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2023 DIGILAW 145 (JHR)

State of Jharkhand v. Jamuna Das Dharmada Trust

2023-02-09

SANJAY KUMAR DWIVEDI

body2023
JUDGMENT : SANJAY KUMAR DWIVEDI, J. 1. Heard Mr. Deepak Kumar Dubey, learned counsel for the appellants. 2. This second appeal has been filed being aggrieved and dissatisfied with judgment dated 26.11.2009 and decree signed on 08.12.2009 passed by learned Additional District Judge, Fast Track Court, Koderma in Title Appeal No. 12 of 2007, confirming the judgment dated 21.12.2006 and decree signed and sealed on 08.01.2007 by learned Sub-Judge-IV, Koderma in Title Suit No. 25 of 2004. 3. The plaintiff/respondent has instituted Title Suit No. 25 of 2004 against the appellants/defendants nos. 1 and 2 that defendant nos. 1 and 2 have got no concern over it. Prayer has also been made for the cost of the suit. The said suit was decided by the learned trial court by judgment dated 21.12.2006 and the said suit was dismissed. Aggrieved with that the appellants preferred Title Appeal No. 12 of 2007 which was dismissed vide order dated 26.11.2009 affirming the judgment of the learned trial court. Aggrieved with that the present second appeal has been filed. 4. According to the plaint as disclosed in the judgment of learned courts the case of the plaintiff/ respondent no. 1. in short, is that one Jamiunadas alias Jamunadas Tibrewala s/o Nanigram, resident of 30 Mugal Street, Rangoon set apart a sum of two lacs rupees for pious, religious and charitable purposes, which a trust was created under the name and style of Jamunadas Dharmada, for which shall be a trust in perpetuity by a registered trust deed dated Ist July, 1930. The said Jamunadas, the executor of the trust appointed his three sons namely Janki Das, Rang Lal Das and Ghanshyan Das as the first trustee of the aforesaid trust and thereafter in case of death of any trustee, his eldest son shall be appointed as a trustee and the same would continue by following the lineal male descendants of the trustee besides other conditions which include that the said trustee shall invest the trust fund in acquisition of Immovable properties etc. in India and elsewhere for the purpose of the estate. Further case of the plaintiff is that the trustee purchased 01.46 decimals of land under old khata no. 2 and plot no. 3454 in Jhumri Telaiya through the sale deeds in the year 1936 (detailed in schedule A of the plaint) having due mutation. in India and elsewhere for the purpose of the estate. Further case of the plaintiff is that the trustee purchased 01.46 decimals of land under old khata no. 2 and plot no. 3454 in Jhumri Telaiya through the sale deeds in the year 1936 (detailed in schedule A of the plaint) having due mutation. Further the executor of trust Jamunadas Tibrewal and his wife Gulabi Devi delivered Rs. 151000/- to the aforesaid three sons trustees for smooth running of the said trust in the year, 1938. In the year, 1939 trustee Ghanshyam Das Tibrewalla out of the purchased land 1.46 acres under khata no. 2 from the plot no. 3454 sold and transferred 15 kathas 15 dhurs equivalent to 0.46 acres in the year 1939 to Raibahadur Ram Prasad Rajgarhia through two sale deeds and remaining 0.82 acres land remained in possession of the said trust. Out of 0.82 acres land 0.11 acres land acquired by Govt. for road and as such the said trust are in possession of only 0.71 acres land of plot no. 3454 under khata no. 2 at Jhumritelaiya. Further case of the plaintiff is that one formation of Jhumritelaiya notified area committee the plaintiff submitted the map for construction of dharmshala and accordingly the trustees constructed a dharmshala over a portion of the remaining 0.71 acres land of plot no. 3454 in the year 1949 and also constructed shops and godowns all around the dharmshala to derive income to spend for maintenance and up-keep of dharmshala. The 0.71 acres land of Dharmshala did not vest in the State government. In the year, 1953 and became the raiyati land of the plaintiff. The Dharmshala alongwith other appurtenances were registered as holding no. 5 with inward no. 3. The trust was regularly paying the rent to the ex landlord and after vesting to the state of Bihar. After formation of Jhumritelaiya Municipality the said dharmshala and its appurtenances were allotted as hold no. 228 within ward no. 7 and the plaintiffs are regularly paying rent under proper receipts. The trustees of Jamunadas dharmshala trust exercise their absolute title and exclusive possession over the suit land, let out the shop, rooms, out house and godowns to different tenants, who are defendants no. 3 to 13 and are paying rent regularly to the trust. 