Research › Search › Judgment

Patna High Court · body

2014 DIGILAW 1087 (PAT)

Shankar Choudhary v. Binod Pathak

2014-10-22

KISHORE KUMAR MANDAL

body2014
JUDGMENT : Defendants/appellants have filed the appeal under Section 100 of the CPC aggrieved by the judgment and decree dated 2.6.2008, handed out by the 1st Additional District Judge, Gopalganj in Title Appeal No. 60/1989/ 58/2007 setting aside the judgment and decree dated 25.07.1989 passed by the First Subordinate Judge, Gopalganj in Title suit no. 106/1984. 2. For convenience sake, the parties hereto shall be referred by their status at the trial. 3. The plaintiffs (respondents herein) filed the suit for declaration of their right title and possession over the land set out under different schedules of the plaint and also sought for recovery of possession. Different sets of plaintiffs claimed title over different schedules. 4. According to plaintiffs, their ancestor Shyam Baran Pandey and others were tenure holders Brittdars of the suit land mentioned in schedule-I and were recorded as such in khewat and revisional survey khatiyan. The plaintiffs being descendants of Brittdars remained in possession thereof and dealt with the suit land after paying rent to the State of Bihar. Some part of the suit land was sold by their ancestor and remaining part/area was partitioned in which schedule 2 fell in the share of plaintiff nos. 1 to 3, land of schedule no. 3 fell in the share of plaintiff nos. 4 to 6 whereas land of schedule 4 fell in the share of plaintiff nos. 7 to 8. On vesting of Zamindari the suit land became the raiyati land and rent was assessed as per Section 6 of Bihar Land Reforms Act whereafter they started paying rent. During RS operation the suit land was wrongly recorded as ‘Batai nisf” in the names of Katwaru and Budhan Mahto who had executed an unregistered Ladavi deed in their favour. The contesting defendants arbitrarily got four sale deeds executed by defendant no.7 (heir of Katwaru and Budhan Mahto) on 25.1.1975. Armed with those sale deeds defendant nos. 1 to 6 made attempts to take forceful possession leading to the proceeding under Section 145 Cr.P.C. which was decided against them on 14.6.1980 against which revision application was filed and ultimately the suit was preferred. 5. Defendant Nos. 1 to 6 filed their written statement stating therein that Katwaru and Budhan Mahto were raiyats and accordingly recorded as such in R S Khatiyan. 5. Defendant Nos. 1 to 6 filed their written statement stating therein that Katwaru and Budhan Mahto were raiyats and accordingly recorded as such in R S Khatiyan. The ancestors of the plaintiffs were tenure holder Brittdars and was entitled only to collect rent after inducting tenant(s). Katwaru and Budhan Mahto became raiyats of the suit land after vesting of the intermediary rights Tenure holder was never in khas possession of the suit land. Defendant no.7, therefore, rightly sold the suit land in their favour whereafter they came in possession. 6. The trial court considering the rival pleadings framed relevant issues and permitted the parties to lead evidence. Evaluating the evidence the trial Court decided the issue no.(iii) against the plaintiffs and held that the plaintiffs were tenure holders and were only entitled to collect rents after getting the land cultivated and they had no right to oust the defendants and resume possession. Dealing with issue no. (iv) the trial Court held that the plaintiffs failed to prove that they had been in possession of the suit land within 12 years of filing of the suit. Accordingly, the suit was dismissed. Aggrieved thereby the plaintiffs filed appeal. The learned lower appellate Court did not formulate points and preferred to consider the challenges made to the judgment and decree under appeal on the basis of the issues/questions framed and decided by the learned lower appellate Court. Taking stock of the relevant evidence both oral and documentary on record, the first appellate Court decided those questions in favour of the plaintiffs and gave out reasons therefore. It was held that the trial Court in dismissing the suit had made out a third case that Katwaru and Budhan were under raiyats and had acquired occupancy right at the time of revisional survey. The appellate Court noticed that relevant amendment in the B .T. Act was made in 1938 conferring occupancy right to the under raiyats whereas in the case at hand RS Khatiyan (Ext. 2) was finally published in 1917. The appellate Court having held so reversed the findings of the trial Court on issue no. III. Adverting to the next important question decided by the trial Court under issue no. IV, the learned lower appellate Court held that the approach of the trial Court in deciding the said issue was faulty. 