Ashraf Ali Son Of Late Tejali Mian vs Ishwar Singh Son Of Late Shibal ...
2022 Latest Caselaw 1701 Jhar

                                    1




     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   S.A. No. 226 of 2003

     1.
      Ashraf Ali son of Late Tejali Mian
     2.
      Sayeed Ansari son of Late Tejali Mian
     3(a).
        Zaibun Nisa wife of Late Ayub Mian
     3(b).
        Md. Zaheer son of Late Ayub Mian
     3(c).
        Md. Sabir son of Late Ayub Mian
     3(d).
        Md. Kabir son of Late Ayub Mian
     3(e).
        Samina Khatoon wife of Md. Ibrahim
     3(f).
        Amna Khatoon wife of Md. Ali.
     4. Sharifan Bibi wife of Late Ibrahim Mian
     5. Razia Khatoon D/o Late Ibrahim Mian
     6. Afsana Khatoon D/o Late Ibrahim Mian
     7(a).
        Bairun Nisha
     7(b).
        Abdul Hamid
     7(c).
        Md. Khalil
     7(d).
        Abdul Rashid
                                           ..... ..... Appellants
                               Versus
  1. Ishwar Singh son of Late Shibal Singh
  2. Bhuneshwar Singh son of Late Horil Singh,
  3. Sukhdeo Singh son of Late Janki Singh
  4. (a) Mahinder Singh son of Late Munshi Singh
     (b) Sabita Devi W/o Satdeo Singh
     (c) Kabita Devi W/o Lakhan Singh
     (d) Mina Devi W/o Pawan Singh
     (e) Tara Devi W/o Raj Kumar Singh
  5. Rajdeo Singh son of Late Janki Singh
  6. Shankar Singh son of Late Mathura Singh
  7. Bijai Singh son of Late Mathura Singh
  8. Upendra Singh son of Late Mathura Singh
  9. Moti Singh son of Late Ram Singh
                                           .... ....   Respondents
                               ------

CORAM :HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

------

For the Appellants       : Dr. H. Waris, Advocate
For the Respondents      : Mr. S. K. Sharma, Advocate
                           Mr. Pramod Kumar, Advocate

CAV ON 21.02.2022                   PRONOUNCED ON 28 . 04 . 2022

1. Appellants are the plaintiffs who have preferred the instant appeal against the Judgment passed in Title Appeal No. 25/193 whereby and

whereunder the judgment and decree by Subordinate Judge-II, Chatra in Title Suit No. 56/1987 was reversed in appeal.

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

3. The plaintiffs filed the suit for the declaration of their title and confirmation of possession over the suit lands with alternative prayer for khas possession if found dispossessed during the pendency of the suit as well as for permanent injunction.

4. The raiyati lands measuring 5.56 acres appertaining to khata no. 12 of village- Dulha, Thana No. 124, P.S.- Chatra, Dist- Hazaribag were recorded in the name of one Wahid Mian during the last Cadastral Survey and settlement operations. The said recorded tenant remained in khas cultivating possession of the suit lands and continued payment rent to the Ex-landlord. He died sometime after the last cadastral survey leaving behind his two sons namely Khiru Mian and Nazir Mian who accordingly came in possession of the suit lands. Khiru Mian died leaving his son Tejali Mian who also died leaving behind the plaintiff Nos. 1 & 2 namely Ashraf Ali and Sayeed Ansari. Nazir Mian died leaving behind the plaintiff Nos. 3 to 5. Thus, the plaintiffs became owners and came in possession of the suit lands. The further case of plaintiffs is that after the vesting of ex-intermediary interest the ex-landlord submitted zamindari returns under the provisions of the Bihar Land Reforms Act upon which compensation case no.1 of 1954-55 was started in which the ex-landlord submitted returns where the name of the recorded tenant Wahid Mian was shown raiyati Khata no.12. After the death of their ancestors approached the approached Anchal Adhikari at Chatra for mutation of their names and issuance of the rent receipt, the same was postponed on one pretext or another. In August, 1985 they filed fresh application for the same. The Anchal Staff on 16.08.86 in collusion with the defendant submitted wrong report that rent receipt with respect to 3.71 acres of land of khata no. 12 was being issued in the name of Shivlal Singh, the father of defendant no. 1 and with respect to 1.75 acres of land the rent receipts are being issued in the name of Janki Singh, father of defendants/respondent no. 6 to 9 and receipts in respect of 0.10 acres are being issued in the name of Haril Singh, father of defendant no. 2 The further case of the plaintiff is that no land of khata no. 12 was surrendered or abandoned at any time. Defendants or their ancestors

