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2014 DIGILAW 122 (JHR)

Laxmin Swansi v. Sanicharia Swansi

2014-01-18

N.N.TIWARI

body2014
JUDGMENT NARENDRA NATH TIWARI, J. 1. This second appeal is against the judgment and decree dated 6.8.1992 passed by 7th Additional Judicial Commissioner, Ranchi in Title Appeal No. 20 of 1987 dismissing the appeal and confirming the judgment and decree dated 28.6.1986 passed by Additional Sub-ordinate Judge, Ranchi in Title Suit No. 155 of 1982. 2. The appellant was the plaintiff in the said suit. She prayed for relief for declaration of her right, title, interest and possession over the suit land and also for declaration that the order dated 21.1.1981 passed in Case No. M 4/7 and order dated 5.5.1982 passed in Cr. Rev. No. 133 of 1981 are contrary to law, inoperative, illegal and void. The plaintiff also prayed for alternative relief for delivery of possession in favour of the plaintiff -proforma defendant, in the event of finding that the appellant was dispossessed from the suit land. 3. The suit land, as described in the schedule appended to the plaint, is the land of Village Ziarappa, P.S Khunti, Thana No. 227, District -Ranchi, appertaining to Khata Nos. 10 & 11, measuring total area of 9.33 Acres. 4. The plaintiff's case, in brief, was that the suit land was recorded in the name of Karma Swansi, son of Late Mangra Swansi in the Revisional Survey Record of Rights -finally published in the year 1934. Karma Swansi entrusted and handed over possession of his land to his uncle Etwa Swansi about 40 years ago. Etwa Swansi remained in peaceful possession of the same. Thereafter, the suit land jointly inherited and held by the plaintiff and the defendant Nos. 2 & 3 being the descendants of Etwa Swansi. Further case of the plaintiff is that the suit land was deemed to be declared abandoned land in a proceeding before the Land Reforms Deputy Collector, Khunti in the year 1964, but due to timely objection preferred by the plaintiff and the proforma defendant, the proceeding was dropped and a finding was given that the suit land belonged to the plaintiff and the proforma defendant. The suit land was also mutated in the name of the plaintiff and the proforma defendant. The defendant No.1 for the first time claimed right, title over the suit land in a proceeding under Section 144 Cr. P.C registered as Case No. M 498/78. The said proceeding was decided in favour of the defendants. The suit land was also mutated in the name of the plaintiff and the proforma defendant. The defendant No.1 for the first time claimed right, title over the suit land in a proceeding under Section 144 Cr. P.C registered as Case No. M 498/78. The said proceeding was decided in favour of the defendants. Again a proceeding under Section 145 Cr. P.C was initiated, which was also decided in favour of the defendant No. 1 and his possession was declared. He filed Criminal Revision No. 133 of 1981, but the same stood dismissed by order dated 5.5.1982. However, despite the said declaration, the plaintiff and the proforma defendant continued in possession of the suit land. The claim of the defendant No.1 is false and baseless and the orders passed in the aforesaid proceedings are contrary to the facts and law. The plaintiff is entitled for a decree declaring her right, title and possession. 5. The defendant-respondent-respondent contested the suit by filing written statement. It was, inter alia, averred that the suit is not maintainable, as the same is barred under the provisions of the Limitation Act and under the provisions of Section 34 of the Specific Relief Act and also by waiver, estoppal and acquiescence. The plaintiff has absolutely no right, title and she was never in possession of the suit land. The plaintiff has no cause of action for the suit. The plaintiff has been residing in Village Ziarappa, but her village has been wrongly shown as Gutgora. The suit land was admittedly recorded in the name of Karma Swansi, who happened to be the grandfather of the defendant. Karma Swansi died leaving behind his son Bheru Swansi, who had been in exclusive possession of the suit land. After the death of Bheru Swansi, the defendant being the daughter of Bheru Swansi came in possession over the suit land. Karma Swansi never transferred the possession of the suit land to his uncle Etwa Swansi. The plaintiff proforma defendants had been claiming their right, title without any valid transfer of the land by the defendant -grandfather of the descendants. The suit land is in continuous peaceful possession of the defendant. The claim of possession made by the plaintiff was decided in 145 Cr. P.C in which the defendants' possession has been declared and the plaintiff was restrained from interfering with the possession. The said order is well considered and legal. The suit land is in continuous peaceful possession of the defendant. The claim of possession made by the plaintiff was decided in 145 Cr. P.C in which the defendants' possession has been declared and the plaintiff was restrained from interfering with the possession. The said order is well considered and legal. There is no infirmity or illegality in the said order. The plaintiff is, thus, not entitled to any relief and the suit is liable to be dismissed. 