2) was finally published in 1917. The appellate Court having held so reversed the findings of the trial Court on issue no. III. Adverting to the next important question decided by the trial Court under issue no. IV, the learned lower appellate Court held that the approach of the trial Court in deciding the said issue was faulty. Taking note of the changes brought in the Limitation Act it was held that the suit as framed was required to be judged in the light of Article 65 of the Limitation Act and not Section 64 of the Limitation Act. The suit was filed on the strength of previous title of the plaintiffs and as such they were not required to prove his/their possession within 12 years of institution of the suit rather the plaintiffs was/were obliged to assert and prove his/their title alone which could have been denied only if the defendants were able to prove by reliable evidence that they acquired title by adverse possession. Having found fundamental flaw in the consideration of the matter on the said issue by the trial Court, the findings recorded by the trial Court were set aside. On appraisal of the evidence, the appellate Court further found that the plaintiff’s ancestors were the tenure holders and the suit land was their property (Brit Belagani land) and on vesting they became raiyats of the suit land under Section 6 of the Bihar Land Reforms Act inasmuch as rent was assessed in their names as they were found in possession thereof. The appeal was, accordingly, allowed and the findings on all core issues recorded by the trial Court were set aside. 7. While admitting the appeal the following substantial questions of law were formulated:- “(i) Whether the judgment and decree of the appellate court could be said to be illegal in view of the same having been passed against several dead respondents, i.e. respondent nos. 3,6 (gh), 8,9,11 and 12? (ii) Whether the entry in the concerned record of right can be presumed to be the entry in favour of the erstwhile intermediary as his private land?” 8. Learned counsel for the appellants in course of hearing contended that substantial question of law framed at (ii) would not be pressed. 3,6 (gh), 8,9,11 and 12? (ii) Whether the entry in the concerned record of right can be presumed to be the entry in favour of the erstwhile intermediary as his private land?” 8. Learned counsel for the appellants in course of hearing contended that substantial question of law framed at (ii) would not be pressed. However, in addition to the remaining substantial question of law, in his submissions, the appeal also raises following substantial question of law:- (i) Whether in absence of any finding regarding the method and manner of dispossession as alleged by the plaintiffs, the relief of restoration of possession could have been granted especially when the plaintiffs have not adduced any evidence on this aspect of the matter? (ii) Whether the finding of the appellate Court that in absence of plea taken in the written statement no such plea can be allowed to be taken by the defendants is sustainable in law when both the parties had understood the respective cases and adduce evidence? 9. Heard Mr. Chittaranjan Sinha learned Senior Counsel in support of the appeal and Mr. Dhruva Narayan learned Senior Counsel for the respondents. Re. Substantial question no. (i) 10. It has been submitted by the appellants that the judgment in Title Suit no. 106 of 1984 was delivered on 25.7.1989 whereas the judgment in Title Appeal No. 60 of 1989 was delivered on 02.06.2008. Respondent no.3 Sheonath Choudhary had died on 07.05.1997. Similarly, Sheonandan Choudhary [(respondent no.6 (Gh)] died on 29.09.2000, Dipiya [(respondent no.7 (ka)] died on 07.08.1999, Bacha Bhagat (respondent no.8) died on 05.04.2003. Again Nagina Bhagat (respondent no.9) died on 05.11.2005. Md. Islam (respondent no.11) died on 08.03.2001 whereas Sheodhari Bhagat (respondent no.12) died on 08.07.2008. The plaintiffs/appellants did not get those defendants/respondents who had died during the pendency of the appeal substituted by their heirs and legal representatives resulting in passing of a judgment and decree against the dead respondents and hence the same is illegal. The registered sale deed dated 25.01.1975 (Ext, D/3) was executed in respect of an area of 12 kathas 9 dhurs for a sum of Rs 12,000/- appertaining to khata no. 574 plot nos. The registered sale deed dated 25.01.1975 (Ext, D/3) was executed in respect of an area of 12 kathas 9 dhurs for a sum of Rs 12,000/- appertaining to khata no. 574 plot nos. 689, 688 and 690 by Mohar Bhagat in favour of Sheonath Choudhary and Baijnath Choudhary and the said Sheonath