never acquired any right or title over the land in suit either by legal settlement or by adverse possession. But they taking the advantage of the position and money are bent banned upon dispossess the plaintiff on the basis of the aforesaid documents. Hence, the suit was filed seeking the relief of declarations and confirmation of possession and permanent injunction and in alternative recovery of possession of the suit land.

5. Defendants appeared and filed two sets of written statement. The written statement was filed by defendant no. 1 and 3 to 9 jointly. Another written statement was filed by defendant no. 2. More or less the stands taken by all the defendants are same and similar.

6. It has been admitted that suit land was recorded in the name of Wahid Mian, ancestor of the plaintiffs nos. 1 to 5 in the cadastral survey record of rights but the land remained fellow since the year 1912 and the recorded tenant failed to pay the rent of the lands of khata 12, so he surrendered the entire land of khata no. 12, as detailed in Schedule- A of the plaint, to the ex-landlord by the way of Istifanama of Sambat 1980, so the ex- landlord Mahant Bhargava Das came into the possession over the suit land and it became his bakast land. Wahid Mian died in the year 1924 and his sons Khiru Mian and Nazir Mian never came in possession over the suit land. Later the ex-landlord settled 1.85 acres of land of Khata No. 12 appertaining to plot nos. 5,16,56,547 & 251 to Janki Singh, ancestor of defendant no. 3 to 9/respondent no. 7 to 13 by way of Hukumnama in the Sambat 1985. Accordingly, ancestor of the appellant and other defendants came into the possession over the suit land of khata no. 12 and paid rent to the ex-landlord. Janki singh constructed house on plot no.516 and amalgamated it with plot no.517. In the same way the remaining land of khata no. 12 i.e. 3.71 acres of land was also settled with Shivlal Singh, father of the appellant by way of Hukumnama in the Samwat 1987.The settlement was made in full knowledge of the heirs Wahid Mian. After the death of the ancestors, defendants came and are in possession over the suit land. The further case of defendants/respondents is that after the vesting of Jamindari Ex-Landlord never submitted any return in the compensation case as claimed by the plaintiffs, nor any application for mutation and issuance of rent receipt were filed by the plaintiffs. The categorical stand of appellant along with other

defendants is that they have prefect right and title over the suit land by adverse possession.

7. On the basis of the pleadings of the parties the following issues were framed :-

(i) Is the suit of the plaintiff, as framed, maintainable?

(ii) Have the plaintiffs valid cause of action for the suit?

(iii) Whether the suit of the plaintiffs suffers from any defects of parties?

(iv) Whether the plaintiffs are entitled to a decree for declaration of their right & title besides the recovery of possession of the lands in suit?

(v) Whether the suit of the plaintiffs is barred by law of limitation?

(vi) Whether the defendants story of Istifanama of the lands in suit by the tenant in original and its settlement by dint of Hukumnama of Sambat 1985 and 1987 to their ancestors by the Ex-Lord lords are correct?

(vii) Whether the defendants have perfected their right and title by way of adverse possession over the lands in suit?

(viii) To what relief or reliefs are the plaintiffs entitled to?

8. That the learned trial Court, decreed the suit in part with respect to land of 3.71 acres out of 5.56 acres of land under Khata no 12. The claim over 1.85 acres under Khata no 12. was dismissed.