6. On the basis of the said pleadings of the parties, learned Trial Court framed as many as seven issues as follows:- "1. Is the suit as framed maintainable? 2. Has the plaintiff got any cause of action for the suit? 3. Is the suit barred u/s 34 of the Specific Relief Act? 4. Has the plaintiff any right, title and interest over the suit land? 5. Are the plaintiff and defendant Nos. 2, 3 & 3A in possession of the suit land? 6. Is the plaintiff entitled to get the reliefs as prayed for? 7. To what other relief or reliefs, if any, the plaintiff is entitled?" 7. Both the parties led their evidences. 8. On detail discussion of the pleadings of the parties and the evidences adduced by them, learned Trial Court decided almost all issues against the plaintiff and found that the plaintiff failed to prove her right, title and interest over the suit land. Learned Court observed that handing over possession or entrustment of the property with the purpose to look after, does not confer any right, title and interest on the plaintiff. On the contrary, the defendant being the granddaughter of Karma Swansi has got right, title and interest over the suit property. The plaintiff's claim of title on the basis of her possession and holding the land as a trustee also does not confer any right, title and possession. He further held that the suit as framed is not maintainable and the plaintiff has got no cause of action and right to sue and she is not entitled to get any relief. Learned Trial Court, thus, dismissed the suit by the judgment and decree dated 28.6.1986. 9. Against the judgment and decree of learned Trial Court, the plaintiff filed appeal in the Court of the Judicial Commissioner, Ranchi. 10. The appeal was finally heard and decided by the 7th Additional Judicial Commissioner, Ranchi. 11. Learned Trial Court, thus, dismissed the suit by the judgment and decree dated 28.6.1986. 9. Against the judgment and decree of learned Trial Court, the plaintiff filed appeal in the Court of the Judicial Commissioner, Ranchi. 10. The appeal was finally heard and decided by the 7th Additional Judicial Commissioner, Ranchi. 11. Learned lower appellate Court independently thoroughly discussed and considered the pleadings and the evidences of both the parties as well as the grounds of appeal and submissions of learned counsel and dismissed the appeal by order dated 6.8.1992 holding that learned Trial Court has rightly dismissed the suit and there is no infirmity or illegality in the judgment and decree of learned Trial Court. 12. Aggrieved by the said judgment and decree of learned lower appellate Court, the defendant-appellant filed this second appeal. 13. By order dated 19.1.1994, this second appeal was admitted for hearing on the following substantial questions of law: "(A) Whether the learned Courts below have gravely erred in not recording any finding as to when the recoded tenant Karma Swansi died for that was crucial for determining the character of possession of the predecessor in interest of the plaintiff-appellant and that of the plaintiff appellant and proforma defendant-respondents? (B) Whether the learned Courts below have further gravely erred in not attaching any importance to the documentary evidence being Exts. 9, 10, 11, 12 and 13 and the effect thereof which unmistakably establish beyond the range of any doubt the possession of the predecessor in interest of the appellant for at least before 1964 which was far beyond twelve years prior to the institution of the suit?" 14. The parties addressed this Court at length on both the said questions. 15. Mr. V.K. Prasad, learned counsel appearing on behalf of the appellant, submitted that both the questions framed by this Court are interrelated and the same can be taken up together. 16. Learned counsel for the respondents also accepted the same. 17. Learned counsel for the appellant submitted that the Courts below have committed serious errors of law in ignoring the plaintiff's admitted long possession. It is evident from Ext.9 that there was a proceeding for declaring the suit land abandoned, but because of the objection filed by the plaintiff (Ext.9), the proceeding was dropped. 