Balram Mandal vs Chinu Sk Resident Of Mahajan Toli
2023 Latest Caselaw 548 Jhar

                                        1

      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                     S.A. No. 106 of 2009

      1. Balram Mandal, son of late Kashi Nath Mandal
      2. Subol Mandal @ Sheo Lal Mandal, son of late Kashi Nath Mandal
         Both residents of village-Kashba Gidarmari P.O. and P.S. Rajmahal,
         District-Sahibganj
                   ...... Appellants/Respondents/Defendants
                           Versus
      Chinu Sk resident of Mahajan Toli, Rajmahal, P.S., P.O. Rajmahal, Sahibganj
                                 ...... Respondent/Appellant/Plaintiff
                   ---------

CORAM:      HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
                          ---------
For the Appellants         : Mr. Rajiva Sharma, Sr. Advocate
                           Mr. Om Prakash, Advocate
For the Respondent       : Mr. Aishwarya Prakash, Advocate

14/Dated: 02/02/2023

Heard Mr. Rajiva Sharma, learned senior counsel for the appellants and

Aishwarya Prakash, learned counsel for the respondent.

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

judgment dated 28.03.2009 and decree dated 4.4.2009 passed by the learned

Additional District Judge-I, Sahibganj in Title Appeal No. 26 of 2006 setting aside the

judgement dated 22.11.2006 and decree dated 28.11.2006 passed by learned Sub-

Judge-III, Rajmahal in Title Suit No. 50 of 1994 whereby the learned trial court

dismissed the suit with costs.

3. The respondent/plaintiff has instituted suit for declaration of right, title

and for confirmation of possession over the suit land mentioned in schedule of the

plaint. Plaintiff has further sought a relief for permanent injunction to restrain the

defendants from dispossessing him from the suit land and the learned trial court on

contest after hearing the parties has dismissed the suit vide judgement dated

22.11.2006. Aggrieved with that the respondent/plaintiff filed Title Appeal No. 26 of

2006 and vide judgment dated 28.03.2009 the learned appellate court has been

pleased to allow the appeal. Aggrieved with that the appellant has filed present

second appeal.

4. The case of the plaintiff is that the land mentioned in the schedule of the

plaint belong to two brothers Gayanath Mandal & Kasinath Mandal both of them are

dead. Defendants are sons of Kasinath Mandal. After the death of Gayanath Mandal,

his widow Nitto Mosammat filed a title partition suit no. 24/67 in the court of Sub-

Judge, Sahibganj claiming her 1/3rd share in the joint property of the above named

two brothers. The said suit was decreed on 11.07.1969 by the Sub-judge, Sahibganj.

The appeal against the decree was dismissed on 18.03.1974 by the District Judge,

Dumka. The second appeal was also dismissed by the Hon'ble Patna High Court on

31.08.1979. Nitto Mosammat filed a petition for final decree in title suit no. 24/67. The

matter is pending because the entire record of title suit no. 24/67 is missing from the

record room. During the pendency of the final decree Nitto died and her substitution

is pending. It is further case of the plaintiff that one Ram Narayan was the advocate

of Mossamat Nitto in the Title Suit No. 24/67. Nittu Mosammat transferred the suit

land by registered sale deed on 20.11.1979 to Ram Narayan advocate and put him in

possession of the same. Further Ram Narayan Advocate gifted the suit land to the

plaintiff by registered gift deed dated 3.1.84 and put the plaintiff in possession of the

same. The plaintiff filed a mutation petition before C.O. Rajmahal, but the C.O.

Rajmahal by his order dated 13.3.1991 in M.C. No. 513/90-91 rejected the prayer on

the ground that mutation of the name of defendants has already been made as per

gift deed. It is averred that before filing of title suit no. 24/67 Parshuram Mandal

grand-father of the defendants made a registered gift of the suit land to the

defendants and the names of defendants were duly mutated in Title Suit No. 24/67,

the defendants claimed the suit land on the basis of deed of gift, executed by late

Parshuram Mandal in favour of defendants, but learned Sub-Judge by his judgment

held the gift deeds, void and ordered for partition of the suit properties alongwith

others family properties.

