Ashok Kumar Singh vs Nasir Khan
2022 Latest Caselaw 1809 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
            S. A. No. 76 of 1992 (R)

1. Ashok Kumar Singh
2. Ramesh Kumar Singh                         ....     .... Appellants
                               Versus

1. Nasir Khan
2. Awadh Kishore Prasad
                                             ....    ....   Respondents
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CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

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For the Appellants : Mr. Arvind Kumar, Advocates For the Respondents : Mr. Amar Kumar Sinha, Advocate Mr. Sandeep Kumar Verma, Advocate

C.A.V. ON 31.03.2022 PRONOUNCED ON 05 /05 / 2022

1. Appellants are the plaintiffs who have preferred the instant appeal against the judgment and decree passed by the 4th Additional District Judge, Hazaribagh in Title Appeal No. 59 of 1985 against the judgment and decree passed in Title Suit No. 70 of 1980 by which the trial court judgment was reversed and the plaintiffs' suit was dismissed.

2. Since this is an old case therefore, the parties will be referred by their original placement in the suit and will include the legal representatives substituted at different stages.

3. The plaintiffs filed the suit for declaration of right, title, interest and possession over the suit land fully detailed in Schedule B and C of the plaint and a prayer for evicting defendant no. 2 from Schedule B property after declaring him to be tenant of defendant no.1.

4. The claim of title and for possession over the suit land of the plaintiffs is with respect to old plot no 653 recorded under Khata No. 48 of Village Nawal Sahi. According to the plaintiffs, plot nos. 653 and other plots were recorded under Khata No. 48 as Gair Mazurwa Khas in the name of the then land lord Thakur Tulsi Narayan Singh. One Thami Pandey with the consent of the landlord reclaimed 12 decimals of C.S. Plot No. 653 and other plots and the ex-landlord settled 12 decimals of land in favour of Thami Pandey by sada Hukumnama in 10 magh 1335 Fasli. Thami Pandey continued the further reclamation of the aforesaid plot 653 and remained in peaceful possession. Upon vesting, name of Thami Pandey was mutated and entered in the tenant's ledger vide rent

assessment case no. 35/91 of 1963-64 under khata no.48 and 0.06 acres of land as detailed Schedule A was mutated in his name in Register II (Ext5). Thami Pandey sold 3 decimals of old C.S. Plot no. 653 (new Plot No. 1222) in favour of Hiraman and Heman Choudhary by registered deed dated 11.09.1964 (Ext 1). The land was duly mutated in their name (Ext 5/A).Thereafter, said Hiraman and Heman Choudhary sold 3 decimals (Schedule B which is Eastern portion of Sch A land) to plaintiff no. 1 by registered deed dated 17.1.1977 (Ext 7). Thami Pandey died in the year 1970 leaving behind his widow Kaushalya Devi who succeeded to the properties of Thami Pandey. Kaushalya Devi sold 3 decimals of old C.S. Plot No. 653 (new Plot No. 1224) (Schedule C) in favour of plaintiff nos. 2 and 3 by a registered deed dated 14.10.1971 (Ext 1/a). Their names were mutated in register II (Ext 5). Accordingly, the plaintiffs acquired title with respect to Schedule B and C properties.

The whole plot 653 which measured 1.74 acres was re-plotted into several plots such as plot nos.1222,1224 and other plots were brought under different khata nos. 115 and 116 from original khata no.48.

5. It is further case of the plaintiffs that defendants have no right or title over plot no. 653 but they had been trying to oust the plaintiffs from it. Defendant no.2 was inducted as a tenant in the said premises by Hiraman Choudhary from whom Plaintiff no.1 purchased the house and land.

However, the defendants without having any title started to interfere. Hence the suit was filed.

6. Main contesting defendant is defendant no. 2 Awadh Kishore Prasad who has contested the suit by filing the written statement, whereas defendant no. 1 (vendor of D2) has filed the written statement wherein the written statement filed by defendant no. 2 has been adopted.

