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2023 DIGILAW 170 (JHR)

Krishna Kumar Sinha v. Badri Ram Dusadh (Abated)

2023-02-14

SANJAY KUMAR DWIVEDI

body2023
JUDGMENT : SANJAY KUMAR DWIVEDI, J. Second Appeal No. 142 of 2009 Let the Second Appeal No. 142 of 2009 be detached from Second Appeal No. 175 of 2009 in view of the submission of the learned counsel for the appellant that he has got no instruction to argue the matter so far as Second Appeal No. 142 of 2009 is concerned. In view of his such submission, Second Appeal No. 142 of 2009 is dismissed as not pressed. Second Appeal No. 175 of 2009 1. Heard Mr. Ayush Aditya, learned counsel for the appellant. 2. This second appeal has not been admitted, however notice has been issued upon the respondents and notice has been effected upon some of the respondents and notice has not been effected upon some of the respondents and it has been reported that respondent no. 4 has left for his heavenly abode. Thus, this second appeal is already abated against respondent no. 4. This second appeal is not admitted as yet. It is well settled when substantial question of law is involved the second appeal is required to be admitted and thereafter notice is required to be issued. 3. In that view of the matter, the Court has heard at length the learned counsel for the appellants on the point of admission on substantial question of law. 4. This second appeal has been filed being aggrieved and dissatisfied with the judgment dated 30.04.2009 (decree signed on 08.05.2009) by the learned 2nd Additional District Judge, Hazaribagh in Title Appeal No. 5 of 2006 allowing the appeal and thereby setting aside the judgment dated 28.02.2006 and decree dated 22.03.2006 passed by the learned Subordinate Judge-V, Hazaribagh in Title Suit No. 11 of 1974. 5. The appellants/plaintiffs instituted Title Suit No. 11 of 1974 for declaration of title and confirmation of possession of plaintiffs with respect to suit plot no. 305 under Khata No. 76 of village Ramgarh along with further declaration that defendant no. 5 is tenant in possession over the portion of suit land under plaintiffs and defendant nos. 1 to 4 have no right, title, interest and possession over the suit land. Alternatively it was also prayed for recovery of khas possession of the suit land or any portion thereof, if the plaintiffs are found dispossessed and permanent injunction against defendant nos. 1 to 4 with respect to the suit land has also been prayed. 1 to 4 have no right, title, interest and possession over the suit land. Alternatively it was also prayed for recovery of khas possession of the suit land or any portion thereof, if the plaintiffs are found dispossessed and permanent injunction against defendant nos. 1 to 4 with respect to the suit land has also been prayed. The said suit was decided by the learned trial court vide judgment dated 28.02.2006 and by the said judgment, the learned trial court has been pleased to decree the suit in favour of the appellants/ plaintiffs. Aggrieved with that judgment, the respondents/defendants have moved before the learned appellate court in Title Appeal No. 5 of 2006, which was decided vide judgment dated 30.04.2009 and by the said judgment, the learned appellate court has been pleased to allow the appeal and the judgment passed by the learned trial court has been set aside. Aggrieved with that judgment, the appellants/plaintiffs have filed the present second appeal. 6. The appellants/plaintiffs have instituted Title Suit No. 11 of 1974 alleging therein that lands of plot no. 305 under khata no. 76 measuring an area of 0.52 acres was recorded in the name of Pachkauri Dusadh and lands of plot no. 307 under khata no. 68 wan recorded in the name of Dularchand Dusadh, who was the uncle of said Pachkauri Dusadh. One Prayag Narayan and his brother purchased the lands of plot no. 305 and 307 some 41-42 years ago in the name of Radha Krishna Prasad, who was minor at that time. Since there was some legal restrictions in transfer of the lands, said Pachkauri Dusadh and Dularchand Dusadh received consideration money from Prayag Narayan and put him and Radha Krishna Prasad in possession over the said two plots sometime in the year 1924-25. Dularchand Dusadh died issueless and so Pachkauri Dusadh inherited him and came in possession of all the properties left by Dularchand Dusadh. Later on, Prayag Narayan obtained a sada permanent Dar-raiyati settlement deed from Pachkauri Dusadh on annual rent of Rs. 15/- and Rs. 18/- respectively. Prayag Narayan constructed a house and a well over a portion of plot no. 305 and 307 in the year 1934-35. It was further alleged that Prayag Narayan allowed his brother-in-law Kanchan Lal to