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2019 DIGILAW 1572 (JHR)

Somen Kumar Dawn v. State Of Jharkhand

2019-09-11

SANJAY KUMAR DWIVEDI

body2019
JUDGMENT Sanjay Kumar Dwivedi, J. - Heard Mr. Sachi Nandan Das, learned counsel for the appellants and Ms. Pooja Kumar, learned A.C. to Sr. S.C. III for the respondents. 2. The present second appeal has been preferred by the appellants for questioning the legality and validity of the judgment and decree dated 30.09.2015 passed in Title Appeal No. 3 of 2009 by the learned District Judge-II, Seraikella-Kharsawan whereby he has been affirmed the judgment decree dated 17.01.2009 passed by the learned Munsif, Seraikella-Kharsawan in Title Suit No. 20 of 2005. 3. The case of the appellant before the trial court was that one Pitamber Dutta of Chandil was the tenure holder of Mauza Kadamdih and his name appears in the record of rights published in the year 1911 as khewatdar of khewat no. 4/3. The aforesaid tenure holder executed a deed of sale in favour of Vishswnath Dawn on 28th February,1912 vide sale deed no. 112 and transferred some property including a Tank and its Arh for consideration of Rs. 1300/-. Vishwanath Dawn the grand-father of the plaintiff used to possess the land purchased by him morefully described in schedule ''A; by the plaintiff. In the suit the Tank and Arh is in dispute and described in schedule ''B'' of the plaint and hereinafter referred as suit property. The suit property was all along in possession of the grand-father and father of the appellant and this appellant stopped into the possession of the suit property. It is however, the case of the appellant that the tank was being used for cultivating and also rear and catch fish in the suit property. After the death of grand-father and father, the appellant became in possession of all the properties including this suit property. The plaintiff used to possess the Arh of the Tank which contains trees planted by his grand-father and in vacant part of the Arh used to grew seasonable vegetables. The possession of the suit property remained with the appellant including his predecessors since last 90 years with the full knowledge of the State Government and thereby the appellants also perfected the right, title and interest over the suit property. On 21.04.2005 a notice was sent to the appellant to attain the Court of S.D.O., Chandil along with relevant papers of the Tank. On 21.04.2005 a notice was sent to the appellant to attain the Court of S.D.O., Chandil along with relevant papers of the Tank. Thereafter, the appellant rushed to the Circle Officer, Chandil to find out the real facts and on enquiry he found that the Tank and its Arh suit property in R.S. Operation wrongly recorded in the name of State of Bihar now Jharkhand under Khata No. 112 mauza Kadamdih in Khatian plot no. 271 shown it''s Arh. It is further submitted that the case of the appellant is that prior to 05.05.2005 the appellant has got no knowledge about such wrong entry as his possession over the suit property never interfered before the 05.05.2005. Thereafter, the appellant sent notice u/s 80 C.P.C. on 20.05.2005. The cause of action of the present suit arose on and from 21.04.2005 and 05.05.2005. 4. On appearance, defendants filed their written statement and stating that the there is no cause of action of the suit. The suit is barred by limitation, estoppel, waiver and acquiescence. This suit is suffered from non-joinder and mis-joinder. The description of the suit land is vague and incomplete. The suit land is described properly and fully. There has been no service of notice u/s 80 C.P.C. as required under C.P.C. The suit property is grossly under valued. The total boundary provided in schedule A and there is no mentioning of areas of the plots or the tank and the Arh in the plaint. It is further submitted that the case of the defendant is that in suit property there is no mentioning of area plot no. 271 of Khata No. 112. Nowhere it is specifically stated which old plots have been reported as R.S. Plot. The suit land suffers seriously from the defects of identity. The Tank was never come in possession of the appellant and his forefathers. It is incorrect that they used to rear and catch fish in the Tank. The appellant has used to rear and catch fish in the Tank. The appellant has not asserted that after death of Kalipada Dawn who were the heir and successor of Kalipada Dawn. It is the State Government who has been coming in long continuous possession and, therefore, the same has been recorded in the name of State of Bihar during last survey. The appellant has not asserted that after death of Kalipada Dawn who were the heir and successor of Kalipada Dawn. It is the State Government who has been coming in long continuous possession and, therefore, the same has been recorded in the name of State of Bihar during last survey. Further, the appellant has tried to show his ignorance about the record of rights which was finally published in the year 1963. 