7. It is the case of the defendants that there was no reclamation and settlement as claimed by the plaintiffs. R.S Plot nos. 1222 and 1224 were mutated in the name of Nasir Khan, who was paying rent to the state. Nasir khan had constructed a house over 3 decimals of old plot no. 653 (new plot no. 1224) and sold it to defendant no.2 by a registered deed dated 17.01.1977 (Ext A). It is also averred that the Revenue Authority did not order for mutation of the name of Thami Pandey in respect of 0.03 acre of land of new plot no. 1224 which is a portion of old plot no. 653.

The fact is that Nasir Khan defendant no. 1 applied for mutation of his name vide Case No. 5193 of 1970 and the Revenue Authority by its order dated 12.06.1970 allowed the name of Nasir Khan be entered in respect of Plot Nos. 1224 and 1222 and Nasir Khan paid the rent to the State for the above land and for other lands. Nasir Khan constructed a house and thereafter sold it to defendant no. 2 by registered deed of sale and he was in possession of the said land. Plot no.1224 was a portion of old plot no.

653.

8. On the basis of the pleadings of the parties, the following issues were framed by the trial court:

Issue No. VI - Whether new plot nos. 1222 and 1224 have been carved out of old plot no. 653 or 651?

Issue No. VII - Have the plaintiffs got title and possession in respect of 0.03 acre of land of new plot no. 1222 (Schedule B property) and 0.03 acre of land of new plot no. 1224 (Schedule C) property? Issue No. VIII - Whether the defendant no. 2 is residing as tenant of the plaintiffs in plot no. 1222?

Issue No. IX - Is the suit bad for non-service of notice under Section 106 of the Transfer of Property Act?

9. Learned trial court recorded the following findings of fact and decreed the suit of the plaintiffs with the relevant issues:

I. The averment in plaint that plot nos. 1222 and 1224 had been prepared from old plot no. 653 has been admitted by defendant no.2 in paras 7, 8, 9, 10, 11 and 13 of the written statement filed on behalf of defendant no.2. In view of the admission the plaintiffs were not required to prove by adducing evidence that new plots no. 1222 and 1224 were prepared from old plot no.653. New Plot No. 1222 and 1224 have been carved out under old C.S. Plot No. 653.

II. Exts. D, E and G which suggest that plot nos. 1222 and 1224 have been prepared out of plot no.651 was contrary to the pleadings of defendant no.2 and therefore cannot be accepted. The Court relied on AIR 1957 Patna page 482 wherein it has been held that where a claim has never been made in the defence presented, no amount of evidence can be looked into upon a plea which has never been put forward. In civil suit

pleadings are important as the evidence is led in consonance with it.

III. All the efforts of the defendant to amend the written statement in this regard has been rejected upto the High Court of Patna. Thus, interlocutory order in respect of amendment of written statement refusing substitution of plot no.653 by plot no. 651 had become final between the parties to the suit. This operated as res-judicata between two stages in the same litigation. IV. Plots no. 1222 and 1224 were carved out of old plot no. 653 V. Title and possession of the plaintiffs in respect of schedule B and C properties has been amply proved which was settled by the ex-landlord in favour of Thammi Pandey, the vendor to the plaintiffs. Nasir Khan himself (D1) deposed that he had no concern with plot no.651 and defendant no.2 has admitted that Nasir khan does not claim plot no.651.

VI. Witnesses have consistently stated that the house over the suit land was constructed by Thami Pandey 16-17 years ago. VII. Settlement was made by Hukumnama (Ext 6) by the land lord to Thammi Pandey of 0.12 acres of land in plot no.653 and other plots in khata no.48. Ext 4/B was Govt. rent receipt in the name of Thami Pandey for 0.12 acres of land in khata no.48 dated 14.11.68 for the year 1964-65 and 1965-66. Ext 5 is the certified copy of register II for 0.06 acres of land of khata no.48 mutated in the name of Thameshwar Pandey in rent assessment case no.

35/91 of1963-64 VIII. Defendant no.2 has not disclosed in his pleading as to how Nasir khan acquired 40 decimals of land.

