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2022 DIGILAW 1334 (JHR)

Lekho Pandit v. Sanichar Singh

2022-12-01

ANIL KUMAR CHOUDHARY

body2022
JUDGMENT : Heard the parties. 2. No one turns up on behalf of the respondents in-spite of Second Appeal No. 270 of 2006 repeated calls. Hence, this appeal is heard ex-parte. 3. This second appeal has been preferred under Section 100 of Code of Civil Procedure against the judgment and decree dated 31.07.2006 passed by the learned Additional District Judge, F.T.C.-I, Giridih in Title Appeal No. 34 of 2003 whereby and where under, by the said judgment of reversal, the learned first appellate court has allowed the appeal in part and the plaintiffs raiyati kayami occupancy right and their title in respect of the land related to plot no. 155 and 166 of khata no.8 of total area 6.75 bighas (5+1.75 bigha) appertaining to khewat no.5/3 are declared on adjudication and confirmed the part of the judgment and decree passed by the learned trial court being the court of Subordinate Judge-IV, Giridih in Title Suit No.18 of 1999 dated 27.08.2003 only in respect of plot no.155 and 166 but set aside the judgment and decree of the learned trial court in respect of plot no.165 of khata no. 3 of area 3.25 bigha appertaining to khewat no.3. 4. The case of the plaintiffs in brief is that Khewat no.5 of mouza Pesratand, was prepared in the name of Lilo Singh and Darbari Singh. Khata no.8 was the Bakast land and khata no.3 was the Gairmajurwa khas land of the holders of the said Kewat no.5 and they were in possession of the same. The descendants of the said Khewatdars of Khewat no.5 were Bali Singh son of Sobran Singh, Budhu Singh son of Darbari Singh, Moti Devi wife of Keshar Singh and Mosomat Kailash wife of Prayag Singh and they were in possession of the lands of Khata nos. 8 and 3. Hiro Kumhar- the original plaintiff is the settled raiyat of the village Pesratand. Hiro Kumhar approached the landlord-Bali Singh and others for settlement with him of 5 bighas of land in plot no.166, khata no.8, the particulars of which has been described in Item no.(i) of the schedule which was accepted by the landlord. The landlord settled the said lands to the plaintiffs fixing annual rent of Rs.10/- besides cess and salami of Rs.50/- and put the plaintiffs in possession of the same. The landlord settled the said lands to the plaintiffs fixing annual rent of Rs.10/- besides cess and salami of Rs.50/- and put the plaintiffs in possession of the same. The said landlord on request of the plaintiffs settled another piece of land i.e. plot no.155 of area 1 ¾ bighas and plot no.165, area 3 ¼ bighas of khata no.8 and 3 respectively described in Item no. (ii) of the schedule by fixing annual rent of Rs.4/- besides cess and taking salami of Rs.100/- and put the plaintiffs in possession of the same. The landlord granted two hukumnama to the plaintiffs in token of the settlement and confirmed the said settlement by acceptance of rent from the plaintiffs and issued rent receipt of the schedule land. After taking the settlement, the plaintiffs reclaimed the portion of the settled land about 4 acres after vesting of zamindari in the State of Bihar. The landlord filed return showing the plaintiffs as raiyats of the said settled lands mentioned in the schedule of the plaint. After vesting of zamindari in the State of Bihar, the State also recognized the plaintiffs as raiyats for the said settled land of the suit and realized rent from the plaintiffs and granted receipt to them. The plaintiffs further asserted that the defendants are the heirs of the descendants of the said landlord of Khewat no.5 who in utter disregard to the settlements in favour of the plaintiffs by their ancestors illegally began to lay a false claim on the suit land on the basis of the entries in Khewat and Khatiyan in the names of their ancestors and tried to dispossess the plaintiffs from the suit land in the month of June, 1993. Hence, the plaintiffs filed the suit with the following reliefs :- (a) for declaration that the plaintiff has got full raiyati kayami occupancy right in the suit lands. (b) If the plaintiff be dispossessed by the defendants, recovery of possession of the suit land. (c) cost of the suit. 5. Hence, the plaintiffs filed the suit with the following reliefs :- (a) for declaration that the plaintiff has got full raiyati kayami occupancy right in the suit lands. (b) If the plaintiff be dispossessed by the defendants, recovery of possession of the suit land. (c) cost of the suit. 5. In their written statement, the defendants challenged the maintainability of the suit on various technical grounds and pleaded that the plaintiffs were not in possession of the land under khata no.3 as the land under khata no.3 was recorded in survey khatiyan as gairmajaruwa land under samilat khewat no.3 comprising of khewat no.1 recorded in the name of Tikait Doman Narayan Singh of village Bairia and khewat no.2 was recorded in the name of Raja Jang Bahadur Singh of Jamtara. They denied settlement of plot no.165 of khewat no.5/1 and the land of plot no.165 under khata no.3 and the concerned hukumnamas are forged. 