Choudhary (respondent no.3) having died on 07.05.1997, i.e. during the pendency of the appeal and not having been substituted, the judgment in Title Suit attained finality in so far as the said respondent is concerned. Further, the property in sale deed dated 25.01.1975, not being separable/divisible, the judgment of the appellate court becomes bad in law. To support the aforesaid contention he has relied on the following judgments:- (i) (2010) 11 SCC 476 : 2011 (1) PLJR (SC) 91 Budh Ram & Ors. Vs. Bansi & Ors. (ii) 2010 (7) SCC 603 K. Naina Mohamed Vs. A.M. Vasudevan Chettiar & Ors. 11. Per contra, Mr. Narayan submitted that the decree passed by the first appellate court cannot be held illegal on the ground of having been passed against some of the respondents who had no interest in the subject matter. From the judgment of the trial Court, it would appear that the sole surviving heir of the Bataidar, namely, Jhagaru Bhagat had transferred the subject matter of the suit in favour of the defendant nos. 1 to 6 namely, Khobhari Choudhary, Bihari Choudhary, Sheonath Choudhary, Baijnath Choudhary, Hari Lal Choudhary and Yamuna Choudhary through four sale deeds dated 25.1.975 (Exts.D to D/3). From the decree passed by the lower appellate Court it shall appear that the heir of Khobhari Choudhary were substituted in his place as respondent nos. “Ka” to “Cha” and similarly, Bihari Choudhary, Sheonath Choudhary, Baijnath Choudhary, Harilal Choudhary were made respondent nos. 2 to 5 and the name of Yamuna Choudhary was expunged. From the memo of appeal it is evident that Shankar Choudhary, Birbal Choudhary and Chini Choudhary sons of Khobhari Choudhary have filed the present appeal along with Bihari Choudhary, Sheonath Choudhary, Dhananjay Choudhary S/o Yadunandan Choudhary and other purchasers of the suit property. It therefore cannot be said that the case of the appellants was prejudiced in any manner and as such the question of the abatement on the ground of death of some of the respondents who had not contested the suit would not arise. It therefore cannot be said that the case of the appellants was prejudiced in any manner and as such the question of the abatement on the ground of death of some of the respondents who had not contested the suit would not arise. Further, the appellants herein were respondents in the lower appellate Court were duty bound to inform the Court about the death of the parties whereupon the Court could have given notice of such death to other parties for taking necessary steps under Rule 10(A) Order 22 of the CPC which was not done. He has relied in this regard on 2010 (7) SCC 603 . 12. From the matrix of facts emanating from the records as well as the rival contentions of the parties, it transpires that the suit was filed by the plaintiffs for declaration of title and recovery of possession against the defendant nos. 1 to 6. The plaint reveals that though the different sets of plaintiffs have claimed their respective title over different schedules but the relief for declaration of title and recovery of possession has been sought jointly against the defendant nos. 1 to 6. The plaintiffs have pleaded that their ancestors were tenure holder Brittdars of the suit land mentioned in schedule-I of the plaint and the plaintiffs have continued in possession over the suit land as their successors. It has been further pleaded that later on there had been partition amongst the plaintiffs and different portions as described in detail in the schedules of the plaint has fallen in the share of the respective plaintiffs. It is also the case of the plaintiffs that after vesting of Jamindari, the suit land became their raiyati land and they started paying rent as raiyats thereof. It is, however, further case of the plaintiffs that during recent survey proceeding the suit land was wrongly recorded in the names of Katwaru Mahto and Budhan Mahto as Bataidars to the extent of half share each but later on they had executed a deed of relinquishment in favour of the plaintiffs. The plaintiffs have alleged that the defendant nos. 1 to 6 got four sale deeds executed by the heir(s) of Katwaru Mahto (share of Budhan Mahto devolved on Katwaru Mahto as his sole heir) on 25.01.1975 and have forcibly dispossessed the plaintiffs from the suit land on 10.04.1981. 13. The plaintiffs have alleged that the defendant nos. 1 to 6 got four sale deeds executed by the heir(s) of Katwaru Mahto (share of Budhan Mahto devolved on Katwaru Mahto as his sole heir) on 25.01.1975 and have forcibly dispossessed the plaintiffs from the suit land on 10.04.1981. 