by applying the said principle. The Division Bench, as referred above, has laid down the proposition of law regarding extinguishment of the title of a defendant when he had not challenged an adverse order against him in 145 Cr.P.C. within limitation and has held that such defendant would, thereafter be precluded from setting up his title by way of defence but the Division Bench, in express terms, also has left the question regarding extinguishment of the right, title and interest of the present defendants in the suit property, which was subject matter of 145 Cr.P.C. proceeding, to be examined by this Court in the factual matrix of this suit. 12. From the order of the Magistrate under section 145 Cr.P.C.(Ext.8),it appears that the plaintiff was not a party to that proceeding, rather Hari Sao had been shown to be the first party in the proceeding. It has been accepted by the plaintiff that his father lived with Sanichar Sao as ‘Ghar Jamai’(live-in son-in-law) and was managing the cultivation and other house-hold affairs of his father-in-law. From Ext.8(order in 145 Cr.P.C. proceeding) it does not appear that the plaintiff was a party in the said proceeding. It is not the case of the plaintiff that his father Hari Sao was a party in the proceeding as his guardian or representing his interest and the contents of the said order also do not show that the said proceeding was pursued by Hari Sao on behalf of the plaintiff as his guardian. The plaintiff has also not filed this suit claiming himself to be the successor-in-interest of Hari Sao. The plaintiff has also not filed this suit claiming himself to be the successor-in-interest of Hari Sao. Therefore, the order passed in the said proceeding and declaration of Hari Sao being in possession cannot be treated to be the declaration of the possession of the plaintiff over the lands which were subject matter of that proceeding. The defendants in their written statement have also specifically pleaded that the plaintiff never came in possession over the lands covered under the said proceeding. Moreover, no area or boundary specifying the lands under different plots in dispute in the said proceeding was mentioned and on that basis also it is difficult to conclude the specific area of lands in possession of Hari Sao. The appellate court below has analysed the evidence of the plaintiff on the point of possession and has come to the finding that, even in his deposition, the plaintiff could not give the area and boundary of the land in his possession and had evaded all the questions relating to possession of the suit land stating that his father knew these things, but his father was not examined in the suit. Finally, the appellate court has concluded that there was no evidence to establish possession of the plaintiff over the suit land at any point of time. The appellate court below has examined the materials on which the trial court had recorded the finding of possession in favour of the plaintiff and has found that the said finding was not correct, and thus reversed the same. 13. In view of the aforesaid facts and findings by the appellate court below, it is held that the proposition of law as laid down by the Division Bench is not attracted to the facts of this case and the defendants cannot be estopped from setting up their right, title and interest in the suit land against the claim of the plaintiff by reason of adverse order (Ext.8) in the 145 Cr.P.C. proceeding. 14. Both the courts below have examined the evidence elaborately on the issue of partition between Sanichar Sao and Nunu Sao on the one hand and the sons of Chamari Sao on the other and have come to the concurrent finding that there had been no partition between the two branches, as claimed by the plaintiff. 14. Both the courts below have examined the evidence elaborately on the issue of partition between Sanichar Sao and Nunu Sao on the one hand and the sons of Chamari Sao on the other and have come to the concurrent finding that there had been no partition between the two branches, as claimed by the plaintiff. It has been further found that Schedule-I land, as described in the plaint, was not allotted to Sanichar Sao and Schedule-II land was not the self-acquired property of Snichar Sao. The trial court, however, even after giving the finding of partition against the plaintiff had proceeded to decree the suit holding the plaintiff to be in possession over the suit land by taking into consideration the order under section 145 Cr.P.C.(Ext.8) and equalizing the shares of the parties, but the appellate court on reappraisal of those evidence has reversed that finding and held that there had been no partition in the family. 15. Examining the issue of partition, it is clear that both the courts below have concurrently held that there had been no partition of the family property in the manner claimed by the plaintiff. In this regard it would be relevant to refer to the admission of the defendants in order to determine the status of the property and the rights of the parties therein. The descendants of Chamari Sao have been impleaded as defendant nos. 5, 6 and 7 in the suit, but defendant no.7, Sachia Devi, widow of Prasadi Sao(one of the sons of Chamari Sao) had not filed her written statement in the suit nor contested the suit. However, defendant nos. 5 and 6 had filed joint written statement and in paragraph no.10 of the said written statement the description of the properties has been given which they claimed to be by way of their separate allotment. The relevant portion of the said paragraph reads as follows: “10……..Sanichar Sao taking into consideration the big family of his nephew allowed this defendant Jagu Sao and others to remain in possession of their separate allotment over the following lands:………..