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2023 DIGILAW 143 (JHR)

Ramjee Prasad v. Balku Oraon

2023-02-09

SANJAY KUMAR DWIVEDI

body2023
JUDGMENT : Sanjay Kumar Dwivedi, J. Heard Mr. Amar Kumar Sinha, learned counsel for the appellants/plaintiffs and Mr. Rahul Kumar Gupta, learned counsel for respondent no. 1/defendant. 2. This second appeal has been filed being aggrieved and dissatisfied with the judgment and decree dated 14.08.2000 (decree signed on 22.08.2000) passed by the learned Additional Judicial Commissioner, Lohardaga dismissing Title Appeal No. 96/B of 1990/3 of 1994 and confirming the judgment and decree dated 09.08.1990 passed by the learned Sub-Judge-II, Lohardaga in Title Suit No. 138 of 1986. 3. The appellants/plaintiffs instituted Title Suit No. 138 of 1986 for declaration of the right, title and interest of Ramdhani Sahu, plaintiff no. 1 with respect to the properties in suit and also for a decree for recovery of possession of the same and for putting him in separate khas possession of the same. The suit was on contest dismissed by the learned trial court vide judgment dated 09.08.1990. Aggrieved with that judgment, the appellants/plaintiffs filed Title Appeal No. 96B of 1990/3 of 1994 and vide judgment dated 14.08.2000, the learned appellate court has dismissed the title appeal and affirmed the judgment of the learned trial court. Aggrieved with that judgment, the appellants/plaintiffs have filed the present second appeal. 4. This second appeal was admitted vide order dated 08.06.2001 on the substantial question of law “Whether in view of the finding recorded by the courts below that defendants were in possession at least from the year 1978, the present suit having been filed in 1986, was barred by time?” 5. The appellants/plaintiffs have instituted the title suit alleging therein that the land of R.S. Khata No. 170, R.S. Plot no. 1817 area 6.31 decimals situated at village Bagru, P.S. Lohardaga, District Ranchi now Lohardaga have been recorded in the revisional survey record of rights as Gairmajarua malik of the then landlord Maharaja Uday Pratap Nath Sahdeo of Chotanagpur Raj. The then landlord Maharaja Uday Pratap Nath Sahdeo orally settled the 7.02 decimals of land out of plot no. 1824 and the entire plot no. 1817 of Khata no. 170 of the said village to Gouri Charan Sahu father of the plaintiff no. 1, which was confirmed by grant of rent receipt coupled with the delivery of possession in the year 1950. 1824 and the entire plot no. 1817 of Khata no. 170 of the said village to Gouri Charan Sahu father of the plaintiff no. 1, which was confirmed by grant of rent receipt coupled with the delivery of possession in the year 1950. Gouri Charan Sahu was in exclusive possession of the aforesaid land and remained in possession so long he was alive and after his death his three sons, namely, Ramdhani Sahu, Sheo Nandan Sahu and Ram Kumar Sahu jointly inherited the properties left by him including the suit land. It was further alleged that there was a partition between the plaintiff/appellant no. 1 and his brother, namely, Sheo Nandan Sahu and Ram Kumar Sahu by virtue of registered deed 21.08.1972 in which lands measuring 6.00 acres out of plot no. 1817 of Khata no. 170 of village Bagru were allotted to the share of plaintiff no. 1 who came into separate exclusive possession of the same. The plaintiff no. 1 is regularly paying rent to the State of Bihar with respect to the suit land. It was also alleged that the defendant no. 1 wanted to erect structure over 0.10 decimal of land out of the said plot, as a result of which a proceeding under Section 144 Cr. P.C. was started between the plaintiff no. 2 and defendant no. 1 vide case no. 18/1978. The said proceeding was later on converted into a proceeding under Section 145 Cr. P.C. The learned S.D.O. without considering the case of the plaintiffs erroneously passed an ex parte order on 17.09.1981. In the said proceeding, the defendant no. 1 in his written statement falsely alleged that he was permitted by ex-landlord in the year 1943 to construct a kacha house and he constructed house and is living there since then. As a matter of fact the defendant no. 1 never came into possession of any portion of plot no. 1817 nor he constructed any structure over the same. The house was constructed by Gouri Charan Sahu in the year 1950. The order passed by the learned S.D.M., Lohardaga declaring the possession of the defendant no. 1 is illegal and without jurisdiction. Defendant no. 1 being emboldened by the decision passed under Section 145 Cr. P.C. has forcibly entered into possession of the house belonging to the plaintiff no. The house was constructed by Gouri Charan Sahu in the year 1950. The order passed by the learned S.D.M., Lohardaga declaring the possession of the defendant no. 1 is illegal and without jurisdiction. Defendant no. 1 being emboldened by the decision passed under Section 145 Cr. P.C. has forcibly entered into possession of the house belonging to the plaintiff no. 1 along with the land adjacent thereto to the extent of 1.00 acre out of the plot no. 1817 more fully described in the schedule of the plaint. plaintiff no. 1 is absolute owner of the properties in suit and defendant no. 1 has or had no right, title and interest over the same. Even if there is any defect in the title of the plaintiffs, the same has been perfected by remaining in possession openly and adversely for more than statutory period to the knowledge of all concerned including the defendant. Plaintiff requested the defendant no. 1 to give up possession of the property in suit to the plaintiff but he was not paying any heed to it and as such the suit was filed. The cause of action for the suit arose on 17.09.1981 when an adverse order under Section 145 Cr. P.C. was passed and in December, 1985 when the defendant no. 1 illegally and forcibly dispossessed the plaintiff from the suit properties and on various dates on which the plaintiff requested the defendant no. 1 to give up possession of the suit properties. The plaintiffs have filed the suit for declaration of right, title and interest with respect to the suit properties along with a decree for recovery of possession. 