Basudeo Mandal vs Genu Mandalani
2023 Latest Caselaw 550 Jhar

                            -1-                   S.A. No. 151 of 2006


IN    THE HIGH COURT OF JHARKHAND AT RANCHI
                   S.A. No. 151 of 2006
                          with
                   I.A. No. 753 of 2023
1. Basudeo Mandal
2. Ashok Mandal
3. Dilip Mandal
4. Charu Bala Mandalani
5. Bhanumati Mandalani
6. Anu Bala Mandalani
7. Sonali Mandalani
8. Mira Bala Mandalani
9. Ankur Chandra Mandal
10. Mihir Chandra Mandal
11. Subodh Chandra Mandal
12. Sunil Chandra Mandal
13. Kartik Chandra Mandal
14. Menka Mandal
15. Nitu Mandal
16. Ganesh Chandra Mandal
17(a) Satu Mandal
17(b) Mangal Mandal
17(c) Swapan Mandal
18. Nepal Mandal
19. Ambika Prasad Mandal                  .....     ...     Appellants
                         Versus
1. Genu Mandalani
2. Himani Mandalani
3. Binati Mandalani
4. Smt. Pramila Mondal
5(a) Nehrari Mandal
5(b) Rajesh Mandal
5(c) Rakesh Mandal
5(d) Bonu Mandal
5(e) Rokha Mandal
6. Binod Mondal
7. Sudhangshu Mondal
8. Smt. Begala Mandal
9. Smt. Jamuna Mandal
10. Smt. Lebi Mandal
11. Smt. Chinta Mandal
12. Smt. Pramila Mandalani
13. Felu Mandalani
14. Kangshari Mandal
15. Subal Mandal
16. Kalabati Mandalani
17. Bajla Mandalani
18. Alka Mandalani
19. Prahlad Mandal
                           -2-   S.A. No. 151 of 2006

20. Smt. Bimla Mandalani
21. Kisto Mandal
22. Paro Mandal
23. Sharu Mandal
24. Hansi Mandal
25. Jesatsone Mandal
26. Sudhir Mondal
27. Madan Mandal
28. Subhash Mandal
29. Vikram @ Nibaran Mandal
30. Prabodh Mandal
31. Bhawani Mandal
32. Geni Mandalani
33. Minor Manti Mandalani
34. Minor Pushpi Mandalani
35(a) Phuki Devi
36(a) Gulen Mandal
36(b) Fatik Mandal
36(c) Fanindra Nath Mandal
36(d) Tilo Mandal
36(e) Dando Mandal
37. Vijay Mandal
38. Santosh Mandal
39(a) Anila Devi
39(b) Ramesh Mandal
39(c) Amita Kumari
39(d) Pushpa Devi
39(e) Usha Devi
39(f) Arati Devi
39(g) Madhuri Devi
39(h) Sadeshwari Devi
39(i) Dol Gobind Mandal
39(j) Rahul Mandal
39(k) Suraj Mandal
40. Chhabi Mandalani
41. Tasini Mandal
42. Bharat Mandal
43. Binod Mandal
44. Mora Devi
45. Churkhuri Devi
46. Kirtan Mandal
47. Purna Chandra Mandal
48(a) Nehari Mandal
48(b) Jiten Mandal
48(c) Niten Mandal
48(d) Alai Mandal
48(e) Fuda Mandal
49. Dhananjoy Mandal
50. Nibaran Mandal
51. Bishwanath Mahato
                                          -3-               S.A. No. 151 of 2006

        52.   Dwarika Nath Mahato
        53.   Gobardhan Mahato
        54.   Chutan Mahato
        55.   Bhikhu Mahato
        56.   Ruplal Mahato
        57.   Bhola Nath Mahato
        58.   Ratan Mahato
        59.   Bikal Mahato
        60.   Nakul Mahto
        61.   Harilal Mahato                          ..... ...      Respondents
                                --------

CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Appellants : Mr. Niraj Kishore, Advocate. For the Respondents : Mr. Shashikant Ojha, Advocate.

