(A) Ruby Kandir vs (A) Shanti Bhengra
2022 Latest Caselaw 3590 Jhar

     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                  S.A. No. 34 of 1995 (R)

     1. (a) Ruby Kandir
     2. (b) Enisa Kandir
     3. (a) Basanti Kandir,
         (b) Alekh Kandir,
         (c) Isha Kandir,
     3. Anita Kandir
     4. Nutan Kandir
     5. (a) Sushil Kunkal son of Late Barnwas
        (b) Rimil Kunkal D/o. Sushil Kunkal
        (c) Epil Kunkal D/o. Sushil Kunkal
         (d) Uppal Kunkal D/o. Sushil Kunkal wife of Dr. Abhay Tirkey
                                            ..... .....           Appellants
                    Versus

      1. (a) Shanti Bhengra
         (b) Lebloon Bhengra
        (c) Sheshit Bhengra
        (d) Lalit Bhengra
    2.    Daniel Bhengraj
    3.     Polyerop Bhengraj
    4.     The Deputy Commissioner, Ranchi
                                      .... .... Respondents
                             ------

CORAM :HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

For the Appellants : Mr. Sudhir Kumar Sharma, Advocate For the Respondents : Mr. Shekhar Prasad Sinha, Advocate

CAV ON 19.04.2022 PRONOUNCED ON 08.09. 2022

1. Appellants are the defendants who have preferred the appeal against the Judgment of reversal passed by 3rd Additional Judicial Commissioner, Ranchi in Title Appeal No.93 of 1992 whereby the plaintiff's appeal has been allowed.

2. The parties shall be referred to by their original placement in the suit and shall include their legal representatives who have been substituted from time to time.

3. The plaintiffs filed the suit for declaration of their title and possession over entire R.S. plot No. 218, Khata No. 20, situated in village Kamato Martin Bungla, Revenue Thana Khunti, Dist- Ranchi measuring an area of 0.82 acres, and in the alternative for recovery of possession over the said land, if the plaintiffs were not found in possession and also the cost of the suit.

4. The case of the plaintiffs is that the Schedule-A property described in the plaint had been recorded in the Revisional Survey Record of Right as "Beyani Bakabzey" of Johan Munda son of Danel Munda. The relevant khata has however been recorded in the name of Duga Munda, Kuwar Munda both sons of Kande Munda, Sukhu Munda son of Mochi Rai Munda and Matia Munda son of Jega Munda have been recorded. Johan Munda and his full brother Amos Munda were joint so the suit property recorded "Beyani Bakabeja" was held and possessed by the said two brothers as their joint property. The heirs of said Johan Munda and Amos Munda are still joint. The aforesaid two brothers are dead and are survived and succeeded by their sons and heirs who are the plaintiffs and deft. No. 5 & 6. They have perfected their right title over the suit property by prescription and adverse possession. The plaintiffs and deft no. 5 & 6 are in peaceful exclusive possession of the suit property.

5. The further case of the plaintiffs is that the suit property was in possession of the said Johan Munda who died in the year 1964 and his brother Anas Munda since deceased and is now in cultivating possession of the plaintiffs and deft. No. 5 & 6. The last surviving recorded raiyat Duga Munda died issueless in 1982.He had been to Assam but returned from there and lived in his village Kadma Jogo Toli till his death. The necessary steps for escheat of the lands of R.S. Khata No. 20 except the suit land has been recommended to be initiated in the Circle Office, Khunti. Deft. No. 1 managed to get a sale deed registered fraudulently in her favour on 04.03.1959 from one Most. Bagru Budhani who was described as widow of Lodoy alias Ande Munda with respect to a portion of the suit property measuring 0.44 acre out of total of 0.82 acres. Bagru Budhani was not the heir of the recorded raiyats and had no right and title to transfer the said property. She being a widow belonging to the Munda tribe was not entitled to inherit the property of her deceased husband and had no title and could not have transferable right therein. The said Bagru Badhani died during the life time of the recorded raiyat Duga Munda and she was not related with the said recorded raiyat. The sale deed was only a paper transaction and deft. No. 1 never came to hold and possess the suit land. The deft. No. 1 having failed in her efforts to grab the suit lands had fraudulently tried to create three sale deeds in the year 1986 two in favour of her two daughters who are defendant

