Bhim Kamar, S/o Late Jyoti Lal Karmkar and Late Mutu Devi v. Dhanu Mandal, S/o Late Bishun Mandal
2019-09-17
SANJAY KUMAR DWIVEDI
body2019
DigiLaw.ai
JUDGMENT : 1. Heard Mr. Kaisar Alam, learned counsel appearing for the appellant. 2. The present second appeal has been filed by the appellant against the judgment dated 15.07.2016 and decree dated 27.07.2016 passed by the District Judge-VI, Dhanbad in Title Appeal No.52/2014 whereby the appellate court has dismissed the appeal of the appellant and thereby confirming the judgment dated 23.06.2014 and decree dated 03.07.2014 passed by the Civil Judge (Sr. Div.)-V, Dhanbad in Title Suit No.208/2008. 3. The appellant has filed the Title Suit being Title Suit No.208/2008 for the following reliefs: (a) For a decree for declaration of the right, title and interest of the plaintiffs over the lands described in Schedule-A. (b) For a decree for confirmation of possession of the plaintiffs over schedule a property and in the alternative for a decree for recovery of possession over the schedule ‘A’ land if the plaintiffs are found dispossessed during the pendency of the suit. (c) For a decree for permanent injunction restraining the defendants from dispossessing the plaintiffs from the land described in the schedule A below. (d) For a decree for cancellation of the Registered deed of partition no.4842 dated 9.11.36. (e) For a decree for costs of the suit. (f) For a decree for any other relief or reliefs. 4. The appellant/plaintiffs made out a case before the court below that the land situated in Mouja Kolakusma, Mouza No.12 of Khata No.3 originally belong to and was in possession of Ananda Kamar & Chamu Kamar as such the land of Khata No.3 had been recorded in their names in the record of cadastral survey. The aforesaid Raiyat remained in possession of the land of Khata No.3 and while in possession one of the recorded raiyat Chamu Kamar died issue-less and hence other recorded raiyat Anand Kamar become the sole owner of the land of Khata No.3 and remained in possession of the said land. After his death his legal heirs came in possession of the land and presently plaintiffs being the successor in interest of late Anand Kamar are possessing the land of Khata No.3 and they have absolutely right, title and interest over it. The further case of the appellant/plaintiffs that the defendants was started creating trouble on their peaceful possession over the lands described in schedule A of the plaint without having any right and title over that land.
The further case of the appellant/plaintiffs that the defendants was started creating trouble on their peaceful possession over the lands described in schedule A of the plaint without having any right and title over that land. In order to set up a false right over the suit property the defendants managed to institute a proceeding under Section 144 of the Code of Criminal Procedure through M.P. Case No.1483/07. The said case was converted in the proceeding under Section 145 of the Code of Criminal Procedure. It was pleaded before the court below that from the written statement filed by the defendants in the said proceeding they came to know for the first time about registered partition deed in the year 1936, being registered Partition Deed No.4824 dated 09.11.1936. Further pleaded that the non-payment of certificate debt the land of Khata No.3 of Mouja Kola Kusum was put in public auction for the recovery of the debt. The predecessor in interest of the plaintiffs Chutu and Chamu were illiterate person having no knowledge of legal proceeding and hence took help of Girish Mandal and Sukhlal Mandal at the time of the Certificate Case No.11 of 1935-36. It was further case of the appellant/plaintiffs that the aforesaid auction sale Chotu Kamar & Chamu Kamar, the predecessors in interest of the plaintiffs purchased their property but taking advantage of their illiteracy and ignorance, Girish Mandal and Sukhlal Mandal managed to get their names included in the auction sale and also in other relevant papers in spite of fact that they made no contribution of money in the auction sale. The defendants have appeared in the suit and filed their written statement in two sets i.e. besides taking plea that the suit is not maintainable plaintiffs have not valid cause of action for the suit, the suit is bad for misjoinder and non-joinder of the parties, the suit is hopelessly barred by law of limitation, the suit is undervalued, it has been pleaded that the land of Khata No.3 of Mouja Kola Kusma stood recorded in the name of Anand Kamar and Chamu Kamar in the cadastral survey of record of right. The respondent/defendants further pleaded that the land of Khata No.3 of Mouja Kola Kusma measuring total area 11.8 acres was mortgaged by Anand Kamar for benefit of his family members.
The respondent/defendants further pleaded that the land of Khata No.3 of Mouja Kola Kusma measuring total area 11.8 acres was mortgaged by Anand Kamar for benefit of his family members. As he could not pay the debt a certificate case was lodged against him and entire land i.e. 11.8 acres of land in Khata No.3 was put into public auction by the then certificate officer. In the said auction proceeding the land was purchased jointly by Girish Mandal, Sukhu Mandal (predecessor in interest of plaintiffs) and they remained in possession over their purchased land of Khata No.3. As the total area of the land of Mouja Kolakusma put auction sale which were purchased jointly by predecessor in interest of defendants and predecessor in interest of the plaintiffs, the predecessor in interest of defendants came in possession of ½ share of Khata No.3 and predecessor in interest of plaintiffs came in possession of remaining ½ share. At that time defendants was in possession of the said land and had valid right and interest and possession over the same but the plaintiffs have unnecessarily and with ulterior motive have made the said land the subject matter of the present suit. It was further pleaded that the plaintiffs are fully aware of the said auction sale and one of the predecessor of the plaintiffs, Ratan Kumhar have accepted the partition deed under challenge, in a sale deed executed by him in the year 1959. It was further pleaded by the defendants that after purchase in public auction the certificate no.11/35-36 was issued and the execution case was filed for possession of the premises and the same was delivered by Astt. Nazir on 21.03.1936 after observing all the necessary formalities and after taking possession of the premises receipt was granted by the purchasers and the receipt of delivery of possession was granted to the aforesaid auction purchaser namely Girish Mandal, Suku Mandal, Chamu Kamar and Chutu Kamar. It was further pleaded that since 1936 the suit lands are coming for the possession of the defendants through their predecessor in interest. Lastly it was submitted that on basis of auction purchased of the suit land, they have all right, title and valid possession over the suit land. 5. On the above facts and circumstances the learned Civil Judge, (Sr. Div.)-V, Dhanbad framed the following issues: (I) Whether the suit is maintainable?
