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2019 DIGILAW 1654 (JHR)

Rohini Debi v. Bharat Coking Coal Ltd.

2019-09-17

SANJAY KUMAR DWIVEDI

body2019
JUDGMENT Sanjay Kumar Dwivedi, J. - Heard Mr. M.K. Laik, learned senior counsel for the appellant and Mr. Vijay Kant Dubey, learned counsel for the respondents. 2. The present second appeal has been filed for setting aside the judgment dated 31.01.2017 decree signed on 13.02.2017 passed by the District Judge-XI, Dhanbad whereby the Civil Appeal No. 31 of 2015 has been dismissed and the judgment dated 10.03.2015 passed in T.S. No. 159 of 2002 has been affirmed. 3. The appellants/plaintiffs have filed the suit for recovery of the possession of the suit land by evicting the respondents/defendants which was mentioned in the schedule of the plaint was recorded in the name of Sukar Mahato and Jagarnath mahato, son of Madhu Mahato and other co-sharers but the lands were partitioned between Second Appeal No. 158 of 2017 the co-sharers prior to the preparation of record of right. The suit land i.e. plot no. 481 along with other land were allotted in the heirs of Sukar Mahato and Jagarnath Mahato and their names have been recorded in the remarks column of record of right showing the land under their possession. Sukar Mahato and Jagarnath Mahato partitioned the land mentioned in the schedule below along with other land that fell in the share of Jagarnath Mahato and they remained in continuous possession over the same. There are other lands which were being sold by some persons to the defendants and, therefore, the appellants/plaintiffs and other co-sharers were interested in other plots also so they filed a suit against the defendants including some persons who claimed the land in the Court of Munsif II, Dhanbad registered as Title Suit No. 23 of 1995 the said suit was decided and the court is finally decided the right, title and interest of the plaintiffs along with other persons including the land mentioned in the schedule in favour of the plaintiffs along with other persons including the land mentioned in the schedule in favour of the plaintiffs by his judgment dated 25.02.1999 but during the pendency of the suit the defendant nos. 1 & 2 encroached upon the land mentioned in the schedule on 15.12.96 and assured the appellants/plaintiffs to provide service of the land in question but in spite of several requests by the appellants/plaintiffs they did not provide employment to the appellants/plaintiffs of the suit land which is a valuable and the appellants/plaintiffs are in need of the same for their livelihood and for that, recovery of possession is necessary in the suit land from the defendants who have no right, title, interest over the same whereas the appellants/plaintiffs being the sons of recorded tenant Jagarnath Mahato have got perfect right, title & interest over the suit land and at last they have sought for the decree in favour of the appellants/plaintiffs and against the defendants for recovery of possession of the suit land evicting them from the same with cost of the suit. 4. It was further pleaded that the cause of action of the present suit arose on 15.12.1996 and on 15.11.2002 when the appellants/ plaintiffs requested the defendants/respondents to give vacant possession of the suit lands and on subsequent dates within the jurisdiction of the court. On notice both the defendants/respondents appeared before the court below and filed their written statement in which they have taken regular defence that the suit is wholly misconceived and based on deliberately wrongly projected facts and in that view of the matter the suit is not tenable. The suit is barred under the provisions of Code of Civil Procedure, the Coal Mines Nationalization Act and law of Limitation. The suit is barred under the principles of waiver, estoppel and acquiescence. The suit is speculative one. It is bad for misjoinder for parties in as much as the defendant no. 2 has been unnecessarily made party to the suit. It is further assertions of the defendants that the entries made in the record of rights in course of time has become not of much relevance in view of the change in their favour the contents made in para 3 of the plaint are infructuous and otherwise. It is also evident that besides the plaintiffs other persons are also involved in the affairs related to Title Suit No. 23/95 and thereby the suit is bad for nonjoinder of parties as well. It is also evident that besides the plaintiffs other persons are also involved in the affairs related to Title Suit No. 23/95 and thereby the suit is bad for nonjoinder of parties as well. The contentions of the appellants is both misleading and misconceived as in the event the defendants have encroached the land in the year 1996 during the pendency of the suit, it was the duty of the plaintiffs to get a restrain order by way of injunction from the court against the defendants and the plaintiffs, in failing to do so, decree if any in favour of plaintiffs has been allowed, is to be infructuous one. It was also the case of the defendant that the payment cannot be made on the said basis. The suit has been filed against defendant no. 1 which is a Central Government Company for extort undue benefit. The dates of cause of action mentioned in the plaint are fictitious, however, by not properly