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27/ 02.02.2023 Heard Mr. Niraj Kishore, learned counsel appearing for the appellants and Mr. Shashikant Ojha, learned counsel appearing for the contesting respondents.

2. This second appeal has been filed being aggrieved and dissatisfied with the judgment dated 01.03.2006 and the decree following thereupon signed on 09.03.2006, passed in Title Appeal No. 33 of 1996, by the 1st Additional District Judge, Dhanbad, dismissing the said appeal and thereby confirming the judgment dated 12.08.1996 and the decree signed on 23.08.1996, passed in Title Suit No. 99 of 1987, by the learned Sub Judge-I, Dhanbad.

3. Learned counsel appearing for the appellants submits that the respondent Nos. 4, 37, 51, 52, 53, 55, 58 and 59 have already left of their heavenly abode.

4. In that view of the matter, this second appeal has already abated against those respondents.

5. The suit was instituted by the appellants/plaintiffs for confirmation of possession of the plaintiffs over the portion of the tank described in Schedule-B of the plaint and also for declaration of the title to the same and further for a decree of permanent injunction restraining the defendants from interfering with the plaintiff's title and possession over the tank, as mentioned in Schedule-B of the plaint.

6. On framing of the issues and on contest, the title suit, being Title Suit No. 99 of 1987, filed by the appellant/plaintiff was dismissed by the learned trial court by judgment dated 12.08.1996. Aggrieved by that,

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the appellant/plaintiff filed Title Appeal No. 33 of 1996, which was decided by the judgment dated 01.03.2006, whereby the appeal was dismissed and the judgment of the learned trial court was affirmed by the learned appellate court. Aggrieved by that, the present second appeal has been filed.

7. The appellant/plaintiff instituted the suit as disclosed in learned courts judgments stating therein that plot No. 798, measuring 41 decimals belonged to the Ex-landlord, Rash Bihari Mandal, who had settled the same in permanent raiyati right to Chakor Mandal and Dayal Mandal by a registered deed of patta dated 22.5.28 on an annual rental of Re. 1/-. Chakar Mandal had two sons; Pran Kisto and Yadav. Yadav died in the year, 1986 leaving behind the plaintiffs as his sons and heirs. Dayal died leaving behind two sons; namely; Indi and Dhoju. After the death of Chakar and Dayal, plot No. 798 was inherited by Pran Kisto, Yadav, Indi and Dhoju each having 1/4th share therein. Subsequently, Indi and Dhoju by amicable arrangement while dividing their lands allotted the half share of plot No. 798 to Indi and accordingly Indi used to possess half share of plot No. 798 along with Panu and Yadav. Indi while possessing 1/2 share of plot No. 798 transferred the same to Yadav Mandal by registered deed of sale dated 24.7.62 for valuable consideration and delivered possession to the said purchaser; Yadav Mandal. Subsequently, Yadav Mandal also purchased 1/4th share of Panu in the said plot No. 798 by registered deed of sale dated 12.6.63. Since the date of said purchase, Yadav Mandal came in possession of the entire plot No. 798, measuring 41 decimals and had been paying the rent for the same. It is further stated that Yadav Mandal while possessing the lands of other khata also as mentioned in Schedule-A started excavating a tank within these lands in the year, 1967. Atul Mandal Son of Dhoju Mandal at that time attempted to interfere with the said excavation of the tank by claiming 1/4th share in plot No. 798 and the dispute raised by Atul was settled through the intervention of the local well wishers and Yadav Mandal had given 12 decimals of land to Atul.

8. Written statement was filed on behalf of the defendants No. 2 to 5 and 9 to 34, stating therein that the State of Bihar is a necessary party in view of the fact that suit plot No. 798 old, being new plot No.

