Deoki Mosomat vs Uma Shankar Mehta
2023 Latest Caselaw 521 Jhar

                                                     1             Second Appeal No. 188 of 2013


                  IN THE HIGH COURT OF JHARKHAND AT RANCHI
                         Second Appeal No. 188 of 2013
            1.   Deoki Mosomat
            2.   Sakaldeep Kumar Mahto
            3.   Gayatri Devi
            4.   Sarmistha Devi
            5.   Surya Narayan Mahto
            6.   Smt. Sunanda Devi                                 ... Appellants
                                     -Versus-
            1.   Uma Shankar Mehta
            2.   Raj Shankar Mehta
            3.   Bimala Devi                                        ... Respondents
                                             -----

            CORAM:         HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
                                             -----

            For the Appellants          : Mr. Rahul Kumar Gupta, Advocate
                                          Mr. Anil Kumar, Advocate
                                          Mr. Arpit Kumar, Advocate
            For the Respondents         : Mr. Manjul Prasad, Sr. Advocate
                                          Mr. Baban Prasad, Advocate
                                             -----

14/01.02.2023     Heard Mr. Rahul Kumar Gupta assisted by Mr. Anil Kumar and Mr. Arpit

Kumar, learned counsel for the appellants and Mr. Manjul Prasad, learned

senior counsel assisted by Mr. Baban Prasad, learned counsel for the

respondents.

2. This second appeal has been filed being aggrieved and dissatisfied

with the judgment dated 11.06.2013 and decree dated 17.06.2013 passed

by the learned District Judge-VI, Hazaribagh in Title Appeal No.22 of 2005

dismissing the appeal and confirming the judgment dated 30.04.2005 and

decree dated 11.05.2005 passed by the learned Sub-Judge-V, Hazaribagh in

Title Suit No.33 of 1990.

3. Title Suit No.33 of 1990 was instituted by the appellants/plaintiffs for

specific performance of contract brought by the plaintiffs against the

defendants for conveyance of transfer deed with respect to Schedule A

property described in the plaint in light of the contract approved by Panches

award dated 26.05.1974.

4. The said suit was instituted alleging therein that the plaintiffs and

defendants are descendants of Dewa Mahto, Dhani Mahto and Dewa Mahto

were two brothers both sons of late Kheman Mahto and governed by

Mitakshara school of Hindu Law. The lands of Schedule A item No.I

morefully described in the plaint is recorded in the name of Dewa Mahto

and his brother Dhani Mahto having equal share. Land of Schedule-A item

no.-II is the land purchased by Dhani Mahto his widow Bhugali and Aprudhi.

Dhani and Dewa partitioned themselves and they came in separate

possession according to their share. Dhani was also cultivating the land

purchased by him and his wives. Dhani had no son only two daughters

namely Sono Devi and Choho Devi. Sona was married with Laljee Mahto of

village Lupung and Choho was married with Jagdish Mahto of village Dand

and they were living in their respective Sasural. Dhani and his wife Aprudhi

Devi were unable to cultivate their lands due to old age so original plaintiff

namely Mahavir Mahto was cultivating the entire land of Dhani Mahto and

Aprudhi Devi and was dealing with the Schedule-A land of the plaint. During

cultivation plaintiff invested money for the development and agricultural

arrangement of the land and it was agreed by Dhani Mahto and his wife

Aprudhi Devi that money invested by the plaintiff in the agriculture and

betterment of land will be refunded by them and unless and until the debts

of the plaintiff is discharged and satisfied fully, the plaintiff shall remain in