6. The defendant no. 1 Birsa Oraon has appeared and filed written the statement stating therein that the suit, as framed, is not maintainable and the plaintiffs have no cause of action for the same. The statements made in the plaint have been denied by the defendant in his written statement. It was further case of the defendant is that father of the defendant resumed the land some time in the year 1940, which was left barren covered by forest for years and father of the defendant was a original resident of village Bagru. The father of the defendant brought the land under cultivation by spending money and labour continuously for since 1940 and brought it under cultivation on the prior oral sanction from the ex-landlord. The father of the defendant brought the land under cultivation by spending money and labour continuously for since 1940 and brought it under cultivation on the prior oral sanction from the ex-landlord. After 1945 the father of the defendants started cultivating the lands and raised crops from year to year. In the year 1946, the father of the defendant died leaving behind four sons, namely, Sania Oraon, Sukra Oraon, Budhu Oraon and Birsa Oraon. After the death of father, Sania Oraon along with defendants started cultivating the lands and continued possession. In 1948. they approached the ex-landlord Maharaja Chintamani Saran Nath Sahdeo to obtain settlement when Sania Oraon died issueless. The suit lands along with others were settled with defendant and his brother Sukra Oraon by Sada Hukumnama dated 18.01.1948 and subsequently granted rent receipt in payment of rent thereof. The defendant along with his brother have been coming in peaceful cultivating possession of the land along with other land for more than 40 years continuously and adversely to the knowledge of all concern. It is incorrect to say that the plaintiff or his father cultivated the land. The defendant no. 1 and his brother have right, title and possession over the suit land. It was further alleged that the defendant no. 1 had got the proceeding under Section 144 Cr. P.C. initiated with respect to R.S. Plot nos. 1817 and 1979 with a view to disturb the peaceful possession of the defendant and the said proceeding was converted into a proceeding under Section 145 Cr. P.C. and the possession of the defendant over R.S. Plot no. 1817 measuring 0.10 decimals was declared by the S.D.M., Lohardaga on 17.09.1981 restraining the plaintiff from going over the land is question. The plaintiff again got a proceeding under Section 144 Cr. P.C. initiated against the defendants with respect to the land of plot nos. 1817 and 1818. After filing show cause by both the parties the case was heard and finally it was dropped on 02.02.1987. It was also alleged that the defendant has erected a house over the suit land in the year 1948 after the lands were settled with him by the ex-landlord and are actually residing therein with the family members. In recent survey, possession of the defendants over portion of the suit land have been recorded. It was also alleged that the defendant has erected a house over the suit land in the year 1948 after the lands were settled with him by the ex-landlord and are actually residing therein with the family members. In recent survey, possession of the defendants over portion of the suit land have been recorded. The defendant has constructed a house over the suit land about 50 years back after resuming cultivation of the suit land along with other land and started residing therein. It is never a fact that the plaintiff no. 1 or his father had or has any house over the suit land. The plaintiff or his father never acquired any right, title and interest over the suit land. The defendant and his brother have been in possession over the suit land since long for more than 60 years, The plaintiffs have never been in possession of the suit land. 7. Mr. Amar Kumar Sinha, learned counsel for the appellants/plaintiffs submits that the learned courts are contrary on law against the weight of materials have dismissed the suit. He further submits that the findings are against oral and documentary evidence adduced on behalf of the appellants/plaintiffs. He further submits that oral settlement coupled with grant of rent receipt and delivery of possession confers valid right and findings of the learned courts are against the mandate of law. He submits that in that view of the matter, substantial question of law was framed and the judgments of the learned trial court as well as the appellate court are perverse and the law point may kindly be answered in favour of the appellants. 