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2019 DIGILAW 1983 (JHR)

Sona Devi v. Eastern Coalfields Limited

2019-12-09

SANJAY KUMAR DWIVEDI

body2019
JUDGMENT : 1. Heard learned counsel appearing for the appellants and learned counsel appearing for the respondent. 2. The appellants have preferred this second appeal against the judgment dated 24.08.2018 (decree signed on 05.09.2018) passed by the learned District Judge-IV, Dhanbad in Civil Appeal No.104 of 2017, whereby and whereunder, has been pleased to dismissed the appeal preferred by the defendants/appellants and affirm the judgment dated 29.08.2017 (decree singed on 11.09.2017) passed by the learned Civil Judge (Jr. Division)-I, Dhanbad in Title Suit No.59 of 1995. 3. It was the case of the respondent/plaintiff before the court below is that the land in mouza Laikdih within Khata No.218 comprising plot no.547, 548, 549, 550, 551, 552, 562, 628, 634, 636, 562/1353, 350/1354, 551/1355, 745, 746, 747 and 748 measuring an area 5.14 acres were recorded in the name of Bisthu Mohato in the last cadastral survey record and Bisthu Mohato died leaving behind his son Amulya Mahato, who while was in possession, surrendered the said lands in favour of Raja Ram Laik and others of village Laikdih by virtue of Registered Deed No.2210 dated 02.05.1936. The said Raja Ram Laik and others came in possession of the aforesaid land. Further case of the plaintiff was that, subsequently, the land mentioned in Schedule-A of the plaint was allotted in the share of Moti Lal Laik in amicable family partition. The Said Moti Lal Laik died leaving behind his sons Laxmi Narayan, Dharam Das and Nirmal Kumar Chandra, who came in possession of the aforesaid land. Thereafter, Lakshmi Narayan, Dharam Das and Nirmal Kumar Chandra, sold the property mentioned in Schedule A to Shri Shri Laxmi Narayan Trust, a charitable institution (owners of East Kamardhubi Colliery) by Registered Deed No.5257 dated 20.03.1959. After purchase of Schedule A property on 20.03.1959, the owners of the East Kumardhubi Colliery came in its possession and remained in possession till the aforesaid colliery was taken over by the Central Government under the Coal Mines (Taking over of Management) Ordinance 1973 on 31.01.1973 and subsequent nationalization under the Coal Mines Nationalization Act with effect from 01.05.1973 and thereafter, the East Kumardhubi Colliery was came in exclusive possession of Eastern Coalfields Limited, a subsidiary of Coal India Limited. It was further case of the respondent/plaintiff that the original defendant has no right or title over the suit property, but he has illegally encroached upon the property and raised a boundary wall. The plaintiff reported the matter to the police, but the defendant wrote a letter dated 02.03.1993, stating therein that the local police has declared the title in their favour. The defendants also initiated a proceeding under Section 144 Cr.P.C. claiming their title over 60 decimals of land, pertinent to Plot Nos.562, 563, 563/1356 and a portion of Plot No.628. Further case of the respondent/plaintiff was that the father of the defendant had purchased the said plots from one Bistu Mahato, who was the recorded owner of Khata No.218, by virtue of unregistered document (Kachcha deed) for a valuable consideration of Rs.85/-only. Further case of the respondent/plaintiff was that the alleged kachcha deed is a manufactured and fabricated document. As a matter of fact, the defendant was never in possession of the suit land prior to March, 1993 and taking advantage of the proceeding had constructed a boundary wall for which the police had initiated a proceeding under Section 188 I.P.C. against the defendant. By way of amendment, the plaintiff has further alleged that during the pendency of the suit, defendant has constructed the boundary wall in plot no.628 on 04.10.2012. Due to such high handedness of the defendant, the public in general of the locality become aggrieved and they demolished a portion of North and West boundary wall of the premises situated in Plot No.562, 563, 562/1353 that’s why it was necessitated to file the suit. The original defendant appeared and filed his written statement, stating therein that that the suit is not maintainable as it is barred by law of limitation and also under the provisions of Specific Relief Act. The defendant and his predecessor are in actual physical and peaceful possession of the lands for more than 70 years. The defendants have admitted that the land of Khata No.218 of Mouza Laikdih were recorded in the name of Bistu Mahato in the Cadastral Survey. Some of the plots were recorded in the name of Bishtu Mahato in the Cadastral Survey and some plots of the said khata were recorded in the name of Rajni Mahato. The defendants have admitted that the land of Khata No.218 of Mouza Laikdih were recorded in the name of Bistu Mahato in the Cadastral Survey. Some of the plots were recorded in the name of Bishtu Mahato in the Cadastral Survey and some plots of the said khata were recorded in the name of Rajni Mahato. However, Rajni Mahato had relinquished his title in respect of the said plots in favour of recorded raiyat Bistu Mahato in year 1927-28. It was further case of the appellants/defendants is that the Bistu Mahato sold three plots being Plot Nos.562, 628 and 562/1353 of Khata No.218 to Prayag Sao (father of the original defendant) by an unregistered document dated 02.01.1934 on receipt of valuable consideration and delivery of peaceful possession of the same to Prayag Sao. Since then, Prayag Sao and thereafter the original defendants are continuously coming in its peaceful possession. The defendant has also admitted that Bistu Mahato has died leaving behind his son Amulya Mahato but Bistu Mahato during his life-time and while in possession sold the aforesaid plots to Prayag Sao and therefore, transfer of land by the son of Bistu Mahato to any third person does not arise. Amulya Mahato never surrendered the suit land to Raja Ram Laik and others and there was no question of any partition of the same. Moti Lal Laik never came in