IX. The evidence (Ext E) that disputed plot 1222 and 1224 was carved out from old plot 653 was beyond the pleading. X. Plaintiff no.1 was residing in the Western portion of the suit house i.e. plot no.1224. Defendant no.2 has not acquired any right title over Schedule C land. Contesting defendant. Defendant no. 2 was tenant of the plaintiffs.

10. The learned first appellate held that R.S Plot No.1224 was carved out from C.S. plot no 651. It reversed the judgment and decree of the trial court on the ground that the plaintiffs failed to establish that R.S. Plot

Nos. 1222 and 1224 had been carved out from C.S. Plot No. 653. The plaintiffs had failed to prove their title over land which was part of C.S. Plot No. 651.

11. The appellate Courts relied on the following evidences. Plaintiffs have adduced into evidence S.S Map (Ext 9/A) from which it appeared that plot no. 653 and 651 were big plots intersected by plot no.652 which was a road. From R.S. Map (Ext.9) it appears that corresponding plot of R.S Plot no.1222 and 1224 was C.S Plot no.651 and not 653. From information slip (Ext D) also it transpired that R.S plots nos. 1222 and 1224 have also been carved out from C.S. plot no.651 and not 653. Ext 6 which is Hukumnama also contained C.S. Plots Nos. 653, 652 and 571 but not 651. Plaintiff's sale deed (Ext A) was also with respect to plot no.653. Register II (Ext E/3) also showed that land appertaining to Khata no. 1224 area 3 decimal was mutated in the name of Nasir Khan. Ext G which is c.c. of continuous khatian also showed that R.S plot no.1222 and 1224 had been carved out from C.S. Plot no. 651.

12. The second appeal has been admitted on the following substantial question of law:

"(i) Whether the findings of the learned lower appellate court in para 10 to the effect that the plaintiffs have failed to establish their case that R.S. Plot No. 1222 and 1224 have been carved out of C.S. Plot No. 651 is an apparent error of record in view of its own conclusion in para 7 at page 4 wherein the learned lower appellate court held as follows:

"Both parties communicated (should be contended) that R.S. Plot No. 1222 and 1224 were carved out from C.S. Plot No. 653, an issue has been framed as to whether R.S. Plot No. 1222 and 1224 have been carved out of old C.S. Plot No. 653( should be 653 or

651)?"

(ii). Whether the learned lower appellate court has committed an error on a substantial question of law by allowing the appeal and setting aside the trial court without any consideration of the oral evidence led on behalf of the parties?

(iii). Whether the learned lower appellate court has committed an error on a substantial question of law by reversing the judgment and the decree of the learned trial court without considering any reasonings of

the learned trial court or the materials relied upon by the learned trial court in support of its judgment?

(iv). Whether the learned lower appellate court has committed a gross error of record in allowing the appeal on an erroneous reference of Plot No. 651 which was not even the plot in dispute between the parties particularly when it was the admitted case of both the parties that the disputed plot nos. 1222 and 1224 had been carved out of C.S. Plot No. 653."

13. The plaintiff's case is for declaratory relief with respect to the suit land detailed in Schedule B and C of the plaint and for ejectment of defendant no.2 from Schedule C land. Schedule B comprises an area of 0.03 acres along with house standing thereon under Khata no. 48, old plot 653 new plot no. 1222. Schedule C comprises an area 0.03 acre under Khata no.48 and plot no.653 along with house standing thereon. Both the claims are with respect to C.S Plot no. 653.

14. The source of title of the plaintiff is the settlement made by ex- landlord with respect to C.S plot no.653 to Thammi Pandey. The settlement has been proved by mutation of 0.6 decimals of land in the name of Thami Pandey after vesting and issuance of subsequent receipts. The plaintiffs purchased the suit land from Thami Pandey and his wife, 6 decimals of land by two sale deeds under old Plot nos. 653.

The claim is with respect to the Schedule B property wherein it is stated with clarity that the new Plot no.1222 and new Plot no.1224 of Schedule C is of old Plot no. 653. It has been stated in the plaint that plot 653 which measured 1.74 acres was re-plotted into several plots such as Plot nos. 1222 and 1224 and other plots.

