Jharkhand High Court
Mahesh Mandal vs Deep Narayan Yadav on 10 October, 2022
S.A.No.102 of 2012
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No.102 of 2012
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(Against the judgment dated 28.05.2012 passed by learned Principal
District Judge, Sahibganj in Title Appeal No.41 of 2009)
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1. Mahesh Mandal, S/o Late Ganeshi Mandal, Resident of Village-
Mahadeoganj, P.O. Mahadeoganj, P.S.- Sahibganj (M), District-
Sahibganj, Jharkhand.
2. Kamali Devi, W/o Nandlal Mandal, D/o Late Ganeshi Mandal,
Resident of Village and P.O.- Simartalla, P.S. and District- Katihar,
Bihar.
3. Uday Mandal, s/o Buchi Mandal, Resident of Village and P.O. -
Simartalla, P.S. and District- Katihar, Bihar
.... .... .... Appellants / Appellants /Plaintiff
Versus
1. Deep Narayan Yadav, S/o Late Garju Yadav,
2. Sadanand Yadav, S/o Deep Narayan Yadav,
3. Prakash @ Omprakash Yadav, S/o Deep Narayan Yadav, all R/o
Village & P.O.- Mahadeoganj, P.S.- Sahibganj (M), District-
Sahibganj.
4. Nepali Mandal, S/o Late Gena Mandal,
5. Prakash Mandal, S/o Late Gena Mandal,
6. Padma Devi, D/o Late Gena Mandal, all Resident Village and
P.O.- Khabashpur, P.S.- Pirpainti, District- Bhagalpur, Bihar.
7. Bhola Mandal, S/o Late Aghori Mandal,
8. Anandi Mandal, S/o Late Aghori Mandal, Village- P.O. -
Mahadeoganj, P.S.- Sahibganj (M), District- Sahibganj
.... .... .... Respondents / Respondents / Defendants
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For the Appellants : Mr. Din Dayal Saha, Advocate
For the Respondents : None
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PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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By the Court:- Heard the learned counsel for the appellants.
2. No one turns up on behalf of the respondents; hence, this appeal is
heard and disposed of ex-parte against the respondents.
S.A.No.102 of 2012
3. This Second Appeal, under Section 100 of the Code of Civil
Procedure, has been preferred against the judgment and decree dated
28.05.2012 passed by learned Principal District Judge, Sahibganj in Title
Appeal No.41 of 2009 whereby and where under by the judgment of
concurrence, the learned Principal District Judge, Sahibganj dismissed the
appeal and upheld the judgment and decree passed by the trial court
being the court of Subordinate Judge-III, Sahibganj in Title Suit No.11 of
2007 dated 30.06.2009.
4. The case of the plaintiffs in brief is that the plaintiffs filed the Title
Suit No.11 of 2007 with a prayer for declaration of their right, title, interest
and possession over the schedule-A property and also for their
confirmation of their possession over the suit property and if it is found
that plaintiffs have been forcibly dispossessed then a decree for
restoration of possession through thee machinery of court be passed. The
plaintiffs also made a prayer that the defendant first party be permanently
injuncted not to disturb the right, title and interest or possession of the
plaintiffs over the suit property and cost of the suit with other equitable
relief. The plaintiffs pleaded that the plaintiffs and the defendants second
party as well as the proforma defendants are related to the recorded
tenant of the suit namely Most. Chanchaliya Devi. The plaintiffs further
pleaded that the defendant first party are no way related to the recorded
tenant and they have no right, title and interest to occupy the suit land
which is a non-transferrable land in terms of Section 20 of Santhal Pargana
Tenancy Act, 1949. The plaintiffs further pleaded that in or about May,
2003, the defendant first party tried to trespass upon the suit property and
tried to damage the crops of the plaintiffs planted thereon. The plaintiff
No.1 approached the S.D.O., Sahibganj for eviction of the defendant first
party but the said petition was dismissed and the appeal filed in the
matter was pending before the Deputy Collector, Sahibganj vide Rev.
Misc. Appeal No.11 of 2005, at the time of filing of the suit. It is further the
case of the plaintiffs that Most. Chanchaliya Devi died more than 50 years
before filing of the suit and the daughter or any of the legal heirs of Most.
