Unknown vs Mery Margreat Kujur
2022 Latest Caselaw 1627 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   S.A. No.56 of 1997(R)
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1(a). Patras Minz 1(b). Ranjit Minz 1(c). Raju Ranjan Minz .... .... .... Appellants Versus

1. Mery Margreat Kujur

2. Christina @ Christian

3. Deputy Commissioner, Ranchi .... .... .... Respondents

CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

For the Appellants : Mr. Vikash Kishore Prasad, Advocate For the Respondents : M/s Sumeet Gadodia & Ritesh Kr. Gupta, Advocates

CAV ON: 11.03.2022 PRONOUNCED ON 22 . 04. 2022

1. The appellants are plaintiffs, who have preferred the instant appeal against the judgment and decree passed in Title Appeal No.99 of 1993 by Additional Judicial Commissioner-VII, Ranchi whereby and whereunder learned Appellate Court affirmed the judgment and decree passed in Title Suit No.101/87 - 39/91.

2. The parties shall be referred by the placement in the suit and will include their legal representatives substituted at different stages.

3. The plaintiffs filed the suit for declaration of title, confirmation of possession and in alternative for the recovery of possession over the suit land mentioned in Schedule I of the plaint and for cancellation of sale deeds of the year 1964 and 1968 relating to transfer of suit property to defendant no.1 by Balamdina Minz.

4. The case of plaintiff is that the suit property has been recorded in the names of Patras Minz, father of plaintiff and Cyrial Minz, the uncle of the plaintiff in the Municipal Survey Record of Right, finally published in the year 1929. Cyrial Minz died in the year 1981 sonless leaving behind his widow, defendant no.1 and others. The parties are Oraon and governed by the Customary Law under which females are not heirs. After death of Cyrial Minz, father of plaintiff inherited the suit property as absolute owner. In the revisional survey record of right, suit property was wrongly recorded in the name of Balamdina Minz, grandmother of the plaintiff. It is averred that this entry in the revisional survey record of right was wrong since Balamdina Minz had no separate or independent source of income. The suit property was

actually purchased by the grandfather of the plaintiff in the name of Balamdina Minz. It is contended that the suit property was illegally transferred in favour of defendant no.1 by two different sale deeds in the year 1964 and 1968 without any consideration amount. The plaintiff raised objection when defendant no.1 moved Circle Officer for mutation but it was rejected and mutation was allowed in favour of defendant no.1. The appeal also filed in this regard was dismissed. It is further case of the plaintiff that his father filed Title Suit being T.S. No.378/64 against Balamdina and defendant no.1 but the same was dismissed.

5. The case of the defendant is that the present suit was barred by res judicata and late Balamdina purchased the suit property in the year 1920 by her own income and she was employed in Eropean Mental Hospital, Kanke for a period of continuous 20 years. Thereafter, she served as midwife in big family. It has been denied that grandfather of plaintiff was employed as Pracharak by R.C. Mission, Ranchi. It is also averred that sale deed was executed after payment of consideration amount. Sons of Balamdina Minz were managing property in 1929 as she was in service in Kanke at that time. In her absence, the name of her sons was entered in Municipal Survey Record which was corrected in R.S. Operation and the name of actual title holder was entered in the R.S. Survey Record of Right. The entry in the record of right was never challenged either by the father of the plaintiff or his uncle. She being rightful owner of the suit property, sold it to defendant no.1 in the year 1964 and 1968. The entry after mutation was challenged without success by the plaintiff and now it has attained finality. The plaintiffs' father and uncle being sons of Balamdina Minz were given possession in the suit property. On the basis of pleadings of the parties, following issues have been framed:-

i. Has the plaintiff any cause of action for the suit?

ii. Is the suit barred by limitation and adverse possession? iii. Is the suit hit by principles of estoppel acquinces and waiver? iv. Is the suit property, the ancestral one of the plaintiff? v. Has the plaintiff any right or title upon the suit property? vi. Is the suit property self-acquired property of Balamadina? vii. Has the defendant no. 1 acquired a right title and interest after the purchase over the suit property?

viii. To what relief or reliefs, the plaintiff is entitled?

6. Learned Trial Court dismissed the suit inter alia on the ground that

the plaintiff failed to establish that Balamdina Minz had not purchased the suit property from her own source. Exhibit A and deposition of P.Ws. established that the suit property was self-acquired property on which she had full legal, valid title and interest. After purchase, it was duly mutated on valuable consideration amount and it has been transferred to defendant no.1. It has also been held that the present suit was barred by res judicata and by limitation.