The trial Court took note and has referred to the main evidence produced on behalf of both the sides. PW 10 plaintiff no.3 has admitted that though he was recorded as tenant for the whole of Khata no.12 but he was not in possession of the entire land. He has also stated that no return was filed by the ex-landlord showing them to be raiyat and that 20 years ago he came to know that rent receipt was being issued in the name of the defendants. P.W 12 who is plaintiff no.1 has also admitted that he has no paper with regard to the land. Column no. 6 of the return filed by the ex-landlord Sri Radha Gopal in compensation case no. 1 /1954-55 where Md Mian and Wahid Mian have been shown to be the raiyats in respect of the entire 5.56 acres of land of khata no.12, has been disbelieved in view of the deposition of PW 10, wherein he stated that no return was filed. D.Ws. 5, 8, 9 supported the case of surrender and settlement with respect to 1.85 acres. Ext. [k/13 to 18 are rent receipts

with respect to 1.85 acres of land of khata no.12 of the rent receipts issued in the name of Janki Singh for last 20 years . Ext-?k showed that the entire land of khata no. 12 was surrendered by Wahid Mian. Which Ext-MÛ & Ext-MÛ /1 are the two Hukumnamas by which the lands were settled in favour of Shivpal Singh. The trial Court has accepted these exhibits to be valid and not forged or fabricated.

9. The trial Court while accepting the Hukumnama in favour of Shivpal Singh to be true made in the year Sambat 1987, did not accept it to have been acted upon as the rents were neither paid to the ex-land lord nor to the State. The suit of the plaintiff was partly decreed as the rent was paid only for the period 1988-89 and 1989-90 during the pendency of the suit. Although the 3.71 acres of land had been mutated of khata no.12/1 in favour of defendant no.1 but this correction slip (Ext-?k) was not proved with reference to register II. On this the trial Court concluded that although it was settled with defendant no.1, but he did not come in possession of the said land. The plaintiff's suit was therefore partly decree with respect to 3.71 acres of land and not with respect to 1.85 acres.

10. Defendant no.1 preferred Title Appeal no.25/1993. The Court of first appeal allowed the appeal mainly on the following grounds:

Firstly, the defendants case of the surrender of entire suit land of khata no.12 by virtue of surrender Istifanama by Wahid Mian and issue of settlement Hukumnama, was accepted by the trial Court.

Secondly, rent receipts were issued only in the name of Wahid Mian and thereafter the lands were neither mutated nor any rent receipts were issued in the name of his heirs and descendants who are the present plaintiffs.

Thirdly, there had been two settlements after the land surrendered by Wahid Mian, one in Sambat 1985 for 1.85 acres in favour of Janki Singh and the second in Sambat 1987 with respect to 3.71 acres of land. The trial court accepted the first surrender and as no cross-appeal was preferred against the said finding, it attained finality. Thus, the case of the defendant regarding surrender of the land of khata no.12 by Wahid Mian stood confirmed.

Fourthly, once the case of the defendants regarding the surrender of suit land by the predecessor-in-interest of the plaintiff is accepted, the very foundation of the plaintiff's claim of title over the suit property does not survive.

Fifthly, both the settlements (Hukumnama) were proved by the defendants and marked as exhibits but the second was refused to be accepted for want of rent receipts and also failed to prove adverse possession. The presumption under Section 90 of the Evidence Act due execution was also in favour of these document.

Sixthly, correction slip and rent receipt were issued in favour of the answering defendants, whereas the plaintiffs twice applied for mutation which was rejected. The rent receipts issued in favour of the plaintiffs was without any description of land and could not be relied upon.

11. This appeal has been admitted to be heard on the following substantial questions of law:

I. Whether the non-substitution of the plaintiff-respondent no.4 in the first appellate Court caused the appeal abated?

II. Whether it was obligatory on the part of the appellate Court to give the reasoning while reversing the finding of facts recorded by the trial Court?

12. In any claim of title, the source of title along with the chain of devolution or conveyance of title needs to be pleaded and proved. In the present case the plaintiff claimed title on the basis of inheritance from Wahid Mian, the common ancestor and recorded tenant in the cadastral survey record of right which was prepared sometimes between 1905 and 1908. The burden of proof was on the plaintiffs to proof their case. The defendants pleaded and proved that the land was surrendered by Wahid Mian to the ex-landlord. The trial Court accepted that the suit land was surrendered and settled by the ex- landlord in favour of Janki Singh. The first Court of appeal rightly noted that once the trial Court accepted that land was surrendered by the common ancestor of the plaintiff and then settled by the settlement deed of Sambat 1985 in favour of Janki Singh which was not challenged by the plaintiff by filing any cross-appeal, the finding on surrender of the suit land by Wahid Mian became final. The suit could not have been decreed in any case, in the teeth of finding that predecessor-in-interest of the plaintiff had surrendered the land to the ex-landlord. I, therefore, find that the learned Court of first appeal has assigned sufficient reasons as discussed above while reversing the Judgment of the trial Court. The second substantial question of law is accordingly answered in favour of the defendant/respondents. There is not infirmity in the Judgment of the appellate court on merit.