construct a house on some portion of plot no. 307 and after constructing the house Kanchan Lal started residing in it. 15/- and Rs. 18/- respectively. Prayag Narayan constructed a house and a well over a portion of plot no. 305 and 307 in the year 1934-35. It was further alleged that Prayag Narayan allowed his brother-in-law Kanchan Lal to construct a house on some portion of plot no. 307 and after constructing the house Kanchan Lal started residing in it. Prayag Narayan and Harihar Prasad also purchased some other lands surrounding the plot no. 305 and 307 and constructed boundary wall leaving portion of plot no. 307 which was given to Kanchan Lal. During the course of construction of compound wall he also surrounded a portion of plot no. 306 which is road side land. The compound wall is said to have been constructed at first on the western side in the year 1934-35 and completed in 1939-40. After acquisition Prayag Narayan amalgamated the lands of plot no. 307, 306, 304 with plot no. 305 and some other lands and occupied plot no. 311 adversely. The respondents are paying taxes to the Ramgarh Cantonment Board. Since Prayag Narayan remained in possession of the suit land for more than 12 years they acquired indefeasible title as raiyats to the suit lands. In the year 1954 said Pachkauri Dusadh filed a suit for realisation of rent under Dar raiyati settlement deed and obtained ex-parte decree in S.C.C. No. 173/54 from the court of Munsif, Hazaribag, but he failed to execute the same. Thereafter, Pachkauri Dusadh filed a petition before the S.D.M. Hazaribag in the month of June, 1967 and the learned Magistrate on 12.01.1970 passed an order u/s 145 Cr.P.C. against the respondents and wrongly declared the possession of the appellant. Against that order, a revision was filed before the High Court which was rejected by the High Court on 28.02.1973. Thereafter, this suit was been filed with a prayer to confirm the title of the plaintiffs over the suit land. 7. Defendant nos. 1 to 4 appeared in the suit and filed their written statement stating there in that the suit is not maintainable having no cause of action. The suit is barred by law of limitation, waiver, estoppel and acquiescence. It was denied that Pachkauri Dusadh and Dularchand Dusadh ever sold any lands of Plot no. 305 and 307 42-43 years ago. 1 to 4 appeared in the suit and filed their written statement stating there in that the suit is not maintainable having no cause of action. The suit is barred by law of limitation, waiver, estoppel and acquiescence. It was denied that Pachkauri Dusadh and Dularchand Dusadh ever sold any lands of Plot no. 305 and 307 42-43 years ago. Dularchand Dusadh died in the year 1918 and so question does not arise to sell any land in the year 1932-33. However, it was admitted that Pachkauri Dusadh inherited the property of Dularchand Dusadh after his death in 1918 till his death on 22.11.1955. The story propounded by the plaintiff that Pachkauri Dusadh granted any Dar-raiyati Hukumnama favour of Prayag Narayan is totally false and baseless. They also alleged that it is also false that Prayag Narayan constructed any house over the suit plots. As a matter of fact, there is no residential house on any of the plots. So far as the construction made by Kanchan Lal, brother-in-law of Prayag Narayan is concerned, he could be liable to be held as trespasser and he is liable to be evicted from there. So far as construction of boundary wall by Prayag Narayan is concerned, it was alleged that it is also false and in fact the boundary wall was constructed by Pachkauri Dusadh himself. Since no any house was constructed by Prayag Narayan, question does not arise to assess tax by the Cantonment Board and if there is any document showing the assessment of tax or payment of tax by the plaintiffs it is forged and fabricated document and such document cannot be binding on Pachkauri Dusadh. They have also alleged that it is also false to say that Pachkauri Dusadh ever filed any S.C.C. case against the plaintiffs. It was further stated that defendant no. 1 had inducted defendant no. 5 as tenant on the suit land on monthly rent of Rs. 25/-. It was further stated that the defendant sold 0.25 decimals of land on 20.01.1969 by obtaining the permission of the Deputy Commissioner, Hazaribag on consideration of Rs. 2000/- and they are still in possession of rest lands. It was further stated that neither the plaintiffs have got any title nor they have got possession over the suit lands and, therefore, the suit may be dismissed. Defendant no. 2000/- and they are still in possession of rest lands. It was further stated that neither the plaintiffs have got any title nor they have got possession over the suit lands and, therefore, the suit may be dismissed. Defendant no. 5 has filed separate written statement and has denied the plaintiffs' case rather he has admitted the case of defendant nos. 1 to 4 and he has also denied to be the tenant of the plaintiffs and he never paid any rent to the plaintiffs. 