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2025 DIGILAW 1944 (JHR)

Ram Nandan Sahu v. Shiv Shankar Sahu

2025-09-25

PRADEEP KUMAR SRIVASTAVA

body2025
JUDGMENT : 1.Heard Mr. Jai Prakash, learned senior counsel for the appellants and Mr. Shubham Sinha, learned counsel for the respondents. 2. The instant second appeal has been preferred against the judgment and decree dated 08.12.2005 (decree signed on 15.12.2005) passed by learned Additional District Judge-I, Lohardaga in Title Appeal No. 04 of 2002, whereby and whereunder, the first appellate court has dismissed the appeal, confirming the judgment dated 23.03.2002 and decree dated 04.04.2002 passed by the learned trial court (Sub Judge-I, Lohardaga) in Title Suit No. 39/1997, whereby the suit of the plaintiff was decreed. FACTUAL MATRIX 3. The factual matrix giving rise to this appeal in a narrow compass is that original plaintiff – Kaleshwar Sao instituted a suit against Bihar Rajya Pul Nirman Nigam Ltd. and others for declaration that there is relationship of landlord and tenant between the plaintiff and Bihar Rajya Pul Nirman Nigam Ltd. and plaintiff is entitled to receive rent with regard to the suit land mentioned in the Schedule of the plaint. 4. It is alleged that the plaintiff is the rightful owner and in possession of the lands appertaining to R.S. Khata No. 27, Plot No. 40, Area – 0.71 acres and lands appertaining to Khata No. 70, Plot No. 39, Area – 0.84 acres of Village – Jogna, P.S.- Senha, District – Lohardaga situated near Fuljhar river bridge. It is alleged that defendant Bihar Rajya Pul Nirman Nigam Ltd. started construction of new bridge near Fuljhar river in or about March, 1988 and for the purpose of storing the construction materials, the defendants approached the plaintiff to let out the suit land on monthly rent of Rs. 500/-. It is alleged that the rent was fixed by the S.D.O. (Controller), Lohardaga vide Letter No. 898 dated 27.12.1989. Thereafter, the defendant constructed some rooms of asbestors roof for dumping construction materials etc. over the suit land and started paying rent to the plaintiff. The defendant paid the rent up till 05.07.1993. Thereafter, stopped payment of rent. Therefore, notices were issued to the defendant through registered post and also served personally by the plaintiff in the office of the defendant, then it was orally disclosed that some other persons are also demanding rent and unless plaintiff get his title declared by the competent court, no rent will be paid. Hence, this suit. 5. Therefore, notices were issued to the defendant through registered post and also served personally by the plaintiff in the office of the defendant, then it was orally disclosed that some other persons are also demanding rent and unless plaintiff get his title declared by the competent court, no rent will be paid. Hence, this suit. 5. It is further alleged by the plaintiff that the suit land fell in the share of plaintiff through oral partition between the sons of Ramdu Sahu in the year 1967 and each co-sharer separated themselves by metes and bounds and enjoying their usufruct separately. It is further alleged that after death of Ramsewak Sahu, the lands allotted in the share of Ramsewak Sahu was further partitioned between Kauleshwar Sahu and Muneshwar Sahu. 6. Further case of the plaintiff is that after the oral partition, each co-sharer was enjoying separately their properties and were also selling their share to the knowledge of all concerned. Baleshwar Sahu has executed a registered sale deed in favour of Kauleshwar Sahu (plaintiff) with respect to lands of R.S. Khata No. 26, Plot No. 843, area - 0.11 acres, Plot No. No. 844, area – 0.39 acres vide Sale Deed No. 1016 dated 26.03.1976, Sale Deed No. 510 dated 14.02.1976 and Sale Deed No. 1588 dated 23.06.1981. Similarly, Baleshwar Sahu has also executed registered sale deeds in favour of other purchaser also. 7. It is further alleged that plaintiff’s grandfather Ramdu Sao was the ex-landlord of Village – Jogna, who acquired the lands of R.S. Khata No. 70, total area 6.71 acres jointly with one Sheo Prasad Sahu and thereafter before vesting of Zamindari Ramdu Sahu settled the land of his half share to the plaintiff and Sheo Prasad Sahu, son of Govardhan and recognized him as a Raiyat having occupancy right jointly and issued zamindari receipt also and after vesting of Zamindari filed return showing the possession of the plaintiff and Sheo Prasad Sahu (intervener defendant no. 5). The plaintiff and Sheo Prasad Sahu executed registered deed of sale with respect to plot no. 38 and 19 of Khata No. 70, total area 0.77 acre jointly and thereafter there was oral partition between the plaintiff and Sheo Prasad Sahu in the year about 1974-75 with respect to lands of Khata No. 70. 5). The plaintiff and Sheo Prasad Sahu executed registered deed of sale with respect to plot no. 38 and 19 of Khata No. 70, total area 0.77 acre jointly and thereafter there was oral partition between the plaintiff and Sheo Prasad Sahu in the year about 1974-75 with respect to lands of Khata No. 70. Accordingly, in due course, the suit land was let out on rent to the defendant-Bihar Rajya Pul Nirman Nigam Ltd. 8. The original defendant Bihar Rajya Pul Nirman Nigam Ltd. appeared, but filed no written statement. A Compromise petition was filed by the original defendant on 10.04.2000 without any signature from the competent authority of Nigam. 