17. Learned counsel for the appellant submitted that the Courts below have committed serious errors of law in ignoring the plaintiff's admitted long possession. It is evident from Ext.9 that there was a proceeding for declaring the suit land abandoned, but because of the objection filed by the plaintiff (Ext.9), the proceeding was dropped. Similarly, learned Courts below have not considered the plaintiff's documents Ext.10 the objection petition filed before the B.D.O Khunti, Ext.11 -the certified copy of the order passed in Misc. Case No. 12/64-65, Ext. 12 the report of the Halka Karamchari and Ext. 13 the similar report, which clearly established the possession of the appellant's predecessor and subsequently the possession of the appellant since 1964. Learned Trial Court as well as learned lower appellate Court have not considered the said documents in proper perspective. Since the suit land has been in continuous possession since 1964 till the suit was filed in the year 1982 and even thereafter the plaintiff-appellant acquired title by prescription and adverse possession, the plaintiff was entitled for declaration of his right, title and possession. 18. Learned counsel referred to and relied on a decision of the Supreme Court in Bhaiya Shankar Pratap Deo vs. Tapeshwari Singh, AIR 1980 SC 1223 . He urged that both the Courts below have dismissed the appellant's claim under misconception of law and by misinterpreting the evidences and materials on record. The impugned judgments and decrees of learned Courts below are, thus, unsustainable and are liable to be set aside. 19. Learned counsel appearing on behalf of the respondents, on the other hand, submitted that the impugned judgments and decrees of learned Courts below are well discussed, sound and legal. There is no infirmity in the impugned judgments and decrees. Both the Courts of fact, on thorough scrutiny and discussion of all the facts and evidences on record, have concurrently found that the suit land was recorded in the name of Karma Swansi, who died leaving behind his son Bheru Swansi. Bheru Swansi also died leaving behind his daughter Smt. Sanicharia (Defendant No.1). Learned Courts below have also held that Sanicharia defendant No.1 inherited the suit property and came in possession of the same after the death of her father -Bheru Swansi. The defendant No.1 is, thus, legal owner and has got valid right, title and interest over the suit land. Bheru Swansi also died leaving behind his daughter Smt. Sanicharia (Defendant No.1). Learned Courts below have also held that Sanicharia defendant No.1 inherited the suit property and came in possession of the same after the death of her father -Bheru Swansi. The defendant No.1 is, thus, legal owner and has got valid right, title and interest over the suit land. Learned Courts below have further held that it was even the admitted case of the plaintiff that the recorded tenant Karma Swansi had not transfered the suit property by virtue of any legal document. The same was given to Etwa Swansi while he was going to Assam. In view of the said admitted fact on record and the concurrent finding of fact arrived at by two Courts of fact, no substantial question as such arises in the instant appeal. 20. I have heard learned counsel and scrutinized the record. On perusal of the impugned judgments and decrees of learned Courts below, I find that all the relevant aspects emerging in the suit as well as the grounds taken by the plaintiff-appellant-appellant in the appeal have been discussed and considered by learned Courts below. It is an admitted position in the plaint filed by the plaintiff that the suit land was recorded in the name of Karma Swansi, son of Mangra Swansi in the Revisional Survey Record of Rights. It is also an admitted fact that the defendant No.1 is the grand daughter of the recorded tenant Karma Swansi. The plaintiffs based their claim of right, title on the ground that Karma Swansi while going to Assam had given the suit land to his uncle Etwa Swansi predecessor in interest of the plaintiff for about 40 years ago. Subsequently, in the year 1964, a proceeding was initiated before the Land Reforms Deputy Collector, Khunti for declaring the suit land as abandoned. Further case of the plaintiff is that in the said proceeding, they had put objections (Annexure 9 & 10) and the proceeding was dropped. An enquiry was made by the Revenue Officer and the report of revenue staff and the reports (Exts. 12 & 