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2019 DIGILAW 1713 (JHR)

Muslim Ansari v. Sakur Mian

2019-09-27

SANJAY KUMAR DWIVEDI

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JUDGMENT : Sanjay Kumar Dwivedi, J. 1. Heard Mr. R.N. Sahay, learned senior counsel appearing for the appellants. 2. The appellants has preferred this second appeal against the judgment and decree dated 30.11.2015 and 08.12.2015 respectively passed by District Judge-1, Giridih in T.A. No. 15 of 2014 affirming the judgment and decree dated 31.01.2014 and 12.02.2014 respectively. 3. The appellants instituted the suit for partition with respect of land comprises under Khata no. 6 of village-Padamtola, appertaining to plot nos.75 and 76 recorded previously in the name of Devi Mian, who transferred the said land through registered sale deed in favour of Bibi Ritia (ancestor of defendants) and one Gani Mohamman (ancestor of plaintiffs). The appellants/plaintiffs made a case before the court below that Devi Mian had acquired the land of khata no.6 an area measuring 8 acres from the ex-landlord by settlement and the said Devi Mian transferred the said land in favour of Bibi Ritia and Gani Mohammad being the daughter-in-law and grandson through registered sale deed and since thereafter Bibi Ritia and Gani Mohammad were enjoining the said land jointly. It was further case of the appellants/plaintiffs that Bibi Ritia died leaving behind two sons namely, Sakur Mian and Rajjak Mian (Defendant nos.1 and 2) who inherited the said land through their mother. It was further case of the appellants/plaintiffs that Gani Mohammad had purchased the said land along with Bibi Ritia by paying half consideration money and in this way plaintiff being the surviving legal heirs of Gani Mohammad is entitled to have half share in the said property. It was further case of the appellants/plaintiffs that name of Bibi Ritia and Gani Mohammad have also been mutated in the office of State and they are paying rent jointly. It was further case of the appellants/plaintiffs that due to efflux of time plaintiffs being the brother of Gani Mohammad fell inconvenience in payment of rent for the said land, hence they demanded partition to the suit land but the defendant evaded their demand. It was further case of the appellants/plaintiffs that due to efflux of time plaintiffs being the brother of Gani Mohammad fell inconvenience in payment of rent for the said land, hence they demanded partition to the suit land but the defendant evaded their demand. It was further case of the appellants/plaintiffs that plaintiffs have decided to get the land bifurcated and for this they filed a petition before the Anchaladhikari Jamua and in pursuant to the said petition Halka Karmchari was directed to submit inquiry report and after verification of spot Halka Karmchari submitted his report on 18.01.2008 thereby submitting that the lands had been acquired in the name of Bibi Ritia and Gani Mohammad and their names being entered in the registered-II of the said village. After perusing the Revenue records, sale deed and inquiry report, Anchaladhikari Jamua vide case non 368/2007-2008 was pleased to bifurcate the rent of the appellants/plaintiffs from the defendants and accordingly correction slip was issued and thereafter appellants/plaintiffs were paying rent only for 4 acres and obtained the rent receipts under khata no. 6 plot nos. 75 and 76. It was further case of the appellants/plaintiffs that defendant nos.1 and 2 in order to grab the entire land manufactured a forged Hukumnama in the name of Bibi Ritia with respect of the suit land and tried to remove the word (wagairah) from the page no. 34/1 of Register-II. 4. The respondents/defendants filed Mutation Appeal bearing no.148/2008-09 before the court of L.R.D.C, Giridih in which respondents/defendants have filed forged Hukumnama and claimed the entire 8 acres of the plot no. 75 and learned L.R.D.C. has committed error in passing the order in favour of the defendant nos. 1 and 2 and thereby directed the Anchaladhikari, Jamua to remove the name of Gani Mohammad from page no. 34/1 of Register-II of village Padamtola. The order passed by the L.R.D.C in Mutation Appeal no. 148/08-09 dated 13.02.2010 liable to be declared illegal order. The appellants/plaintiffs requested the respondents/defendants for partition of the land but they refused, hence the suit was instituted. 5. 34/1 of Register-II of village Padamtola. The order passed by the L.R.D.C in Mutation Appeal no. 148/08-09 dated 13.02.2010 liable to be declared illegal order. The appellants/plaintiffs requested the respondents/defendants for partition of the land but they refused, hence the suit was instituted. 