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2018 DIGILAW 208 (JHR)

Kehar Mahto v. Bishu Mahto

2018-01-24

ANIL KUMAR CHOUDHARY

body2018
ORDER Anil Kumar Choudhary, J. - This appeal has been preferred by the Plaintiff-appellant. The plaintiff filed Title Suit No. 63 of 1990/139 of 1994 in the court of 1st Additional Munsif, Giridih for declaration of right, title, interest and confirmation of possession over the suit land by virtue of an agreement dated 30.04.1961 executed by the ancestor of the defendants of the suit. 2. The case of the Plaintiff is that the owner of the suit land Raghu Mahto being in need of money for his treatment entered into an agreement with the Plaintiff to sell the suit land for a consideration of Rs. 1,500/-. After receipt of the said amount of Rs. 1,500/- and executing agreement mentioning therein that Raghu has received the consideration amount and put the Plaintiff in possession of the suit land and further mentioning therein that as soon as Raghu will recover from his illness he will execute the sale deed in favour of the Plaintiff and in case Raghu dies before executing the sale deed, the deed of agreement be treated as the deed of sale, put the Plaintiff in possession of the suit land on 30.04.1961. It is the case of the Plaintiff that since then the Plaintiff has been in continuous and uninterrupted possession of the suit land. It is also the case of the Plaintiff that after the death Raghu his widow Rohini Devi-Defendant No. 1 of the suit remarried Huro Mahto - Defendant no. 2 and the couple lived in the house of Raghu but on 30.03.90 as the Defendants threatened the Plaintiff from the suit land, the Plaintiff filed the suit. The Defendant no. 1 to 4 and 9 contested the suit by taking a common stand. According to the defendants Rohini Devi-Defendant no. 1 never remarried after death of Raghu and as Raghu died issue less she inherited his property being his sole legal heir. They also denied the execution of any agreement for sale or sale deed by Raghu in favour of the Plaintiff for a paltry sum of Rs. 1,500/-.Though 11 issues were framed, the main issues of the suit were issue no. They also denied the execution of any agreement for sale or sale deed by Raghu in favour of the Plaintiff for a paltry sum of Rs. 1,500/-.Though 11 issues were framed, the main issues of the suit were issue no. 5, 6 and 7, which are as under:- (5) Is the plaintiff came in possession over the suit land on the basis of an agreement And there is any title passed to plaintiff on the basis of an agreement (6) Whether the agreement executed by Raghu Mahto is legal and valid or not? (7) Whether the agreement was executed by Raghu Mahto in favour of plaintiff Khiria Devi All the issues were decided against the plaintiff by the learned trial court. 3. The learned trial court took up issue no. 6 and 7 together and after analysing the or a and documentary evidence in the record held that Raghu Mahto has not executed any agreement in favour of the plaintiff and hence the alleged agreement is not valid and binding and is not legally executable in terms of law. So far as the issue no. 5 is concerned, the learned court below held that the plaintiff was never put in possession of the land in question and no title has accrued to the plaintiff by the said agreement. 4. In Title Appeal no. 36 of 1996, the learned lower appellate court being the Additional District Judge, F.T.C 7th, Giridih, in view of the grounds taken in the appeal, discussed and considered all the aspects and after thorough discussion and consideration of the facts and evidences on record concurred with the finding of the trial court and did not find any infirmity in the judgment of the trial court and dismissed the appeal. 5. Mr. Manjul Prasad, learned Senior Advocate appearing'' for the appellants assailed the impugned judgment and decree of the lower appellate court as being illegal, contrary to facts and evidence on record and also submitted that since the agreement by which the plaintiff was put in possession of the suit land was held to be not legally executable, hence the possession of the plaintiff has become adverse and he has perfected his title by way of adverse possession. The learned senior counsel also submitted that the judgment and decree of the lower Appellate Court is vitiated on account of non-consideration of the important facts and materials on record. The learned senior counsel also submitted that the judgment and decree of the lower Appellate Court is vitiated on account of non-consideration of the important facts and materials on record. 6. Mr. Rajnandan Sahay, Learned Senior Advocate appearing for the respondents submitted that the plaintiff has not taken the plea of adverse possession in the plaint and it has not been mentioned in the plaint as from which date the possession of the plaintiff has become adverse vis-a-vis the title holder of the land, hence the pleadings of the Plaintiff let alone the evidence is inadequate to pass a decree of Adverse Possession in her favour. It is further submitted that the case of the plaintiff being that she was in permissive possession of Raghu Mahto by way of an agreement for sale of the land dated 30.04.1961 and her possession hostile against the Defendant since 30.03.1990 only hence the Plaintiff is not entitled to any relief. 7. After hearing the parties and considering the material on record including the impugned judgments and decrees of the Courts below, I find that learned lower Appellate court has considered all the relevant facts, evidences and materials on record in correct perspective and has arrived at the finding of fact on the basis thereof that the Plaintiff has failed to prove the thumb impression of Raghu Mahto on the agreement and that the Plaintiff has failed to prove actual possession over the suit land. The judgment and decree of the learned lower Appellate Court cannot be interfered with only on the ground that the Appellate Court has not considered the important facts and materials on record, which the appellant failed to specify. Reference can be made to the decision of the Supreme Court in Arumugham and others v. Sundarambal and another reported in (1999) 4 SCC 350 . Learned Counsel for the appellant could not point out any illegality or error in the impugned judgment and decree of the lower Appellate Court giving rise to any substantial question of law to be framed and decided by this Court in exercise of second appellate jurisdiction. Accordingly, the second appeal being without any merit is dismissed but in the circumstances without any costs.