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2018 DIGILAW 2543 (JHR)

Md. Muslim v. Sahdeo Mahto

2018-11-26

RAJESH KUMAR

body2018
ORDER : I.A. No. 5941 of 2018 1. The instant interlocutory application has been filed under Section 5 of the Limitation Act for condoning the delay of 37 days in preferring the present appeal. 2. Having regard to the reasons stated in the instant interlocutory application, I.A. No. 5941 of 2018 stands allowed and disposed of. Delay of 37 days in preferring the appeal is hereby condoned. Second Appeal No. 607 of 2016 3. Heard the learned counsel for the appellants. 4. The appellants are original defendants. The suit being Title Suit No. 23 of 1999 had been instituted by the plaintiffs for the following reliefs: “(a) That an adjudication, the plaintiff’s title over the suit land described in schedule “A” to the plaint be declared and his possession over the same be confirmed. (b) That if it be found that the plaintiff has been dispossessed from the suit land or any portion thereof during the pendency of the suit khas possession be given to the plaintiff after evicting the defendants therefrom. (c) That any other relief or reliefs to which the plaintiff is found be passed. (d) That cost of the suit be awarded to the plaintiff.” 5. The case as set out by the plaintiffs that the suit land situated in village-Kala Ichak under Khata No. 31 having total area of 3.87 acres in 12 plots, which is part of Khewat No. 2 of Kumar Dhurp Narain Singh, was recorded in the name of father of the present plaintiffs in the record of rights, which was prepared in the year 1919. The plaintiffs being the legal heirs and successor of the recorded tenant got title of the suit land through inheritance. Further it has been asserted that they are in possession over the suit land. 6. The defendants, on the other hand, has contested the suit by taking plea that Budal @ Budan Mian S/O Dasai Main, whose name was present in the cadastral survey and settlement operation, had died leaving behind his wife and a minor son, who shifted to other village Damdoiya. The said property has been taken over by the landlord and subsequently it had been settled to the predecessor of the defendants. In proof of the same, registered deed of Kabuliyat dated 04.07.1921 registered vide book no. 1 volume no. 6, page no. The said property has been taken over by the landlord and subsequently it had been settled to the predecessor of the defendants. In proof of the same, registered deed of Kabuliyat dated 04.07.1921 registered vide book no. 1 volume no. 6, page no. 116 and 117 vide Deed No. 227 of the year 1921 by the ex-landlord Maharaj Kunwar Babu, Sri Dhurup Narain Singh of Village-Padma, Pergana Barsot, District-Hazaribagh in favour of the Sedu Mahto, ancestor of the defendants. Accordingly, it has been asserted by the defendants that the land has already been settled in favour of the predecessor of the defendants and as such, title and possession had never gone to the family of the plaintiffs and plaintiffs have lost title and possession in the 1921 itself. 7. On the basis of the pleadings, the following issues have been framed by the Trial Court: (i) Is the suit maintainable in its present form? (ii) Has the plaintiff got valid cause of action for the suit? (iii) Is the suit barred by law of limitation, waiver, acquiescence and estoppels? (iv) Is the suit properly valued and the court fee paid thereon is sufficient? (v) Is the suit bad for non-joinder and mis-joinder of necessary parties? (vi) Whether plaintiff has got right, title, interest and possession over the suit land? (vii) To what relief or reliefs the plaintiff is entitled too” 8. Finally, the issue no. 6, which is the main issue, has been decided against the plaintiff. Relevant para-51 of the judgment of the Trial Court reads as under: “51. From the whole aspect I find that none of the evidence of plaintiff and plaintiff himself could have proved the possession of plaintiff over the land of Khata No. 31 nor the document proves the title and possession of the plaintiff as such, this issue is decided in favour of the defendants and against the plaintiff.” 9. Being aggrieved, an appeal being Civil (Title) Appeal No. 28 of 2007 has been filed by the plaintiffs. The First Appellate Court has framed following points for determination: I. Whether on the basis of entry as made in khatiyan (ext 3), the plaintiffs/appellants are entitled to get declaration of their title and confirmation of possession on the suit land? II. Whether the appellants are in actual physical possession on the suit land? III. The First Appellate Court has framed following points for determination: I. Whether on the basis of entry as made in khatiyan (ext 3), the plaintiffs/appellants are entitled to get declaration of their title and confirmation of possession on the suit land? II. Whether the appellants are in actual physical possession on the suit land? III. Whether the documents of the respondents are forged and fabricated and Ext. 1 series of the appellants are genuine documents? IV. Whether the suit was maintainable in its present form or it was barred by statutory provisions of law? V. Whether Issue No. VI is rightly adjudicated by the learned lower court or it needs interference and correction?” 10. The First Appellate Court, after re-appreciating the evidences, has decided all points formulated by him against the plaintiffs. Issues settled against the plaintiffs being issue no. 6 before the Trial Court has also been approved by the First Appellate Court and accordingly, by dismissing the appeal, the decree of the Trial Court has been affirmed. 11. Thus, there are concurrent findings of fact by both the Courts below that documents produced by the defendants are genuine and on that basis title has passed in favour of the defendants. Further the concurrent findings have been recorded that the plaintiffs have failed to prove their possession over the suit land rather the title of the defendants have been proved over the suit land. 12. In view of the concurrent findings of fact by both the Courts below, this Courts finds no substantial question involved in the present second appeal and the same is, hereby, dismissed. Appeal dismissed.