Wakil Mahtha & Others vs Divisional Forest Officer
2021 Latest Caselaw 1091 Jhar

      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   (Civil Appellate Jurisdiction)
                          S.A. No. 162 of 2013
                                      ........

Wakil Mahtha & Others                         .... ..... Appellants
                              Versus

Divisional Forest Officer, Bokaro-cum-Dhanbad & Others .... ..... Respondents

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

For the Appellants : Mr. Arjun Narayan Deo, Advocate.

For the Respondents        :
                                 ........
05/04.03.2021.

Heard, learned counsel for the appellants, Mr. Arjun Narayan Deo. The appellants have preferred this appeal against the judgment dated 09.07.2013 and decree signed on 17.07.2013, passed by the learned District Judge, 1st, Bokaro, in Title Appeal No. 53 of 1998, whereby the judgment dated 13.08.1998 and decree signed on 22.08.1998 passed by learned Additional Munsif 1st, Bokaro at Chas in Title Suit No. 129 of 1990 / 183 of 1996 has been set aside by allowing the appeal.

Learned counsel for the appellants has submitted that it is a case of reversal of judgment passed by the learned appellate court reversing the judgment of the learned trial court, as such, the appeal may be admitted.

Learned counsel for the appellants has submitted that plaintiffs / respondents / appellants have preferred Original Title Suit No. 129 of 1990 / 183 of 1996 against the then State of Bihar now Jharkhand, for a decree of permanent injunction, restraining the defendants, their successors, subordinates, employees, men, contractors etc. from going over and / or interfering in any way with the plaintiffs' peaceful possession as permanent occupancy raiyati raiyats and / or causing any damage to the crops etc. over the suit land fully detailed in Schedule-A of the plaint, appertaining to Khata No. 52, Plot No. 22, Area - 11.50 acres and Plot No. 23, Area-11 acres, situated at Mouza - Bhuski, Mouza No. 246, P.S. - Chandankiary, District - Bokaro.

Learned counsel for the appellants has submitted, that the plaintiffs have two fold arguments; first that the aforesaid land was Khas land of the ex-landlord of Panchket Raj Estate, namely, Janardan Lal Kishore Singh Deo who remained in possession thereof by settling tenants, realising rents and

by exercising various other acts of possession and on the basis of that in the cadestral survey, the name of plaintiffs' ancestors were recorded in the Khatiyan, which has been brought on record as Exhibit-5 and second, the possession of the plaintiffs over the suit land has been admitted by the defendant nos. 1 to 4 in their written statement gives a right to the plaintiffs with regard to the adverse possession.

Learned counsel for the appellants has submitted that the learned trial court has framed altogether 10 issues which are as follows:-

1. Is the suit as framed maintainable ?

2. Have the plaintiffs got valid cause of action for the suit ?

3. Is the suit barred by law of limitation ?

4. Whether the notice under Section 80 C.P.C. has been served upon the State of Bihar ?

5. Whether the plaintiffs deserve for an order of permanent injunction against the defendants of this suit restraining the defendants, their agents, their successors, subordinates employees, men, contractors etc from going over the suit land and interfering in any way with the plaintiff's peaceful possession thereof as permanent occupancy raiyati raiyats ?

6. Whether the plaintiff's are the permanent occupancy raiyati raiyats of the suit land?

7. Whether the notification dated 24.5.58 for declaration of 19.64 acres of land out of the suit land as Forest land is legal ?

8. Whether the defendant no. 5 has got right, title and interest over the part of the suit land measuring 1.20 acres of plot no. 23 ?