228 within ward no. 7 and the plaintiffs are regularly paying rent under proper receipts. The trustees of Jamunadas dharmshala trust exercise their absolute title and exclusive possession over the suit land, let out the shop, rooms, out house and godowns to different tenants, who are defendants no. 3 to 13 and are paying rent regularly to the trust. Not only this the said trust had filed eviction suit against its tenants bearing T.S. No. 43/81 and T.S. 50/83 which were decreed in his favour. The head office of the trust was situated at Kolkata with the branch office at Koderma and as such the plaintiff appointed a Darban to look after the house properties of the trust at Jhumritelaiya and visited personally time to time. Further case of the plaintiff is that in between the year, 1960-1969 a revisional survey was done in Jhumritelaiya, but because of the absence of the Managing trustees and their representatives the suit property was in correctly and wrongly recorded as Sarba Sadharan anabad Bihar Sarkar Dharmsala with respect to 0.44 acres suit land and inspite of the wrong entry the plaintiff is in possession of the suit land without any let or hindrance from many corner. The plaintiff first time came to know about the wrong entry in the khatiyan in the year 1991, when the Darban went to pay the rent to the Karmchari. The plaintiff then filed a suit against State of Bihar now Jharkhand in the year 1993 challenging the aforesaid wrong entry in the record of right, which was ultimately withdrawn by him (plaintiff) in the year 2004 with liberty to institute a fresh suit on the same cause of action. Thereafter, the plaintiff sent legal notice under section 80 C.P.C. to the State of Jharkhand and its officials and after expiry of the statutory period the suit was filed by the plaintiff. 5. On the other hand three sets of written statements are filed on behalf of defendants. But out of them only defendant no. 1 and 2 have contested the suit and in the written statement filed on behalf of the contesting defendant nos. 1 and 2/appellants. It is pleaded that the suit as framed is not maintainable. The suit is barred by law of limitation, estoppel, acquiescence and waiver. The present suit also suffers from non-joinder or mis-joinder of the parties. 1 and 2 have contested the suit and in the written statement filed on behalf of the contesting defendant nos. 1 and 2/appellants. It is pleaded that the suit as framed is not maintainable. The suit is barred by law of limitation, estoppel, acquiescence and waiver. The present suit also suffers from non-joinder or mis-joinder of the parties. The present suit is also barred by the provision of specific Relief Act. These defendants have denied all pleadings of the plaintiff in parawise. It has been further pleaded that the managing trustees were all vigilant during the revisional survey proceeding, but no step was taken to make correct the same before any appropriate authority. Hence, these defendants have denied the pleadings of the plaintiff about the preparation of incorrect record of right during the R.S. These defendants have further stated that the Dharmshala is being used for stay and for other religious and charitable purposes. Some portion of the above dharmshala is in occupation of defendants tenant. These defendants are not aware about the terms and payment of rent by the tenants. At last he has further pleaded that the entry in R.S. khatiyan is correct. It is not contrary to the facts as pleaded by the plaintiff. Because the record of right has been correctly prepared. Therefore, the plaintiff has got no title upon the suit property. It has been further pleaded that the plaintiff has no cause of action to sue. Moreover the value of the suit land given by the plaintiff is less. Having regard to the above facts and circumstances, it is prayed that the plaintiff is not entitled to get any relief as claimed in the plaint and suit is fit to be dismissed. 6. By way of filing w/s defendant no. 3 Kewal Mandal has pleaded that he is the tenant of the plaintiff Jamunadas Dharmada Trust in his tenanted house situated in new khata no. 1348 and plot no. 7461 Area 24 decimals, which has been carved out from old khata no. 2 and old plot no. 3454. He is the tenant of the plaintiff since more than 40 years and regularly paying the rent to the plaintiff and obtained printed rent receipts from Jamunadas Dharmada Trust signed by Ramchandra Tibrewala manager of the trust. 7. 7461 Area 24 decimals, which has been carved out from old khata no. 2 and old plot no. 3454. He is the tenant of the plaintiff since more than 40 years and regularly paying the rent to the plaintiff and obtained printed rent receipts from Jamunadas Dharmada Trust signed by Ramchandra Tibrewala manager of the trust. 7. The remaining defendants have filed a joint w/s stating therein that these defendants are the tenants of the plaintiff from the time of their father for more than 50 years under the monthly rent receipts. These defendants are the tenants from before of revisional survey and the relation of a landlord and tenants in between the plaintiffs and these defendants still exists. It has been further pleaded that the plaintiff constructed some out house, shops and godowns all around the dharmshala in the year 1943. The aforesaid shops were let out to the defendants as tenants on rent and that amount is being spent for maintaining and upkeeping of dharmshala and other charitable and religious purposes. It has been further pleaded that in the revisional survey the suit land is wrongly recorded as Sarba sadharan Anabad. Inspite of the wrong entry the plaintiff's trust is coming in possession of the suit land and collecting monthly rent from these defendants, who are the tenants of the building over the lands of schedule ‘B’. In such circumstances, it is pleaded that the plaintiff has titled over the suit land and is in continued possession over the same before and after the R.S. inspite of the wrong entry in the R.S. Khatiyan. In this way these defendants admitted the pleadings as made in the plaint by the plaintiff. 