13. With regard to the first substantial question of law it has been argued on behalf of the appellants that appeal abated in its entirety due to non- substitution of plaintiff-respondent no.4 during the first appeal and therefore it had lost any binding force. On the other hand, it is argued on behalf of the respondents that in the present case the death of the respondent no.4 was not brought to the notice of the Court by filing an application under Order 22 Rule 10A of C.P.C. The respondents cannot be permitted to take advantage of their own wrong by not disclosing the death and then taking advantage of it by pleading that appeal had abated on account of non-substitution. Further, the grounds taken by the plaintiff were common to all, therefore, death of the respondent no.4 did not result in abatement of the appeal in view of O 22 R 4 of C.P.C. Reliance has placed on Mahabir Prasad v. Jage Ram, (1971) 1 SCC 265 at page 268.

14. What will be the result on death of a party in an appeal will depend on different factors. Say for instance where there is only one respondent, the appeal will abate for non-substitution. But when there are more than one respondents, whether the suit shall abate against the dead person or will abate in its entirety will depend on the nature of right each person has and the nature of relief claimed. The test is whether the Judgment/Decree passed in the proceeding vis-a-vis remaining parties would suffer the vice of being a contradictory or inconsistent decree is the relevant test. It has been held in 2010 (11) SCC 476 Budh Ram and Ors. Vs Banshi Ram and Ors. that the law on the issue stands crystallized to the effect that as to whether non-substitution of LRs of the respondent-defendants would abate the appeal in toto or only qua the deceased respondent-defendants, depends upon the facts and circumstance of the case. Where each one of the party has a distinct right of his own, not interdependent on one or other, nor the parties have a conflicting interest inter se, the appeal may abate only qua the deceased respondent. However, in case, there is a possibility that the court may pass a decree contradictory to the decree in favour of the deceased party, the appeal may abate in toto for the simple reason that the appeal is a continuity of the suit and the law does not permit two contradictory decrees on the same subject-matter in the same suit. Thus, whether the Judgment/Decree passed in the proceeding vis-a-vis remaining parties would suffer the vice of

being a contradictory on inconsistent decree is the relevant test. 2004 (7) SCC 354 Shahazada Bi Vs Halimabi (since dead by her LRs).

Order 22 Rule 4 lays down that where within the time limited by law no application is made to implead the L R of a deceased defendant the suit shall abate as against a deceased defendant. This rule does not provide that by the omission to implead the L R of a defendant, the suit will abate as a whole. What was the interest of the deceased defendant in the case, whether he represented the entire interest or only a specific part is a fact that would depend on the circumstances of each case? If the interest of the co-defendants is separate as in the case of co-owners, the suit will abate only as regard the particular interest of the deceased party.

15. On factual matrix the plaintiffs brought title suit claiming the suit property to be recorded in the name of their common ancestor. There is a concurrent finding of facts by both the courts below that the suit land had been surrendered by their common ancestor to the ex-landlord. Subsequent settlement to the defendants has been partly accepted by the trial court and the rest has been accepted by the first appellate court on the basis of evidence on record and for reasons assigned by both the courts. The claim of title over the suit land was contested by the defendants on the common ground of surrender which has been accepted by both the courts. Under the circumstance I am of the considered view that non-substitution of Respondent no.4 during the first appeal shall not lead to abatement of the appeal as a whole. The legal heirs of this respondent are already on record in the second appeal. I find force in the argument on behalf of the respondent that there was a duty on the part of the pleader on behalf of the respondent to inform about the death of the party and having failed to do so, either by default or by design, appellant cannot take advantage at this stage of their own wrong. Under the circumstance the first substantial question of law is also answered in favour of the defendant appellant that non-substitution of respondent no.4 during the pendency of first appeal did not amount to abatement of the first appeal.

