Hari Rajak vs Is The Suit Premises Belonged To ...
2022 Latest Caselaw 1208 Jhar

     IN THE HIGH COURT OF JHARKHAND AT RANCHI
              Second Appeal No. 39 of 2007

     Hari Rajak                                     ....    .... Appellant
                               Versus

     1(a). Gobind Rajak
     1(b). Deepak Rajak
     1(c). Sanjay Rajak
     2. Suresh Rajak
     3(A). Neelam Devi
     3(B). Ruposh Pd. Rajak
     3(C). Ratan Pd. Rajak
     3(D). Rajni Prasad
     4(a). Naresh Rajak
     4(b). Kaushalya Devi
     4(c). Ramesh Kumar Rajak
     5. Sarju Rajak
     6. Kanhaiya Rajak
     7. Jogendra Rajak
     8. Manoj Kumar Rajak                   ....   ....    Respondents

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CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

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For the Appellant : M/s G.N. Chandra & Jageshwar Mahto, Advocates For the Respondents : M/s Amit Kr. Das & Swati Shalini, Advocates

C.A.V. ON 02.03.2022 PRONOUNCED ON 28 / 03 / 2022

1. The appeal has been preferred on behalf of the plaintiff (since dead) now LRs against the judgment and decree passed in Title Appeal No. 32 of 1993 whereby and whereunder, the judgment and decree of dismissal in T.S. No. 6 of 1986, has been affirmed by the First Court of Appeal.

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

3. The plaintiff filed suit for 1/6th undivided interest in Schedule- A property and also for a prayer to declare sale deed executed on 03.12.1988 by Jogeshwar Rajak in favour of Naresh Rajak and Suresh Rajak to be void.

4. The case of the plaintiff in brief is that Schedule-A property was acquired jointly by the father of the plaintiffs. In the year 1936, three brothers namely, Hitlal Rajak, Babulal Rajak and Bikram Rajak, came to

Jamshedpur and started laundry business. The Genealogical table as set out in the plaint is as under:

Mangar Rajak

Babulal Rajak (late) Hitlal Rajak Bikram Rajak

Wife Dulari Devi (dead) Wife Mahajiri Devi (plaintiff)

Jageshwar (son) Def.no.1 Sarju Rajak (son) Def. no. 5

5. Out of the income of laundry business, three brothers constructed a house in the year 1938 after taking settlement of a piece of land on Holding No. 21 settled by TISCO Ltd. in favour of Babulal Rajak out of love and respect. All three brothers used to wash clothes of their customers at Rani Kudar Dhobi Ghat No. 12 which was allowed to them by the TISCO in the name of defendant no. 4 Bikram Rajak but the rent of Ghat was being paid by the joint family. Babulal Rajak died in the year 1940 and Hitlal Rajak died in the year 1969. Youngest brother Bikram Rajak shifted to Patna for conducting his business. It is further averred that Jogeshwar Rajak, son of Babulal Rajak was alcoholic and profligate in his expenditure as a result he mortgaged the holding and structure in the year 1975 to one Rameshwar Ram and also entered into an agreement to sell it to Kaushalya Devi. When the mother of the plaintiff came to know about the said mortgage and agreement, she paid the amount to Rameshwar Ram and wife of Anandi and she got the property free from all liabilities and since then the plaintiff is paying the rent of the holding to TISCO Ltd. The defendant executed a fictitious mortgage deed in favour of Naresh Rajak and Suresh Rajak in the year 1980. In complete exclusion of the plaintiffs and the legal heirs of Hitlal Rajak and Bikram Rajak, Jogeshwar Rajak executed the sale deed on 03.12.1985 in favour of Suresh Rajak and Naresh Rajak. The said deed is under challenge by the plaintiff.

6. Defendant nos. 1, 2 and 3 have filed joint written statement contesting the claim of the plaintiffs. The case of the defendants is that in the suit property which is the portion of the house, defendant no. 5 was inducted as a tenant and Sarju Prasad is residing there as a monthly tenant. Defendant no. 1 was the absolute owner of the house property described in Schedule-A of the plaint which has been sold to defendant nos. 2 and 3

by registered sale deed on 03.12.1985. Defendant no. 1 had mortgaged the suit property to one Rameshwar Ram by a registered deed on 09.10.1980 but defendant no. 1 could not pay the loan amount. He sold the suit property to defendant nos. 2 and 3 by the said registered sale deed. The other parties had full notice of the entire facts. Babulal Rajak had come alone and he had started laundry business and the house was constructed by him alone and not joint by his brothers. It has been denied that Hitlal Rajak and Bikram Rajak jointly came to Jamshedpur in January, 1936. After the death of Babulal Rajak, the land was mutated by TISCO in favour of Jogeshwar Ram by issuing a letter of appointment of the suit holding and since then he is in possession of the same with his family members. It is also contended that Hitlal Rajak had never resided in the suit property.

7. On the basis of the pleading of the parties, the following issues were framed by the trial Court:

I. Has the plaintiff cause of action for the suit? II. Is the suit maintainable in the present form? III. Is the plaintiff entitled for a decree as prayed for?

IV.    To what relief the plaintiff is entitled?
 V.    Is the suit premises belonged to joint family of the three brothers
       i.e. Babulal, Hitlal and Bikram Rajak?
VI.    Is the suit property acquired jointly by the three brothers out of their
       joint income?

VII. Is the sale deed executed by defendant no. 1 in favour of defendant nos. 2 and 3 is liable to be cancelled?

8. Learned Trial Court has dismissed the suit by recording the finding of fact on material issues against the plaintiffs which has been concurred in appeal.

9. From the averments made in pleadings on behalf of both the sides, the admitted position is that suit land was settled by TISCO in the name of Babulal Rajak in the year 1938 and after his death, name of his son Jogeshwar Rajak had been mutated by entering the holding in his name by issuing an allotment letter of the suit holding under the guardianship of his mother Dulari Debi.

10. Both the Courts below have returned a concurrent finding of fact that the suit land was not the joint family property. The Trial Court

has noted that P.W. 1, who is the plaintiff in this case has stated in para 7 that Babulal was elder by seven years to Hitlal and has also further deposed that when she came to Jamshedpur, the building had already been purchased in the name of Babulal. The appellants knowing fully well that the suit property was recorded in the name of the Babulal Rajak and then his son's name was duly mutated never took any step to claim partition on the plea that it was a joint family property. Only when the property was sold by the Jogeshwar Rajak in favour of Naresh Rajak and Suresh Rajak the present suit has been filed for declaration that the sale deed was null and void. It has also come in evidence that Suresh Rajak was even living in a portion of the suit property.

Both the learned Courts below have discussed at length the evidence on record and dismissed the suit on contest.

The suit property was a joint family property or a self-acquired property is a question of fact, which has been answered concurrently against the plaintiffs by both the learned Courts below. Plaintiffs seek to annul a registered sale deed with respect to property which was the self- acquired property of Babulal Rajak father of Defendant no.1 and was recorded in his name and after his death it stood in the name of Defendant no.1.

I do not find any merit in the instant appeal and the appellants have failed to make out a substantial question of law for the appeal to the admitted.

The appeal is without any merit, accordingly, dismissed at the admission stage itself with cost.

                                          (Gautam Kumar Choudhary, J.)

Jharkhand High Court, Ranchi
Dated the 28th March, 2022
NAFR /       AKT