(details of land given)……….. ..……..and acknowledged and acquiesced separate title and possession of the branch of Chamari Sao. The remaining land then in existence was kept by Sanichar Sao.” 16. ..……..and acknowledged and acquiesced separate title and possession of the branch of Chamari Sao. The remaining land then in existence was kept by Sanichar Sao.” 16. Similar statement has been made by defendant no.2-A Baldeo Mahto in his written statement wherein he has described the lands allotted to the exclusive share of Jagu Sao and his brothers in Schedule-A. Similar is the stand in the written statement of defendant nos. 2 and 3. Further, the statement made in his written statement has also been supported by defendant no.5 Jagu Sao, in his deposition as D.W.4, accepting that the branch of Chamari Sao had separated and Sanichar Sao had given them about 14-15 bigha of lands in their share, out of which they had sold lands to others and put the purchasers in possession. He had also accepted that after getting the lands in their share, they had no concern with the remaining lands of Sanichar Sao. The relevant portion of the deposition of Jagu Sao (D.W.4) reads as follows” …..Tab Humlogo Ka Khana Pina Alag Ho Gaya. Sanichar Sah Ne Humlogo Ko 14-15 Bigha Alag Jamin Uhi Bina Batawara Kiye De Diya. Uus 14-15 Bigha Jamin Par Ham Tino Bhai Ko Izmal Khas Dakhal Kabja Raha. Hamlogo Ko 14-15 Bigha Mili Thi Usme 1 ½ Bigha Jamin Ham Tino Bhaiyo Ne Bari Sah Ko Becha Tha. Baki Jamin Bhi Hamne Shamlal, Moti, Baldeo and Lakhan Yadav Ko Becha…..Bechne Ke Bad Uun Kharidaro Ko Dakhal De Diya……… ……… ……Ham Logo Ke Dene Ke Bad Sanichar Sah Ki Jo Jamin Bachi Rahi, Usse Hamlogo Ko Koi Sarokar Nahi Hai.” 17. There is no such averment in the written statement of the defendants that they have staked their claim in other suit properties also besides the properties which they had specified in the written statement to have been given to their share. There is no such averment in the written statement of the defendants that they have staked their claim in other suit properties also besides the properties which they had specified in the written statement to have been given to their share. In this view of the matter, even after concluding that the plaintiff cannot take benefit of the order passed under section 145 Cr.P.C. (Ext.8) and there had been no partition by metes and bounds and the properties mentioned in Schedule I and II were not the exclusive properties of Sanichar Sah, it can be held that, besides the properties which the defendants have specified to have allotted in their share, other properties included in those Schedules remained exclusively the properties of Sanichar Sao and after his death had been inherited by his wife Paro Telin, who had executed two gift deeds in favour of the plaintiff. However, there is no specification of the lands, allotted in different plots, by giving boundaries which have been claimed by the defendants in their share and thus after confining their claim to the lands mentioned in their written statements, the plaintiff cannot be held entitled to the grant of relief for declaration of his title with regard to the entire Schedule IV lands of the plaint. Therefore, the finding by both the courts below that the lands mentioned in Schedule-I and Schedule-II of the plaint were not the exclusive property of Sanichar Sao allotted to him in partition is upheld and further the finding by the appellate court below that the plaintiff is not in exclusive possession of the entire property in Schedule-IV is also upheld. Further, the finding that there had been no partition by metes and bounds amongst the descendants of Chaman Teli is also upheld with the modification that the share of the branch of Chamari Sao is confined to 10.34 ½ acres of land as described in the written statement of defendant nos. 5 to 6 which has been admitted by them as aforementioned. However, the parties will be at liberty to work out their respective rights, title and interest in the suit properties in appropriate proceeding. 18. In view of the aforesaid reasons and discussions, the substantial questions of law, as formulated, are answered accordingly against the plaintiff-appellant. The impugned judgment of the appellate court is upheld with the above mentioned modification. However, the parties will be at liberty to work out their respective rights, title and interest in the suit properties in appropriate proceeding. 18. In view of the aforesaid reasons and discussions, the substantial questions of law, as formulated, are answered accordingly against the plaintiff-appellant. The impugned judgment of the appellate court is upheld with the above mentioned modification. Accordingly, this second appeal is dismissed with modifications made above.