9. Whether the defendant no. 5 is in possession over 1.20 acres of the suit land of plot no. 23 ?

10. To what other relief or reliefs the plaintiffs are entitled thereto ?

Issue Nos. 6 & 7 are relevant for proper adjudication of the matter. Learned counsel for the appellants has submitted that Issue Nos. 5, 6, 8 & 9 have been decided by the learned trial court in favour of the plaintiffs / appellants in terms of judgment dated 13.08.1998 and decree dated 22.08.1998, but the Divisional Forest Officer, Bokaro and others have

preferred an appeal i.e. Title Appeal No. 53 of 1998, before the court of District Judge, 1st Bokaro. The issue nos. 5 and 6 which have already been decided by the learned trial court has been considered by learned Appellate Court at paragraph no. 21 of the lower appellate court judgment and discussed the same and held at para-31 of the impugned judgment as under:-

"On going through the materials and evidence available on record, submissions of the parties and as per above discussions, I find and hold that the plaintiffs / respondents are not the permanent occupancy raiyati raiyats of the suit land and the plaintiffs/ respondents do not deserve for an order of permanent injunction against the appellants/defendants of the suit restrining the defendants, their agents, their successors, subordinate, employees, men, contractors etc. from going and interfere over the suit land as the plaintiffs / respondents are not permanent occupancy raiyati raiyats. Hence these issues are decided against the plaintiffs / respondents.

Learned lower appellate court has further held that the instant suit is civil and the plaintiffs / respondents have to prove their right, title and possession over the suit property by adducing reliable and cogent evidence. It is not case of plaintiffs / respondents that State Government has declared the forest closed under Section 30 (b) of the Indian Forest Act for such a term or in term by its notification. The plaintiffs / respondents have failed to prove their occupancy raiyati rights and possession over the suit land. The learned lower court has wrongly decided these issues in favour of the plaintiffs / respondents.

The learned lower appellate court has thus held that the plaintiffs / respondents are not the permanent occupancy raiyati raiyats of the suit land and the plaintiffs / respondents do not deserve for an order of permanent injunction against the appellants / defendants of the suit restraining the defendants, their agents, their succesors, subordinate, employees, men, contractors etc from going and interfere over the suit land as the plaintiffs / respondents are not permanent occupancy raiyati raiyats. Hence, these issues are decided against the plaintiffs / respondents.

Learned counsel for the appellants has submitted that the learned lower appellate court has not taken notice with regard to the Exhibit-5 i.e.

Certified copy of Khatian of khata no. 52, plot no. 22 and 23 of Mouza- Bhuski and two original sanad deeds dated 25.04.1929, which have been brought on record as Exhibit-6 & 6/a, and as such, this Court may consider the same.

After hearing learned counsel for the appellants and on the basis of materials available on record, though it is a case of reversal, but it appears that the suit land described in Schedule-A appertaining to Khata No. 52, Plot No. 22, Area - 11.50 acres and Plot No. 23, Area-11 acres, situated at Mouza

- Bhuski, Mouza No. 246, P.S. - Chandankiary, District - Bokaro was a Khas land of ex-landlord Janardan Lal Kishore Singh Deo of Panchket Raj Estate. In order to prove the same, the plaintiffs have also exhibited certified copy of Khatian of khata no. 52, plot no. 22 and 23 of Mouza-Bhuski, which has been marked as Exhibit-5. From perusal of the said khatian, it appears that the lands of said khata and plots are recorded in the name of Janardan Lal Singh Deo and others as "Gair Abad Malik" the total area of both plots is 22.50 acres.

The claim of the plaintiffs / respondents is that the aforesaid Ex- landlord on 25.04.1929 granted permanent occupancy riayati settlement of ½ share of the schedule-A land to Khetu Mahatha, predecessor-in-interest of the original plaintiffs no. 3 to 10 (the original plaintiff no. 3 died and his legal heirs have been substituted) on receipt of salami of Rs. 81/- and on an annual rental of Rs. 8-4-0 besides Cess and delivered the possession of the same to him and a sanad in proof of the aforesaid settlement was granted by the landlord on 25.04.1929 as per custom of the Serista. Similarly, on the very same day i.e. on 25.4.1929 the Ex-landlord also granted permanent occupancy raiyati settlement of the rest of share to the plaintiffs Kedar Mahatha and Sarda Mahatha, the plaintiff nos. 1 and 2 (the original plaintiff no. 1 has been died and his legal heirs have been substituted) on receipt of salami of Rs. 81/- and reserving annual rental of Rs. 8-4-0 besides cess and delivered possession to them and a sanad dated 25.4.1929 in proof of the said settlement was also granted to the plaintiff no. 1 and 2.