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613(tank) and new plot No. 611 (mota ail) old khata No. 39, being new khata No. 141 of mauza Titichapuri recorded in the name of State of Bihar in the Revisional Survey Khatian as such in absence of State of Bihar, the present suit cannot and should not be proceeded with. Dayal Mandal died leaving behind two sons namely; Dhaju Mandal and Indi Mandal and after his death his two sons irrigated half share jointly in plot No. 798 leaving half share to the branch of Chakar who died leaving behind Panu and Yadav but it is incorrect to say that by amicable agreement the half share of plot No. 798 was allotted to Indi alone and Indi used to possess half share of the said plot No. 798 along with half share holders Panu and others. Further on the death of Dhaju Mandal his 1/4th share was inherited by his son Atul Mandal in the said plot No. 798 and Atul Mandal began to possess jointly with his other co-sharers so far the plot No. 798 is concerned. Further, it is incorrect to say that Yadav Mandal came in possession of the entire plot No. 798 measuring 41 decimals a used to pay rent for the same. Further, Yadav Mandal and Atul Mandal jointly by spending amount to the extent of their respective shares have excavated the tank in plot No. 798 and it is incorrect to say that Yadav Mandal alone excavated the tank. Further, Indi who had 1/4th share in plot No. 798 can in no case transfer the specific share of Atul Mandal in plot No. 798 either to Yadav or to any body else. Further plot No. 848 in lieu of 1/4th share in plot No. 798. The said exchange had taken place in February, 1967 and since then Atul ceased to have interest in plot No. 798 which was given up by him in favour of Yadav Mandal. Similarly Yadav Mandal ceased to have any interest in 12 decimals of land within plot No. 848 given by him to Atul. Thereafter, Yadav Mandal completed the excavation of tank within a span of five years and thus he was the exclusive owner of the tank. Atul Mandal ceased to have any interest in the said tank. After the death of Yadav, the plaintiffs being the heirs of Yadav came in exclusive possession of the tank by irrigating their lands with water of the tank and by rearing and catching fishes daily and also by making occasional repairs of the ridges of the tank and also by diverse acts of possession. It is further stated that Atul although having no interest in plot No. 798 has created a deed of sale dated 27.5.87 in collusion with the defendant No.2

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to 34 and therefore, the defendant No. 2 to 34 acquired no right, title and interest. In para-12 it is stated that the plaintiff by their continuous and exclusive possession of the tank described in schedule A of the plaint including schedule B since more than the statutory period in exercise of their exclusive raiyati right to the knowledge of the defendants and their predecessors in interest, the plaintiffs including their predecessors have acquired perfect title to the tank in suit by adverse possession.

It is incorrect to say that Atul Mandal ever interfered in course of excavation of tank because he has 1/4th share in the said tank. Further it is incorrect to say that Yadav Mandal had given 12 decimals of land in plot No. 848 to Atul Mandal in lieu of 1/4th share of plot No. 798 and that the alleged exchange took place in February, 1967 and thereby Atul ceased to have any interest in plot No. 798 which was given by him in favour of Yadav Mandal and both Yadav Mandal and Atul Mandal contributed the amount to the extent of their specified shares to the fisherman who used to rear the fish in the tank standing in plot No. 798 and used to catch fishes from the tank and the fisherman accordingly used to divide the fishes to Yadav Mandal and Atul Mandal according to their respective shares. Further Atul Mandal executed a registered sale deed on 27.5.87 in favour of answering defendants and others on receipt of valuable consideration and delivered peaceful possession to the purchasers to the extent of his 10 decimal in the said plot No. 798 and since the date of purchase the answering defendants began to possess the tank in question along with the heirs of Yadav Mandal.

9. Mr. Niraj Kishore, learned counsel appearing for the appellants submits that both the learned courts have committed grave error of law in not considering the fact that the claim of adverse possession of the tank in the year 1967 as against Atul Mahto, the case of the plaintiffs is that they have acquired valid title by remaining in possession by last 12 years is liable to be accepted. He submits that Schedule-A, being a tank, having an area of 1.44/7 acres and Atul Mandal had no claim over any of the plot Nos. 838, 840, 808 and 797 and

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therefore, the finding that the plaintiffs had no exclusive title on plot Nos. 838, 840, 808 and 797 are vitiated and liable to be set aside. He further submits that the learned appellate court has decided the appeal without framing of any point and in view of provision made under Order-41, Rule-31 of the CPC, the appellate judgment is fit to be reversed. He further submits that these are the substantial questions of law and on that, this second appeal may kindly be admitted.