possession of the land. Plaintiff was in friendly terms with the defendants so

he did not take the statement seriously, made by him in the probate case

and partition suit because plaintiff and defendant were uncle and nephew in

relation and their interest were not hostile to each others. Plaintiff invested

rupees one lac in the reclamation and development of the suit land and it

was well within the knowledge of the defendants. After the death of Dhani

and Aprudhi, daughters of Dhani and Aprudhi claimed the property of their

father and mother including grand sons of Dhani. At the time of claim by

daughters and grand sons of Dhani plaintiff asked them for clearance of

dues of rupees one lac which was debt on the land possessed by the

plaintiff. Since, the dues was not cleared by the grand sons and daughters

of Dhani so the plaintiff remained in possession of the land of Dhani and

Aprudhi, defendant of this case namely Baleshwar Mahto also started

claiming the land of Dhani and Aprudhi as a legatee on the basis of a will

purported to have been executed by Dhani and Aprudhi during their life

time. Since, the plaintiff was only interested in recovery of investment of

rupees one lac with respect to suit land made by him, he was not very

much interested in challenging the genuineness and existence of will so he

has not objected the same details of investment made by the plaintiff has

been incorporated in Schedule-A of the plaint and his sons year wise from

1963 to 1980. the property of Dhani was claimed by his daughters on the

basis of inheritance and by the defendants on the basis of execution of will

in favour of defendant by Dhani Mahto. During panches Faisla between the

plaintiff and defendant they agreed that when will executed by Dhani Mahto

in favour of defendant is probated and result of partition suit 1966 will be

against the son-in-law and grand sons of Dhani, Baleshwar will execute the

half of the probated property in favour of the plaintiff and plaintiff and

defendant will share half and half expenditure of these suits of partition and

probate of will. Ultimately the will was probated in favour of the defendant,

plaintiff being in possession of the land of Dhani Mahto asked the

defendants to execute sale deed of half property probated in favour of the

defendant on the basis of oral agreement and award given by the Panches

plaintiff maintained books of account of his investment and asked the

defendant to execute sale deed in favour of plaintiff having half share in the

property of Dhani Mahto as per Panches award reduced to writing on

26.5.1974. This defendant refused to do so hence, necessity of this suit

arose. After getting probate of will defendants started to dispossess the

plaintiff from the land of Dhani and ultimately proceeding u/s 144 Cr. P.C.

was initiated. When plaintiff felt it essential knowing full well intention of

defendant that he will not execute the sale deed of ½ property which is the

subject matter of probate of will then he filed this suit for Specific

Performance of Contract on the basis of Panches award and for breach of

contract and plaintiff is willing to perform his part of contract but the

defendants is retracting so a decree for Specific Performance of Contract as

approved in the Panches award dated 26.5.1976 be passed in favour of the

plaintiff and defendant be directed to execute a sale deed of half of the

probate property of Dhani in favour of the plaintiff.

5. The defendants have appeared and filed their written statement

stating therein that the defendant is the owner of the suit property on the

basis of probate of will in his favour executed by Dhani Mahto during his life

time in favour of defendant and defendant was living as Balpos (adopted

son) of Dhani Mahto and he cultivated the entire land of Dhani Mahto

during life time of Dhani his wife Aprudhi. After the death of Dhani and

Aprudhi son-in-law and grand son of Dhani and Aprudhi started claiming the

land of Dhani Mahto on the basis of inheritance and a suit for partition was

file by grand sons and son-in-law of Dhani with respect to suit property and

on the other hand defendant Baleshwar Mahto filed a probate case on the

basis of will executed by Dhani in favour of Baleshwar Mahto and ultimately

partition suit was dismissed and will was probated in favour of Baleshwar

Mahto. There was no any contract between Baleshwar and the plaintiff

Mahavir Mahto that Baleshwar Mahto after getting the probate of will, will

transfer ½ of the probated property in favour of the plaintiff Mahavir Mahto.

So, question of Specific Performance of Contract does not arise, in a

absence of any contract between the plaintiff and defendant. Panches Faisla

dated 26.5.1974 reduced to writing mentioned in the plaint is a forged and

fabricated document and defendant has never signed it and the Panches

Award is not enforceable in the eye of law and it is denied by Baleshwar and

by presuming the award of Panch Faisla correct cannot confer any legal

right in favour of the plaintiff and it has no legal effect against the interest

of the defendant. Panch Faisla does not disclose investment of rupee one

lac with respect to suit land during the life time of Dhani Mahto and Aprudhi

Devi. Case of the plaintiff is imaginary and Schedule-B is false. Probate of

will has been affirmed by the Hon'ble High Court which is in favour of the

defendant and said award can not take away legal right of any person.

