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2019 DIGILAW 1805 (JHR)

Jagarnath Bhagat (Oraon) v. Deepak Bhagat

2019-10-23

SANJAY KUMAR DWIVEDI

body2019
JUDGMENT : 1. The appellants have preferred this Second Appeal against the judgment and decree dated 07.06.2017 and 27.06.2017 respectively, passed by learned Principal District Judge, Gumla in Title Appeal No. 15 of 2015, whereby the appeal was dismissed and the judgment and decree dated 27.06.2015 and 10.07.2015 respectively, passed by learned Civil Judge, (Senior Division)-II, Gumla, in Title Suit No. 15 of 2010 has been confirmed. 2. The case of the respondents/plaintiffs is that the respondents/plaintiffs are by caste “Oraon” and are governed by the “Oraon Customary Law” and as per this law, the daughters and widow are not entitled to inherit the property left by male Oraon. It has further been submitted that the lands of R.S. Khata No. 53, total area about 20.07 acres is jointly recorded in the name of Perla Oraon and Mani Oraon and separate shares of both the recorded tenants, have been shown in the Records of Right but in fact, there was no partition among the recorded tenants by metes and bound and even after the death of recorded tenants, they were joint.. Further case of the respondents/plaintiffs is that the ancestor of the plaintiffs, namely, Karma Oraon died leaving behind his two sons namely, Perla Oraon and Mani Oraon and Mani Oraon died unmarried in jointness with his brother Perla Oraon just after R.S. Operation in or about 1936-37 and after his death his interest devolved upon the elder brother Perla Oraon, who also died in the year 1965 leaving behind his two sons, namely, Bifai Oraon and Bhakru Oraon. Bifai Oraon died issueless in the year 2009, whereas Bhakru Oraon died prior to the death of his elder brother Bifai Oraon leaving behind his three sons, who are the respondents/plaintiffs. Further, Appellant No.01/Defendant No.01 Jagarnath Bhagat initiated a proceeding u/s 145 of the Code of Criminal Procedure being M. Case No. 380 of 2009 for the lands of Plot No. 621 of Khata No.53, area 01 acre, in which after notice respondent Nos.2 and 3/plaintiff Nos. 2 and 3 appeared . It was further case of the plaintiff that appellant no.1/defendant no.1 filed a registered sale deed bearing Registration No. 719 of 1940 dated 29.04.1940 executed by Mani Oraon, S/o Kama Oraon in favour of Mangru Oraon, S/o Birsai Oraon and the said proceeding was converted into u/s 145 of the Code of Criminal Procedure. 2 and 3 appeared . It was further case of the plaintiff that appellant no.1/defendant no.1 filed a registered sale deed bearing Registration No. 719 of 1940 dated 29.04.1940 executed by Mani Oraon, S/o Kama Oraon in favour of Mangru Oraon, S/o Birsai Oraon and the said proceeding was converted into u/s 145 of the Code of Criminal Procedure. Before initiation of the said proceeding, the appellants/defendants or their predecessor in interest have never claimed the said land through the said sale deed and never came into possession over the lands mentioned in the sale deed. Since the appellants/plaintiffs had no idea and no knowledge about the sale deed, therefore, when they came to know about execution of that sale deed, they obtained certified copy and found that the said sale deed was forged one, executed by fictitious person because at that time Mani Oraon was not alive. 3. On the basis of that sale deeds, the appellants/defendants never came into possession over the suit land and for the first time, the appellants/defendants in connivance with the Halka Karmachari obtained their rent receipts in the name of Kandra Oraon from the year 2005-2006 and due to this reason the area for which the rent was being issued in favour of the respondents/plaintiffs was reduced. Since on the date of execution of the sale deed, the executor Mani Oraon was not alive, therefore, the said deed is forged, fabricated and it is liable to be declared forged and not binding upon the respondents/plaintiffs. The Cause of Action for the suit arose on 07.09.2009, i.e. the date, on which the photocopy of sale deed No. 719 of 1940 was filed by appellant no.1/defendant no.1 in the Court of Sub. Divisional Officer, Gumla and on the same day, the respondents/plaintiffs came to know about the execution of the sale deeds and on 11.11.2009 when the respondents/plaintiffs obtained the certified copy of the sale deed. 4. Divisional Officer, Gumla and on the same day, the respondents/plaintiffs came to know about the execution of the sale deeds and on 11.11.2009 when the respondents/plaintiffs obtained the certified copy of the sale deed. 4. The appellants/defendants appeared and filed their written statement and claimed that the suit filed by the respondents/plaintiffs is false, non-covenant and not maintainable and it is also barred by Law of Limitation and the appellants/defendants have admitted that the averments made in para 2 of the plaint up to 8 lines, which relates to the preparation of Records of Right, in the joint name of Perla Oraon and Mani Oraon is correct and that has been admitted by the appellants/defendants