13. Contradicting the statements by the plaintiffs, the defendant nos. 1 to 6 in their joint written statement have pleaded that the plaintiffs or their ancestors were only tenure holders of the suit property and Katwaru Mahto was in fact the raiyat, and in accordance with the provisions of Bihar Land Reforms Act, 1950 the right and interest of the tenure holder, which was only to the extent of realization of rent from the raiyats including the raiyat of the suit land, vested in the State of Bihar, and Katwaru Mahto thereafter became the raiyat of the suit under the State of Bihar. The defendants thus have categorically denied the right, title and interest of the plaintiffs over the suit land and asserted the right, title and possession of the Katwaru Mahto as raiyat thereof. The defendants have claimed their title and possession over the suit land on the basis of their purchase by four registered sale deeds dated 25.01.1975 from the Mohar Mahto who was the son and heir of Katwaru Mahto and the heirs of Mohar Mahto have been impleaded as defendant no. 7 to 10 to the suit. 14. The four sale deeds dated 25.01.1975 have been brought on record as Ext. D series on behalf of the defendants. From the perusal of these sale deeds, it is transparent that all the four sale deeds have been executed by Mohar Mahto on the same date i.e. 25.01.1975 but in favour of different defendants viz. the sale deed Ext. D is in favour of defendant no. 5 Harilal Choudhary, the sale deed Ext. D/1 is in favour of defendant no. 6 Yamuna Choudhary, the sale deed Ext. D/2 is in favour of defendant no. 1 Khobhari Choudhary and the defendant no. 2 Bihari Choudhary whereas the sale deed Ext. D/3 is in favour of the defendant no. 3 Sheonath Choudhary and defendant no. 4 Baijnath Choudhary. Further the orders of mutation (Ext. D/1 is in favour of defendant no. 6 Yamuna Choudhary, the sale deed Ext. D/2 is in favour of defendant no. 1 Khobhari Choudhary and the defendant no. 2 Bihari Choudhary whereas the sale deed Ext. D/3 is in favour of the defendant no. 3 Sheonath Choudhary and defendant no. 4 Baijnath Choudhary. Further the orders of mutation (Ext. E series) also disclose that separate mutation proceedings were initiated at the instance of the aforesaid purchasers with regard to their respective purchased area of the land and the separate orders have been passed therein. However, in spite of the aforesaid facts and in spite of specific objection by the defendants as evident from paragraph-8 of the written statement denying the community of interest over the suit land between them, the plaintiffs have claimed and pursued the suit for a decree for declaration of title and recovery of possession over the suit land against the defendant nos. 1 to 6 jointly alleging the same facts and cause of action against all of them together. It is more than explicit from the averments in the plaint that though the plaintiffs have specified their distinct title and possession over the different portions of the suit land but there is no separate and specific relief claimed against each of the defendant no. 1 to 6 although the purchase by them of the different portions of the suit by separate sale deeds has been admitted by the plaintiffs. 15. The trial court, after scrutinizing the pleadings and evidence of the parties, decided the issues against the plaintiffs and dismissed the suit. The plaintiffs thereafter preferred the T.A. No. 60 of 1989 against the judgment and decree of dismissal of the suit and from perusal of the memo of appeal, it transpires that all the defendants in the suit were impleaded as respondents. However, it further becomes evident from the memo of appeal itself that during the pendency of the appeal, the defendant no. 1-respondent no. 1 Khobhari Choudhary died and his heirs were substituted by order dated 26.09.2007. Similarly, after the death of defendant-respondent no. 6 Yamuna Choudhary his heirs were also substituted by order dated 17.11.1992. It also appears that the defendant-respondent no. 7 Mangaru Bhagat too died during the pendency of the appeal and his heirs were substituted by the same order. 1 Khobhari Choudhary died and his heirs were substituted by order dated 26.09.2007. Similarly, after the death of defendant-respondent no. 6 Yamuna Choudhary his heirs were also substituted by order dated 17.11.1992. It also appears that the defendant-respondent no. 7 Mangaru Bhagat too died during the pendency of the appeal and his heirs were substituted by the same order. From the records of the appeal in the court below as well as memo of appeal, it is manifest that there was no further substitution and the appeal had proceeded as against the remaining defendant-respondents on record. 