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2020 DIGILAW 206 (JHR)

Subita Mahato v. Jagan Mahato

2020-02-03

SANJAY KUMAR DWIVEDI

body2020
JUDGMENT : 1. Heard Mr. Rahul Kumar Gupta, learned counsel assisted by Mr. Avish Anand, Advocate appearing on behalf of the appellants. 2. The appellants have preferred this second appeal against the judgment and decree dated 22.09.2016 passed by the learned District & Additional Sessions Judge-II, Seraikella Kharsawan in Title Appeal No.12/2009 whereby the appeal was dismissed and affirmed the judgment and decree dated 28.03.2009 and 13.04.2009 respectively passed by the learned Munsif, Seraikella in Title Suit No.16/02/Title Suit No.07/07. 3. It was case of the appellants/plaintiffs that they are the residents of Mauza Jhabri, P.S. Chandil, District Seraikella Kharsawan. It was further pleaded that Churku Mahato was common ancestor of the parties and died having considerable landed property at mouza Jhabri. It was further pleaded that Churku Mahato died leaving behind three sons namely Dhanaram, Chhota Ghasiram and Chhutua Mahato who inherited the properties of their father in equal share. It was further pleaded that since Dhanaram Mahato died prior to Cadestral Survey Settlement leaving behind four sons namely Mansa, Nuna Muju and Holu so the successors of Dhanaram Mahato getting share in the property of his father in equal shares. The main contention of the appellants/plaintiffs are that the properties left behind by Churku Mahato the common ancestor of the parties were jointly recorded in the name of Chota Ghasiram, Chhutua Mahato both sons of Churku and Mansa. Nunu, Muju and Holu all sons of Dhanaram Mahato in raiyati kayami right in Khata No.44 of mouza Jhabri in Cadestral Survey Settlement Operation of the year 1911. Further pleaded that the aforesaid properties were all along joint among the co-sharer in whose name the records of rights were prepared and there were never been any partition by metes and bounds and the possession of the record right was according to convenience some separately and some jointly and they were cultivating land jointly. It was further case of the appellants/plaintiffs that R.S. Settlement Operation which was finally published in the year 1963 the aforesaid properties of C.S. Khatiyan No.44 was recorded in Khata No.22, 209 and 418 of mouza Jhabri. The appellants/plaintiffs contention is that in R.S. Khatiyan No.22 there is erroneous entry in the record of right in the name of only Kanhai, Makhan, Nagen and three sons of Muju only and name of other co-sharers ought to have also been recorded. The appellants/plaintiffs contention is that in R.S. Khatiyan No.22 there is erroneous entry in the record of right in the name of only Kanhai, Makhan, Nagen and three sons of Muju only and name of other co-sharers ought to have also been recorded. It was further contended that in R.S. Khatiyan No.209, it has erroneously been recorded only in the name of son of Nunu, Muju and Holu and the name of legal heirs of Mansa, Chhota Ghasiram ought to have been recorded therein. It was further contended that in R.S. Khatiyan No.418 area 8.86 was erroneously recorded solely in the name of Sushila only and the name of legal heirs of Mansa, Nunu, Muju and Holu ought to have also been recorded therein. It has been further contended that in erroneous entry, co-sharers could not detect the aforesaid preparation of record of right of suit property so, they could not file any objection before survey authorities for correction of the same and the entire suit properties described in Schedule B was still joint properties of the parties and there being never any partition of the same by metes and bounds. It was further pleaded that in the year 1955 Gajadhar Mahato husband of defendant no.18 and further the defendant no.19 to 22 transferred 14 Kathas 14 3/8 dhur land within C.S. Plot No.688 and land in area 8 Kathas 11 1/8 Dhur Plot No.950 concerning C.S. Khatiyan No.44 of Mouza Jhabri to Kanhai Mahato and others through registered Sale Deed No.5496 dated 13th July 1955. Further in the year 1956, Defendant Nos.13, 14 and 15 minor through their natural guardian Ratuli Mahatani sold land of C.S. Khata No.44 to Bolai Mahato and others by Registered Deed No.3582 dated 27th April 1956. It was further pleaded that the cause of action for this suit the appellants/plaintiffs in that pleading stated that they are feeling difficulty in the enjoyment of the suit property according to their shares therefore, they demanded partition to the defendants by metes and bounds and they refused resulting the suit. On notice, the contesting defendants are defendant nos.1 to 12 who were legal heirs of Chhota Ghasiram son of Churku Mahato common ancestors. The preliminary objection of the defendants was that the suit is not maintainable, there being no cause of action, it being barred by limitation, waiver, estoppel and adverse possession. On notice, the contesting defendants are defendant nos.1 to 12 who were legal heirs of Chhota Ghasiram son of Churku Mahato common ancestors. The preliminary objection of the defendants was that the suit is not maintainable, there being no cause of action, it being barred by limitation, waiver, estoppel and adverse possession. It was further contended that the suit is also barred on account of provision of Specific Relief Act. The main contention of the defendants was that there is no unity of title or unity of possession and the suit is liable to be dismissed. It was further pleaded that admittedly the appellants/plaintiffs transferred some lands but they have not joined the purchaser as a necessary parties in the suit. The defendants strongly