9. The Intervenor defendants Muneshwar Sahu, Nand Kishore Sahu, Manmohan Sahu, Baleshwar Sahu and Sheo Prasad Sahu were also impleaded as party and filed their written statement stating inter alia that the plaintiff is not exclusive owner of the suit land and he could not be declared as a sole landlord. It was pleaded that the lands appertaining to Plot No. 40 under R.S. Khata No. 27 and the lands appertaining to Plot No. 39 under Khata No. 70 were jointly in the name of predecessor-in-interest of the intervenor defendants along with plaintiff, as such, the subject matter of the suit is jointly recorded in the name of intervenor defendants along with plaintiff, who are also landlord of the suit land. 10. It is further pleaded that the intervenor defendants have also raised disputes with regard to the suit property before the Circle Officer, Senha vide Misc. Case No. 01/96-97, which was referred to LRDC, but decided in favour of plaintiff vide order dated 24.02.97 and the same was set aside in appeal vide Revenue Appeal No. 9 of 97-98/T.R. No. 22/97-98 by D.C., Lohardaga vide order dated 10.06.97. The suit land was given on rent by plaintiff on desire of all the co- sharer, therefore, they are also entitled to receive rent and maintain eviction suit against the Bihar Rajya Pul Nirman Nigam Ltd. in the capacity of landlord. By way of amended written statement, it was further pleaded that there was no oral partition of the suit properties between the plaintiff and the intervenor defendants. The parties are dealing with the properties according to their convenience. By way of amended written statement, it was further pleaded that there was no oral partition of the suit properties between the plaintiff and the intervenor defendants. The parties are dealing with the properties according to their convenience. The suit property never fell exclusively in the share of plaintiff and still joint and all the parties are enjoying their usufruct jointly and due to necessity, parties have also sold some of the properties to meet out the expenses of marriage of daughters and sons with consent of all co-sharer. 11. On the basis of pleadings of the parties, the learned trial court has framed following issues for adjudication:- (i) Is the suit maintainable as framed? (ii) Is there relationship of landlord and tenant in between plaintiff and defendant Bihar Rajya Pul Nirman Nigam Ltd.? (iii) Is the plaintiff got the suit land exclusively by oral partition? (iv) Is the plaintiff is entitled for any other relief? 12. The learned trial court took the Issue No. (iii) as prime issue for adjudication and recorded finding that after appearance of the intervener defendants, the plaint was amended to the effect that there was oral partition between the sons of Ramdu Sahu and each co-sharer separated themselves in mess, residence as well as cultivation of the lands by metes and bounds and enjoying usufruct separately. The learned trial court after taking into consideration oral as well as documentary evidence adduced by plaintiff and defendants particularly, Exhibit-2 & 3 series i.e. various sale deeds, Exhibit-4 – Jamabandi of Khata No. 70, arrived at conclusion that the documentary evidence adduced by the plaintiff shows that some lands were sold by co-owners, but this cannot be conclusive proof of partition between the parties. Therefore, the claim of the plaintiff to be sole owner of the suit land was decided negatively. 13. So far Issue No. (ii) is concerned, it was held that it is an admitted fact that the defendant no. 1 Bihar Rajya Pul Nirman Nigam Ltd. was inducted as tenant by plaintiff and rent was also paid to the plaintiff. It is also admitted fact that plaintiff received rent of Rs. 29,050/- from the defendant no. 1, therefore, this issue was decided in favour of plaintiff and against the defendants. 14. On the basis of findings recorded on two vital issues, the rest Issue Nos. It is also admitted fact that plaintiff received rent of Rs. 29,050/- from the defendant no. 1, therefore, this issue was decided in favour of plaintiff and against the defendants. 14. On the basis of findings recorded on two vital issues, the rest Issue Nos. (i) & (iv) were also decided in favour of plaintiff and the suit was decreed to the extent that plaintiff is declared to be landlord of the suit land and the defendant no. 1 Bihar Rajya Pul Nirman Nigam Ltd. is the tenant. 15. The appellate court has not settled any new issue, rather proceeded to re-write the judgment on the issues settled by the learned trial court on the basis of same evidence. 16. As regards Issue No. (iii), the appellate court has taken note of oral as well as documentary evidence adduced by the plaintiff particularly Exhibit-1 Khatian, Exhibit-2, 2/a, 2/b, 2/c and 2/d Sale Deed Nos. 1016, 510, 1588, 807 and Deed No. 536 respectively and Exhibit-3, 3/A, 3/B Signature of Balkeshwar Sahu in Deed Nos. 1588, 510 and 1016 respectively, Exhibit-4 Returns, Exhibit-5 Certified copy of order dated 22.04.1992 and Exhibit-6 Certified copy of Deed No. 169 dated 25.02.1987 and found that in each and every sale deed executed by intervener defendant, it is specifically mentioned that they are selling the property allotted to their share after partition. It was further observed that Exhibit- 2/C and 2/D very clearly specifies that Muneshwar Sahu and Balkeshwar Sahu have sold their share of land allotted to them in the year 1975 and 1979 respectively. Therefore, the suit land cannot be said to be joint property between plaintiff and intervener defendants. Accordingly, hold that the oral partition as pleaded in the year 1967 during life time of common ancestor Ramdu Sahu amongst his sons appears to be proved. 17. In view of the above specific finding, the learned appellate court differed with the findings of learned trial court on Issue No. (iii). 