Nos. 2 & 3 with respect to 0.26 acre of the suit property to each of them and the third with respect of 0.30 acres to deft.no. 4. By using this document the land has also been illegally mutated in their favour. The said transfers have not conferred any title or possession over the suit property. The defendant nos. 1 to 4 by taking the law in their hands tried to take forcible possession of the suit property but their efforts was foiled and the plaintiffs and defendant nos.5 & 6 continue to be in possession of the suit property in their own right title and interest. The creation of the aforesaid deeds of transfers have cast a cloud over the title of the plaintiffs and deft. Nos. 5 & 6 hence this suit had been filed. Defendant no.1 sold a portion of the suit property by a registered sale deed to defendant no.2 on 11.12. 1987 and to defendant no.3 on 16.3.1988 and to defendant no.4 on 27.01. 1986.

6. It is pleaded that the transfer made by Defendant no.1 did not convey title to the transferee as she had no transferable interest in the property.

7. The case of contesting defendant nos. 1 to 4 is that Johan Munda was in possession of the lands as a mortgagee in lieu of Rs. 10/- only on the basis of a sada document dated 20.03.1928 till repayment of the said mortgage money. Since the documents was sada and was invalid in law the survey authority noted the possession of the said Johan Munda as Be- Ain-e (illegal document). Amus Munda had absolutely no concern with the said land and neither the plaintiffs nor the proforma defendant nos. 5 & 6 have any kind of right, title or interest over the lands in suit. The said mortgagee Johan Munda had realised the usufructs and profits of the said land far in excess of the paltry sum of Rs. 10/- only and accordingly the raiyat concerned had taken possession of the lands in suit from the said Johan Munda long ago.

8. The further case of the defendants is that all the other recorded raiyats except Duga Munda died issueless. Duga Munda too died subsequently leaving behind a son called Komde Munda who in turn also died issueless leaving behind his widow only called Most. Bagru @ Budhani who came in possession of the lands under the suit. The said widow while in possession applied for permission to sell the lands in suit along with other lands under section 46 of the C.N.T. Act before the S.D.M. Khunti on the ground of necessity. The same was registered as R.M. Case No. 121 of 1958-59 and after the due service of notices permission to sell the lands was allowed by order dated 29.01.1959. In pursuance of the said permission, Most. Budhani

sold and transferred the suit lands besides others by a registered deed of sale deed dated 04.03.1959 in favour of defendant No. 1 for valuable consideration and also delivered possession of the transferred lands to deft no. 1. The defendant No. 1 came and continued in possession on being mutated and payment of annual rents against the grant of proper rent receipts over since the date of the purchase as aforesaid. The question of acquisition of any title and possession by prescription and adverse possession does not arise at all. Johan Munda died long ago and not in the year 1964. The story of building house and planting trees and the said house having fallen are more cock and bull story. The name of deft. No. 1 has been duly mutated with respect to the suit lands vide Mutation Case No. 1 R 27 of 1959-60 and correction slip also been issued in favour of the defendant No. 1. The remaining area of 38 decimals of plot no. 218 besides another plot have since been assessed to rent in mutation (Rent) Case 261 R 27 of 1983-84 in favour of the deft. No. 1 as she was also in possession of the said lands.

9. Most. Bagru Budhani was heir of Kande Munda, one of the recorded raiyats, the plaintiffs having no locus standi to question the title and possession of the defendant no. 1. The deft. No. 1 cannot be disturbed by or at the instance of the plaintiffs who are total strangers to the suit lands. The sale deed has been duly acted upon. The deft. No. 1 after obtaining due permission from S.D.M. Khunti transferred portions of the lands in suit by due execution and registration of three sale deeds in favour of deft. Nos. 2 to 4 for valuable consideration. The possession has also been delivered to deft. Nos. 2 to 4 who duly mutated their names in the shiresta of the state of Bihar and have been paying rent regularly. The transfers in favour of these defendants are all valid and genuine. The plaintiffs and the proforma defendants at first set up one Duga Munda who was made to file a case of land restoration u/s 71 (A) of the C.NT. Act before the S.D.O. Khunti which was registered as Misc. Case No. 5 of 1973-74 but the same was dismissed by terms of order dated 11.04.1974 passed by the D.C.L.R. Khunti, exercising powers of the Commissioner, under the Scheduled Area Regulation. An appeal preferred against the said order being R. Appeal No. B R 15 of 1974-75 was also dismissed for default. The plaintiffs are not entitled to any relief or reliefs and the suit is liable to be dismissed with costs.