valued the suit and the suit value is imaginary one. On the basis of the above pleadings, the trial court has framed the following issues which are as follows:- (i) Whether the suit of the plaintiffs is maintainable in its present from? (ii) Whether the plaintiffs have any cause of action for the present suit? Second Appeal No. 158 of 2017 (iii) Whether the suit of the plaintiffs is barred under the provision of C.P.C.? (iv) Whether the suit of the plaintiffs is barred by the law of limitation? (v) Whether the suit of the plaintiffs is barred under the principles of estoppel, waiver and acquiescence? (vi) Whether the suit of the plaintiff is barred for misjoinder and non-joinder of necessary parties? (vii) Whether the suit of the plaintiffs is barred by the Coal Mines Nationalization Act? (viii) Whether the suit of the plaintiffs are entered as the raiyats of the suit land and if so what is its effect. (ix) Whether the suit of the defendants has encroached on the suit-land and whether the plaintiffs are entitled for recovery of possession on the same? (x) For what relief or reliefs the plaintiffs is entitled to? 5. (viii) Whether the suit of the plaintiffs are entered as the raiyats of the suit land and if so what is its effect. (ix) Whether the suit of the defendants has encroached on the suit-land and whether the plaintiffs are entitled for recovery of possession on the same? (x) For what relief or reliefs the plaintiffs is entitled to? 5. The trial court after discussing the documents and the evidence available on record came to the findings that the plaintiffs not only the exclusive owner of the suit land but the heirs of the recorded tenant late Sukar Mahto have also got right, title and interest on the suit plot as declared and they are in joint possession over the same. Accordingly, the issue no. 8 which was with regard to plaintiffs are entered as the raiyots of the suit land and accordingly, the parity in favour of the plaintiffs to the extent that they have got ownership on the suit land jointly with the heirs of the said recorded joint tenant late Sukar Mahto. The trial court also came to the finding that the PW 3 as stated that he knows that his service is considered by the BCCL on giving 2 acres of land, but, the plaintiffs/appellants have filed this suit only in relation to 17 decimals of the land. So no cause of action is given by the plaintiffs has ever arisen to the plaintiffs. After discussing of the facts and the witnesses, the trial court dismissed the suit. Aggrieved with this, the appellant filed Civil Appeal No. 31 of 2015 which was decided by the judgment dated 31.01.2017 by the District Judge-XI, Dhanbad. 6. The appellate court considered the appeal and after examining evidences on behalf of the parties and the documents which are exhibited in the court below he came to the findings that P.W.1 in paragraph 20, P.W. 3 in paragraph 16 have stated in their respective cross-examination that the suit land is under the possession of the plaintiffs and for this reason also the suit on behalf of the plaintiffs for the recovery of possession is not maintainable. After much deliberations and discussions, the appellate court came to the findings that there is no illegality in the judgment passed by the trial court and accordingly the appeal was dismissed by the appellate court. 7. After much deliberations and discussions, the appellate court came to the findings that there is no illegality in the judgment passed by the trial court and accordingly the appeal was dismissed by the appellate court. 7. Aggrieved with these orders, the second appeal has been preferred by this appellant. 8. Mr. M.K. Laik, learned senior counsel appearing for the appellant argues that in paragraph 14 of the said judgment, the appellate court has held that the Title Suit No. 23/1995 becomes infructuous and there can never have been multiplicity of the subject matter. He argues that the appellate court wrongly coming to that finding when the decree in title Suit No. 23/95 was already there. 9. Mr. Vijay Kant Dubey, learned counsel appearing for the respondent BCCL submits that the trial Court and the appellate court have minutely entered into the evidence of the witness and the documents on record and after discussing the same came to the findings that the case of the recovery of the possession has been made by the appellant and thus there is no illegality in the judgment of the trial court as well as the appellate court. He further argues that there are concurrent findings of both the courts and both the courts are the facts finding court. 10. After going through the above discussions, looking into the documents and arguments advanced by the parties, this Court is of the conscious of the fact that this Court is sitting under section 100 of the Code of Civil Procedure which is restricted only to the fact that if any substantial question of law is involved then only the second appeal can be entertained when there is two fact findings court came to a concurrent findings, this Court is not inclined into entered into the merit of arguments advanced by the learned counsel for the appellants with regard to the examining of the documents, this Court further finds that there is no substantial question of law involved in this case. 11. Accordingly, the second appeal stands dismissed.