8. Mr. Deepak Kumar Dubey, learned counsel appearing for the appellants submits that the learned appellate court has failed to consider that the land in question of the Government is recorded as Anabad Sarb Shadharan. He submits that inspite of that not filing a chit of paper about the possession of the plaintiff/respondent, the learned trial court as well as the learned appellate court have passed the judgment which is erroneous and perverse. He submits that this second appeal may be admitted on substantial question of law. He submits that there are disputed question of facts about the area of the land. Apart from that nothing has been argued on behalf of the appellants. 9. He submits that this second appeal may be admitted on substantial question of law. He submits that there are disputed question of facts about the area of the land. Apart from that nothing has been argued on behalf of the appellants. 9. In view of above submission of the learned counsel for the appellants, the Court has gone through the judgment of the learned trial court as well as the appellate court and finds that the learned trial court has framed eight issues to decide the suit. Issue No. VI is with regard to valid title over the suit land of the plaintiff. While deciding Issue No. VI, the learned trial court has looked into evidence of three witnesses examined by the plaintiff namely, Ramchandra Tibrewalla, P.W.2 Satnarayan Tibrewalla and P.W.3 Munna Sultaniya in which they have stated that M/s Jamnadas Dharmada Trust is known as Jamna Das Tibrewalla Trust registered as private Trust with its registered office originally at Rangoon at present 164, Chitranjan Avenue Calcutta-7 having the branch office at Jhumri Telaiya, District-Koderma and all these three witnesses have fully supported the case of plaintiff/respondent. P.W.1-Ramchandra Tibrewalla in para 9 to para 13 has disclosed the mode of acquisition of the trust property by different sale deeds. In para 4 he has deposed that the plaintiff trust is continuously having the possession on the suit property and in para 15 he has also deposed regarding the mutation of the suit property in the name of the plaintiff Trust. In para 28 of his cross-examination he has stated that the municipal tax of the suit property has always been paid by him to the Jhumri Teliaya Muncipality and after payment of the tax its receipts are given to him and that has not been rebutted or falsified in any manner in his cross-examination. P.W.2-Satnarayan Tibrewalla has also deposed that the name of Government of Jharkhand has been wrongly and erroneously mentioned on the survey khatiyan during the survey. P.W.3 has also by exhibited all the private and public documents in support of his case. The defendants have not been able to demolish the case of the plaintiff in any manner. Exhibit-3 also suggests that the plaintiff/trust has got possession on the suit property as it is also mentioned in the khatiyan and the name of raiyat has been erroneously and wrongfully mentioned as Anabad Sarb Shadharan. The defendants have not been able to demolish the case of the plaintiff in any manner. Exhibit-3 also suggests that the plaintiff/trust has got possession on the suit property as it is also mentioned in the khatiyan and the name of raiyat has been erroneously and wrongfully mentioned as Anabad Sarb Shadharan. The documentary evidence produced on behalf of plaintiff was found to be established the right, title and possession of the plaintiff and the suit property was peacefully enjoyed by the plaintiff/trust and wrongfully and erroneously mentioned in survey khatiyan as Anabad Sarb Shadharan. The learned trial court has held that Dharmsala in possession of Jamunadas is clearly mentioned therein and accordingly said issue was decided in favour of the plaintiff/respondent. 10. In the appeal, the learned appellate court has elaborately dealt with the contention of the appellants/defendants in para 13 of the judgment. The learned appellate court has found that there is specific pleading in para 10 and 13 with respect to the right, title and interest of the trust in question. The plaintiff has accepted that R.S. Survey was conducted in between 1960-1969 in Jhumriteliya in which said property belongs to the plaintiff, incorrectly and wrongly recorded as Sarb Sadharan Anabad. This fact came to know to the plaintiff in the year, 1991 and then for the suit land, T.S. No. 21/93 was filed in the Court of Sub-Judge-I, Koderma which has been withdrawn with liberty to file fresh suit. Dharmshala is being used for stay and for other religious and charitable purposes and some portion thereof is in occupation of different tenants. Dharmshala is being used for stay and for other religious and charitable purposes and some portion thereof is in occupation of different tenants. Learned appellate court has held that on record of right the name of Anabad Sarb Shadharan and in the year 1991 the plaintiff came to know about the suit property in the record of right as Anabad Sarb Shadharan then he filed Title Suit No. 21/1993 and looking into these facts, learned appellate court found that all the