Jharkhand High Court
Junathan Kindo Son Of Denial Kindo vs Jhapia Oraon Son Of Koma Bhagat on 19 September, 2022
S.A.No.21 of 2005
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No.21 of 2005
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(Against the judgment dated 15.10.2004 {decree signed on
28.10.2004} passed by learned Additional District and Sessions
Judge, Fast Track Court No.-I, Gumla, in Title Appeal No.27 of 2003)
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Junathan Kindo son of Denial Kindo
Resident of village- Jalka, P.O. and P.S. Sisai, District- Gumla.
.... .... .... Plaintiff / Appellant /Appellant
Versus
1. Jhapia Oraon Son of Koma Bhagat
2. (a) Most. Tetri Oraoin, widow of late Mina Oraon.
2. (b) Jagat pal
2. (c) Ghura
2. (d) Jhabo
All (b to d) sons of Mina Oraon. All {Sr. No.2 (a) to 2 (d)}
residents of village- Jonko, P.O. & P.S.- Sisai, district- Gumla.
3. Ranju Oraon
4. Kandru Oraon
5. Bandhan Oraon. All (Sr. No.3 to 5) son of Jhapia Oraon, All
resident of vill- Jalka, P.S. Sisai, Dist. Gumla.
.... .... .... Defendants / Respondents / Respondents
6. Gidyon Kindo son of Danial Kindo, resident of Jalka, P.O. and P.S.
Sisai Dist. Gumla.
7. The Deputy Commissioner, Gumla
.... .... .... Defendant /Proforma Respondent / Proforma
Respondent
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For the Appellants : Mr. Vikash Kishore Prasad, Advocate
For the Respondents : Mr. Manjul Prasad, Sr. Advocate
Mr. Arbind Kr. Sinha, Advocate
Mr. Praveen Kr. Verma, Advocate
Mr. Baban Prasad, Advocate
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PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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By the Court:- Heard the parties.
S.A.No.21 of 2005
2. This Second Appeal, under Section 100 of the Code of Civil
Procedure, has been preferred against the judgment and decree dated
15.10.2004 passed by learned Additional District and Sessions Judge, Fast
Track Court No.-I, Gumla, in Title Appeal No.27 of 2003 whereby and
where under the learned First Appellate Court in the judgment of
concurrence, has dismissed the appeal and confirmed the judgment and
decree of dismissal of the suit passed by the Subordinate Judge-I, Gumla
in Title Suit No.30 of 1998 dated 30.06.2003.
3. The case of the plaintiff in brief is that the plaintiff and the proforma
defendant No.7 purchased the suit land from Babu Shivnarayan Jaiswal
and they came in possession thereof and are continuing in possession of
the same. After purchase, the names of the plaintiff and the proforma
defendant No.7 was mutated in revenue sirista of Government of Bihar
and rent receipts are issued regularly in their favour. It is further the case
of the plaintiff that the defendant Nos.5 to 7 have no concern with the suit
land but they wanted to create trouble for the plaintiff and the proforma
defendant No.7 by disturbing them and for which they initiated
proceeding under Section 144 Cr.P.C. which was later on converted to a
proceeding under Section 145 Cr.P.C. and the Executive Magistrate,
Gumla disposed of the said proceeding declaring the possession of the
plaintiff over the suit land.
4. It is the further case of the plaintiff that the defendant Nos.1 to 5
preferred Criminal Revision vide Criminal Revision No.23 of 1988, which
was heard and dismissed by Additional District Judge, Gumla vide order
dated 20.03.1998. Being misguided by someone, the proforma defendant
No.7 filed an application under Section 71 (A) of the Chota Nagpur
Tenancy Act before the S.D.O., Gumla which was dismissed on 05.02.1989
by holding and observing that the suit lands are in possession of the
plaintiff and the proforma defendant No.7 and also the proceeding under
Section 145 Cr.P.C. has been decided in favour of the plaintiff. Hence,
there is no necessity for a proceeding under Section 71 (A) of the Chota
Nagpur Tenancy Act. The plaintiff further pleaded that the plaintiff and
the proforma defendant No.7 have been in peaceful cultivation of the suit
land but the defendants are threatening the plaintiff and the proforma
S.A.No.21 of 2005
defendant No.7 in order to forcibly dispossess them from the suit land.