5. On the above facts the trail court has framed certain issued and proceeded to decide the suit which is as under: i. Is the suit is maintainable in the present form? ii. Is the cause for action for this suit? iii. The suit barred by limitation, estoppel, waiver and acquiescence? iv. Is the suit bad for non-joinder and mis-joinder of the parties? v. Is the description of the suit land is vague? vi. Is the service of the notice under section 80C.P.C. valid an proper. vii. Is the suit grossly under valued viii. Is the plaintiff is entitled for a decree for declaration of right title and interest of the plaintiff over the suit property ix. Is he entries made in the record of right of the suit property in the name of the State is erroneous and wrong x. Is the plaintiff is entitled for a decree for permanent injunction restraining the defendants not to interfere with the possession of the plaintiff in the suit property xi. Is the plaintiff is entitled for relief or any other reliefs. 6. The trial court has altogether examined the 7 witnesses and taking into account the statement of P.W. 3 who admitted in his deposition that there is another tank which belongs to appellant. The trial court after going through the evidence of all the P.Ws. and D.W.1 and also from perusal of the plaint came to the findings that the description of the suit property is vague and the appellant is unable to prove that he has right, title and interest over the suit property. It is also come in the findings that the suit property is rightly recorded in the name of State in R.S. Survey settlement. The trial court came to the findings that the proper identification of the disputed land is not disclosed in the plaint. After considering the issues, the trial court dismissed the suit. 7. It is also come in the findings that the suit property is rightly recorded in the name of State in R.S. Survey settlement. The trial court came to the findings that the proper identification of the disputed land is not disclosed in the plaint. After considering the issues, the trial court dismissed the suit. 7. Aggrieved with this order, the appellant preferred an appeal being Title Suit No. 03. Of 2009 before the appellate Court and the appellate court also came to the findings that the suit property is recorded in the name of State of Bihar now Jharkhand. The State is in possession over the suit property. The State is right owner of the suit property. D.W. 2 is admitted that he does not know about the title and possession over the property. P.W. 3 in paragraph 13 of the cross examination admitted that there is another tank in Mauza kadamdih which is of appellant. P.W. 5 in his deposition stated that he does not know in whose name the tank was recorded. So far as issue of notice under section 80 C.P.C. is concerned, the appellate court has also affirmed the findings of the trial court and after going through the above discussions the appellate court came to the findings that there is no infirmity in the judgment passed by the trial court and the same is affirmed by the appellate court by dismissing the appeal. 8. Aggrieved with these orders, the appellant preferred this second appeal. 9. Learned counsel for the appellants submits that looking into the record it cannot be said that this appellant was not in a possession of this land, which was a subject matter of the suit property. Further, it is submitted that the appellate court has not appreciated the evidence of P.W. 5 in right perspective and has affirmed the order of trial court. 10. Ms. Pooja Kumari, learned counsel for the State submits that P.W. 3,5 and 6 have admitted before the court that they were not knowing about the possession of the Tank. She further submits that so far as the issue no. 3 is concerned, the trial court and appellate court considered this aspect of the matter that the appellant was having knowledge of the settlement started in the year 1957 which was published in the year 1966. 11. She further submits that so far as the issue no. 3 is concerned, the trial court and appellate court considered this aspect of the matter that the appellant was having knowledge of the settlement started in the year 1957 which was published in the year 1966. 11. In view of the above discussions, this Court finds that the argument of Mr. Das cannot be accepted by this Court. In the second appeal, this Court cannot examine the documents which have already been dealt by the trial court and appellate court and concurrent findings of both the courts are there. There is no substantial question of law for consideration, accordingly, this second appeal stands dismissed.