Surendra Kumar Jindal vs Smt. Usha Singh
2021 Latest Caselaw 1906 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
           (Civil Miscellaneous Appellate Jurisdiction)
                  M.A. No. 05 of 2021
                         ........

Surendra Kumar Jindal                ....        ..... Appellant
                             Versus
Smt. Usha Singh                     ....         ..... Respondent

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

For the Appellant : Mr. Jitendra Kumar Pasari, Advocate.

For the Respondent        :
                                     ........
03/15.06.2021.

Heard, learned counsel for the appellant, Mr. Jitendra Kumar Pasari.

The instant Miscellaneous Appeal has been preferred under Order XLIII Rule 1 (u) of the Code of Civil Procedure, 1908 against the judgment of reversal dated 05.10.2020 passed by learned District Judge-I, Dhanbad in Civil Appeal No.37/2020 (F.A. No.366/2017).

Learned counsel for the appellant has submitted that plaintiff has filed Title Suit No.214/2013 before the court of learned Civil Judge (Sr. Division)-I, Dhanbad for a decree declaring his right, title, interest and confirmation of possession on 0.23 acres of land under Plot no. 926, Khata No. 121 of Mauza- Panduki, P.S. - Govindpur, District- Dhanbad, alternatively he has also prayed for recovery of possession, if he is found dispossessed during pendency of this suit and for a decree declaring sale deed no. 829 dated 8.10.2011 and sale deed no. 886 dated 13.10.2011 executed in favour of the defendant, Smt. Usha Singh, W/o Fulana Singh to be null and void and right, title, interest occurred to the defendant through that sale deed to be cancelled and for a permanent injunction restraining the defendant, her men agents and servants from interfering with the peaceful possession of the plaintiff over the suit property along with cost of the suit.

Learned counsel for the appellant has further submitted that the land of Khata No.121 of Mauza Panduki, Mauza No.90 stood recorded in the name of Diwaniya Mallick in the cadastral survey record of rights and he was in peaceful possession thereof. Diwaniya Mallick died leaving behind three sons namely, Mahabir Mallick,

Ahalad Mallick and Kedu Mallick. Mahabir Mallick died leaving behind his wife Sushani Bala Devi. Ahalad Mallick died leaving behind two sons namely, Manu Malik and Jay Kumar Mallick. Kedu Mallick died leaving behind three sons namely, Saheb Mallick, Basu Mallick and Dharam Mallick, Smt. Sushani Bala Devi, W/o Mahabir Mallick along with two sons namely, Manu Mallick and Jay Kumar Malik sold the aforesaid land to Gopal Goyal by virtue of registered sale deed no.17826 dated 02.07.1770.

Gopal Goyal sold and transferred the aforesaid land to Binod Kumar Tulsiyn of Karkand Bazar by virtue of registered sale deed no.12288 dated 29.04.1972.

Binod Kumar Tulsiyn sold and transferred the aforesaid land to Indrajeet Prasad vide registered sale deed no.1919 dated 15.02.1988 and the said land has been mutated in the name of Indrajeet Prasad.

Learned counsel for the appellant has submitted that plaintiff has purchased this land from Indrajeet Prasad vide registered sale deed no.1664 dated 05.03.2013, who put him in actual physical possession with respect to 23 decimal of land in plot no. 926 appertaining to Khata No.121 of Mauza Panduki. The plaintiff has also filed petition for mutation before the office of the Anchal Adhikari, Govindpur and the said petition is pending for mutation, as such, the transfer of the suit property in the name of the plaintiff was regular from recorded tenant to the new purchaser and thus the title suit was exhibited under Section 74 of the Indian Evidence Act vide order dated 05.10.2016.

Learned counsel for the appellant has submitted that defendant was duly noticed. She was contesting her case through the lawyer. The issue was settled in presence of the lawyer. P.W. 1 namely, Surendra Kumar Jindal was examined through the oath commissioner on 30.06.2015, but said witness was not cross- examined by the defendant. P.W. 2, namely, Sailendra Kumar Jaiswal was also examined on 19.09.2015 and defendant filed rejoinder to the petition dated 01.08.2015 of the plaintiff, which relates with

leave to accept the document for evidence. The same petition was subsequently allowed by the learned Trial Court on 20.06.2016 at the cost of Rs.500/-, which was also deposited on 25.07.2016, as such, remanding the matter under Oder LXI Rule 23 A CPC by the learned Appellate Court is wholly without jurisdiction as sufficient evidence was adduced before the learned Trial Court to confirm the right, title, interest and possession of the plaintiff. The defendant did not choose to cross-examine the plaintiff's witnesses and the learned Appellate Court without recording the exact date of death of the counsel Sri Arun Kumar Sinha, who was representing the defendant in the learned Trial Court, has erroneously set aside the impugned judgment and decree and also on the ground that no reliance can be placed upon pleading without there being any cogent evidence in support of the pleading, burden to prove a particular fact is always on the person, who alleges the same.

Learned counsel for the appellant has submitted that both the reasoning assigned by the learned Appellate Court is contrary to the fact, as such, the appeal may be admitted for final hearing.

Let the appeal be admitted.

Issue notice to the defendant respondent, Smt. Usha Singh, W/o Fulana Singh, resident of Jora Phatak Road, P.O. and P.S.- Dhansar, District- Dhanbad 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 a period of two weeks.

In the meantime, the further proceedings in the case of O.S. No. 2449/2020 arising out of Title Suit No. 214/2013 shall remain stayed.

I.A. No. 1490/2021 stands allowed.

However, the parties are at liberty to file an application for early hearing of the appeal after appearance.

(Kailash Prasad Deo, J.) Sunil-Jay/-