13) also support the claim of the plaintiffs that they were in possession of the suit land. 21. An enquiry was made by the Revenue Officer and the report of revenue staff and the reports (Exts. 12 & 13) also support the claim of the plaintiffs that they were in possession of the suit land. 21. On perusal of the impugned judgments and decrees of learned Trial Court as well as of learned lower appellate Court, I find that both the Courts have considered those documents along with the oral evidences of the parties. Learned Courts below found that the plaintiff Mangal Swansi, who examined himself as PW-9, had deposed that Karma Swnasi had gone to Assam 40-50 years ago and entrusted the suit land to Mangra Swansi, the grandfather of this witnesses. Learned Courts below found that the case set up by the plaintiff that the suit land was given to Etwa Swansi, is falsified from the said statement of the plaintiff. Learned Courts below have culled out the facts and evidences meticulously. They also came to the finding that the documentary evidences including Exts. 9, 10, 11, 12 & 13 can go to establish that the suit land was recorded in the name of Karma Swansi, who had never made any transfer in favour of the plaintiffs or their predecessor-in-interest conferring right, title and possession and the plaintiff failed to establish the said claim. I, therefore, find no error or illegality in the impugned judgments and decrees of learned Courts below giving rise to the aforesaid questions as substantial questions of law or any other substantial question of law. In view of the concurrent finding of the Courts below and proper appraisal of the facts and evidences on record, there is no scope for interference with the impugned judgments and decrees of learned Courts below. 22. I further find that there is no averment in the pleading of the plaintiff constituting a case of acquisition of title by prescription or adverse possession. From the facts and materials emerging in the case, it appears that the appellant has based her claim of right and title on the basis of long possession. The plaintiff who examined himself as PW-9, has admitted that the suit land was entrusted to him by Karma Swansi. In view thereof, the report of the revenue staff regarding his possession read with the plaintiff's admission of entrustment of the suit land makes out a case of permissive possession. 23. The plaintiff who examined himself as PW-9, has admitted that the suit land was entrusted to him by Karma Swansi. In view thereof, the report of the revenue staff regarding his possession read with the plaintiff's admission of entrustment of the suit land makes out a case of permissive possession. 23. It is well settled that permissive possession howsoever long, cannot partake the nature of adverse possession. The decision rendered in Bhaiya Shankar Pratap Deo, supra, was regarding a land given as Khorpos grant under Section 6 of the Bihar Land Reforms Act, which was subsequently attached under Section 146 of the Cr. P.C before vesting and released after vesting in favour of the defendant. It was held that the attachment in law would be deemed to be on behalf of the defendant in whose favour the lands were released. 24. In the instant case, the facts are completely different and the ratio of the said decision of the Apex Court is not applicable to the facts of the instant case. 25. In view of the above discussions, I find that in view of the admitted fact of entrustment of the suit land, Question No.1 framed by this Court has no relevance and appears on the contesting claim of right, title and interest and as such the said question is neither a substantial question of law nor the same has any relevance. Learned Courts below have not committed any error in not recording any finding about the death of the recorded tenant Karma Swansi. I further found that learned Courts below have thoroughly discussed all the relevant facts and evidences on record including Exts. 9, 10, 11, 12 & 13 as well as the deposition of the plaintiff (PW-9) and have come to the concurrent finding that the plaintiff has made out a case that the suit land was entrusted to him by Karma Swansi and the plaintiffs failed to establish their right, title and hostile possession for 12 years. The said findings are based on the facts and evidences on record and the same are not only sound and correct, but are also binding on the second appellate Court. 26. The aforementioned questions framed by this Court are, accordingly, answered in negative and are without any merit. 27. This appeal is, accordingly, dismissed. 28. However, there is no order as to costs.