6. On the basis of the rival pleadings of the parties, the learned trial court framed the following eight issues:- (1) Is the suit maintainable? (2) Is the plaintiff having cause of action to bring the suit? (3) Are the Hukunnamas granted by Bali Singh, Budhu Singh, Moti Devi and Mosamat Kailash Devi in favour of Hiro Kumhar on 16th Push 1358 Sal Fasli of Khata no.8/1, plot no.166 area 5 bighas and another piece of land under Khata no.8/3, Plot no.155 area 1.28 acres and Plot no.165 area 2.72 acres in favour of the father of the plaintiff is legal, valid, genuine and binding on the parties? (4) Whether the plaintiff acquired raiyati right over the suit land by Korker right? (5) Whether the suit is barred by limitation? (6) Is the suit bad of non-joiner of the parties? (7) Is the suit barred by principles of waiver, estoppel and acquiescence? (8) Is the plaintiff entitled for the relief claimed in the suit? 7. The learned trial court considered the oral testimony of ten witnesses examined by the plaintiffs and the documents which have been marked as Ext. 1 to 11 and the oral testimony of the 15 witnesses examined by the defendants and the documents which have been marked as Ext. A to G. 8. The learned trial court first took up issue nos. 1 to 11 and the oral testimony of the 15 witnesses examined by the defendants and the documents which have been marked as Ext. A to G. 8. The learned trial court first took up issue nos. (3) and (4) together and after considering the evidence in the record came to the conclusion that the hukumnama granted in favour of Hiro Kumhar on 16th Push 1358 Fasli of Khata no.8/1, plot no.166, area 5 bighas and another piece of land under khata no.8/3, plot no.155 of area 1.28 acres and plot no.165 of area 2.72 acres is legal, valid, genuine and binding on the defendants and the plaintiffs after getting the hukumnama reclaimed the land into paddy field and acquired raiyati right over the suit land by Korker right also and decided the issue nos. (3) and (4) in favour of the plaintiffs. The learned trial court thereafter took up issue nos. (1), (2), (5), (6) and (7) together and held that there is no legal bar regarding the maintainability of the suit. The plaintiffs have got cause of action to bring the suit. The suit is not barred by limitation or for non-joinder of the parties as the defendants did not press this issue. Lastly the learned trial court took up issue no. (8) and held that the plaintiffs are entitled to the reliefs as claimed in the suit and decreed the suit of the plaintiffs on contest. 9. Being aggrieved by the judgment and decree passed by the learned trial court, the plaintiffs filed Title Appeal No.34 of 2003 in the court of District Judge, Giridih which was ultimately heard and disposed of by the learned first appellate court by the impugned judgment and decree. 10. The learned first appellate court formulated the following six points for determination for consideration:- (1) Whether the judgment and decree under question will vitiate on the ground that defendant no.13 and 14 who are the minors have not been properly represented as per defendants case? (2) Whether the landlords of Khewat no.5 were the landlords of plot no.165, khata no.3 of mouza Pesratand, Thana Tisri, Distt. Hazaribagh and whether the plot no.165, khata no.3 is within the khewat no.5? (2) Whether the landlords of Khewat no.5 were the landlords of plot no.165, khata no.3 of mouza Pesratand, Thana Tisri, Distt. Hazaribagh and whether the plot no.165, khata no.3 is within the khewat no.5? (3) Whether the landlords of Khewat no.5/3 were having right to settle the land of khewat no.3 to the plaintiff/respondent first set and whether the plaintiff/respondent first set and whether the plaintiff/respondent first set have got raiyati kayami occupancy right in the suit land mentioned in the schedule of the plaint or not? (4) Whether the plaintiffs/respondents first set are the possession holder of the suit property or not? (5) Whether the plaintiff’s suit is maintainable and plaintiffs are having cause of action for the suit or not? (6) Whether the impugned judgment and decree are in accordance with law and facts or not and whether it requires any interference by this appellate court or not? 11. The learned first appellate court took up point for determination no.