Chanchaliya Devi did not come to perform her last rites (Shradh
Ceremony) to the village. The plaintiffs then pleaded that the heirs or
S.A.No.102 of 2012
daughters of Most. Chanchaliya Devi had neither any interest over the
suit land nor they owned or possessed the suit property. The father of the
plaintiffs namely Ganeshi Mandal along with Faudari Mandal were
present in the last rites (Shradh) of Most. Chanchaliya Devi. Faudari
Mandal relinquished his share over the suit property in presence of the
village people and Ganeshi Mandal observed the last rites (Shradh) of
Most. Chanchaliya Devi and thereafter owned and possessed and
cultivated the entire suit property to the exclusion of all other relations
and heirs, if any, of Most. Chanchaliya Devi. The father of the plaintiffs
also used to pay rent of the suit property to the Pradhan of the village.
The plaintiff No.1 also paid rent of the entire suit property to the village
Pradhan. None of the defendants ever objected the ownership, possession
of Ganeshi Mandal or plaintiff No.1 over the suit property. The plaintiff
Nos.2 and 3 are the brother and son of pre-deceased sister of plaintiff
No.1. The defendant second party or the proforma defendants are not the
legal heirs of Most. Chanchaliya Devi and they have no legal right, title,
ownership or possession over the suit property. The plaintiffs further
pleaded that in the last survey record before filing of the suit the name of
the father of the defendant second party Gena Mandal has been
surreptitiously mentioned but as the survey has not been concluded at the
time of filing of the suit, such entry has no value and for that matter
obtaining a few rent receipts forcibly from the Pradhan of the village
cannot confer any title in favour of the defendant second party.
5. The defendant first party contested the suit by way of filing written
statement and besides challenging the maintainability of the suit on
various technical grounds further pleaded that the genealogy given by the
plaintiffs is wrong. They next pleaded that the grandfather of the plaintiff
namely Padu Mandal filed Title Suit No.30 of 1946 against Faudari
Mandal in the court of Deputy Collector and according to the genealogy
furnished by the said Padu Mandal in the said title suit, the plaintiffs are
neither the descendants nor the heirs or successors of the recorded tenant
of the suit land. The defendant first party contended that they are the
caretaker and managing persons of the defendant second party who are
the actual legal heirs of the recorded tenant. The defendant first party
S.A.No.102 of 2012
further pleaded that they are managing the suit property by will and
consent of the defendant second party and the plaintiffs have no right,
title and interest over the suit property and in order to grab the suit
property, the plaintiffs have filed the suit.
6. On the basis of rival pleadings of the parties, learned trial court
framed the six issues which read as under:-
(I) Is the suit as framed maintainable?
(II) Have the Plaintiffs any cause of action in the suit?
(III) Is the suit barred by law of limitation, principles of waiver, estoppel and
acquiescence?
(IV) Are the Plaintiffs title holders, owners and possessors of the suit property?
(V) Whether the title of the Plaintiffs perfected by the adverse possession?
(VI) Are the Plaintiffs entitled to relief or reliefs as claimed for in the suit?
7. In support of their case, the plaintiffs examined three witnesses
besides proving the rent receipts which were marked Ext. I series and
certified copy of the Khatiyan which were marked Ext. II. The defendants
examined five witnesses besides proving the documents which have been
marked Ext. A to Ext.F/7.
8. The trial court first took up issue No. IV and considering the fact
that that the claim and ownership of the father of the plaintiff over the suit
land was negatived by the S.D.O. and he was dispossessed by issuing a
Basgarhi Parwana and also the fact that the plaintiffs could not adduce
any cogent evidence to establish that they are the successors of Most.
Chanchaliya Devi and the plaintiffs even were not able to prove that
when and how the said Most. Chanchaliya Devi died; came to the
conclusion that the plaintiffs have not been able to prove their title and
possession over suit land and decided the issue against the plaintiffs.
9. The trial court next took up issue No. V and considered the fact that
as the plaintiffs have failed to prove their possession over the suit land so
they have failed to establish acquisition of their title by way of adverse
possession; as in the absence of any proof of their possession over the suit
land there cannot be any adverse possession more so because the
plaintiffs claim adverse possession on a land belonging to Scheduled
Tribes and the acquisition of title by adverse possession hence belonging
to the Scheduled Tribes is prohibited under the provisions of the Santhal
Pagana Tenancy (Supplementary Provisions) Act 1949 and held that the
S.A.No.102 of 2012
plaintiffs have not acquired any title by way of adverse possession.