15. The question that arose before both the Courts below was whether new Plots no. 1222 and 1224 appertained to the old Plot no. 653 which is the Schedule B and C property and for which the declaration has been sought by the plaintiffs. Plaintiffs failed to lead any documentary evidence to connect the new plots to old plot no.653. The trial Court refused to consider the contrary evidence led on behalf of the defendants as it was beyond the pleadings and decreed the suit. The appellate Court accepted the evidence and dismissed the suit as the new plots appertained to old plot no.651 and not to 653.

16. At the outset it may be stated that it is a cardinal rule of evidence that the burden of proof in legal proceeding rests on the party who asserts the fact of the claim he has to prove it. Burden of proving of fact rests on the party who substantially asserts the affirmatives of all the issues and not upon the party who denies it. It has been held in Ajmer Singh Vs. Aatma Singh AIR 1985 P&H 315 that it is but reasonable and just that suiter who relies upon the existence of a fact should be called upon to prove his own case. The party on whom the onus of proof lies must, in order to succeed, establish a prima facie case. He cannot on failure, to do so, take advantage of the weakness of adversary case. He must succeed on the strength of his own pleading and proof. Burden of proof on pleadings never shifts. It remains constant. Initially burden to proof prima facie case is on the plaintiffs. When he gives such evidence as will support his prima facie case, onus shifts on the defendants to adduce rebutting evidence to meet the case made out by the plaintiffs.

Union of India v. Vasavi Coop. Housing Society Ltd., (2014) 2 SCC

"19. The legal position, therefore, is clear that the plaintiff in a suit for declaration of title and possession could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not. We are of the view that even if the title set up by the defendants is found against (sic them), in the absence of establishment of the plaintiff's own title, the plaintiff must be non-suited".

17. Here in the present case, burden of proof to establish that lands settled by the ex-land lord to Thami Pandey with respect to old plot no. 653 and subsequently purchased by the plaintiffs, corresponded to the new plot nos. 1222 and 1224 which was the schedule land was on the plaintiffs in order to entitle them to the relief claimed. It did not matter what was the pleadings on these foundational facts or if there was any pleading of the defendants at all. Under Section 101 of the Evidence Act, Whoever desires any Court to give Judgment as to any legal right or liability dependant on the existence of facts which he asserts, must prove that those facts existed.

When a person is bound to prove the existence of any fact, it is said that

burden of proof lies on that person.

18. The plaintiffs had to establish that land purchased under plot number 653 by them, corresponded to the new plots nos. 1222 and 1224. Plaintiffs failed to prove that the new plots nos. 1222 and 1224 appertained to khata no. 653 and on documentary evidence like S.S Map (Ext. 9/A), R.S Map (Ext 9), information slip (Ext D), it appears that corresponding plot of new plot nos. 1222 and 1224 was C.S. Plot no. 651 and not 653. In other words, the plaintiffs have failed to connect the lands purchased by them to the suit land as detailed in Schedules B and C of the plaint.

19. In view of the above discussion, I find that there is no infirmity in the judgment of the appellate court and there was no error committed by the appellate Court. The appellate court was not in fault to make the observation at para 7 of the Judgment regarding the framing of issue. The first substantial question of law is accordingly answered in favour of the defendant respondent. On the second substantial question of law there was no error on the part of the appellate Court to return the finding based on documentary evidence. In any claim of title, the documents of title and possession is normally given precedence over oral evidence, therefore the appellate court was not at fault on this count. As stated earlier there was strong and cogent reason for setting aside the judgment of trial court which has been discussed in the appellate court judgment. With regard to the fourth substantial question of law, I do not find any error to have been committed by the appellate court reference to plot no.651, because the contrary evidence brought on record by the defendants showed that the suit land did not correspond to plot no.653.

For the reasons discussed above, all the substantial questions of law as formulated at the time of admission of the appeal, is answered in favour of the defendants.

The Judgment and Decree of the first appellate court is affirmed.

The appeal is dismissed with cost.

                                           (Gautam Kumar Choudhary, J.)
Jharkhand High Court, Ranchi
Dated the 5th May, 2022
AFR /    AKT