8. On the basis of the above pleadings, the learned trial court has framed 9 issues. While deciding issue nos. V, VII and VIII, which are with regard to Have the plaintiffs got any right, title, interest and possession over the suit land? Are the plaintiffs alternatively entitled to get a decree of recovery of possession against defendant nos. 1 to 4, if they are found dispossessed from the suit land? And Are the plaintiffs entitled to get a decree for permanent injunction restraining defendant nos. 1 to 4 from interfering with the title and possession of the plaintiff with respect to the suit land? respectively, the learned trial court has held that in deciding the adverse possession, five things are required to be looked into, which are illegal possession, hostile to real owner, knowledge of hostility to the real owner, over-tact by the person claiming adverse possession and uninterrupted and continuous possession for last 12 years minimum and the learned trial court has further considered that S.C.C. Case was filed by Pachkauri Dusadh in the year 1954, which is evident from Ext.4/A and Ext.9/C. As per Ext.4/A and 9/C, which are C.C. of plaint and court notice, rent of the year 1952-53 was not paid by Radha Krishna Prasad to Pachkauri Dusadh. Ext.18 is the unregistered deed of Dar-raiyati. The learned court on perusal of the three documents i.e. Exts.4/A, 9/C and 18 came to the conclusion that it is crystal clear that the plaintiff was in possession of the suit land prior to 1952 on the basis of illegal document (Ext.18). In the year 1952, the plaintiff stopped payment of rent to Pachkauri Dusadh as Darraiyat and proceeding u/s 144 Cr.P.C. was filed in the year 1967 by descendants of Pachkauri Dusadh. In the year 1952, the plaintiff stopped payment of rent to Pachkauri Dusadh as Darraiyat and proceeding u/s 144 Cr.P.C. was filed in the year 1967 by descendants of Pachkauri Dusadh. It has also been observed by the learned trial court that since Pachkauri Dusadh was a member of Scheduled Caste, he was entitled to recovery of possession of his lands u/s 46 Clause 4(A) of the C.N.T. Act within 12 years from the date of his dispossession but legal recourse was not taken by him. On these grounds, the learned trial court has decreed the suit in favour of the appellants/plaintiffs. 9. The learned appellate court while reversing the finding of the learned trial court, has held that the ancestor of the plaintiff was a Darraiyat and as per Ext.4/A, as well as Ext.9/C, ancestor of the plaintiff paid rent upto the year 1951 and decision relied in that case, in a clear cut way settled the principle that if he paid rent and the same was accepted by the lessee, his possession ceases to be adverse and relationship of landlord and tenant came into existence and he no longer remains a trespasser. The learned appellate court has also considered that the plaintiff has not averred in the plaint or stated in their evidence that what amount of consideration money was given to Pachkauri Dusadh and his uncle Dularchand Dusadh and consideration is one of the parameters to transfer any land and discussing all these things, the learned appellate court has allowed the appeal and dismissed the suit. 10. Mr. Ayush Aditya, learned counsel for the appellants by way of referring the above, which has recorded herein above, submits that the learned appellate court has failed to appreciate three exhibits i.e. Exts.4/A, 9/C and 18 and there is substantial question of law involved in this second appeal and, therefore, this second appeal may kindly be admitted. 11. 10. Mr. Ayush Aditya, learned counsel for the appellants by way of referring the above, which has recorded herein above, submits that the learned appellate court has failed to appreciate three exhibits i.e. Exts.4/A, 9/C and 18 and there is substantial question of law involved in this second appeal and, therefore, this second appeal may kindly be admitted. 