5. The plaintiff filed the suit with the following reliefs:-
(a) that an adjudication of right, title and interest of the plaintiff and
proforma defendant No.7, their title over the suit land be declared and
their possession be confirmed and in alternative if the plaintiff and the
proforma defendant No.7 are found dispossessed from the suit land
during the pendency of the suit, possession of the suit land be recovered
from the defendant Nos.1 to 5 and be delivered to the plaintiff and
proforma defendant No.7.
(b) cost of the suit
(c) any other relief or reliefs to which the plaintiff is entitled to.
6. The defendants challenged the maintainability of suit filed by the
plaintiff on various technical grounds. Besides, they pleaded that the
earlier deed of sale executed in favour of the plaintiff by Babu
Shivnarayan Jaiswal is a forged one, void ab-initio and has not conferred
any title to the plaintiff. The defendants further pleaded that the plaintiff
or the proforma defendant No.7 never came in possession over the suit
land and even their vendor namely Babu Shivnarayan Jaiswal was never
in possession of the suit land. The defendants further pleaded that since
they are the Tana Bhagat hence they did not pay rent to the State of Bihar
and they even did not pay to the British Government prior to the
independence of India. Hence, the rent receipts confirming the payment
of rent to the State of Bihar are fabricated pieces of papers. The defendants
next pleaded that they have been coming in possession over the suit land
as heir and successor of the recorded tenant Kuer Oraon and Tula Oraon,
S/o- Ganga Oraon who left his village after the preparation of the Record
of Rights in the year 1934-35 and later on died and these defendants have
confirmed their title over the suit land by virtue of their longstanding
possession over the suit land. The defendants denied that they ever
disturbed the possession of the plaintiff. The defendants pleaded that the
very fact that the proforma defendant No.7 filed an application for
restoration of the suit land under Section 71 (A) of the Chota Nagpur
Tenancy Act, goes to show that the proforma defendant No.7 and the
plaintiff are not in possession of the suit land. The defendants further
S.A.No.21 of 2005
pleaded that the plaintiff and his brother pro forma defendant no.7, filed
the petition for restoration of the land under Section 71 (A) of the Chota
Nagpur Tenancy Act, in which it is stated that the defendants are in
possession hence, in view of such admission of the possession of the
defendants over the suit land by the plaintiffs, the revision petition filed
by the defendants in the court of Sessions Judge, against the order passed
in the proceeding under section 145 of the Code of Criminal Procedure,
1973, became unnecessary and accordingly the same was withdrawn by
the defendants. The defendants were found in possession of the suit land
under Section 145 of the Cr.P.C. and the defendant-second party has
constructed a house over the plot No.933 and 934 and the defendants
raised various crops over the suit land and also peacefully harvested the
same.
7. On the basis of rival pleadings of the parties, learned trial court
framed the eight issues which read as under:-
(1) Is the suit maintainable in its present form?
(2) Whether the plaintiff has valid cause of action for the suit?
(3) Have the plaintiff and proforma defendants acquired their title by purchase
of suit lands?
(4) Are the plaintiff and proforma defendants in possession over the suit land?
(5) Whether the defendants confirmed their title by remaining in peaceful
possession over the land for more than 70 years?
(6) Whether the defendants have any right of claim over the suit land?
(7) Whether the deed of transfer is void ab-initio?
(8) Whether the plaintiff is entitled for relief or other reliefs claimed for?