10. The trial court thereafter took up issue No. III and disposed of the
same as not pressed.
11. Lastly, the trial court took up issue Nos. I, II and VI together and
considered that the parties are Kharwar Scheduled Tribes under the
Santhal Pargana Tenancy (Supplementary Provisions) Act, 1949 and as
per the provisions of Santhal Pargana Tenancy Act where any litigation is
between the Scheduled Tribes with respect to Damin-E-Koh land, the
Deputy Commissioner is a necessary party to the suit but as the Deputy
Commissioner has not been made party to the suit hence, the suit is bad
for non-joinder of necessary party and went on to hold that the suit as
framed and filed is not maintainable and that the plaintiffs are not entitled
to any relief as claimed and dismissed the suit on contest without cost.
12. Being aggrieved by the judgment and decree passed by the trial
court, the plaintiffs filed Title Appeal No.41 of 2009 which was ultimately
heard and disposed of by the Principal District Judge by the impugned
judgment and decree. The learned First Appellate Court framed the
following five points for determination:-
(1) Whether the judgment dated 30.06.2009 and its decree dated
09.07.2009 passed by the court below i.e. Sub-Judge III (now civil Judge,
senior division no.3) Sahibganj, is sustainable in the eye of law?
(2) Whether the plaintiff Mahesh Mandal and others have got any right,
title and interest over the suit land and whether they are in cultivating
possession of the land in question since long?
(3) Whether the defendant 2nd party are lawful owner of land in question
and defendant 1st party are in permissive possession of the land for and on
behalf of defendant 2nd party?
(4) Whether plaintiffs have perfected their right, title through their
adverse possession i.e. in respect of disputed property/land in question i.e.
schedule property given in schedule A of the plaint, i.e. property having JB
no. 13, situated at mouza Jhagru Chouki, within P.S. Borio, District-
Sahibganj, i.e. 1 bigha, 13 katha and 17 dhur?
(5) To what relief/reliefs appellants/plaintiffs are entitled to receive?
13. The learned First Appellate Court first took up point for
determination Nos.1 and 2 together and made independent appreciation
of the evidence in the record and considered that the plaintiffs have not
pleaded as to when their possession became adverse to that of the real
owner of the suit land and concluded that the trial court has rightly held
that the plaintiffs have not been able to prove their title over the suit land
S.A.No.102 of 2012
and also came to the conclusion that the plaintiffs could not establish that
they have perfected their title by way of adverse possession.
14. The learned First Appellate Court thereafter took up the point for
determination No.3 and after considering the materials in the record and
its finding regarding points for determination Nos.1 and 2 held that the
right in respect of the suit property has been devolved upon the
defendant second party.
15. The learned First Appellate Court thereafter took up point for
determination No.4 and in the light of its finding of the other points for
determination; came to the conclusion and held that the plaintiffs have
not been able to establish that they have perfected their right, title and
interest through adverse possession.
16. Lastly, the First Appellate Court took up the point for
determination No.5 and came to the conclusion that the plaintiffs are not
entitled to any relief and that the suit of the plaintiffs has rightly been
dismissed by the trial court and upheld the judgment and decree passed
by the trial court.
17. Mr. Din Dayal Saha- learned counsel for the appellants submits that
both the courts below could not appreciate the evidence in the record in
their right perspective and the issues have not been properly settled. Mr.
Saha next submits that both the courts below ought to have held that the
plaintiffs are legal heirs of the recorded tenant Most. Chanchaliya Devi
and both the courts below erred by relying upon the Ext. A as the same is
not a complete document as the survey was going on in the area. Hence, it
is submitted that the judgment and decree passed by the both the courts
below be set aside after formulating appropriate substantial question of
law and the suit of the plaintiffs be decreed.
18. Having heard the submission made at the Bar and after going
through the material in the record, this Court finds that the plaintiffs have
not pleaded as to what rule of inheritance was applicable and prevalent
for the purpose of inheritance of the property of Most. Chanchaliya Devi.