evidences are sufficient to show that since the plaintiff came to know about the suit property in record of right as Anabad Sarb Shadharan immediately he filed the case before the Sub-Judge-I, Koderma and the said suit was withdrawn with liberty to file fresh and considering that aspect of the matter that plaintiff came to know about the suit property in the year, 1991 the suit was filed and learned trial court held that suit is not barred by law of limitation. Learned appellate court has further reconsidered the witnesses examined on behalf of the plaintiff and found that the trust has been registered in the year, 1930 in support of that evidence Exhibit 7 was considered. P.W.1 further stated that the above three trustees had purchased about 0.50 acres land from Chamari Ram by a registered sale deed no. 1358 on 19.06.1936 and on the same day the land about 96 decimals of the same plot has also purchased by the above trustee from Khago Kunwari through registered sale deed no. 1357 and in support of these evidence exhibit 8 series on record has been brought which are suggesting the title. As those are sale deeds the suit property came in possession of the plaintiff/respondent. Thereafter plaintiff had constructed Dharmshala, rooms and other buildings on the same land. Some portion of the building was let out to the defendant nos. 3 to 14 on rent for benefit of the trust and these piece of evidence has been admitted by the defendant nos. 3 to 14. Thereafter plaintiff had constructed Dharmshala, rooms and other buildings on the same land. Some portion of the building was let out to the defendant nos. 3 to 14 on rent for benefit of the trust and these piece of evidence has been admitted by the defendant nos. 3 to 14. Electricity bills and municipal taxes are being paid to the concerned authority by the trust and in support of that evidence exhibit 4 and 10 series were filed which are rent receipts and considering these aspects of the matter, the learned appellate court came to the conclusion that the plaintiff/respondent is coming in possession of the suit property since the time of purchasing the suit land. Exhibit-3 was re-examined by the learned appellate court which was filed by way of information sought by the plaintiff/respondent with regard to land in question and type of land shown therein building and Dharmshala were recorded and type of land thereafter above piece of land, building and dharmshala are shown in possession of Jamunadas by said exhibit. Not only that exhibit-8 series further suggests that the plaintiff had applied for getting sanction for construction over the land in suit and with that application a plan map had also been submitted before Jhumri Telaiya Notified Area Committee and thereafter on 07.04.1964 the sanction was accorded by the Vice Chairman of the above committee. Exhibit 5 is document which is suggesting that the plaintiff/respondent constructed dharmshala and buildings for religious purposes and also for getting money from the tenants by letting out some portion of the building on rent to the defendant nos. 3 to 14. How the limitation has been dealt with by the learned appellate court has already been discussed hereinabove. 11. The defendant has examined only one witness (oral evidence) and in examination-in-chief he has stated that land in Khata No. 1344, plot no. 7461 area 24 decimals and plot no. 7462 area 20 decimals under mauja Telaiya, district Koderma is the government land and the government is in possession over the same land however, that has not been accepted by the learned appellate court and considering that Exhibit-3 in which Jamuna Das son of Janki Das was found in possession of the land and suit property during the R.S. operation and the same is mentioned in R.S. record of right. In such circumstances the evidences regarding the possession of government over the suit property was not believed by the learned appellate court. Besides this oral evidence no other piece of evidence was adduced on behalf of the contesting defendant no. 1 and 2 who are appellants herein. In cross-examination D.W.1 has admitted that he has no knowledge as to whether the Jharkhand Government is receiving the rent from the tenants of the suit property. He deposed that he cannot say as to whether government is maintaining the building and dharmshala. He has not been able to depose as to whether any record is maintained in circle office about the dharmshala situated over the suit land. He has further stated that save and except khatiyan he cannot produce any documentary evidence to show the possession of the government over the suit property that is why the statement of that witness has not been considered and found reliable by the learned appellate court. 12. In view of above fact, the court finds that there are concurrent findings of the two facts finding courts and no substantial question of law is involved in this second appeal particularly considering that the witnesses and the exhibits have been properly interpreted by the learned trial court as well as the learned appellate court and sitting under section 100 of the C.P.C. the High Court is not required to admit this second appeal in absence of any substantial question of law and accordingly, this second appeal is dismissed. Pending, I.A. if any, stands disposed of.