8. The learned trial court considered the evidence in the record i.e.
nine witnesses examined by the plaintiff and seven witnesses examined
by the defendants. The trial court first took up issue Nos.3 and 4 together
and also considered that it is the admitted fact that in the Khatiyan of the
suit land Tula Oraon and Kuwar Oraon have been mentioned as recorded
tenant of the suit land and the plaintiff has not mentioned in the plaint as
to how Babu Shivnarayan Jaiswal has executed the sale-deed in favour of
the plaintiff and his brother in his presence. Admittedly, the suit land is
the land belonging to Scheduled Tribes persons. The trial court also
considered the fact that the plaintiff did not file the original sale-deed in
the court without any explanation. The trial court accepted the contention
of the defendant and drew adverse inference against the plaintiff for non-
S.A.No.21 of 2005
examination of the executant of the sale-deed namely Shivnarayan Jaiswal
and non-production of the original sale-deed in the court, by observing
that it creates a shadow over the case of the plaintiff regarding bonafide
purchase of the suit land by him and his brother. The trial court also
considered the fact that Ext. D which is the order passed in S.A.R. Case
No.88 of 1989-90 revealed that the said case was dismissed because of
being barred by res judicata. The trial court drew the presumption on the
basis of the fact that the proforma defendant No.7- who is the brother of
the plaintiff, filed S.A.R. Case No.66/1988-89 for restoration of the suit
land, goes to show that the plaintiff and the proforma defendant No.7
never came in possession of the suit land. The trial court also took note of
the fact that the certified copy of the Inquiry report submitted by the
Circle Officer, Sisai to the S.D.O., Gumla in S.A.R. Case and the certified
copy of the petition filed by the defendant No.7 before the D.C. Gumla,
shows that the defendants were in possession over the suit land and in the
enquiry made by the Circle Officer, Sisai, it was found that the defendant
Japiya Oraon and others were in possession over the suit land. The trial
court also took note of the fact that in the petition filed by the defendant
No.7 before the D.C. Gumla, it was admitted by him that the suit land has
been snatched away by the defendants from his possession.
9. The trial court also considered that no paper has been filed by the
plaintiff that the suit land was mutated by him and after mutation
proceeding, correction slip is usually issued but the plaintiff has not filed
any correction slip and the rent was paid without any prejudice. The trial
court also considered that non-production of the certified copy of the
mutation proceeding and the correction slip by the plaintiff indicates that
he has not mutated the land in his name and observed the same in para-17
of the judgment in Title Suit No.30 of 1998 wherein the trial court has
mentioned "that the plaintiff and the proforma defendants are in
possession over the suit land and they have not acquired title of the suit
land by purchase from Shivnarayan Jaiswal". The trial court came to the
definite conclusion that the plaintiff and the proforma defendant No.7 has
not purchased a good title at all and as such these issues are decided in
favour of the defendant Nos.1 to 5 and against the plaintiff. So, from the
S.A.No.21 of 2005
conclusion arrived at in respect of issue Nos.3 and 4 it is apparent that in
para-17 because of an apparent slip up, the trial court instead of
mentioning that the plaintiff and the proforma defendant are not in
possession over the suit land has failed to mention the word 'not' and
instead has mentioned that the plaintiff and the proforma defendant are in
possession of the suit land.
10. The trial court thereafter took up issue No.7 and after considering
the evidence in the record that the defendant Nos.1 to 5 are legal heirs and
successors of the recorded tenant Tula Oraon and Kunwar Oraon because
of being bhaiyads (Agnates). Hence, it came to the conclusion that the
defendants have got right and title over the suit lands and decided the
issue No.7 in favour of the defendant Nos.1 to 5 and against the plaintiff.
11. Thereafter, the trial court took up issue No.5 and basing upon its
finding upon the issue No.7, came to a conclusion that the said issue No.5
has virtually became useless and the defendant Nos.1 to 5 are having title,
hence, decided the issue No.5 against the defendant Nos.1 to 5.
12. The trial court thereafter took up issue No.6 and came to the
conclusion that the deed of transfer of the suit land by Shivnarayan
Jaiswal in favour of the plaintiff is a void document and decided the issue
in favour of the defendant Nos.1 to 5 and against the plaintiff.
13. Then, the trial court took up issue No.2 and held that the plaintiff
has got no cause of action for bringing the suit and as such decided the
said issue against the plaintiff and in favour of the defendants.
14. The trial court then took up issue No.1 and held that the suit is not
maintainable in its present form and decided the issue against the plaintiff
and in favour of the defendant Nos.1 to 5.
