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2018 DIGILAW 1930 (JHR)

Shankar Mahto v. Most. Gauri Devi

2018-08-23

SHREE CHANDRASHEKHAR

body2018
JUDGMENT Shree Chandrashekhar, J. - The petitioners, who are defendants in Title Suit No. 46 of 1996, are aggrieved of order dated 07.01.2012 by which their application dated 22.12.2011 under Order 14, Rule 5 CPC for framing additional issues has been rejected. 2. Title Suit No. 46 of 1996 was instituted by Bhuneshwar Mahto and others for a decree for a declaration of their right, title and interest alongwith proforma defendant no. 14 over the suit lands including the Ahari, well, etc. and for a decree for confirmation of their possession over the suit land. The plaintiffs have pleaded that the lands comprised under Khata No. 87, Khewat No. 1, Thana No. 291, Touzi No. 141 of Mouza Khijursota Gadi Remba, PS-Dhanwar, OP-Parson, Pargana Kharagdiha, District-Hazaribagh were recorded as Gair Majaruwa Khas land in the last survey settlement and the ex-landlord was in possession over the said land. After vesting of the Zamindari the aforesaid lands vested in the State of Bihar and the State of Bihar became the landlord. The plaintiffs have further pleaded that Shri Lachho Dusadh and others acquired the lands comprised under Schedule-A from Sirista of the State of Bihar in the year 1955-56 by virtue of Permanent Raiyati Settlement and the settlees were put in khas possession over Schedule-A lands, who paid rent to the State of Bihar. They have claimed that they have acquired raiyati occupancy rights by virtue of adverse possession and their names have been entered in the Register-II. The plaintiffs have also claimed that by virtue of registered sale deeds the settlees transferred Schedule-A lands in favour of Chaman Mahto, Bhikhan Mahto and Khoshi Thakur. The plaintiffs have given detailed description of the transactions by virtue of which they claim right, title and interest over the suit schedule properties. The respondent nos. 1, 2, 4 to 6, 8 and 9 have filed their written statement contesting the plaintiffs'' claim of their right, title and interest along with proforma defendant no. 14 over the suit schedule lands. The defendants have specifically denied that by virtue of sale deeds dated 02.08.1971 and 12.12.1972 the purchasers namely, Chaman Mahto, Bhikhan Mahto and Khoshi Thakur have acquired right, title and possession over the suit lands. They have pleaded that the sale deeds dated 02.08.1971 and 12.12.1972 are illegal, void and inoperative. 14 over the suit schedule lands. The defendants have specifically denied that by virtue of sale deeds dated 02.08.1971 and 12.12.1972 the purchasers namely, Chaman Mahto, Bhikhan Mahto and Khoshi Thakur have acquired right, title and possession over the suit lands. They have pleaded that the sale deeds dated 02.08.1971 and 12.12.1972 are illegal, void and inoperative. They have also taken a similar stand with respect to validity of the sale deeds dated 23.08.1974 and 14.05.1976. 3. By an order dated 20.03.2001 following issues were settled in the title suit. i. Is there any cause of action of the present suit? ii. Is the suit maintainable in the present form? iii. Is the suit barred by law of limitation and adverse possession? iv. Is the suit property undervalued? v. Whether the plaintiffs and proforma defendant no. 14 have got subsisting title and possession over the suit property or not? vi. Whether the plaintiffs are entitled to get the decree as they prayed for in the relief portion of the plaint or not? vii. To what relief or reliefs the plaintiffs are entitled to? 4. After the parties led their evidence in the suit and the suit was posted for final hearing, an application under Order 14, Rule 5 CPC was filed by the defendant nos. 1 to 5. This application has been dismissed by the impugned order dated 07.01.2012. 5. By an order dated 15.06.2012 operation of the impugned order dated 07.01.2012 was stayed by this Court. 6. Order dated 24.07.2018 records that all the respondents except respondent no. 28 were validly served still, they have not appeared in the present proceeding. 7. Referring to the stand of the defendants taken in the written statement, Mr. Pandey Neeraj Rai, the learned counsel for the petitioners submits that without adjudicating validly of the sale deeds dated 02.08.1971 and 12.12.1972 claim of the plaintiffs over Schedule-A lands cannot be decided. It is further contended that whether the defendants have acquired right, title and interest by virtue of Hukumnama in favour of ancestors of defendant nos. 2 to 5 or not is an issue which needs to be examined in the context of the plaintiffs'' stand that by virtue of sale deeds dated 23.08.1974 and 14.05.1976 a part of the suit land was transferred in favour of ancestors of the defendants. 8. 2 to 5 or not is an issue which needs to be examined in the context of the plaintiffs'' stand that by virtue of sale deeds dated 23.08.1974 and 14.05.1976 a part of the suit land was transferred in favour of ancestors of the defendants. 8. Order 14, Rule 1 provides that on each material proposition affirmed by one party and denied by other distinct issue shall be framed; it may be issues of fact or issues of law. By now it is well settled that the issues of fact or issues of law on which the parties are at variance, issues in the suit shall be framed. Object behind framing issues in a suit is to confine the parties to lead evidence only on the issues in dispute. In the written statement the defendants have taken a specific stand that the sale deeds dated 02.08.1971, 12.12.1972, 23.08.1974 and 14.05.1976 are illegal, void and inoperative. The issues which were settled in the suit indicate that issue no. 5; whether the plaintiffs and proforma defendant no. 14 have got subsisting title and possession over the suit property or not?, is the only issue framed by the trial judge which may touch upon the defendants stand, but there is no issue framed on sale deeds dated 02.08.1971 and 12.12.1972 and sale deeds dated 23.08.1974 and 14.05.1976. It is not known whether validly of the Hukumnama by virtue of which the defendants are claiming right, title and interest through ancestors of the defendant nos. 2 to 5 has been challenged by the plaintiffs or not. The trial judge simply observing that the suit was posted for arguments since 18.09.2008 has dismissed the application under Order 14, Rule 5 CPC. 9. In view of the specific stand taken by the defendants in their written statement, the application under Order 14, Rule 5 CPC, though belated, should not have been rejected by the trial judge. However, at this stage it needs to be clarified that, except issues nos. 2, 3 and 5 which pertain to validity of the sale deeds and Hukumnama, no other issue as framed by the defendants in their application dated 22.12.2011 needs to be framed. 10. Considering the stage of trial, a direction is issued to the trial judge to frame issues on issue nos. 2, 3 and 5 which pertain to validity of the sale deeds and Hukumnama, no other issue as framed by the defendants in their application dated 22.12.2011 needs to be framed. 10. Considering the stage of trial, a direction is issued to the trial judge to frame issues on issue nos. 2, 3 and 5 as framed in the application dated 22.12.2011, and, of course, with modification if necessary, and if the parties have not led evidence on the aforesaid issues further opportunity may be granted to both the parties to lead evidence. 11. With the aforesaid direction, the writ petition stands disposed of.