The said land in question described in schedule-A of the plaint are declared as Forest land by the order of Governor of Bihar on 24 th May, 1958 under Section 29(iii) of Indian Forest Act vide notification no. CF17014/59-

1429R and that notification again declared under Section 30 of the Indian Forest Act on 29th December, 1964 and the same was also given to the knowledge of the villagers by beating drums on 21.11.1979. Thus, the grant of settlement and grant of Sanad on 25.05.1929 to the plaintiffs is false.

It appears that after vesting of the Zamindari, the alleged settlee (ancestor of the plaintiffs) have not applied for payment of rent to the Government, though the claim of the plaintiffs is for settlement over the land in the year 1929, but rent receipt shown by them in the year 1990 creating doubt regarding settlement of the said land.

The plaintiffs / respondents has not produced copy of the return filed by the Zamindar at the time of vesting of the Estate to show and to prove that the disputed land were settled to the alleged settlees Khetu Mahatha, Kedar Mahatha and Sharda Mahatha, who have claimed that they were in cultivating possession of 'Gair Abad Malik' lands at the time of vesting of Zamindari. Further, no order of Revenue Authority has been filed to show that State Government has recognized plaintiffs / respondents as tenant. The plaintiffs / respondents failed to prove their recognition as tenant by the State Government under the provisions of the Bihar Land Reforms Act, 1950. Under the aforesaid circumstances, the notification issued by the Government of Bihar dated 24.05.1958 under Section 29(iii) of the Indian Forest Act vide notification no. CF17014/59-1429R and that notification again declared under Section 30 of the Indian Forest Act on 29.12.1964, for which the villagers were given knowledge by beating drums on 21.11.1979 has strong force, which does not require any interference by this Court.

Learned counsel for the appellants has submitted, that even if, the title of the plaintiffs are not considered on the basis of settlement made by last Zamindar because of non-submission of the return paper then also the possession of the plaintiffs over the suit land, which have been admitted by the defendant nos. 1 to 4 in para-17 of the written statement gives a right to the plaintiffs with regard to the adverse possession as second line of argument.

This plea of adverse possession is not in accordance with law, in view of the judgment passed by the Apex Court in the case of Tribhuvanshankar

v. Amrutlal reported in (2014) 2 SCC 788. Para-36 of the aforesaid judgment is reproduced hereunder:-

36. In Karnataka Board of Wakf v. Govt. of India [Karnataka Board of Wakf v. Govt. of India, (2004) 10 SCC 779] it has been opined that: (SCC p. 785, para 11) "11. ... Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well- settled principle that a party claiming adverse possession must prove that his possession is 'nec vi, nec clam, nec precario', that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period."

Thereafter, the learned Judges observed thus: (Karnataka Board of Wakf case [Karnataka Board of Wakf v. Govt. of India, (2004) 10 SCC 779] , SCC p. 785, para 11) "11. ... Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession."

In S.M. Karim v. Bibi Sakina [AIR 1964 SC 1254] , it has been ruled that: (AIR p. 1256, para 5):-

"5. ... Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. There is no evidence here when possession became adverse, if it at all did, and a mere suggestion in the relief clause that there was an uninterrupted possession for 'several 12 years' or that the plaintiff had acquired 'an absolute title' was not enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea."

In the case of R. Chandevarappa v. State of Karnataka reported in (1995) 6 SCC 309. Para-11 of the aforesaid judgment re-produced hereunder:-

Therefore, having come into possession under colour of title from original grantee, if the appellant intends to plead adverse possession as against the State, he must disclaim his title and plead his hostile claim to the knowledge of the State and that the State had not taken any action thereon within the prescribed period.

Under the aforesaid circumstances, this Court concur the finding recorded by the learned lower appellate court as Exhibit-5 & 6 & 6/a have rightly been refused in view of Government notification which was made in the year 1958 and subsequently in 1964 as stated above, as such, the appeal being devoid of merits as no substantial question of law is involved in this Appeal. Accordingly, the Second Appeal is dismissed.

(Kailash Prasad Deo, J.) Sunil/-