5. The respondents/defendants appeared in the suit and contended that it is quite false to say that suit land had been acquired by Devi Mian from the ex-landlord and according to him one Bhola Mian of village Chahal P.S. Deori, being the father of Bibi Ritia has requested to the landlord of village Padamtola to settle an area of 10 bighas of land which was recorded at G.M. Khas in the names of the then landlord Babu Barmeshwar Prasad, Babu Aditya Prasad and Babu Akhileshwar Prasad under Khata no. 6 plot no. 75 and upon his request the then landlords settled 10 bighas of land equivalent to 8 acres on payment of Rs. 95 as Nazrana and fixing rental of Rs. 3/- and 12 annas in favour of his daughter Bibi Ritia. The respondents/defendants further pleaded that Bibi Ritia agreed to the proposal of her father Bhola Mian and accepted the settlement 10 bighas of land in her name in lieu of her dukhatri share in the properties of her father after his demise. It was further case of the respondents/defendants that the then landlord orally settled the said 10 bighas of land and put her in possession of the same and confirmed his oral settlement by executing a plain hukumnama on 15th day of 1345 fasli and confirmed the said settlement by accepting rent. It was further case of the defendants/respondents that Bhola Mian the father of Bibi Ritia managed to get acquired 10 bighas of land in favour of his daughter that become jealous to another son of Devi Mian i.e. Degan Mian as also son of Dega Mian namely, Gani Mohammad and they very clandestinely got a farzy and sham deed executed in favour of Ritia and Gani Mohammad only in order to grab the land of Bibi Ritia and all this act made it in a top secret. The name of the purchasers have been mutated and purchasers were and are paying rent to the suit. The name of the purchasers have been mutated and purchasers were and are paying rent to the suit. It was further case of the appellants/plaintiffs that Bibi Ritia has automatically been registered in Register-II on the submission by the ex-landlord of village Padamtola in Compensation Case No. 1923/56-57 as the name of Bibi Ritia find place of serial no. 35 of that return. That in the year 2008 appellants/plaintiffs deed manipulation in Register-II in collusion of Anchal staff and got the name of Gani Mohammad inserted with Bibi Ritia and this fact has been challenged by the respondents/defendants before the L.R.D.C Giridih in Mutation Appeal No. 86/09-10/148/08-09 and the learned L.R.D.C has found the forgery and manipulation in Register-II at page no. 34 and directed to delete the name of Gani Mohammad and further directed for departmental enquiry against the staff. The respondents/defendants have denied the possession of Gani Mohammad and the plaintiffs over any inch of suit land. The respondents/defendants have denied of execution of any sale deed, opening of jamabandi jointly in the name of Bibi Ritia and Gani Mohammad and further possession of Gani Mohammad and the plaintiffs over the suit land. 6. On the basis of above pleadings the trial Court framed following issues to decide the case:- (i) Is the suit maintainable in its present form? (ii) Has the plaintiff cause of action for the suit? (iii) Whether the suit property has been jointly purchased by Bibi Ritia the mother of defendant no.1 and Gani Mohammad the brother of plaintiffs by virtue of registered deed of sale vide no. 8481 dated 17.12.1954 is legal and valid documents? (iv) Whether the plaintiffs are entitled for 1/2(half) share in suit land on the basis of sale deed no. 8481 dated 17.12.1954? (v) Whether the sada Hukumnama in the name of Bibi Ritia of the year 1938 is a legal and valid document? (vi) Whether the Jamabandi in the name of Bibi Ritia and Gani Mohammad have been opened on the basis of the sale deed no.8481 dated 17.12.1954 or the Hukumnama in the name of Bibi Ritia of the year 1938? (vii) Whether the order dated 13.02.2010 passed by the L.R.D.C Giridih in mutation appeal no. 86/09-10/147/08-09 is liable to be set aside? (viii) Are the plaintiffs entitled for decree in the suit? 7. (vii) Whether the order dated 13.02.2010 passed by the L.R.D.C Giridih in mutation appeal no. 86/09-10/147/08-09 is liable to be set aside? (viii) Are the plaintiffs entitled for decree in the suit? 7. The trial Court entered into all the issues and examined the documents exhibited by the parties and discussed the evidences adduced by the parties and came to the findings that the appellants/plaintiffs failed to prove their case and accordingly the suit was dismissed. 8. Aggrieved with the above order the appellants/plaintiffs filed a Title Appeal No. 15 of 2014 which was dismissed vide judgment dated 30.11.2015 by the learned District Judge-1, Giridih. The appellate court also entered into lis and after going through the trial Court judgment framed following points:- I. Whether the learned trial Court was justified in holding that sale deed dated 17.12.1954 is an illegal documents and plaintiffs are not entitled to 1/2 share on the basis of aforesaid sale deed? II. Whether the learned trial Court was justified in holding that suit of the plaintiff was also hit by the non-joinder of the necessary parties? 9. The appellate court entered into the discussion and discussed the documentary evidences filed by the appellants/plaintiffs i.e. certified copy of the registered sale deed certified copy of Register-II, certified copy of correction slip, certified copy of Karamchari Report, certified copy of order dated 13.02.2010 and some government rent receipts filed by the appellants/plaintiffs considered by the appellate court. On perusal of the aforesaid documents the appellate court came to the finding that appellant/plaintiff did not bring any documents to establish title of Devi Mian over the suit land. The appellant court also not found the name of Zamindar of the village Padamtola from whom it is alleged that Devi Mian had acquired the land. On the very basis of the claim of the plaintiff over the suit land is the sale deed and subsequent to the entry of Gani Mohammad in Register-II. 10. The appellant court also not found the name of Zamindar of the village Padamtola from whom it is alleged that Devi Mian had acquired the land. On the