but they denied this fact that there was no partition in between the parties by metes and bounds and they claimed that during the lifetime of the recorded tenants, there was a partition in between both the parties and both the brothers were cultivating the lands in accordance with their respective shares. The plaintiffs/defendants also admitted the averment made in para 3 of the plaint, which relates to the Genealogical Table, except that according to the appellants/defendants Mani Oraon was alive in the year 1936-37 and he was in possession over his share of land and he was cultivating the lands. Appellants/defendants also partly admitted the averment made in para 4 of the plaint and partly denied but they have not specifically stated, which part of the statement made in the para 4 of the plaint is incorrect. The appellants/defendants further claimed that the averment made in para 5 of the plaint is false and claimed that they had no knowledge about the initiation of the proceeding u/s 145 of the Code of Criminal Procedure. The appellants/defendants further claimed that the averment made in para 5 of the plaint is false and claimed that they had no knowledge about the initiation of the proceeding u/s 145 of the Code of Criminal Procedure. They also denied the averment made in para 6 of the plaint, which relates to initiation of the proceeding u/s 144 of the Code of Criminal Procedure and its conversion into the proceeding u/s 145 of the Code of Criminal Procedure and claimed that in the year 1936-37 Mano Oraon was alive and he had no son, therefore, he sold his land in respect of his share to Mangra Oraon, the grandfather of the appellants/defendants and after receiving the consideration amount, he executed a sale deed on 29.04.1940 and after purchase of the said land Mangra Oraon, came into possession over the suit land and after his death, his sons and grandsons came into the possession over the same and the land was also mutated and the rent receipts were being issued in the name of appellants/defendant’s father’s Kandru Oraon. The recent survey Draft Publication of the Records of Right has also been prepared in the name of Kandru Oraon, who was the father of the appellants/defendants. Since the grandfather of the appellants/defendants, namely, Mangra Oraon had purchased the suit land from Mani Oraon on 29.04.1940, therefore, there was no need to obtain the permission from the Deputy Commissioner and during that period, Oraon can sale the land to another Oraon. 5. On the basis of the above pleadings of the parties the Trial Court entered into the lis and formulated the issues for deciding the suit. Issue nos.5 and 6 were formulated with regard to Sale deed No. 719 dated 29.04.1940, as to whether it has been executed or the sale was valid or not. While deciding issue nos. 5. On the basis of the above pleadings of the parties the Trial Court entered into the lis and formulated the issues for deciding the suit. Issue nos.5 and 6 were formulated with regard to Sale deed No. 719 dated 29.04.1940, as to whether it has been executed or the sale was valid or not. While deciding issue nos. 5 and 6, the Trial Court has considered the Exhibits as well as the evidences adduced by the parties and came to the finding that Sections 46 and 72 of the Chotta Nagpur Tenancy Act, 1947 came into effect retrospectively i.e. with effect from 1942, whereas the sale deed was executed in the year 1940 and at that time there was no need of taking permission of the Deputy Commissioner, in view of further amendment and that has been well settled by the High Court and he relied upon the decision of the High court and after discussing the entire issues, the Trial Court decreed the suit in favour of the plaintiffs. 6. Aggrieved with that, the appellants filed Title Appeal No. 15 of 2015 in the court of Principal District Judge, Gumla. The appellate court below recasted the issues on the basis of pleadings and arguments advanced by the parties and while deciding issue nos. 5, 6, 9 and 10 came to the finding that the Trial Court has considered the oral as well as documentary evidence and while considering the documentary evidence adduced on behalf of the parties in para 17 of the impugned judgment and decree, learned court below held that Ext. 1 to Ext. 1/J are related with the lands of Khata No. 53, the rent receipts issued in the name of Perla Oraon, the grandfather of the plaintiffs/respondents and Ext.2 and Ext.2/A are the Banda Purcha issued in the name of the father of Bhakru Oraon, the plaintiffs/respondents, Ext.5 is the Khatiyan of Khata No.53 which is in the name of Perla Oraon and Mani Oraon showing total area of land as 20.09 acres. Ext.3 and Ext. Ext.3 and Ext. A, which are sale deed being Sale Deed No.719 of 1940 dated 29.04.1940 shows that through this sale deed the recorded tenant Mani Oraon sold 4.86½ acres of land to Mangra Oraon and he further held that there is no document produced on behalf of the parties to show that there was a partition in between Perla Oraon and Mani Oraon. The learned Court below came to the finding that from the perusal of Ext.3 sale