15. Lastly, the trial court took up issue No.8 and held that the plaintiff
is not entitled for any relief or reliefs and went on to dismiss the suit on
contest but without any cost.
16. Being aggrieved by the said judgment and decree passed by the
Subordinate Judge-I, Gumla in Title Suit No.30 of 1998 dated 30.06.2003,
the plaintiff filed Title Appeal No.27 of 2003 in the court of District Judge,
Gumla and the same was ultimately heard and disposed of by the court of
Additional District and Sessions Judge, Fast Track Court No.- I, Gumla
S.A.No.21 of 2005
vide the impugned judgment and decree.
17. The learned First Appellate Court framed the following points for
determination:-
(1) Whether Shiv Narayan Jaiswal had any right to sale the land and
whether the plaintiff and proforma defendant no.-7 acquired right, title and
possession over the suit land by way of alleged sale deed?
(2) Whether the defendants have right to hold the land being agnate of
recorded tenants?
18. The First Appellate Court took up both the points together and after
making independent appreciation of the evidence in the record, the
learned First Appellate Court considered that in the proceeding under
Section 145 Cr.P.C., the possession of the plaintiff and the proforma
defendant No.7 was found over the suit land. The defendant Nos.1 to 5
filed Criminal Revision No.23 of 1998 but as the defendant No.5 filed
S.A.R. Case No.88 of 1989-90 for restoration of the land in his favour from
the possession of the defendant Nos.1 to 5, hence, because of the
admission of the defendant Nos.1 to 5 over the suit land, the defendant
Nos.1 to 5 withdrew the Criminal Revision No.23 of 1998 but later on the
S.A.R. Case was dismissed by the S.D.O. stating therein that the same is
hit by the principle of res judicata. The said order dated 16.12.1993 passed
by the S.D.O., Gumla in S.A.R. Case No.88 of 1989-90 was not challenged
before any competent superior court. The learned First Appellate Court
also considered that in Misc. Case No.311/83 which is a proceeding under
Section 145 Cr.P.C., police found possession of the defendants over the
suit land. The learned First Appellate Court also considered the fact that
non-production of the original sale-deed No.7090/82 by the plaintiff
which has been marked Ext.3 with objection, in Title Suit No.30 of 1998 is
a strong circumstantial evidence which goes against the plaintiff. The
learned First Appellate Court also considered the recital of the Ext. 3
wherein it has been mentioned that the father of the vendor of the said
sale-deed namely Rai Laxmi Narayan Jaiswal was settled with the said
land by Manager Ward and Encumbered Estate through Hukumnama in a
certificate proceeding No.4 R 8/35-36 dated 15.10.1935 which was
purchased in auction sale. The vendor of the sale-deed Shivnarayan
Jaiswal was neither made party to the suit nor examined as a witness. The
S.A.No.21 of 2005
learned First Appellate Court also considered that under Section 4 of the
Chota Nagpur Encumbered Estate Act, 1876, the duties of the Manager of
Encumbered Estate has been defined but such Manager has no power to
settle the land to anyone whereas Section 2 of the said Chota Nagpur
Encumbered Estate Act, 1876 empowers the Commissioner to vest the
management of property in an officer appointed by him.
19. The First Appellate Court also took note of the fact that Section 12 A
of the said Chota Nagpur Encumbered Estate Act, 1876 provides that
when the possession and enjoyment of the property is restored to the
original holder, he shall not be competent without the previous sanction
of Commissioner to alienate such property or to create any charge there
on extending beyond his lifetime. The learned First Appellate Court also
took note of Section 73 (2) of the Chota Nagpur Tenancy Act according to
which before a landlord enters under this section to the land abandoned
by the raiyat, he shall send a notice to the Deputy Commissioner in a
prescribed manner. The learned First Appellate Court also considered that
not a single document could be produced regarding the acquisition of the
title by the father of the vendor and the plaintiff through sale-deed
No.7090/82. The learned First Appellate Court also considered the fact
that both the plots of Khata No.56 was recorded in the name of Tula
Oraon and Kuwar Oraon sons of Gangu Oraon and that both of them died
issueless and came to the conclusion that the defendant Nos.1 to 5 are
nearest agnates of the tenant of the suit land and concurred with the trial
court that the sale-deed No.7090/82 is a void document which has been
created against the provisions of law only to hamper the interest of tribal
tenants and dismissed the appeal as already indicated above.