10. The case of the defendant nos. 5 & 6 in short is that these defendants admit the statements made by the plaintiffs in the plaint entirely. These defendants have no objection if a decree is passed in favour of the plaintiffs in view of the statement made in para- 17 of the plaintiffs.

11. Upon the aforementioned pleadings of the parties the following issues were framed :-

(i) Is the suit barred by law of limitation estoppel and acquiescence?

      (ii)     Have the plaintiffs cause of action for the suit?
      (iii)    Have the plaintiffs and their ancestors perfected their title to the
               suit lands by adverse possession?
      (iv)     Was Most.Bagru Budhani in heirs of the recorded raiyats?
      (v)      Had Most. Bagru Budhani a transferable right and title to the suit
               land?
      (vi)     Is the transfer made by Most. Bagru Budhani in favour of deft.
               No. 1 valid?

(vii) Have the defendants 1 to 4 any title to the suit land?

(viii) Are the plaintiffs in possession of the suit lands?

(ix) Are the plaintiff entitled to the reliefs claimed?

12. The learned trial Court concluded that the plaintiffs are not in possession over the suit land and accordingly decided issue no. III & VIII against the plaintiffs and defendant no. 5 & 6 and dismissed the suit. It also held the suit to be barred by limitation and not maintainable under Section 35 of the Specific Relief Act and decided issue Nos. II & IX against them.

13. The learned appellate Court mainly on the basis of entry in the record of right presumed continuity of possession in favour of the plaintiffs and reversed the finding of trial Court.

14. The following substantial questions of law have been framed:

I. Whether a person who is in possession of a mortgaged property can base his title to the same on the plea of adverse possession? II. whether the learned appellate court while reversing finding of the learned trial court on Issue No.3 and 8 has completely ignored the oral and documentary evidence?

III. whether plaintiffs suit is barred by law of limitation and not maintainable under section 35 of the Specific Relief Act?

15. Briefly stated, the plaintiffs claim being heirs and descendants of Johan Munda whose name was entered in the CS record of rights published in the year 1928 to be in illegal possession, whereas the contesting defendants claim the title from the recorded tenant by virtue of inheritance and subsequent sale in their favour by the widow of recorded tenant. It is a case of competing claim of possessory title on behalf of the plaintiffs and proprietary title on behalf of the contesting defendants.

16. It is argued on behalf of the appellants that the learned Appellate Court without framing the point for determination as mandated under Order 41 Rule 31 C.P.C and without discussing oral evidences adduced on behalf of the plaintiff and other documentary evidences defendants has reversed the finding of the trial Court. The possession of the defendants has been declared merely on the basis of entry regarding illegal possession of Johan Munda in Khatian, presuming continuity of possession in favour of plaintiffs without taking into account that way back in 1959 Most. Bagru , after taking due permission as required under Section 46 of the C.N.T Act had executed sale deed (Ext-C) in favour of Emil Kandir, who mutated her name in revenue records (Ext G) and paid rent (Ext-B-B/11). The claim of possession of the plaintiff is not buttressed by a single revenue receipt. Without proof of hostile, open and consistent possession for the prescribed period the claim of adverse possession cannot be sustained. The suit is barred by law of limitation.

17. On the point of possession it is argued on behalf of the plaintiffs that there is no witness examined regarding the suit property for the period 1928 to 1984. DW 1 has deposed that only after defendant no.1 sold the suit land to defendant nos.2 to 4 then defendant no.4 started making construction of a house which has also not been completed. The onus to prove defendant's title was on them. The defendants have not led any evidence on the point that when and where the recorded tenant Duga Munda died. DW.1 in para-23 has deposed that all the recorded tenants had died issueless including Duga Munda. Ext C is the sale deed by Bagru Budhni in favour of Bibhudan Sarkar and Ext C/1 is the sale deed by Bibhudan Sarkar in favour of Naomi Sarkar and Hanuk Bhengraj (Plaintiff no.4) which has been relied by the trial Court to hold that it estopped the plaintiff to deny the title of the Defendant. In this regard it is contended that Exhibit C, C/1 do not state that the vendor Bagru Budhani as the daughter-in-law of the recorded raiyat Duga Munda as