denied that the plaintiffs are descendants of Churku Mahato, the predecessors in interest of answering defendants. It was further pleaded that the land of Khata No.418 belongs to Chhota Ghasiram and Churku who were joint owners and they are in possession jointly since before Survey of 1911 and Chhutua pre-deceased Ghasiram, continued his exclusive possession and after the death of Ghasiram, his daughter Sushila possessed exclusively and no suit was filed by appellants/plaintiffs or defendant nos.13 to 23 at any time for last 40 years. It was further pleaded that appellants/plaintiffs are from different places and police stations and they have no concern with Chhota Ghasiram and Chhutua Mahato who were only son of their father Churku Mahato and the assertion of the plaintiffs that the suit land is joint ancestral properties of appellants/plaintiffs and respondents/defendants absolutely false. The defendants further stated about the entry in C.S. Khata No.44 and submitted that both brothers Chhota Ghasiram and Chhutua possessed their land jointly and accordingly the possessory note was also prepared jointly in their name and appellants/plaintiffs were not related to Chhota Ghasiram and Chhutua. The defendants further stated about the entry in C.S. Khata No.44 and submitted that both brothers Chhota Ghasiram and Chhutua possessed their land jointly and accordingly the possessory note was also prepared jointly in their name and appellants/plaintiffs were not related to Chhota Ghasiram and Chhutua. It was further contended that Chhota Ghasiram left his only heirs and daughter who inherited and possessed the land in joint possession of her father and uncle Chhutua and these lands were recorded in the name of Sushila Mahatani daughter of late Chhota Ghasiram on admission of Kanhai Mahato before Assistant Settlement Officer, during current survey and settlement operation in Case No.49/1960 under Section 83 of the C.N.T. Act, and Kanhai Mahato and others were aware in 1961-62 that they or their successors in interest had no title or possession on the land of Khata No.418 recorded and since the publication of current survey in the year 1963 Kanhai Mahato or anybody else of the predecessors of the plaintiff’s or of defendant nos.18 to 23 did not file any suit challenging the khatiyan in the name of Sushila Mahatani for the last 39 years. The defendants totally denied that the suit property of Khata No.418 were ever properties of plaintiff’s and submitted that there is no question of partition and entry in the record of right old and new itself goes to show that there is no unity of title and jointness of possession, therefore, there is no question of partition. On the basis of above pleadings of the parties, the trial court entered into the lis and formulated nine issues to decide the case. The trial court after discussing the evidence of witnesses as well as the exhibits adduced by the parties came to the finding that the appellants/plaintiffs have not been able to prove their case, therefore, the suit being Title Suit No.16/02/Title Suit No.07/07 was dismissed vide judgment dated 28.03.2009. 4. Aggrieved with the same, the appellants/plaintiffs filed the title appeal being Title Appeal No.12 of 2009 which was decided vide judgment dated 22.09.2016 by the District Judge-II, Seraikella whereby the appeal was dismissed and the judgment of the trial court was affirmed. The appellate court below for deciding the appeal re-casted the issues and decided those issues in accordance with the evidence on record. The appellate court below for deciding the appeal re-casted the issues and decided those issues in accordance with the evidence on record. The appellate court has discussed the evidences adduced on behalf of the parties as well as the exhibited documents and came to the finding on consideration of the oral as well as the documentary evidence, the appellants/plaintiffs have failed to prove the suit property and there is no unity between the appellants/plaintiffs and contesting defendants with respect to the suit property and in that view of the matter the appellate court below has dismissed the appeal on 22.09.2016. 5. Aggrieved with the same, the appellants have preferred this second appeal before this Court. 6. Mr. Rahul Kumar Gupta, learned counsel appearing on behalf of the appellants assailed the impugned judgment on the ground that the trial court as well as the appellate court has not decided the issues in its right perspective and in that view of the matter there is substantial question of law involved in this second appeal, therefore, this second appeal is fit to be admitted. 7. This Court has perused the judgment of the trial court as well as the appellate court, the trial court has formulated nine issues and the appellate court has also re-casted the issues to decide the appeal and after discussing the witnesses as well as the exhibits and the judgment relied upon on behalf of the parties, the trial court has rightly come to the finding that the appellants/plaintiffs have not been able to prove the case. The appellate court has also come to a concurrent finding that the appellants/plaintiff’s ancestor had knowledge about the survey of record of rights for more than 45 years of the publication of record of rights. Thus, the suit is clearly barred by the law of limitation. 8. The trial court as well as the appellate court has discussed all the issues minutely, this Court, sitting in second appeal is not inclined to further re-appreciate the evidences adduced on behalf of the parties, thus, there is no substantial question of law involved in this second appeal, accordingly, the second appeal stands dismissed.