18. The instant second appeal has been admitted vide order dated 24.02.2009 on the following substantial questions of law:- (1) Whether in absence of any appeal or cross appeal by the plaintiff / respondents, the court below has erred in law in reversing the finding of the trial court that parties are still joint and there had never been any partition? The instant second appeal has been admitted vide order dated 24.02.2009 on the following substantial questions of law:- (1) Whether in absence of any appeal or cross appeal by the plaintiff / respondents, the court below has erred in law in reversing the finding of the trial court that parties are still joint and there had never been any partition? (2) Whether in a suit for declaration of relationship of landlord and tenant and entitlement to receive rent, the court below has erred in law in deciding the title of the parties? 19. Before entering into decision on above points, it is pertinent to mention here that against the impugned judgment passed by first appellate court, co- intervener Sheo Prasad Sahu, who had alone challenged the judgment of learned trial court preferred S.A. No. 56 of 2006 under title Sheo Prasad Sahu Vs. Kaleshwar Sahu & Others, which has been heard and decided by Co-ordinate Bench of this Court vide order dated 24.09.2024. It was held in para-14 of the said judgment as under:- 14. Having heard the submissions of the learned counsel for the appellant made at the Bar and after carefully going through the materials available in the record, this Court is of the considered view that the whole Second Appeal is misconceived. The suit of the plaintiff was not under the provisions of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 nor was the same filed with the prayer for eviction of the defendant No.1 or the realization of the rent from the defendants nor has any such relief been granted by the courts below. The suit was simple suit for declaration under the provisions of the Specific Relief Act and the trial court has declared the plaintiff is the landlord of the suit land and the defendant No.1 is the tenant. In the result, no substantial question of law was found involved in the appeal, which is dismissed on merits, but without cost. 20. In the instant appeal, since after admission on above substantial question of law, it becomes obligatory to decide the same on merits. 21. As regards first substantial question of law, the main plea of appellant is that the learned trial court has held that the suit property is still joint and there was no partition at all between the parties. In the instant appeal, since after admission on above substantial question of law, it becomes obligatory to decide the same on merits. 21. As regards first substantial question of law, the main plea of appellant is that the learned trial court has held that the suit property is still joint and there was no partition at all between the parties. The said decision on Issue No. (iii) was reversed by the first appellate court without taking into notice that no appeal was preferred by the plaintiff against the decree of trial court and one of the issues was decided against him. Therefore, the said findings cannot be interfered with. 22. I have considered the above aspect of the case and of the considered view that when the appeal is preferred challenging the whole judgment by any of the parties, the appellate court is duty bound to decide the issues and points involved both on facts and law. 23. In the instant case, the intervener defendants came forward with specific plea that since the property involved in this case is joint property, hence, plaintiff alone is not entitled to induct any tenant and realize the rent exclusively ousting the intervener defendant from its usufruct. Therefore, the learned appellate court while re-appreciating the documentary evidence laid by plaintiff in the light of admissions of the parties in their oral evidence also held that the properties has been dismantled since long by selling the shares of intervener defendants and their respective purchaser also got possession over the same and the records also shows that separate possession of the parties shown in the record of rights and all were separate in mess, residence and cultivation. Therefore, it cannot be inferred that the learned first appellate court has travelled beyond its jurisdiction. 24. So far second substantial question of law is concerned, there is concurrent findings that the Bihar Rajya Pul Nirman Nigam Limited was orally inducted by the plaintiff / respondent as a tenant, which may be called as lease / licence agreement. The intervener defendants were not party to the agreement, rather the intervener defendants / appellants have also admitted the above fact in their evidence. 25. Therefore, there is no substance in the above substantial question of law and the points of argument raised on behalf of appellants. The intervener defendants were not party to the agreement, rather the intervener defendants / appellants have also admitted the above fact in their evidence. 25. Therefore, there is no substance in the above substantial question of law and the points of argument raised on behalf of appellants. Moreover, the appeal filed by co-intervener defendant has already been dismissed by the Co-ordinate Bench of this Court on merits at the stage of admission itself. I do not find any merit in this appeal, which stands dismissed on contest, but without cost. 26. Pending I.A., if any, stand disposed of. 27. Let a copy of this judgment along with trial court record be sent back to the court concerned for information and needful.