asserted by the defendants in their written statement. On the reasoning of the trial Court that Naomi Bhengra (aunt of plaintiff) and Bibhudan Sarkar (Plaintiff no.4) by purchasing another plot no.217 from Bibhudan Sarkar who had purchased it from Most. Bagru Budhni, the plaintiff had thereby admitted the title of Bagru Budhani and were estopped from challenging the sale deed, it is argued that it is contrary to fact and law. It is argued that the recital of the sale deed is made by the vendor for which the vendee cannot be estopped. In order to make out a case of the suit being hit by estoppel it was necessary to prove that on the representation of the defendants, plaintiff no. 4 purchased the property from Most. Bagru Budhani. Even if it is assumed that she was daughter-in-law of the recorded raiyat, she being a Munda widow could not have an absolute right and transferable interest in the property. As per the custom prevalent among Munda tribe which has been pleaded in the plaint, females and persons claiming from females are excluded from inheritance. The defendants' case is that out of 0.82 decimals 0.44 decimals of land has been purchased by registered deed of sale, but without any justification the entire plot has been mutated in the name of the defendants. The rent receipts Ext B to B/11 covered the period from 1983-84 to 1991-92 whereas the suit was filed in the year 1987. There is no rent receipt for the period before 1983.

18. Before considering the rival submissions, it will be necessary to set out the basic law of evidence on burden of proof and onus of leading evidence. Section 101 of the Evidence Act lays down that whoever desires the Court to give judgment as to right or liability dependent on the existence of any fact which he asserts, must prove those facts exist. Section 102 provides that burden of proof in a suit or proceeding lies on that person, who would fail if no evidence at all were given on behalf of either side. Under section 103 the burden of proof of particular fact will lie on the person who wishes the Court to believe in its existence unless it is provided by any law that proof of that fact shall lie on any person. It has been held in Lakshmana Vrs. Venkateswarlu, AIR 1949 PC 278

"The initial burden of proving a prima facie case in his favour is cast on the plaintiff ; when he gives such evidence as will support a prima facie case, the onus shifts on to the defendant to adduce rebutting evidence to meet the case made out by the plaintiff. As the case continues to develop, the onus may shift back again to the plaintiff"

Rangammal v. Kuppuswami, (2011) 12 SCC 220 :

21. Section 101 of the Evidence Act, 1872 defines "burden of proof" which clearly lays down that:

"101.Burden of proof.--Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.

When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."

Thus, the Evidence Act has clearly laid down that the burden of proving a fact always lies upon the person who asserts it. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. Until he arrives at such conclusion, he cannot proceed on the basis of weakness of the other party.

Union of India v. Vasavi Coop. Housing Society Ltd., (2014) 2 SCC 269 "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".

19. From the above, there cannot be any doubt that it is for the plaintiff to first discharge the initial burden to prove the facts in order to entitle him to any right or interest as prayed for and only after this the onus shifts on the defendant. Here in the present case the plaintiff has brought the suit for declaration of title and possession. The claim of title is based on claim of possession. In order to succeed, it was incumbent on the part of the plaintiff to establish either superior title or adverse possession. When a plea of possessory title is made on the basis of adverse possession, 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. In view of the fact that the case of the claimant rests on possession it will be necessary to look into the evidence in support of possession.

20. Sheet anchor of the plaintiff's case is the revisional survey record of right published in 1930 (Ext 1) wherein the suit land has been shown to be recorded in the name of Duga Munda and others, whereas in the remark

column the suit land has been shown to be in illegal possession of Johan Munda. Beyond this, there is no documentary evidence to show that the predecessor-in-interest of the plaintiff continued in possession. According to PW1 Johan Munda had purchased the land from Duga munda for a consideration amount of Rs 5000/- but this is beyond the pleading and the sale document is also not brought on record. The learned Trial Court has noted wide variation in the statement of witnesses. PW 4 has deposed that Johan Munda was "sikami raiyat". These are contradictory statements and cannot be attached any significance.