16. Before parting it will be necessary to take note of certain disconcerting feature of this case where suit of the plaintiff proceeded and dragged on without a document of title and that too when the suit land had been surrendered by the ancestor of the plaintiff. This is a typical real estate case which shows the manner in which a suit for title was filed without a

single document of title and travelled up to this Court consuming almost four decades. A suit for declaration of title can be based on either possessory title or proprietary title. When a plea of possessory title is made on the basis of adverse possession or ouster there need to be specific averment in the pleading in that regard on the ownership prior to the commencement of adverse possession; and continuous conduct thereafter. The proprietary title can devolve by a method known to law such as inheritance, testamentary succession, registered sale deed or gift deed which needs to be specifically pleaded and proved. The source of title along with the chain of title is needed to be pleaded in the plaint along with the documents enclosed with the plaint in terms of Order 7 Rule 14 of the Code of Civil Procedure.

17. This case relating to title dispute of land, like most others, would have been decided much earlier if the trial court had implemented the provisions of the Code of Civil Procedure in a practical manner. The error committed on the part of the trial court was on account of not following some of salutary guidelines laid down by Hon'ble the Supreme Court in Maria Margarida Sequeira Fernandes v. Erasmo Jack de Sequeira, (2012) 5 SCC

"52. Truth is the foundation of justice. It must be the endeavour of all the judicial officers and Judges to ascertain truth in every matter and no stone should be left unturned in achieving this object. Courts must give greater emphasis on the veracity of pleadings and documents in order to ascertain the truth.

53. Pleadings are the foundation of litigation. In pleadings, only the necessary and relevant material must be included and unnecessary and irrelevant material must be excluded. Pleadings are given utmost importance in similar systems of adjudication, such as, the United Kingdom and the United States of America".

In the light of the principles of guidance laid down in this case, I take this opportunity to lay down certain guidelines for the trial court in this regard:

I. Possession is an incidence of ownership and can be transferred by the owner of any immovable property to another such as in a mortgage or lease. A licensee holds possession on behalf of the owner.

II. Possession is important when there are no title documents and other relevant records before the Court, but, once the documents and records of title come before the Court, it is the title which has to be looked at first and undue weightage be given to it. Possession cannot be considered in vacuum.

III. In an action for recovery of possession of immovable property, or for protecting possession thereof, upon the legal title to the property being established, the possession or occupation of the property by a person other than the holder of the legal title will be presumed to have been under and in subordination to the legal title, and it will be for the person resisting a claim for recovery of possession or claiming a right to continue in possession, to establish that he has such a right. To put it differently wherever pleadings and documents establish title to a particular property and possession is in question, it will be for the person in possession to give sufficiently detailed pleadings, particulars and documents to support his claim in order to continue in possession.

IV. in order to do justice, it is necessary to direct the parties to give all details of pleadings with particulars. Once the title is prima facie established, it is for the person who is resisting the title holder's claim to possession to plead with sufficient particularity on the basis of his claim to remain in possession and place before the court all such documents as in the ordinary course of human affairs are expected to be there. Only if the pleadings are sufficient, would an issue be struck and the matter sent to trial, where the onus will be on him to prove the averred facts and documents.

V. If the pleadings do not give sufficient details, they will not raise any issue, and the Court can reject the claim or pass a decree on admission.

VI. On vague pleadings, no issue arises.

VII. In pleadings, whenever a person claims right to continue in possession of another property, it becomes necessary for him to plead with specificity about who was the owner, on what date

did he enter into possession, in what capacity and in what manner did he conduct his relationship with the owner and the district authorities over the years till the date of suit. He must also give details on what basis is claiming a right to continue in possession. Until the pleadings raise a sufficient cause, they will not constitute claim of defence.

VIII. The trial Courts would do well to pass directions under Order XI Rules 12 & 14 CPC in directing the parties to discover on oath and file in court all documents (at least photocopies) of title upon which they rely together with an affidavit in Form 5 Appendix C to the CPC.

IX. In all claims relating to land or of title disputes the pleadings must be sufficiently specific and particularised. They must chronologically trace the title by purchase, transfer, succession, devolution or any other mode known to law. All documents which have bearing on title must be referred to in the pleadings in a sequential manner and copies filed.

The appeal is dismissed with cost.

(Gautam Kumar Choudhary, J.)

Jharkhand High Court, Ranchi Dated the 28th April, 2022 AFR / AKT