10. On the other hand, Mr. Shashikant Ojha, learned counsel appearing for the respondents submits that there are concurrent findings of two fact finding courts and in that view of the matter, there is no illegality in both the judgments and the law points, argued by the learned counsel appearing for the appellants may not be accepted, in view of the well discussed judgments of learned trial court as well as learned appellate court.

11. It has already been recorded hereinabove that respondent Nos. 4, 37, 51, 52, 53, 55, 58 and 59 have already left of their heavenly abode, during the pendency of this second appeal. Order XXII Rule 11 of the Code of Civil Procedure read with Order XXII Rule 4 makes it obligatory to seek substitution/array of the heirs and legal representatives of deceased respondent if the right to sue survives. Such substitution/array has to be sought within the time prescribed by law of limitation. If no such substitution/array is sought, the appeal will abate. Sub-rule (2) of Rule 9 of Order XXII enables the party who is under an obligation to seek substitution/array to apply for an order to set aside the abatement and if it is proved that he was prevented by any sufficient cause from continuing the suit which would include an appeal, the Court shall set aside the abatement. Now where an application for setting aside an abatement is made, but the court having not been satisfied that the party seeking setting aside of abatement was prevented by sufficient cause from continuing the appeal, the Court may decline to set aside the abatement. Then the net result would be that the appeal would stand disposed of as having abated. It is crystal clear that no specific order for abatement of a proceeding under one or the other provision of Order XXII is envisaged, the abatement takes place on its own force by passage of time.

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12. This second appeal is already abated against respondent Nos. 4, 37, 51, 52, 53, 55, 58 and 59 and if the second appeal is abated against them, in the facts and circumstances of the present case if the second appeal is admitted against surviving respondents, it will amount to decree in two parts where the suit property is one and jointness is another. Reference may be made to the case of Sunkara Lakshminarasamma (Dead) by legal representatives v. Sagi Subba Raju and others; reported in (2019 11 SCC 787, wherein the Hon'ble Supreme Court in paras- 11,12,13 and 14 held as follows:-

"11. In any event, Shri Thomas P. Joseph, learned Senior Advocate appearing on behalf of the respondents is justified in contending that these appeals are not maintainable since a number of defendants against whom the relief is sought/claimed have either been deleted from the array of parties, or are dead. The legal representatives of such deceased defendants have not been brought on record. Even before this Court, Respondent No. 7 (D-8), Respondent 8 (D-9), Respondent 9 (D-10) and Respondent 11 (D-13) in Civil Appeal No. 4382 of 2016 arising out of SLP (C) No. 20376 of 2004 have died. Their legal representatives have also not been brought on record. It is relevant to note here itself that Defendants 4, 6, 36, 50, 54, 58, 67, 69, 73, 77, 82, 92, 93, 113, 120 and 127 expired during the pendency of the matter before the trial court in OS No. 97 of 1984. So also, Defendants 20, 53, 64 and 118 have also died and their legal representatives have also not been brought on record.

12. Order 22 Rule 4 CPC lays down that where within the time limited by law, no application is made to implead the legal representatives of a deceased defendant, the suit shall abate as against a deceased defendant. This rule does not provide that by the omission to implead the legal representative of a defendant, the suit will abate as a whole. If the interests of the co-defendants are separate, as in the case of co-owners, the suit will abate only as regards the particular interest of the deceased party. In such a situation, the question of the abatement of the appeal in its entirety that has arisen in this case depends upon general principles. If the case is of such a nature that the absence of the legal

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representatives of the deceased respondent prevents the court from hearing the appeal as against the other respondents, then the appeal abates in toto. Otherwise, the abatement takes place only in respect of the interest of the respondent who has died. The test often adopted in such cases is whether in the event of the appeal being allowed as against the remaining respondents there would or would not be two contradictory decrees in the same suit with respect to the same subject-matter. The court cannot be called upon to make two inconsistent decrees about the same property, and in order to avoid conflicting decrees the court has no alternative but to dismiss the appeal as a whole. If on the other hand, the success of the appeal would not lead to conflicting decrees, then there is no valid reason why the court should not hear the appeal and adjudicate upon the dispute between the parties.