There is no any such award agreed by the defendant and defendant has not

signed any chit of paper as claimed by the plaintiffs and the claim of the

plaintiffs is based on the sand base ad cannot be enforceable in the eyes of

law.

6. Mr. Rahul Kumar Gupta, learned counsel appearing for the appellants

submits that the learned courts illegally held that Panchnama/award dated

26.05.1974 has not been prepared as per Bihar Panchayati Raj Act and

provision under Section 57 and 58 of the Act has been followed. He further

submits that the learned courts have failed to appreciate that Panches held

panchayati to settle a dispute between the parties in ordinary course and in

no way it is decision of Gram Kutchery as provided under Section 57 and 58

of the Bihar Panchayati Raj Act nor it is expected that they can do so in

accordance with the Act nor law forbids or prohibits such village panchayat.

He submits that in that view of the matter since the award/panchnama

(Ext.-4) has not been made a rule of court, it has no legal and evidentiary

value. He further submits that the learned appellate court has failed to

appreciate the fact that agreement was there which was mentioned in

Panches award. He submits that the learned trial court as well as the

appellate court have failed to appreciate this fact and there is substantial

question of law and on that ground, this second appeal is fit to be admitted

on the ground of substantial question of law.

7. On the other hand, Mr. Manjul Prasad, learned senior counsel assisted

by Mr. Baban Prasad, learned counsel for the respondents submits that the

learned trial court as well as the appellate court have dealt with the matter

in depth. The learned trial court has framed the issues and the issues have

been decided after looking into the oral and documentary evidence. He

further submits that the learned appellate court has also framed the issues

and has rightly decided the appeal and affirmed the judgment of the

learned trial court. There is no illegality in the judgments and there are

concurrent findings of the learned courts.

8. In view of the submissions of the learned counsel for the appellants

as well as respondents, the Court has gone through the materials on the

record including the judgments of the learned trial court as well as the

appellate court and finds that while deciding issue no.(VII) with regard to

whether there was any legal enforceable agreement in plaintiffs' favour for

conveyance of half of the suit property to him as alleged or not, the learned

appellate court has found that the learned trial court in its judgment at

paragraph 10 has taken up issue no.(V) and (VII) together for consideration

and the learned trial court has decided both the issues against the plaintiffs.

The learned appellate court has also appreciated the fact that the

appellants/plaintiffs have brought the suit for specific performance of

contract as approved in the panches award dated 26.05.1974, the so-called

contract is a very important piece of evidence as per Specific Performance

Act and thereafter what was the pleadings in the plaint and written

statement of defendants have been examined by the learned appellate

court and the exhibits have also been examined. The learned appellate

court has held that the award of panches cannot be considered as a

contract between the parties. The basic ingredients for an award are

different from the contract. Ext.4 is the carbon copy of award dated

26.05.1974, which contains directions and verdict of panches. The award

has got distinct legal sanctity under the governance of the Arbitration Act,

1940/the Arbitration and Conciliation Act, 1996. A contract is enforceable

under Section 10 of the Specific Relief Act. The learned appellate court has

also found that the pleading of plaintiffs and the award (Ext.4) make it clear

that the award of panches dated 26.05.1974 is not an agreement, as per

the Indian Contract Act and in that view of the matter, the learned appellate

court has affirmed the judgment of the learned trial court.

9. Considering that no contract has been brought on record in a case of

specific performance, the argument of Mr. Rahul Kumar Gupta with regard

to the agreement is existing, which has been disclosed in the panches

award is not accepted by this Court.

10. In view of the above facts, the learned trial court as well as the

appellate court's judgment are not in perversity. Both the learned courts

have appreciated the evidences adduced on behalf of the parties and

thereafter provided the findings. There are concurrent findings of the

learned courts. The fact finding courts have come to that conclusion. No

perversity has been shown. No case of interference is made out, considering

that no substantial question of law is involved in this appeal.

11. Accordingly, this second appeal stands dismissed.

(Sanjay Kumar Dwivedi, J.) Ajay