16. At this juncture, it would be pertinent to mention that the judgment and decree in the suit has been passed on 25.07.1989 and the appeal thereafter came to be decided on 02.06.2008 reversing the judgment and decree in the suit and granting the decree to the plaintiff as prayed. The memo of this second appeal has been filed on 27.06.2008 by the original defendant no. 2 Bihari Choudhary, defendant no. 4 Baijnath Choudhary and defendant no. 5 Harilal Choudhary along with the substituted heirs of the deceased defendant no. 1 Khobhari Choudhary and deceased defendant no. 6 Yamuna Choudhary. The appellant no. 7 Dhananjay Choudhary in this appeal is the substituted heir of Yadunandan Choudhary who was one of the substituted heirs of deceased defendant no. 6 Jamuna Choudhary in the appellate court below. From the perusal of the memo of the instant appeal, it further transpires that the respondent nos. 10 to 13 in this appeal have been impleaded as heirs of deceased defendant no. 3 Sheonath Choudhary. 17. On behalf of the appellants, it has been emphatically submitted that the defendant no. 3-respondent no. 3 (in the appellate court below) namely Sheonath Choudhary died on 07.05.1997 and similarly the substituted respondent no. 6 (Gha) (one of the substituted heirs of the deceased defendant no. 6 Yamuna Choudhary in the appellate court below) died on 29.09.2000 during the pendency of the appeal in the court below. It has been further pointed out that the substituted respondent no. 7 (ka) Most. Dipiya (one of the substituted heirs of the deceased defendant no. 7 Mangaru Bhagat) died on 07.08.1999, the defendant no. 8-respondent no. 8 Bacha Bhagat died on 05.04.2003 and respondent no. 9 Nagina Bhagat also died on 05.11.2005 during the pendency of the appeal in the court below. 7 (ka) Most. Dipiya (one of the substituted heirs of the deceased defendant no. 7 Mangaru Bhagat) died on 07.08.1999, the defendant no. 8-respondent no. 8 Bacha Bhagat died on 05.04.2003 and respondent no. 9 Nagina Bhagat also died on 05.11.2005 during the pendency of the appeal in the court below. From the order dated 14.11.2008 passed in this appeal, it becomes evident that the fact of death of the aforesaid defendant-respondents during the pendency of the appeal in the court below has been admitted by the plaintiff-respondents and it has been also admitted that their heirs could not be substituted in the said appeal. 18. Examined in the backdrop of these facts, it is vivid that the deceased defendant no. 3-respondent no. 3 Sheonath Choudhary was one of the purchasers of the suit land and similarly the deceased respondent no. 6 (Gha) was one of the substituted heirs of the original purchaser (Yamuna Choudhary) of the suit land. The remaining deceased respondent nos. 7(ka), 8 and 9 in the appeal in the court below were the heirs of the vendor of the defendant no. 1 to 6. The impugned judgment and decree by the appellate court below granting the declaration of title and entitlement of recovery of possession in favour of the plaintiffs has been passed against these deceased persons as well, along with the other respondents. In view of the nature of the decree as prayed for and granted by the appellate court below being joint and in severable, it is evincible therefore that the same has been passed against the defendant no. 3-respondent no. 3 Sheonath Choudhary, respondent no. 6 (gha) Sheonandan Choudhary and some other respondents as abovementioned who were already dead and their interest was not represented. 19. The Apex Court in the case of State of Punjab Vs. Nathu Ram (A.I.R. 1962 SC 89) has delved into this legal enigma and ruled as follows:- “………It may, however, be stated that ordinarily the considerations which weigh with the Court in deciding upon this question are whether the appeal between the appellants and the respondents other than the deceased can be said to be properly constituted or can be said to have all the necessary parties for the decision of the controversy before the Court. The test to determine this has been described in diverse forms. The test to determine this has been described in diverse forms. Courts will not proceed with in appeal (a) when the success of the appeal may lead to the Court’s coming to a decision which be in conflict with the decision between the appellant and the deceased respondent and therefore which would lead to the Court’s passing a decree which will be contradictory to the decree which had become final with respect to the same subject mater between the appellant and the deceased respondent; (b) when the appellant could not have brought the action for the necessary relief against those respondents alone who are still before the court and (c) when the decree against the surviving respondents, if the appeal succeeds, be ineffective, that is to say, it could not be successful executed.