It is a settled principle of law that prior to the enactment of Hindu
Succession Act under Mitakshara law, only agnates could inherit the
property no matter how distant they were to the deceased which meant
S.A.No.102 of 2012
that the property could go to a distant male cousin but not to one's own
daughter's son. However, under Dayabhaga law, allowed cognates to
inherit the property. Under Dayabhaga law a person can inherit his
maternal grandfather's property if he had no son. The plaintiffs have not
even pleaded whether they belong to Dayabhaga School of law or
Mitakshara School of law. The deceased recorded tenant- Most.
Chanchaliya Devi had admittedly daughters. So, under such
circumstances mere performance of last rites (Shradh ceremony) by the
father of the plaintiffs, even assuming for the sake of argument that the
plaintiff has succeeded in establishing the same, by itself cannot confer
any right of inheritance upon the father of the plaintiffs in respect of the
property of the deceased Most. Chanchaliya Devi. Thus both the courts
below have rightly held that the plaintiffs have not been able to establish
their title over the suit land. So far as the acquisition of the title by the
plaintiffs by way of adverse possession is concerned, the plaintiffs have
failed to disclose as to when their possession became adverse to that of the
rightful owner and the plaintiffs also failed to establish their possession
over the suit property by cogent evidence. It is a settled principle of law
that adverse possession requires all the three classic requirements to co-
exist at the same time, namely, adequate in continuity, adequate in
publicity and adverse to a competitor, in denial of title and his
knowledge moreover Animus possidendi under hostile colour of title is
also required; as has been observed by the Hon'ble Supreme Court of
India in the case of Ravinder Kaur Grewal & Others vs. Manjit Kaur &
Others reported in (2019) 8 SCC 729 paragraph-60 of which reads as
under:-
"60. The adverse possession requires all the three classic
requirements to co-exist at the same time, namely, nec vi i.e. adequate in
continuity, nec clam i.e. adequate in publicity and nec precario i.e. adverse
to a competitor, in denial of title and his knowledge. Visible, notorious and
peaceful so that if the owner does not take care to know notorious facts,
knowledge is attributed to him on the basis that but for due diligence he
would have known it. Adverse possession cannot be decreed on a title
which is not pleaded. Animus possidendi under hostile colour of title is
required. Trespasser's long possession is not synonymous with adverse
possession. Trespasser's possession is construed to be on behalf of the
owner, the casual user does not constitute adverse possession. The owner
S.A.No.102 of 2012
can take possession from a trespasser at any point in time. Possessor looks
after the property, protects it and in case of agricultural property by and
large the concept is that actual tiller should own the land who works by
dint of his hard labour and makes the land cultivable. The legislature in
various States confers rights based on possession." (Emphasis supplied)
It is also a settled principle of law that a person who claims adverse
possession should show: (a) on what date he came into possession, (b)
what was the nature of his possession, (c) whether the factum of
possession was known to the other party, (d) how long his possession has
continued, and (e) his possession was open and undisturbed has been
held by the Hon'ble Supreme Court of India in the case of Karnataka
Board of Wakf v. Government of India & Others (2004) 10 SCC 779 inter
alia observed as under:
"11.Xxxxx Physical fact of exclusive possession and the animus possidendi
to hold as owner in exclusion to the actual owner are the most important
factors that are to be accounted in cases of this nature. Plea of adverse
possession is not a pure question of law but a blended one of fact and law.
Therefore, a person who claims adverse possession should show: (a) on
what date he came into possession, (b) what was the nature of his
possession, (c) whether the factum of possession was known to the other
party, (d) how long his possession has continued, and (e) his possession
was open and undisturbed. A person pleading adverse possession has no
equities in his favour. Since he is trying to defeat the rights of the true
owner, it is for him to clearly plead and establish all facts necessary to
establish his adverse possession."
Thus in the absence of any such essential pleading and proof certainly the
claim of the plaintiffs of acquiring title by way of adverse possession has
no legs to stand.
19. Under such circumstances, this Court finds that there is no illegality
committed by both the courts below in holding that the plaintiffs have not
been able to establish their case of acquisition of title by way of adverse
possession.
20. Therefore, this Court is of the considered view that there is no
perversity in the judgments passed by the trial court or the First Appellate
Court and no substantial question of law is involved in this appeal.
21. Accordingly, this appeal, being without any merit, is dismissed but
under the circumstances without any costs.
S.A.No.102 of 2012
22. Let a copy of this judgment be sent to the courts concerned
forthwith.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated the 10th of October, 2022
AFR/ Animesh
