Bisun Gope vs Bangali Prasad Mahto
2021 Latest Caselaw 3139 Jhar

Citation : 2021 Latest Caselaw 3139 Jhar
Judgement Date : 26 August, 2021

Jharkhand High Court

Bisun Gope vs Bangali Prasad Mahto on 26 August, 2021

             IN THE HIGH COURT OF JHARKHAND AT RANCHI
                         (Civil Appellate Jurisdiction)
                           SA. No. 387 of 2015
                                ......

1.Bisun Gope

2.Fagu Gope

3.Gopali Gope

4.Munshi Gope

5.Naresh Gope ...... Defendants/Respondents/Appellants Versus

1.Bangali Prasad Mahto

2.Laldhari Prasad Mahto

3.Jageshawar Prasad Mahto

4.Sugiya Devi

5.Tekni Devi

6.Diliya Devi

7.Saraswati Devi

8.Umesh Mahto ......Plaintiffs/Appellants/Respondents

CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO (Through : Video Conferencing) ......

      For the Appellants              : Mr. Hemant Kumar Shikarwar, Advocate
      For the Respondents             :
                              -----
05/Dated: 26/08/2021.

1. Heard, learned counsel for the appellants, Mr. Hemant Kumar Shikarwar.

2. Defendants/Respondents/Appellants have preferred this appeal against the judgment dated 26.05.2015 and decree dated 08.06.2015 passed by learned District Judge 3rd, Hazaribagh in Title Appeal No.48 of 2012 setting aside the judgment dated 29.06.2012 and decree dated 06.07.2012, passed by learned Civil Judge (Senior Division) VI, Hazaribag in Title Suit No.102 of 1995 and allowing the Title Appeal and further by dismissing the cross appeal against the judgment and decree dated 29.06.2012.

3. Learned counsel for the appellants has submitted that issue no.vi 'Had Bhikwa Gope and Dharma Gope, the recorded tenant died without any legal heirs? and issue no.vii 'Whether the lands of the recorded tenant was resumed by the ex-landlord after death?' are common issues framed by both the courts below.

4. While deciding the issue, learned trial court has held that from evidence, it appears that recorded tenant Bhikhwa Gope was alive in 1943 and he died in 1944 (as per Exhibit-B/1), therefore, onus was upon the plaintiff to prove resuming of suit lands by Ex-landlord. Khatiyan of suit Khata 13 is Exhibit-C which shows the name of Tenure-holder as Ishwar

Pd. Pandey and others. Plaintiffs have not brought the concerned Khewat on record. There is Exhibit 5 to show that lands of suit plot 234 was in khas cultivation of husband of vendor of plaintiff 3 to 5 but as per plaint Jogendra Pandey was not Ex-landlord but he and Mukteshwar Trigunait had obtained title. There is no evidence as to why, how and under what circumstances the lands of suit khata 13 including the suit lands were resumed by the Ex-landlord. There is absolutely no documentary evidence to show resuming of suit lands by the Ex-landlord for any reason. Hence, the court below found and holds that plaintiffs have failed to prove that the lands of recorded tenants Bhikhwa Gope and Dharma Gope under suit khata 13 was resumed by the Ex-landlord after their death and as such this issue is decided against the plaintiff in spite of Ext.5 because Ext.5 shows the suit land in khas cultivation of Jogendra Nath Pandey and he has not been shown as Ex-landlord, who resumed the suit land. Moreover he was in possession of only plot No.234.

5. Learned counsel for the appellants has further submitted that such finding given by the learned trial court has been considered by the learned lower appellate court while discussing the Exhibit-4 series and Exhibit-3 series and hold that it was mistake committed by the learned trial court, though the judgment has not been passed by the learned lower appellate court in view of order XLI Rule 31 CPC giving specific reason for determining the issues, as such, in view of the judgment passed by the Apex Court in the case of Santosh Hazari vs. Purushottam Tiwari, reported in (2001) 3 SCC 179 and in the case of Malluru Mallappa vs. Kuruvathappa & Ors. reported in 2020 (4) SCC 313 this appeal may be admitted as the learned lower appellate court has not passed the judgment in consonance with order XLI Rule 31 CPC.

6. Considering the submissions made by the appellants and on the basis of the judgment referred above the appeal is admitted on the following substantial question of law:-

"(1) Whether the judgment passed by the learned lower appellate court is in consonance with the order XLI Rule 31 CPC as well as judgment passed by the Apex Court in the case of Santosh Hazari (Supra) and Malluru Mallappa (Supra)."

7. The Defendants/Respondents/Appellants are further granted liberty to frame any other substantial question of law at the time of final hearing of this appeal.

8. Call for the LCR.

9. Let notice be issued to all the respondents i.e. respondent no.1- Bangali Prasad Mahto, respondent no. 2.- Laldhari Prasad Mahto, respondent no. 3.Jageshawar Prasad Mahto, all sons of Late Triveni Mahto, R/o Village- Karma, P.O. & P.S. Barhi, District- Hazaribagh. respondent no.4-Sugiya Devi, D/o Late Triveni Mahto,W/o Gango Mahto, R/o Village- Sonapura, P.O. & P.S. Barhi, District- Hazaribag, respondent no.5- Tekni Devi, D/o Late Triveni Mahto, W/o Ruplal Mahto, R/o Village Barkakhurd, P.O. & P.S. Ichak, District- Hazaribag, respondent no.6- Diliya Devi, D/o Late Triveni Mahto, W/o Suraj Mahto, R/o Village Dariya, P.O. & P.S. Ichak, District- Hazaribagh, respondent no.7- Saraswati Devi, D/o Late Triveni Mahto, W/o Nanhak Manto, R/o Village Dariya, P.O. & P.S. Ichak, District- Hazaribagh and respondent no.8- Umesh Mahto, S/o Maheshwar Mahto, R/o Village Karma, P.O.& P.S. Barhi, District Hazaribagh under both process i.e. under Registered Cover with A/D as well as under ordinary process, for which requisites etc., must be filed within two weeks.