(1) and after making independent appreciation of the evidence in the record came to the conclusion that the judgment and decree under question will not vitiate on the ground that defendant nos.13 and 14 are minors and were not properly represented as per the interest of the defendants. The learned first appellate court thereafter took up point for determination nos. (2), (3) and (4) together and after considering the evidence in the record observed that the entire evidence of the plaintiffs through their witnesses shows that almost all the witnesses of the plaintiffs including the plaintiffs have admitted that all the 10 bighas have not been made cultivable rather most of the lands are Bari land or Tanr and ditch and basing upon such submission observed that the entire assertion of the plaintiffs is not correct rather part of the assertion is incorrect. The learned first appellate court after considering the entire evidence in the record came to the conclusion that the plaintiffs are not fair in respect of the assertion relating to settlement of plot no.165, khata no.3 and in this respect, the plaintiffs have not proved that the ancestors of the defendants were the original landlord. The learned first appellate court after considering the entire evidence in the record came to the conclusion that the plaintiffs are not fair in respect of the assertion relating to settlement of plot no.165, khata no.3 and in this respect, the plaintiffs have not proved that the ancestors of the defendants were the original landlord. The learned first appellate court also came to the conclusion that the original landlord of plot no.165, khata no.3 was the Khewatdars of Khewat no.3 who were Dom Narayan Singh and Raja Bahadur Singh from whom the father of the plaintiffs did not take settlement. The learned first appellate court also observed that rent receipts and other documentary evidence of the plaintiffs are consistent with his case only in respect to plot no.155 and 166, khata no.8, khewat no.5/3 and the oral evidence of the witnesses of the plaintiffs is consistent to show that the land related to these plots of total area measuring 6.75 bigha are in their possession and there is no convincing evidence to show that land related to plot no.165, khata no.3 of area 3.25 bigha is under possession of the plaintiffs. Accordingly, the learned first appellate court answered the point for determination no. (2) by holding that the landlord of Khata no.8, plot no.155 and 166, khewat no.5/3 are different from the landlord of khata no.3, plot no.165, khewat no.3 and is not within khewat no.5. The learned first appellate court answered the point for determination no.(3) by holding that the landlord of khewat no.5/3 were not having right to settle the land related to khewat no.3 and the plaintiffs have got raiyati kayami occupancy right only with respect to the land of plot no.166, 155 of khata no.8 of total area of 6.75 bigha under khewat no.5/3 and they have got no raiyati kayami occupancy right in respect of the plot no.165, khata no.3 of area 3.25 bigha pertaining to khewat no.3. The learned first appellate court answered the point for determination no.(4) by holding that the plaintiffs are in possession and holders of the land relating to plot no.166, 155 of khata no.8 of total area 6.75 bigha (5+1.75) appertaining to khewat no.5/3 but they are not in possession or holders of the lands relating to plot no.165, khata no.3 of area 3.25 bigha appertaining to khewat no.3. Thereafter the learned first appellate court took up point for determination no. (5) and held that the plaintiffs were having cause of action for the suit. Lastly, the learned first appellate court took up point for determination no. (6) and held that the impugned judgment and decree passed by the learned trial court is not in accordance with law and facts to the extent of plot no.165, khata no.3, area 3.25 bighas appertaining to khewat no.3 but in respect of rest of the findings relating to relief sought by the plaintiffs in respect of plot no.166, 155 of khata no.8 of area 6.75 bigha appertaining to khewat no.5/3, the finding of the lower court is in accordance with law and fact which requires no interference by the learned first appellate court and allowed the appeal in part and set aside the judgment and decree passed by the learned trial court in respect of the plot no.165, khata no.3 of area 3.25 bigha appertaining to khewat no.3. 