very basis of the claim of the plaintiff over the suit land is the sale deed and subsequent to the entry of Gani Mohammad in Register-II. 10. The Appellate Court examined the documents relied by the respondents/defendants which are the certified copy of order sheet passed by D.C.L.R by which he passed an order for deletion of the name of Gani Mohammad from the Register-II, the certified copy of Register-II, the certified copy of return of the suit land exclusively in the name of Bibi Ritia, the Register-II of the suit land i.e. also exclusively in the name of Bibi Ritia, the several original zamindari rent receipts with respect of the suit land that bears the name of ex-landlord and the name of Bibi Ritia, the Hukumnama in the name of Bibi Ritia of the year 1345 fasli. The respondents/defendants have deposed that the name of landlord of village Padamtola in its written statement has also found place in the name of Zamindari receipts, Hukumnama and other papers. The respondents/defendants have filed copy of return, Zamindari receipts (Ext. D series), Hukumnama (Ext.F), certified copy of Register-II, who examined all these documents and the appellate court came to the finding that the case of the respondents/defendants that ex-landlord of Mouza, Padamtola has been settled in favour of Bibi Ritia only. Apart from the above the appellate court has also taken into note that the order of D.C.L.R passed in Mutation Appeal no. 86/09-10/148/08-09 filed by the parties, wherein the order dated 13.02.2010 passed by D.C.L.R in the aforesaid Mutation Appeal reveals that an exhaustive order has been passed and after considering the documents as well as the argument and lastly that D.C.L.R has passed the order to delete the name of Gani Mohammad from the Register-II, as he found the name has been entered illegally in collusion with the staff of the Circle Office and that proceeding it was also directed to initiate a preoceeding against the staff who made this conspiracy. The said order was not challenged by the appellants/plaintiffs in any Revenue Court. The said order was not challenged by the appellants/plaintiffs in any Revenue Court. The appellate court had also discussed the evidences of the witnesses and came to the finding that there is no infirmity in the judgment of the trial court and dismissed the appeal and affirmed the order of the trial Court. 11. Mr. R.N. Sahay, learned senior counsel appearing for the appellants submits that the sale deed is the registered document which has not been considered by both the courts below in right perspective. He further submits that there is presumption of registered sale deed in favour of appellants/plaintiff. He further relied a judgment in the case of Vishwanath Bapurao Sabale Vrs. Shalinibai Nagappa Sabaleana and others reported in (2009) 12 SCC 101 in which in para 12 and 27 the Hon’ble Supreme Court was held as under:- 12. All the four deeds executed on 02.07.1955 are registered documents. They carry a presumption of valid execution. There is no proof to show that the said documents were sham or nominal. The learned courts below have clearly held that the appellant failed to discharge the heavy onus on him. We would however consider the contentions raised before us independently. 27. There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, Respondent 1 has not been able to rebut the said presumption. 12. He further submits that the said signature of Rameshwar Prasad in Hukumnama was not proved and during evidence no one has come forward to show this is genuine. 13. He further submits that D.W.2 is hearsay witness. 14. Having, heard learned counsel for the appellants this court finds that both the courts below have entered into detailed discussion of the documents and evidences adduced by the parties to decide the lis. This Court is conscious of the facts that in civil cases the documents are being fabricated, thus the court has to be very careful in relying on the documents, but D.C.L.R has found that name of Gani Mahammand has been entered illegally in collusion of the staff of the Circle office and for that directed to initiate a proceeding against the staff which was not challenged by the appellants/plaintiffs before the Revenue Court. This court further finds that interpreting the documents and discussing the evidences there is no perversity by the courts below and after discussing every aspect of the matter minutely both the courts came to the concurrent finding in this regard. Reference may be made in case of P. Chandrasekharan and Others Vrs. S.Kanakarajan and Others which says that 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 the jurisdiction under Section 100 C.P.C 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. The case relied by the learned counsel appearing for the appellant in the case of Vishwanath Bapurao Sabale Vrs. Shalinibai Nagappa Sabaleana and others (Supra) is distinguishable of the facts and circumstances of the case. The ratio of judgment needs to be taken into consideration in view of the fact of the case. In the case relied by Mr. R.N. Sahay, learned counsel for the appellants adverse possession was also involved and here the case in hand appellants/defendants have not been able to prove their case and it was onus of appellants/plaintiffs to prove their case which they failed to prove, hence this court finds that there is no substantial question of law involved in this second appeal, and accordingly the same stands dismissed.