It is further case of the plaintiff that during continuance of the final

decree proceeding defendants filed Title Suit No. 57/81 in the court of Settlement

Officer for declaration that the decree passed by the learned sub-judge in Title Suit

No. 24/67 was void and not binding upon them. The learned A.S. O. to whom the suit

was transferred held that decree of the learned Sub Judge, Sahibganj no longer is

effective as Nitto Mosammat has died as such the learned A.S.O. decreed the suit. It

is further contended by the plaintiff that Title Suit No. 37/90 was filed by Ram

Narayan and others in the court of Sub-Judge for declaration that the judgment of

the learned A.S.O. dated 20.02.1990 passed in Title Suit No. 57/81 was void and he

had no jurisdiction to entertain against the finding of the learned Sub-Judge, and the

Hon'ble High Court but the learned Sub-Judge by his order dated 10.05.1991 held that

as final decree proceeding was pending in Title Suit No. 24/67 the suit was not

maintainable as such no decree was drawn up. It is further case of the plaintiff that

the plaintiff is in possession of the suit land and has valid title. Nitto Mosammat had

right to transfer her share in the property even though there is no final partition.

Defendant wants to take forcible possession hence the suit has been filed within the

jurisdiction.

5. As per the averments made in the W/S filed on behalf of the defendants

the case of the defendants is that the suit is not maintainable. The suit is barred by

law of limitation, waiver, estoppel and res-judicata. It is further their case that the suit

is under valued. The suit land is not less than forty thousand per bigha. The plaintiff

has got no cause of action for the suit as defendants are in peaceful possession of the

suit land. It is further case of the defendants that the suit land was recorded in the

name of Parshuram Mandal in the settlement, which was self acquired property of

Parshu Ram Mandal. Gayanath Mandal and Kasinath Mandal were the grand sons of

Parshu Ram Mandal and the suit land was never belong to Gayanath Mandal and Kasi

Nath Mandal.

It is admitted by the defendants that Nitto Mosammat was the widow of

Gayanath Mandal and had filed a partition case no. T.S. No. 24/67, but denied that

the suit land was joint property. It is further averred that these defendants were

minor at the time of Title Suit No. 24/67 and the suit was never decreed. It is wrong

averments that there was partition in between Nitto Mosammat and the defendants.

No any partition took place in between Nitto Mosammat and defendants It is also

wrong that the original case record of Title Suit No. 24/67 is missing. It has further

been averred that the land was in the ownership and possession of recorded tenant

Parshuram Mandal who gifted all the land to Shivlal Mandal and Balram Mandal by two

registered deeds of gift no. 4815 and 4816 dated 04.10.67 and the defendants came

in ownership and possession of the suit land as well as the others lands mentioned in

the gift deeds. It has further been stated that the defendants have never been

dispossessed by Shri Ram Narayan-advocate by any order of the court after

20.11.1979 nor Ram Narayan ever came in the possession of the suit land. No title

was passed to Ram Narayan Advocate. It is surprising that Ram Narayan gifted the

suit land to the plaintiffs. The gift deed executed by Ram Naryan advocate in favour

of plaintiff is a waste paper nor plaintiff came in possession on the suit land on the

basis of gift deed. It is further case of defendants that defendants had filed a Title

Suit before the Settlement Officer being No. 57/81 against Nitto Mosammat, Ram Bilas

Mandal and Ram Narayan Advocate. The said suit was decided on 20.02.1990 during

pendency of this suit for the result of the suit Ram Narayan Advocate wrongly

prepared a forged deed of gift for the suit land in favour of Asha Bibi as such the

judgment of case no. 57/81 is also binding on the plaintiffs. It has further been stated

by the defendants that Ram Narayan Advocate being aggrieved by the order of Title

Suit No. 57/81 filed a title suit no. 33/90 before Sub-Judge, Sahibganj, which was

dismissed on 10.05.91 on the ground that Title Suit No. 24/67 is pending hence the

suit was not maintainable. Defendants admitted that the plaintiff had filed a petition

of mutation, which was rejected by the C.O. as well as by the D.C.L.R. Rajmahal by

his order dated 4.12.1995. Plaintiff had preferred a revision before A.D.C., which was

remanded to L.R.D.C. for reconsideration and the mutation appeal No. 8/01-02 was

dropped . It is further case of defendants that their names have been mutated in the