21. The Courts are often confronted with a difficult choice in cases of contentious claim of title based on facts which are in dispute. In order to appreciate evidence in such cases, subsequent events and facts need to be looked into for proving or disproving a prior material fact in issue. We begin with 1930. Admittedly the ancestors were in illegal possession of the suit property as recorded in revisional survey record of rights. Thereafter there is complete drought of any documentary evidence in support of possession of the plaintiffs to show that they continued in possession. The principle of continuity of possession is correct, but this can be invoked only in cases where on the record there is evidence of subsequent conduct as evidencing ownership and possession. Presumption is available when there is no evidence one way or the other. In the absence of evidence of continuity of possession, if there is subsequent transfer of title and evidence of subsequent conduct that will rebut the presumption of continuance. On the facts of this case there is no evidence at all after 1930 through to 1950 (when land reforms came into force) and thereafter in favour of the plaintiff. On the other hand, there is extensive evidence which shows that way back in 1942 Most. Bagru, had executed the Sale Deed (Ext C) in favour of Bibhudan Sarkar. Further she executed sale deed in favour of Emi Kandhir on 4.3.1959 (Ext D) who got mutated her name in revenue records (Ext G is the order of mutation) and paid rent to the Government for revenue receipts were issued(Ext B-B/11).

22. Plaintiff no.4 Hanuk Bhengraj had purchased a part of suit land from Bibhudan Sarkar vide sale deed no. 99 Dated 19/2/1952 (Ext C/1) who had purchased in from Most Bagru @ Bhudani vide Sale Deed no.3 dated 27.4. 1942 (Ext C). It is strenuously argued on behalf of the respondents that it will not constitute estoppel. It may be pointed out in this regard that there are two

types of admission. One is judicial admissions within the meaning of Order 8 Rule 5 and under Order 12 of the C.P.C. The other is evidentiary admissions which are evidences which is in contradiction and irreconcilable with the stand taken by the party concerned. For example a death certificate which proves the date of death of a vendor , can falsify the claim of transfer by any instrument executed after that date by him. The difference between judicial and evidentiary admission has been brought out in Nagindas Ramdas v. Dalpatram Ichharam, (1974) 1 SCC 242 at page 251 wherein it has been held:-

" Admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand, evidentiary admissions which are receivable at the trial as evidence, are by themselves, not conclusive. They can be shown to be wrong."

The evidence of purchase of a portion of the suit land does not come within the realm of judicial admission, but are evidentiary admission which acknowledge the title and possession of the predecessor-in-interest of the defendants. Here the purchase by the plaintiff 4 of the portion of the suit land sold by the Most Bagru Budhain can be accepted as an evidentiary admission acknowledging the title of the Defendants.

23. The plea that the Most. Baghru @ Budhani being a tribal had no heritable right or transferable right is not supported by any evidence to establish that such a special custom disinheriting a woman was in practice in the tribe of the parties. As held by this Court in Prabha Minz Vs Martha Ekka S.A.127 of 2014 there is no uniform general custom among tribals disinheriting woman from inheritance and in order to establish such a special custom it has to be pleaded and proved on case to case basis. In absence of evidence led in the present case to establish such a special custom, no presumption can be drawn that Most. Baghru @ Budhani had no heritable or transferable right.

24. Further, it is not the case of the plaintiffs that they were agnates but they were claiming the title on the basis of entry of illegal possession in survey record of rights. In view of their failure to prove the continuous possession claim of title on the basis of adverse possession is not sustainable.

It is well settled that right by adverse possession can only accrue in favour of a person, who remains in hostile, peaceful possession, for more than prescribed period. The trial court has recorded a finding of fact that plaintiffs were not in possession over the suit land. However, the learned appellate court without assigning specific reason for not accepting the oral and documentary evidence on possession has differed with the well reasoned finding of fact recorded by the trial court.

In view of the discussion above made, all the three substantial questions of law are answered in favour of the defendant/appellant. Since the plaintiff has failed to prove their possession, therefore the first substantial question is answered in the negative against the plaintiff. Had the plaintiff been in possession, then the question of adverse possession would have arisen, but here the evidences are to the contrary. Learned Appellate Court has failed to assign specific reason for setting aside the judgment of the trial Court.

Under the circumstance the Judgment and Decree passed by the appellate Court is set aside and that of the Trial Court is affirmed and restored.

Appeal is allowed with cost. I.A. No.1634 of 2022 is also disposed of.

(Gautam Kumar Choudhary, J.)

Jharkhand High Court, Ranchi Dated the 8th September, 2022 AFR / Anit