………..” 20. It would also be fruitful to take into notice the principles laid down by the constitution Bench in the case of Sardar Amarjit Singh Kalra Vs. Pramod Gupta, [ 2003 (3) SCC 272 ] with regard to the impact of abatement of the appeal against some respondents in case of a joint and inseverable decree. It would also be fruitful to take into notice the principles laid down by the constitution Bench in the case of Sardar Amarjit Singh Kalra Vs. Pramod Gupta, [ 2003 (3) SCC 272 ] with regard to the impact of abatement of the appeal against some respondents in case of a joint and inseverable decree. Their Lordships have held as follows :- “21……(a) In case of “joint and indivisible decree”, “joint and unseverable or inseparable decre”, the abatement of proceedings in relation to one or more of the appellant (s) or respondent (s) on account of omission or lapse and failure to bring on record his or their legal representatives in time would prove fatal to the entire appeal and require to be dismissed in toto as otherwise inconsistent or contradictory decrees would result and proper reliefs could not be granted, conflicting with the one which had already become final with respect to the same subject-matter vis-à-vis the others; (b) the question as to whether the court can deal with an appeal after it abates against one or the other would depend upon the facts of each case and no exhaustive statement or analysis could be made about all such circumstances wherein it would or would not be possible to proceed with the appeal, despite abatement, partially; (c) existence of a joint right as distinguished from tenancy-in-common alone is not the criterion but the joint character of the decree, dehors the relationship of the parties inter se and the frame of the appeal, will take colour from the nature of the decree challenged; (d) where the dispute between two groups of parties centred around claims or was based on grounds common relating to the respective groups litigating as distinct groups or bodies-the issue involved for consideration in such class of cases would be one and indivisible; and (e) when the issues involved in more than one appeal dealt with as a group or batch of appeals, are common and identical in all such cases, abatement of one or the other of the connected appeals due to the death of one or more of the parties and failure to bring on record the legal representatives of the deceased parties, would result in the abatement of all appeals.” (emphasis added) Tested on the anvil of the aforesaid principle the conclusion is inevitable that the decree dismissing the suit as against the aforesaid deceased respondents had attained finality and could not have been varied or overturned in absence of their heirs and legal representatives by the appellate court below. In other words, the appeal before the appellate court at the time of passing of the decree had become defective (not properly constituted) as all the necessary parties for the determination of the controversy were not before the court and the non-substitution of the heirs of the deceased respondents was fatal to the entire appeal. 22. The proposition by the learned senior counsel on behalf of the plaintiff-respondents on the strength of the decision of the Apex Court in the case of K. Naina Mohamed (supra), in the peculiar facts and circumstances of this case as mentioned, is clearly misplaced. In the said decision the purchaser was already on record to represent the interest of his deceased vendors and, in fact, it was the purchaser who filed the appeal as well as contested the second appeal thereafter. In the present case, one of the purchasers and one of the substituted heirs of another purchaser of the suit land died during the pendency of the appeal and their interest remained unrepresented as no substitution was admittedly done. Similarly, no rule has been laid down in the said decision prescribing that the provision of Order 22 Rule 10 A shall override the mandatory provision relating to abatement as contained in Order 22 Rule 4 C.P.C. for want of substitution of a defendant/respondent who was a necessary party. In this fact situation, this Court is inclined to hold that the impugned judgment and decree passed by the appellate court below cannot be sustained in law, and the same is, accordingly, set aside. The substantial question of law, as formulated in this regard, is accordingly answered in favour of the appellants. 23. In view of the aforesaid conclusions, there remains no necessity for determining the other substantial questions of law as framed/suggested. 24. In the result, this appeal is allowed. In the facts and circumstances, there shall be no order as to cost.