12. At the time of Admission of this appeal, the following substantial questions of law were framed vide order dated 24.03.2009 :- (1) Whether the Court of Appeal below has committed error of law in partly reversing the judgment of the trial Court without taking into consideration the returns (Ext.3) filed by the plaintiffs-appellants? (2) Whether the Court of Appeal below in believing the settlement by the landlord in favour of the members of the same family is justified in law? 13. Mr. Dilip Kumar Prasad, learned counsel for the appellants fairly submits that in Ext.3, there is no reference of plot no.165, khata no.3 or khewat no.3 but it is submitted by Mr. Prasad that the oral testimony of the witnesses of the plaintiffs will go to show that the plaintiffs have been in possession of the entire 10 bighas of land and the learned first appellate court has committed gross illegality by arriving at the finding of fault contrary to the evidence in the record. Hence, it is submitted that the impugned judgment and decree passed by the learned first appellate court be set aside and the judgment and decree passed by the learned trial court be restored. 14. Hence, it is submitted that the impugned judgment and decree passed by the learned first appellate court be set aside and the judgment and decree passed by the learned trial court be restored. 14. Having heard the submissions made at the Bar and after going through the materials in the record, so far as the first substantial question of law as to whether the court of appeal below has committed error of law in partly reversing the judgment of the trial court without taking into consideration the returns (Ext.3) filed by the plaintiffs-appellants is concerned, it is pertinent to mention here that as fairly submitted by Mr. Dilip Kumar Prasad, the learned counsel for the appellant, there is no reference of plot no.165, khata no.3 or khewat no.3 in Ext. 3- which is the return filed by the landlord; from whom the father of the plaintiffs got the part of the suit land settled and in the absence of such reference of plot no.165, khata no.3 or khewat no.3 in Ext. 3, this Court is of the considered view that the court of appeal has not committed any error in partly reversing the judgment of the learned trial court as the Ext. 3 which is the return filed by the landlord from whom the father of the plaintiffs got the land settled does not contain any reference of plot no.165, khata no.3 of area 3.25 bigha appertaining to khewat no.3 in respect of which the learned first appellate court has set aside the judgment and decree of the learned trial court. Hence, the first substantial question of law is answered in the negative. 15. So far as the second substantial question of law as to whether the court of appeal below in believing the settlement by the landlord in favour of the members of the same family is justified in law is concerned, it is a settled principle of law that the plaintiff has to stand on his own leg and cannot get the benefit of the weakness of the defendants. Since the plaintiffs have filed the suit for declaration of their right, so, it is for the plaintiffs to establish before the Court on the basis of credible evidence that it has right in respect of the entire suit land but as already discussed above, the plaintiffs have failed to prove any document to suggest that the plot no.165, khata no.3 of area 3.25 bigha appertaining to khewat no.3 is in the favour of the original plaintiff. Under such circumstances, this Court is of the considered view that as the plaintiffs have failed to prove their case. Whether or not, the defendants succeeded in establishing the settlement by the landlord in favour of the members of the same family, will not confer any right, title or interest in respect of the land concerned with the plaintiffs. Thus by no stretch of imagination, the finding of fact of the learned first appellate court which is the final court of facts can be termed perverse and in the absence of which, there is no scope for this Court in exercise of its power under Section 100 of Code of Civil Procedure to interfere with such finding of fact by the learned trial court. Hence, the second substantial question of law is answered in the affirmative. 16. In view of the discussions made above, this Court is of the considered view that there is no merit in this appeal. 17. Accordingly, this appeal is dismissed ex-parte but under the circumstances without any costs. 18. Let a copy of this Judgment along with the Lower Court Records be sent back to the court concerned forthwith.