20. At the time of admission of this appeal, the following substantial
question of law was formulated:-
"Whether in the absence of findings that defendant no. 1 to 5 were
continuing in possession, the suit of the plaintiff-appellant could be
dismissed?"
21. Mr. Vikash Kishore Prasad- learned counsel for the appellant
submits that the trial court in no uncertain manner in paragraph-17 has
observed that the plaintiff and the proforma defendant are in possession
S.A.No.21 of 2005
over the suit land and such observation is based on the premise as has
been referred to in para-10 as inter alia that the D.W.5 in para-18 of his
cross-examination has admitted the ownership of Shivnarayan Jaiswal.
Hence, it is to be treated that the plaintiff and the proforma defendant
No.7 are in possession of the suit land. Mr. Vikash Kishore Prasad further
submits that as both the courts below have not given any finding that the
defendant Nos.1 to 5 were continuing in possession of the suit land,
hence, the suit of the plaintiff-appellant could not have been dismissed. It
is next submitted by Mr. Vikash Kishore Prasad that in view of the
admission by the D.W.1 and D.W.5 in their cross-examination that
Shivnarayan Jaiswal was the owner of the suit land as stated in
paragraph-10 of the trial court's judgment, both the courts below have
committed grave error of law in ignoring the admission made by the
witnesses. Hence, it is submitted that the finding of facts of both the courts
below be set aside and as the plaintiff and the proforma defendant No.7
have been held to be in possession of the suit land, hence, the suit of the
plaintiff or confirmation of possession be decreed.
22. Mr. Manjul Prasad- learned senior counsel for the respondents, on
the other hand, defended the impugned judgment passed by both the
courts below. Mr. Manjul Prasad relies upon the judgment of the Hon'ble
Supreme Court of India in the case Nasib Kaur vs Col. Surat Singh
(Deceased) Through L.Rs reported in 2013 AIR SCW 1299 paragraphs-11
and 12 of which read as under:-
"11. The plaintiff, however, contended in the second appeal before the High
Court that material evidence had not been taken into consideration by the
first appellate court and the High Court has framed the following
substantial question of law:"Whether the Courts below have failed to
consider the material evidence on record?"Having framed the substantial
question of law, the High Court should have pointed out in the impugned
judgment the material evidence which had not been considered by the first
appellate court, which if considered, would have established ownership of the
plaintiff to the suit property. Instead of pointing out the material evidence
which has not been considered by the first appellate court, the High Court
has made its own assessment of the entire evidence as if it was the first
appellate court and held that the plaintiff was the owner of the suit property
and was entitled to possession of 17 karams X 45 karams of land depicted in
letters EHGF in the site plan Ex.PW-9/A and that he was also entitled to
the relief of permanent injunction restraining the defendant from raising
any construction in the said property or alienating the said property. The
High Court has itself noticed in the impugned judgment that the land
S.A.No.21 of 2005
depicted in the site plan Ex.PW-9/A as EHGF was delivered to Col. Girdhar
Singh and his family members at the time of execution of the sale deed by the
plaintiff as Attorney of Nanak Singh on 19.07.1979 and the appellants had
taken possession of the aforesaid land from Col. Girdhar Singh and his
family members in 1987. The appellants were, thus, in legal possession of
the suit property and the High Court in exercise of its powers under Section
100, CPC could not have reversed the findings of the trial court and the first
appellate court and decreed the suits for declaration of title and for recovery
of possession and injunction in favour of the respondents so as to adversely
affect such legal possession of the appellants.