deed No.719 of 1940 dated 29.04.1940, it is apparently clear that the person, who scribed the deed is the person, who put signature on behalf of Mani Oraon. The learned court below further held that from the evidence adduced on behalf of the parties, it is not clear whether Mani Oraon was literate or not or whether he used to put his signature or thumb impression, which creates a doubt. While, Learned court below has considered the Ext.B series held that except Ext. B/12 all rent receipts were being issued in the name of Mangra Oraon, whereas Ext.B/12 was issued in the name of Kandru Oraon and while considering Ext.B/2 which is the rent receipt was issued in the name of Mangra Oraon and the date of issuance of this receipt is of 04.05.1938, it was negated because Sale Deed No.719 of 1940 is said to be executed on 29.04.1940 and the date of issuance of this receipt is prior to the execution of the sale deed, which made it clear that the receipt filed on behalf of defendants/appellants is forged one. Apart from that the appellants/defendants have not produced any documentary evidence in support of Sale Deed No.719 of 1940 to corroborate Ext.A (Sale Deed). Learned court below also came to the finding that when the defendants’ grandfather Mangra Oraon had purchased the land in the year 1940 then why he had not taken step to get the land mutated in his name that has not been explained. The appellants/defendants in their pleadings admitted the genealogy which proves this fact that Perla Oraon and Mani Oraon both were the heirs of recorded tenant and after the death of Mani Oraon, Perla Oraon came into possession over the land of Khata No.53 and thereafter the respondents/plaintiffs being the legal heir(s)/ successor(s) of the recorded tenant came into the possession over the said land. 7. 7. The appellate court has also examined the oral evidence as well as documentary evidence which were referred by the learned court below and considering the Sections 67, 68 and 69 of the Evidence Act, particularly, Section 90 of the Indian Evidence Act which relates to presumption as to whether documents thirty years old, came to the finding that the sale deed said to have executed were Mani Oraon in favour of Mangra Oraon being sale deed No. 719 of 1940 is forged deed and has been got executed by fictitious person. Mani Oraon was not alive at the time of execution and registration of the sale deed, and because of this reason the defendants have not set their feet for a single moment at the land in the suit. 8. D.W. 5 the appellants/defendants himself has not whispered even a single word on the point that Mani Oraon was illiterate and that is why he put his signature in the manner referred in Rule 13 of the Bihar Registration Manual Act. On the point of execution of the sale deed D.W. 1, D.W. 2, D.W. 3 and D.W. 4 were examined which has been considered by the appellate court and the appellate court came to the above finding after considering the evidences as well as documentary evidence to the above fact and after considering that documents of the evidences, the appellate court came to the finding that the appellant has not been able to prove his case, and accordingly, the title appeal was dismissed and the judgment and decree in title suit was confirmed by the appellate court. 9. Learned counsel appearing for the appellants assailed the impugned judgment of the appellate court on the ground that the plaintiffs have not been able to prove this case and it is well settled proposition of law that onus lies upon the plaintiffs to prove his/her case. He further submits that there is no specific pleading that the vendor was the literate or illiterate person and that has not been considered by the court below. So far as Section 90 of the Evidence Act is concerned that has not been rightly invoked before the appellate court. He further submits that there are the substantial questions of law and this Second Appeal is fit to be admitted. . 10. So far as Section 90 of the Evidence Act is concerned that has not been rightly invoked before the appellate court. He further submits that there are the substantial questions of law and this Second Appeal is fit to be admitted. . 10. Having heard learned counsel for the appellant, this Court finds that the trial court as well as the appellate court has entered into the lis and discussed the evidences of P.W.s, D.W.s as well as documentary evidences on threadbare basis and minutely had considered the case of the parties. This Court finds that two fact finding courts have come to a concurrent findings. 11. After perusing the judgment and considering the argument of the learned counsel for the appellant, this Court finds that there is no perversity in the impugned judgments. 12. This Court sitting in the Second Appeal under Section 100 C.P.C. is not inclined to re-appreciate the evidences as both the courts below have discussed evidences in right perspective and in terms of order 41 and Rule 31 of C.P.C. 13. This Court further finds that there is no substantial question of law involved in this case. Accordingly, this Second Appeal stands dismissed.