Jharkhand High Court
Sawna Kol vs Sarju Kol on 18 July, 2022
S.A.No.109 of 2009
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No.109 of 2009
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(Against the judgment dated 26.02.2009 {decree signed on
17.03.2009} passed by learned District Judge, Jamtara, in Title Appeal
No.08 of 2008)
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Sawna Kol, Son of Late Jarman Kol, by faith Hindu, by Occupation -
Cultivation, resident of Village- Bardahi, S.C. Tilaki, P.O.-Dilachi,
P.S. Bindapather (Nala) Sub-division and District- Jamtara
.... .... .... (Defendant-Appellant)/Appellant
Versus
1. Sarju Kol
2. Lodhai Kol,
Above both (1) and (2) sons of Late Lachman Kol, by faith Hindu, by
Occupation- Cultivation, resident of Village- Bardahi, S.C. Tilaki,
P.O.- Dilachi P.S.- Bindapather (Nala), Sub-division and District-
Jamtara.
.... .... .... (Defendant-Respondent)/Respondent
.... .... .... First Party
3. Shiblal Kol, Son of Late Reli Kol,
4. Fulmoni Kolin, Wife of Shiblal Kol,
above both (3) and (4) by faith Hindu, by Occupation- Cultivation,
resident of Village- Bardahi, S.C. Tilaki, P.O.- Dilachi P.S.-
Bindapather (Nala), Sub-division and District- Jamtara.
.... .... .... (Defendants-Respondents)/Respondents
.... .... .... Second Party
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For the Appellant : Mr. Kaushalendra Prasad, Advocate
For the Respondents : Mr. M. K. Laik, Sr. Advocate,
Mrs. Manjusri Patra, Advocate
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PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
S.A.No.109 of 2009
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By the Court:- Heard the parties.
2. This Second Appeal under Section 100 of the Code of Civil
Procedure has been preferred against the judgment and decree of
concurrent dated 26.02.2009 passed by learned District Judge, Jamtara, in
Title Appeal No.08 of 2008 by which the learned first appellate court
dismissed the appeal and confirmed the judgment and decree passed by
the trial court.
3. The case of the original plaintiff is that the ancestors of the plaintiff-
Jarman Kol was completely an illiterate and deaf man, aged about 80
years old and he used to live with the plaintiff and was nursed and
maintained by the plaintiff properly in the last ten years of his life and he
died issueless. In the month of May, 1985, Jarman Kol suddenly fell ill and
was in urgent need of some money for his treatment. Jarman Kol
requested the defendant No.2 to advance loan of Rs.2,000/- for his
treatment. The defendant No.2 agreed to pay the amount to Jarman Kol
on the condition that Jarman Kol has to execute a Tamasuk Bond in the
court. Accordingly, the defendant No.2 brought Jarman Kol to Jamatara
Court on 09.05.1985 and took the L.T.I. of Jarman Kol along with his wife
on some papers without reading over and explaining the contents of the
same to the said Jarman Kol and paid Rs.2,000/- giving the impression to
Jarman Kol that the deed he executed was a Tamasuk Bond. After lapse
of two years Jarman Kol refunded the said amount of Rs.2,000/- with
interest to the defendant No.2 and subsequently died in 1998. On
25.05.1999, the plaintiff was ploughing the land. All of a sudden,
defendant No.2 came to the field and threatened the original plaintiff not
to plough or cultivate the land and claimed to be the owner of the land.
The defendant No.2 claimed that Jarman Kol has adopted the defendant
No.1 as his son and the defendant No.1 is the owner of the land. The
plaintiff went to the court and upon search found out that the defendant
No.2 fraudulently got a fake and frivolous deed of adoption registered in
favour of his son- defendant No.1. Hence, the plaintiff filed the suit with
the prayer for:-
S.A.No.109 of 2009
(a) declaration that the alleged execution and registration of the adoption
deed No.131 dated 09.05.1985 in favour of defendant No.1 by Jarman Kol
is void, illegal, inoperative and is outcome of fraud and misrepresentation
of facts and hence, not binding upon the plaintiff;
(b) cancellation of alleged deed of adoption dated No.131 dated
09.05.1985;
(c) and other reliefs.
4. The learned trial court, considering the evidence in the record i.e.
oral testimonies of ten witnesses examined by the plaintiff and nine
witnesses by the defendants as well as the documentary evidence in the
record and inter alia accepted the contention of the appellant that he came
to know about the alleged deed of adoption which was the subject matter
of the suit which was executed by Jarman Kol adopting the defendant
No.1. Only after the death of Jarman Kol when the defendants interfered
with the possession of the plaintiff and after coming to a conclusion that
the deed of adoption is a fraudulent one, decreed the suit of the plaintiff
with cost and declared that the adoption deed which was the subject
matter of the suit was not valid.