12. In Achintya Kumar Saha v. Nanee Printers and others (AIR 2004 SC
1591 : 2004 AIR SCW 763) (supra) cited by learned counsel for the
respondents, this Court found that the main issue around which the entire
case revolved was whether the agreement dated 05.07.1976 was a licence or
a tenancy and though this issue was before the trial court and the agreement
was held to be a licence, the lower appellate court had not adjudicated upon
this issue and this Court held that when the core issue is not adjudicated
upon, it raises a substantial question of law under section 100, CPC. In the
present case, the core issue was whether the plaintiff was the owner of the
suit property and the first appellate court has held in C.A. No. 1721 on
20.03.2004 that the plaintiff has not been able to prove his ownership over
the suit property and has further held in C.A. No.16-T filed on 19.09.1990
that the plaintiff's own admitted case in the plaint is that the appellants had
purchased the suit property from Col. Girdhar Singh and his
family members and were in possession of the same and hence the plaintiff
was not entitled to declaration of his title, recovery of possession and
injunction. In this case, therefore, the first appellate court had decided the
core issue against the plaintiff and no substantial question of law arose for
decision in this case by the High Court under Section 100, CPC."
and submits that when there is concurrent finding of facts by the
trial court as well as the learned First Appellate Court that the plaintiff
was unable to prove his title for cogent reasons, hence, there is no
justifiable reason for this Court to interfere with the said concurrent
finding of fact in exercise of its jurisdiction under Section 100 of the Code
of Civil Procedure. Mr. Manjul Prasad- learned senior counsel further
submits that it is not a fact that the D.W.1 has admitted in para-14 of his
deposition that the vendor of the plaintiff Shivnarayan Jaiswal was the
owner of the land rather he has categorically denied the suggestion given
to him by saying that it is not a fact that the suit land belonged to
Shivnarayan Jaiswal and he used to cultivate the same and he further
volunteered to add that Shivnarayan Jaiswal had died. So far as the
deposition of the D.W.5 is concerned, in para-18 the D.W.5 has only stated
in answer to a composite question, that earlier the land belonged to
Shivnarayan Jaiswal and he added in the next sentence that he does not
S.A.No.21 of 2005
know whether the plaintiff and the proforma defendant No.7 purchased
the said land from Shivnarayan Jaiswal. It is next submitted by Mr.
Manjul Prasad that keeping in view of the fact that D.W.5- Sukar Oraon is
a rustic witness so when a composite question is asked even if he has said
that the land earlier belonged to Shivnarayan Jaiswal, the same certainly
cannot be treated as an admission of ownership of Shivnarayan Jaiswal-
the vendor of the plaintiff over the suit land when the overwhelming
other evidence which has been discussed in detail by both the courts
below in their respective judgments, goes to show that the said
Shivnarayan Jaiswal was not having a valid right, title and interest over
the suit land to transfer the same to the plaintiff and certainly for such a
minor faux pas if at all committed by a rustic witness the otherwise well
founded concurrent finding of fact based on sound reasoning by both the
courts below cannot be interfered with by this Court in exercise of its
jurisdiction under Section 100 of the Code of Civil Procedure. Mr. Manjul
Prasad further submits that the trial court has in no uncertain manner has
answered the issue No.4 in favour of the defendant Nos.1 to 5 and against
the plaintiff thereby the natural corollary of the same is that it found the
plaintiff and the proforma defendant to be not in possession over the suit
land and merely because the court in the previous statement inadvertently
left to insert the word 'not' cannot in any way diminish the otherwise
reasoned finding of the trial court in arriving at the conclusion in
answering the issue against the plaintiff and in favour of the defendant
Nos.1 to 5.
23. Mr. Manjul Prasad next submits that as the substantial question of
law formulated in this appeal is at best a question of fact and cannot be
termed as question of law at all. It is further submitted by Mr. Manjul
Prasad that the trial court in answer to issue No.7 and the First Appellate
Court in answer to point for determination No.2 have categorically come
to conclusion that that the defendant No.1 and 5 being near agnates of the
recorded tenant- Tula Oraon and Kuwar Oraon have inherited the suit
property being the legal heirs and successors of the recorded tenant- Tula
Oraon and Kuwar Oraon and the trial court also because of faux pas in
answer to issue No.5 has inadvertently mentioned that the issue is
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decided against the defendant Nos.1 and 5 without referring though as to
what the sole appellant in respect of the plaintiff in the last sentence of the
issue No.5. It is then submitted that as it is evident from the last sentences
of the other issues decided by the trial court wherein the trial court has
mentioned as to what conclusion it reached in respect of the plaintiff also,
so from this it can safely be said that what the trial court intended while
answering the issue No.5 is that the issue is decided against the plaintiff
and in favour of the defendant Nos.1 to 5 but inadvertently left the word
'the plaintiff and in favour of'. Hence, it is submitted by Mr. Prasad that
this appeal, being without any merit, be dismissed.