Lastly it was submitted that on basis of auction purchased of the suit land, they have all right, title and valid possession over the suit land. 5. On the above facts and circumstances the learned Civil Judge, (Sr. Div.)-V, Dhanbad framed the following issues: (I) Whether the suit is maintainable? (II) Whether the plaintiffs have valid cause of action for the suit? (III) Whether the plaintiffs have right, title, interest & possession over the suit land? (IV) Whether if the plaintiffs found dispossessed from the suit land during the pendency of the suit then their possession can be recovered? (V) Whether the Regd. Deed of partition no.4024 dt. 9.11.1936 is a collusive and fabricated document and liable to be cancelled? (VI) Whether the defendants are in possession over the portion of suit land by purchase in auction sale? (VII) Whether the plaintiffs are entitled to any other relief or reliefs? 6. The issue no.3 to 6 were the main issues in deciding the suit, all the issues were taken up by the learned trial court jointly and after discussing the documents which were exhibited, the trial court came to the finding that the defendants have successfully defeated the claim of the plaintiffs with regard to the right, title and interest over the entire land of Khata No.3 of Mouja Kola Kusum are in the possession of the defendants. 7. So far as the plea of the plaintiffs with regard to the registered partition deed of the year 1936 when the written statement was filed by the defendants in M.P. Case No.1483 of 2007 and they came to know about the registered partition deed, (Ext.C & C/1), this plea was not accepted by the trial court in view of the fact that the appellant/plaintiffs have not produced any documents on record to show that they were in possession of the entire land of Khata No.3, Mouja Kola Kusuma. 8. After coming to the conclusion with a detailed judgment passed by the learned Civil Judge (Sr. Div)-V came to the finding and the suit was dismissed on contest and parties were directed to bear their respective costs of the suit. 9. Aggrieved with the same, appellant has preferred the title appeal being Title Appeal No.52 of 2014 which was heard by the learned District Judge-VI, Dhanbad and was disposed of vide judgment and decree dated 15.07.2016 and 25.07.2016 respectively.
9. Aggrieved with the same, appellant has preferred the title appeal being Title Appeal No.52 of 2014 which was heard by the learned District Judge-VI, Dhanbad and was disposed of vide judgment and decree dated 15.07.2016 and 25.07.2016 respectively. The appellate court has examined all the documents and witnesses and the issues framed by the court and came to the finding that the judgment delivered by the court below is well founded and accordingly, the title appeal was dismissed on contest. 10. Aggrieved with the judgment dated 15.07.2016 passed in the Title Appeal No.52 of 2014, the appellant has preferred this second appeal before this Court. 11. Mr. Kaisar Alam, learned counsel appearing for the appellant submits that both the courts have failed to consider the evidence led by the appellant which states about the possession of the appellant in a positive manner in favour of the appellants. 12. He further submits that since there was no knowledge to the plaintiffs about the registered partition deed of the year 1936 and that is why the plaintiffs have not been able to challenge earlier. 13. He further submits that Anand Kamar was entitled to get the ½ share of the land and this aspect of the matter, it has not been considered in the right perspective by the court below. 14. This Court has perused the judgment of the first as well as the appellate court and the documents, oral as well as the documentary evidences discussed at length and after discussing all the facts, the two fact finding courts have come to the conclusion that the appellants have not been made out a case for interference by this Court. This Court is conscious of the fact that this Court is sitting under Section 100 of the Code of Civil Procedure, which has limited jurisdiction inter alia would become exercisable when the findings are based on misreading of evidence or so perverse that no reasonable person of ordinary prudence could take the said view. Reference in this regard may be made to the Judgment rendered by the Hon’ble Supreme Court in the case of P. Chandrasekharan v. S. Kanakarajan, reported in (2007) 5 SCC 669 , wherein at paragraph nos.12 and 13 which is quoted hereinbelow: 12. There cannot be any doubt whatsoever that a substantial question of law is different from a question of law.
There cannot be any doubt whatsoever that a substantial question of law is different from a question of law. Interpretation of a document which goes to the root of the title of a party to the lis would indisputably give rise to a question of law. 13. In Rev. Fr. M.S. Poulose v. Varghese interpretation of the recitals contained in a document was held to be involving a substantial question of law. What is prohibited for the High Court while exercising this jurisdiction under Section 100 CPC is to interfere with a finding of fact. This limited jurisdiction, inter alia, would become exercisable when the findings are based on misreading of evidence or so perverse that no reasonable person of ordinary prudence could take the said view. 15. This Court finds that there is no substantial question of law and accordingly, the Second Appeal stands dismissed.