7. The First Appellate Court concurred with the finding of facts and dismissed the appeal. The appellate Court held that the present suit was not barred by res-judicata since the earlier suit was not dismissed on merit, rather was barred under Order IX Rule 9(i) under which a plaintiff is precluded from bringing a fresh suit in respect of same cause of action when the earlier suit has been wholly or partly dismissed under Order IX Rule 8 of the CPC. The father of the plaintiff brought title suit No.378/64 against the Balamdina Minz and Mary Margaret Kujur, the defendant no.1 against the part of the suit property sold in the year 1964. The said suit was dismissed for default and thereafter the plaintiff of the suit filed Misc. Case No.151/66 for setting aside the dismissal order of suit, which was also dismissed on 29.3.67 and thereafter no appeal or revision against the order was preferred. Therefore the suit was barred under Order IX Rule 9 with respect to suit property transferred through sale deed.

8. Second Appeal has been Admitted for hearing on the following grounds:-

Whether the learned Trial Court committed an error on a substantial question of law in holding the plaintiff/appellant suit was barred by the Law of Limitation and adverse possession as Article 59 of Limitation Act had absolutely no application and parties to the suit and appeal being member of the scheduled tribe, the period of limitation for acquiring title by prescription or by adverse possession was 30 years under Article 65 of the Limitation Act as amended by regulation no.1 of 1969.

9. The main thrust of the argument on behalf of the appellant is that the learned Trial Court grossly erred to dismiss the law on the point of limitation, under Article 59 of the Limitation Act without taking into account amendment brought in Article 65 of the Limitation Act, extending the period of limitation to 30 years.

10. It is submitted by the learned counsel on behalf of defendants- respondents that the suit of the plaintiff was dismissed basically on three

counts. Firstly, the claim of the plaintiff over the suit property on the basis of plea was self-acquired property of his grandfather-Patras Minz, was framed as Issue No.6 by the Trial Court. The learned Trial Court on the basis of evidence on record, returned a finding of fact that it was self-acquired property of Balamdina Minz and not of Patras Minz which has been concurred by the First Appellate Court. Secondly, it was held by the Trial Court that suit was barred by res judicata and defendant perfected her title by adverse possession as the plaintiff did not take any legal action for setting aside the sale deed of the year 1964-68 within the period of limitation. With regard to substantial question of law, it is argued that in view of finding of fact recorded that the property in question was the self-acquired property of Balamdina Minz, the finding on the substantial question will not have any bearing in the instant appeal since it is the plaintiff, who had brought the suit otherwise also they have failed to establish that the suit property was self-acquired property of Balamdina Minz. Lastly, it is submitted that it is settled principle of law that the Second Appeal is to be heard on the substantial question of law as framed and considered. Further plea cannot be raised with respect to the plea that the sale deed executed in favour of defendant was barred under Section 46 of the C.N.T. Act and it is submitted that this plea was never taken before the Trial Court nor issue was framed on this, therefore, it is too late in this day to raise this plea.

Reliance in this regard has been placed in the case of Jogendra Ram Versus Phullan Mian reported in (2011) 15 SCC 247 which says that second Appellate Court can exercise jurisdiction on the basis of law framed at the time of admission and issues cannot be framed and heard without any opportunity to the parties to lead evidence.

11. There can be no two views that adjudication in the instant appeal is to be confined to the substantial question of law formulated for hearing. Both the Courts have recorded concurrent findings of facts on merit against the plaintiff while dismissing the suit. The only question that survives at this stage is whether the plaintiff's suit was barred by limitation in view of the amendment in Article 65 of the Limitation Act brought by the 1969 Scheduled Area Regulation Act.

12. The plaintiffs have brought the suit for declaration of title after declaring the sale deed executed in 1964 and 1968 to be null and void. Defendants are not claiming title by adverse possession but on the basis of registered deed of sale, therefore the question of application of Article 65 of

the Limitation Act does not arise. The plaintiff's declaratory suit for title hinges on the declaration of sale deed executed in the year 1964 and 1968 to be void, which is barred under Article 59 for which the period of limitation is three years for cancellation of a sale deed. The substantial question of law is accordingly answered against the plaintiff. There is no error in the Judgment and order of the learned Court below which is accordingly affirmed.

The appeal is dismissed with cost.

(Gautam Kumar Choudhary, J.)

Jharkhand High Court, Ranchi Dated the 22nd April, 2022 AFR / Anit