24. Having heard the rival submissions made at the Bar and as already
mentioned in the foregoing paragraphs of this judgment itself, this Court
has no hesitation in holding that in the first sentence of para-17 of the
impugned judgment, the trial court inadvertently failed to mention the
word 'not' and what it wanted to convey is that it came to the conclusion
that the plaintiff and the proforma defendant are not in possession of the
suit land; as the same is in consonance with the discussions made before
by the trial Court in its judgment and also the conclusion that the issue
Nos.3 and 4 are decided in favour of the defendant Nos.1 to 5 and against
the plaintiff.
25. So far as the contention of Mr. Vikash Kishore Prasad- learned
counsel for the appellant that the learned courts below have failed to
ignore the admission of D.W.1 in paragraph-14 and D.W.5 in paragraph-
18 are concerned, as rightly submitted by Mr. Manjul Prasad- learned
senior counsel for the respondents that the D.W.1 in paragraph-14 has not
made any admission rather he has made a categorical denial to the
suggestions put to him by the plaintiff that Shivnarayan Jaiswal was the
owner of the land and he used to cultivate the same. So far as deposition
of D.W.5 in paragraph-18 of his deposition is concerned, certainly in
answer to a composite question it appears that he has stated that the land
earlier belonged to Shivnarayan Jaiswal but keeping in view that the said
D.W.5- Sukar Oraon was a rustic witness as is apparent from his way of
putting signature in the deposition, such a faux pas committed by a
witness in his deposition is not sufficient enough for this Court to interfere
S.A.No.21 of 2005
with the concurrent finding of facts returned by both the courts below
regarding absence of any title or possession of the plaintiff over the suit
land on the basis of the overwhelming evidence in the record to support
the conclusions arrived at by both the learned courts and as in their
respective judgments cogent reasoning have been given by both the courts
below for arriving at the conclusions.
26. It is a settled principle of law that the plaintiff has to stand in his
own legs and cannot take any advantage from the weakness of the
defendants. So since the suit was filed by the plaintiff inter alia with a
prayer for declaration of confirmation of their declaration of possession
upon adjudication of their right, title and interest of the plaintiff and the
defendant No.7 but the plaintiff having failed in establishing the title or
possession of himself and the pro forma defendant no.7 over the suit
property on the other hand both the courts below have found the title of
the defendant Nos.1 to 5 over the suit land by way of inheritance being
the legal heirs and successors of the original recorded tenant- Tula Oraon
and Kuwar Oraon. Hence, this Court is of the considered view that the
absence of any categorical finding regarding the possession of the
defendant Nos.1 to 5 though there is discussion in the judgments that the
defendant Nos.1 to 5 have been in possession over the suit land in the
judgments of both the courts below; is certainly not a ground to allow the
suit of the plaintiff for confirmation of possession upon adjudication of
their right, title and interest and when the plaintiff has failed to establish
his right, title and interest over the suit land; as in the absence of any
counterclaim or cross suit it is not desirable for the trial court to adjudicate
the claim of the defendant and to make any declaration of the right of the
defendant raised by it in its written statement. Thus, the sole substantial
question of law as to whether in the absence of findings that defendant no.
1 to 5 were continuing in possession, the suit of the plaintiff-appellant
could be dismissed is answered in the affirmative.
27. In view of the discussions made above, this Court finds that there is
no merit in this appeal. Accordingly, the same is dismissed on contest but
under the circumstances without any cost.
S.A.No.21 of 2005
28. Let a copy of this judgment along with the lower court records be
sent back to the learned courts below forthwith.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated the 19th of September, 2022
AFR/ Animesh