5. Being aggrieved by the judgment and decree passed by the learned
trial court, the defendants-appellants filed Title Appeal No.08 of 2008 and
the same was heard and disposed by the impugned judgment and decree
by the learned first appellate court.
6. The learned first appellate court made independent appreciation of
the evidence in the record. The learned first appellate court in respect to
the issue No.(iii) that is 'Is the suit barred by Limitation?' came to a
conclusion that the adoption deed executed by Jarman Kol adopting the
defendant No.1 came to the knowledge of the plaintiff only after the death
of Jarman Kol in the year 1998 and as the suit was filed on 21.06.1999 so, it
was held that the suit is not barred by limitation and the same is within
time. The first appellate court also concurred with the other findings of
the court as well and dismissed the appeal.
7. At the time of admission of the appeal, the following two
substantial questions of law were formulated:-
1) Whether both the Courts below have committed gross error of
S.A.No.109 of 2009
law in deciding the issue with regard to limitation?
2) Whether the finding on the issue of limitation is perverse in law?
8. Mr. Kaushalendra Prasad- learned counsel for the appellant submits
that both the learned courts below have committed gross error of law and
perversity by not considering the Exhibit E which is the statement on
solemn affirmation of Jarman Kol in P.C.R. Case No.16 of 1994
corresponding to T.R. No.727 of 1994 which was instituted against the
defendant No.2 wherein Jarman Kol stated under solemn affirmation that
he has taken in adoption the son of Shivlal- the defendant No.2. Hence, it
is submitted that the said the statement under solemn affirmation made in
a court of law being a public document and a statement made publicly
both the courts below ought to have held that the original plaintiff was
having knowledge about the deed of adoption executed by Jarman Kol
taking in adoption the defendant No.1 as his son from the date of such
statement under solemn affirmation made by Jarman Kol in the court and
by ignoring the same, both the courts below have committed perversity,
hence, the impugned judgment and decree be set aside.
9. The learned counsel for the respondents on the other hand
defended the impugned judgment and decree passed by the first appellate
court and submits that admittedly the original plaintiff namely Lachman
Kol was not a party to the said P.C.R. Case No.16 of 1994 corresponding to
T.R. No.727 of 1994. So, it is highly unlikely that a person residing at a far
away from Civil Court at Jamtara is expected to know that in which case
on which date what statement is made by which witness. So, the
contention of the appellant that both the learned courts below did not
consider the Exhibit E which is the statement on solemn affirmation of
Jarman Kol in the case in which the original plaintiff was not a party, is
without any merit and as both the courts have discussed in detail the
evidence in the record to come to a finding that the original plaintiff came
to know about the adoption deed only after the death of Jarman Kol in the
year 1998. Hence, the concurrent finding of facts by both the courts below
does not warrant interference of this Court in exercise of the jurisdiction
under Section 100 of the Code of Civil Procedure. Hence, it is submitted
that this appeal, being without any merit, be dismissed.
S.A.No.109 of 2009
10. Having heard the rival submissions made at the Bar and after
carefully going through the materials in the record this Court finds that
both the learned courts below have discussed the evidence in the record in
the matter of limitation in proper perspective and have rightly arrived at
the finding that the original plaintiff came to know about the adoption
deed only after the death of Jarman Kol when the defendants interfered
with peaceful cultivation and possession on the ground that Jarman Kol
has taken the defendant No.1 in adoption. This Court is of the considered
view that it cannot be expected of the original plaintiff to know about the
adoption of the defendant no.1 by Jarman Kol from the date of the
statement on solemn affirmation made by Jarman Kol in the complaint
case against the defendant No.2 in P.C.R. Case No.16 of 1994
corresponding to T.R. No.727 of 1994 marked Exhibit E when admittedly
the original plaintiff was not a party to P.C.R. Case No.16 of 1994
corresponding to T.R. No.727 of 1994, as it is not expected of every citizen
to know what is stated in a particular case in which date in the court,
when he is not the party to the case. Moreover, the fact that Jarman Kol
instituted a case against the defendant No.2 shows that he was not in
good terms with defendant no.2 who is the father of the defendant no.1, is
a factor against the claim of the said adoption by the defendants.
11. Under such circumstances, this Court is of the considered view that
both the courts below have not committed any error in deciding the issue
regarding limitation and the finding on the issue of limitation is not
perverse. Both the substantial questions of law are answered accordingly.
12. Accordingly, this appeal, being without any merit, is dismissed.
13. Let a copy of this judgment along with the lower court records be
remitted back to the learned concerned courts below forthwith.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated the 18th of July, 2022
AFR/ Animesh