8. On the other hand, Mr. Rahul Kumar Gupta, learned counsel for respondent no. 1/defendant submits that law point has been erroneously framed. According to him, the facts and circumstances of the present case are different and that law point is not substantial question of law and on that ground itself, this second appeal is fit to be dismissed. He further submits that the learned trial court has framed issue no. 3 with regard to limitation and that issue has not been pressed by the parties and in that view of the matter, the law point as framed by this Court, is not a substantial question of law. He further submits that the learned trial court has framed issue no. 3 with regard to limitation and that issue has not been pressed by the parties and in that view of the matter, the law point as framed by this Court, is not a substantial question of law. He further submits that the learned trial court as well as the appellate court has minutely considered the law points as well as the oral evidences and thereafter has given the finding. He submits that the learned trial court as well as the appellate court has rightly held that the appellants/plaintiffs have not proved their right, title and interest and the rent receipt issued in favour of the appellants/plaintiffs was not found as a genuine document considering that at that time Maharaja Uday Pratap Nath Sahdeo was not the Maharaja of Ratu and rent receipts were not having seal and stamp of Ratu, whereas, one of the witnesses (P.W.5) examined on behalf of the appellants/plaintiffs, himself has stated that in the rent receipts seal and stamp is being provided, however in the rent receipt issued in favour of the appellants/plaintiffs, that was not there and rightly rent receipt has been rejected by the learned trial court as well as the appellate court. On these grounds, he submits that this second appeal may kindly be dismissed. 9. In view of the submission of the learned counsel appearing on behalf of the parties, the Court has gone through the L.C.R as well as the judgments of the learned trial court as well as the learned appellate court and finds that the learned trial court has framed three issues and the issue no. 3 was whether the suit is barred by law of limitation, waiver, estoppel and acquiescence or not. The appellants/plaintiffs have not pressed this issue which has been recorded by the learned trial court in paragraph no. 14 of the judgment. Ext.1 and Ext.1/1 were considered by the learned trial court. It was contended by the plaintiffs that on oral settlement the rent receipts were issued. Considering the Ext.1/1, the learned court has found that the same was issued in 1950 and there is no name of the landlord in the same. 14 of the judgment. Ext.1 and Ext.1/1 were considered by the learned trial court. It was contended by the plaintiffs that on oral settlement the rent receipts were issued. Considering the Ext.1/1, the learned court has found that the same was issued in 1950 and there is no name of the landlord in the same. So far Ext.1 is concerned, the name of landlord is Smt. Maharani Prem Manjari Devi and its issuance date is 18.12.1953 whereas the case was that it was settled by Maharaja Uday Pratap Nath Shahdeo and the suit land with Gauri Charan Sahu, the father of the plaintiff Ramdhani Sahu and the rent receipt Ext.1/1 is said to be of the year 1950, the name of Maharaja Uday Pratap Nath Shahdeo would have been mentioned therein which was not mentioned in the rent receipt. Ext.1 is also not in the name of Maharaja Uday Pratap Nath Shahdeo and considering this, the learned trial court has come to the conclusion that the rent receipts are not genuine. P.W.2 and P.W.3 were the witnesses on the point of possession and they have also not been able to confirm the possession of the appellant/plaintiffs. How P.W. 2 tried to camouflage the possession by way of stating that he has seen the possession, has been discussed by the learned trial court and by a valid reason, his statement has been rejected by the learned trial court. Considering all these aspects, the learned trial court has dismissed the suit. The possession has not been proved. 10. The learned appellate court has framed the point and has come to the conclusion that the plaintiff failed to prove that the defendant dispossessed him from the suit property in the year 1985 taking into consideration the finding under Section 145 Cr. P.C. proceeding. The learned appellate court has also considered that after vesting of Jamabandi, the name of the plaintiffs was mutated and Jamabandi was created and the plaintiff was regularly paying the rent receipt of the suit land and P.W.1 and P.W.4 are the witnesses on that point and they kept mum on the point as to when and how the Jamabandi with respect to the suit land was opened and thereafter the learned appellate court has dismissed the appeal and affirmed the judgment of the learned trial court vide judgment dated 14.08.2000. 11. 11. In view of the above facts, reasons and analysis, when the limitation was not pressed before the learned trial court, it appears that the law point framed by this Court is not a substantial question of law. There are concurrent findings of the two learned courts. No perversity has been shown and when there is no perversity and considering that the law point, as framed by this Court, is not a substantial question of law as limitation was not pressed before the learned trial court, no relief can be extended to the appellants. 12. Accordingly, this second appeal stands dismissed. 13. Let the lower court records be sent back to the learned concerned court forthwith.