Govt. records and they are paying rent to the Government. During Khana Pari and

Tasdique operation of the present survey, the names of defendants have been

recorded in Kacha Purcha in connection of the suit land. Kacha Purcha has been

issued in favour of defendants. Lastly it has been mentioned that the suit is not

maintainable as title suit no. 33/90 has been dismissed earlier by Sub-Judge,

Sahibganj, which was lodged for declaration of right, title over the suit land by Ram

Naryan, Advocate and therefore prayed to dismiss the suit with cost.

6. Mr. Rajiva Sharma, learned senior counsel appearing for the appellants

submits that the plaintiff has got no valid cause of action for suit and the suit was

not perfectly admissible in view of sale deed exhibit-1 by which Nitto Masomaat

transferred the suit land in favour of Ram Narayan, advocate, was contingent and

conditional and did not confer right, title and interest on Ram Narayan, in view of

recital made in sale deed. Mr. Sharma, further submits that 1/3rd share in the joint

family properties of Parshuram Mandal is wholly perverse and based on

misconstruction of law and facts that the said preliminary decree was never given

effect to nor the same was ever culminated into final decree and in absence of the

final decree no partition of the joint properties took place by metes and bounds. To

buttress his argument, he relied in the case reported in 2004 3 JLJR 205. On these

grounds he submits that there are substantial question of law and this second appeal

may be admitted.

7. Mr. Aishwarya Prakash, learned counsel appearing for the respondent

submits that there is no illegality in the judgement of learned appellate court and the

learned appellate court has rightly reversed the finding of the learned trial court.

8. In view of above submission of the learned counsel for the parties, the

Court has gone through the judgment of the learned trial court as well as the

appellate court and finds that learned trial court has dismissed the suit considering

that the purchaser of the share in joint property acquire the equitable right to

allotment to his predecessor share on partition and he is entitled to the allotment of

specific property sold and to get the possession thereof as far as possible according to

equities and in that view of the matter suit was dismissed. The learned appellate court

has taken up the said issue and considered that in view of Title Suit No. 24 of 1967,

Nitto Mosomat, widow of one of the coparcener of the joint property of the recorded

tenant late Parshuram Mandal, her share was declared to be 1/3rd in the joint family

property and when the judgment and decree passed in Title Suit No. 24 of 1967 was

challenged before the Court of learned District Judge as well as before the Hon'ble

High Court and both the Courts confirmed and upheld the decree and judgement

passed by the learned Sub-Judge vide Title Suit No. 24 of 1967 and in that view of the

matter the transfer of the suit land by Nitto Masomat in favour of Ram Narayan-

Advocate cannot be said to be a same transaction rather it was valid, genuine and

correct. Once Nitto Masomat was declared to be entitled for 1/3rd share in the joint

family property of Parshuram Mandal it means that out of total area of the land

measuring 24 bighas and 10 kathas recorded in the name of Parshuram Mandal. Nitto

Masomat stands entitled for 1/3rd share i.e more than 8 bighas and out of the

respective portion of 1/3rd share she transferred 4 bighas 19 kathas and 19 dhurs in

favour of Ram Narayan-Advocate vide Exhibit-1 and thereafter Ram Narayan -

Advocate transferred 4 bighas 19 kathas and 19 dhurs in favour of the plaintiff by way

of gift vide Exhibit-2.

9. It is well settled that vendee stands in the shoes of the vendor

maintaining the cardinal principle of law and in that view of the matter the learned

appellate court has reversed the finding of the learned trial court. The judgment

relied by Mr. Sharma in the case reported in 2004 3 JLJR 205 was also considered

by the learned appellate court and has been rightly distinguished by the learned

appellate court. There is no perversity in the judgement of the learned appellate

court. Further no substantial question of law is found to be framed. No relief can be

extended to the appellants. Accordingly, this second appeal is dismissed.

( Sanjay Kumar Dwivedi, J.) Satyarthi/