11. In view of the submission of the learned counsel for the appellants and considering the case of the plaintiffs and defendants, 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 while considering three exhibits i.e. Ext.4/A, 9/C and 18, which is the main contention of the learned counsel for the appellants in this second appeal, had held that in view of Ext.18, which is illegal document of possession and Exts.4/A and 9/C are the documents, which suggest that rent was not being paid and on that ground and considering that since a long period, he is residing there, the learned court has given finding that the plaintiff is in possession of the suit land and the same was also allowed on the ground of adverse possession. The learned appellate court has interfered with these two documents and in paragraph 13 of the judgment and has dealt with the reason of the learned trial court and on considering these documents found that he has come to that finding. The learned appellate court has considered that since the transfer was restricted under the C.N.T. Act u/s 46 (4), therefore, a permanent Darraiyati sada deed was prepared between the parties i.e. Ext.18 but this document was never acted upon and from that day the ancestor of the plaintiff was in possession. The learned appellate court has also considered that a proceeding u/s 145 Cr.P.C. was decided against the appellants/plaintiffs and has rightly presumed that the appellants/plaintiffs have been dispossessed which creates a cloud of suspicion of the title of the plaintiffs because in the proceeding u/s 145 Cr.P.C. the respondents/ defendants have been found to be in possession. The learned appellate court has also considered that a proceeding u/s 145 Cr.P.C. was decided against the appellants/plaintiffs and has rightly presumed that the appellants/plaintiffs have been dispossessed which creates a cloud of suspicion of the title of the plaintiffs because in the proceeding u/s 145 Cr.P.C. the respondents/ defendants have been found to be in possession. The learned appellate court has interpreted these documents and has come to the conclusion that if a person came in possession over the land on the basis of illegal document, he must be treated as a trespasser from the time of his entry within the knowledge of ancestor of the defendants as well as the knowledge of the ancestor of the plaintiffs. The trespasser remained in possession for more than 12 years. 13 witnesses have fully supported the possession of the respondents since 1933-34. The submission of the counsel for the appellant in the said title appeal with regard that the sada deed of Dar Raiyat (Ext.18) should be read as a whole not a portion thereof, has been considered by the learned appellate court. The learned appellate court has considered that it has been incorporated that the ancestor of the plaintiff will pay Rs.15/-and Rs.18/-per annum as rent for the lands of plot no. 305 and 307 respectively and considering that he has come to the conclusion that it was a Darraiyati settlement,, though the defendants have denied it, but it if it is assumed to be true even then, the ancestor of the plaintiff was a Dar raiyat and as per Ext.4/A as well as Ext.9/C, ancestor of the plaintiff paid rent upto the year 1951 and decision passed in AIR 1975 Pat. 113 , the learned court held that in a clear cut way, it is well settled the principle that if he pays rent and it is accepted by the lessee his possession ceased to be adverse and relationship of landlord and tenant comes into existence and he no longer remains a trespasser. The learned appellate court has further held that non-mentioning the consideration amount either in the plaint or not proved in the evidence goes to establish that there was no sale at all as alleged by the plaintiff and the plaintiff has failed to establish that their ancestor had purchased the land from Pachkauri Dusadh and Dularchand Dusadh. The learned appellate court has further held that non-mentioning the consideration amount either in the plaint or not proved in the evidence goes to establish that there was no sale at all as alleged by the plaintiff and the plaintiff has failed to establish that their ancestor had purchased the land from Pachkauri Dusadh and Dularchand Dusadh. Admittedly in the case in hand, the appellant/plaintiff has sought the possession on the ground of Ext.18 as well as adverse possession, which itself is in consistent with law of adverse possession, as held by the Hon'ble Supreme Court in Roop Singh (Dead) through LRs. vs. Ram Singh (Dead) through LRs. (2000) 3 SCC 708 . Thus when a possession is sought on the ground of Ext.18, the law of adverse possession is not available in view of the judgment passed in Roop Singh (supra). The learned appellate court has rightly interpreted those documents. No adversity has been found by this Court in the judgment passed by the learned appellate court and the learned appellate court has rightly reversed the finding of the learned trial court. There is no substantial question of law, involved in this second appeal. 12. Accordingly, this second appeal is dismissed. 13. Consequently, I.A. No. 1174 of 2023 is also dismissed.