exclusive possession of the suit land and there was no occasion for his sons to sell it to Shri Shri Laxmi Narayan Trust in the year 1959. After vesting of Zamindari in the State of Bihar, the intermediary had no subsisting transferable right. Thus, the sale deed dated 20.03.1959 executed in favour of Laxmi Narayan Trust by the three sons of Moti Lal Laik is only a paper transaction. On the basis of these submissions, the defendants prayed to dismiss the suit with cost. On the basis of pleadings of the parties, the trial court entered into the lis and has framed the eight issues to determine the suit. The trial court while discussing every aspect of the matter including the exhibits and the witnesses on behalf of the plaintiff and defendants came to the finding that the plaintiff is entitled to relief in the suit and accordingly the suit was decreed in favour of the plaintiff. The trial court while discussing every aspect of the matter including the exhibits and the witnesses on behalf of the plaintiff and defendants came to the finding that the plaintiff is entitled to relief in the suit and accordingly the suit was decreed in favour of the plaintiff. Aggrieved with the same, appellants have preferred the appeal before the District Judge-V, Dhanbad which was numbered as Title Appeal No.104 of 2017 which was disposed of vide judgment dated 24.08.2018 whereby the appellate court has affirmed the judgment and decree passed by the trial court. Aggrieved with the judgment dated 24.08.2018, appellants have preferred this second appeal. 4. Learned counsel appearing for the appellants submits that while the unregistered sale deed dated 02.01.1934 was not allowed by the trial court, then appellant moved before this Court by filing the writ petition which was allowed by this Court and the said document was marked as secondary evidence. He further submits that the writ court has already directed to consider that document i.e. secondary document in spite of that the trial court without considering that aspect of the matter, has passed the judgment which in contravention of the judgment of this Court passed in W.P.(C). No.4028 of 2010. He further submits that in view of the provision of Sections 74, 76 and 79 of the Evidence Act, the said document is a public document and it was incumbent upon the trial court as well as the appellate court to consider it and pass a positive judgment in favour of the appellants. 5. Per contra, Mr. A.K. Mehta, learned counsel appearing for the respondent/defendant submits that the trial court has already considered the secondary evidence while deciding the issue nos.3 and 4. He further submits that the argument of the learned counsel for the appellants is not tenable looking into the Section 74 of the Evidence Act. He further submits that the which documents are public documents has been defined under the provision of Section 74 of the Evidence Act. He further submits that it will not alter the nature of the private document as well as public document. He further submits that the trial court as well as the appellate court has considered every aspect of the matter and after considering the evidences and exhibits, have come to a concurrent finding and the argument advanced on behalf of the appellants is not tenable. He further submits that the trial court as well as the appellate court has considered every aspect of the matter and after considering the evidences and exhibits, have come to a concurrent finding and the argument advanced on behalf of the appellants is not tenable. 6. Having heard the learned counsel for the parties, this Court perused the judgments delivered by the trial court as well as the appellate court, while deciding the issue nos.3 and 4, the trial court has elaborately discussed the secondary evidence as directed by this Court in the writ petition earlier filed by the appellant/defendant. The trial court has also came to the finding that by virtue of an amicable partition the lands of Schedule A fell in the share of Moti Lal Laik whose sons Lakshmi Narayan, Dharam Das and Nirmal Chandra sold the same to Shri Shri Lakshmi Narayan Trust Charitable Institution (owners of East Kumardhubi Colliery) by Registered Deed No.5257 dated 20.03.1959 which came in and remained in possession till taking over the aforesaid colliery by the Central Government under the Coal Mines (Taking over the Management) Ordinance 1973 and subsequent nationalization under the Coal Mines Nationalization Act with effect from 01.05.1973. The respondent/plaintiff (Eastern Coalfields Limited) a holding Company under the Coal India Limited has been vested with the rights of East Kumardhubi Colliery along with other collieries in Mugma Area. The claim of the defendant is based upon an unregistered sale deed by Bistu Mahato and there is no any explanation from the defendant from its non-production either of his pleadings or written statement. The appellate court has also entered into the lis, and further recasted the issues at paragraph 10 of the appellate court judgment, after discussing the exhibits and evidences adduced on behalf of the parties, came to the finding that the defendant has based on claim and unregistered sale deed dated 02.01.1934 however, the original sale dated 02.01.1934 has not been brought on record by the defendant thus there is no explanation for its non-production. 7. This Court is conscious of the fact that this Court is sitting under Section 100 of the Code of Civil Procedure that's why not inclined to re-appreciate the evidence adduced on behalf of the parties. 7. This Court is conscious of the fact that this Court is sitting under Section 100 of the Code of Civil Procedure that's why not inclined to re-appreciate the evidence adduced on behalf of the parties. The two fact finding courts have already come to a concurrent finding and this Court further finds that there is no substantial question of law is involved in this second appeal and there is no merit in the second appeal, accordingly, the second appeal stands dismissed. 8. In consequence thereof, I.A. No.1765 of 2019 also stands disposed of.