13. In the matter on hand, the absence of certain defendants who have been deleted from the array of parties along with the absence of legal representatives of a number of deceased defendants will prevent the court from hearing the appeals as against the other defendants. We say so because in the event of these appeals being allowed as against the remaining defendants, there would be two contradictory decrees in the same suit in respect of the same subject-matter. One decree would be in favour of the defendants who are deleted or dead and whose legal representatives have not been brought on record; while the other decree would be against the defendants who are still on record in respect of the same subject-matter. The subject matter in the suit is the validity of the two wills. The courts including the Division Bench of the High Court have consistently held that the two wills are proved, and thus Veeraswamy being the beneficiary under the two wills had become the absolute owner of the suit properties in question. Such decree has attained finality in favour of the defendants who are either deleted or dead and whose legal representatives have not been brought on record. In case these appeals are allowed in respect of the other defendants, the decree to be passed by this Court in these appeals would definitely conflict with the decree already passed in favour of the other

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defendants.

14. As mentioned supra, the court cannot be called upon to make two inconsistent decrees about the same subject-matter. In order to avoid conflicting decrees, the court has no alternative but to dismiss the appeals in their entirety."

13. In view of the above submissions of learned counsel appearing for the parties, the court has gone through the judgments of the learned trial court as well as learned appellate court and finds that the learned trial court while deciding the suit has framed altogether six issues. Issue No. 5 is with regard to the plaintiffs are entitled to the relief as mentioned in schedule B of the plaint regarding plot No. 798 under khata No. 39 measuring an area of 10 ¼ decimals out of 41 decimals in view of alleged exchange in between the plaintiff and Atul Mandal, son of Dhaju Mandal and also in view of the registered sale deed dated 24.07.1962 having been executed for 1/2 share in plot No. 798 including the share of Dhaju Mandal in favour of Yadav Mandal and whether the plaintiffs have perfected their title over Schedule-B land by virtue of adverse possession or not.

14. While deciding the issue No. 5, learned trial court has discussed the oral as well as documentary evidences, adduced on behalf of the parties. In the plaint, the claim was made with respect to Schedule- B property, i.e. plot No. 798, measuring an area of 10 ¼ decimals on the basis of the registered sale deed, alleged to be executed in favour of Yadav Mandal on 24.07.1962 and that deed was not brought on record and considering that the learned trial court has held that the deed of exchange is required to be reduced in writing according to Section 118 of the Transfer of Property Act, in that view of the matter, that contention of the appellants were not accepted by the learned trial court. So far as adverse possession is concerned, that has also been negated by the learned trial court on the ground that the Atul happens to be the co-sharer of the plaintiffs and possession of 1/4th share and the possession of the co-sharer is deemed to be possession on behalf of other co-sharers also and there cannot be adverse possession among the co-sharers. At best there may be a case of ouster, but it is not pleaded by the appellants before the court or

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in appeal and that's why, the plea of adverse possession is also decided against the appellants/plaintiffs. Aggrieved by that, the appellants- plaintiffs filed an appeal before the learned appellate court and the learned appellate court after considering entire aspect of the matter has concluded that the case of the plaintiff is that by purchase Yadav Mandal has acquired half share of plot No. 798 from Indi Mandal. There is no document to show that share of Dhoju was transferred to Indi and, therefore, the very basis of the claim of the plaintiff is not found proved. In the plaint at para-3, it has been asserted that it was on the basis of registration, however, no document of registration has been produced in the court. If only 1/4th share was sold by the registered sale deed dated 24.7.1962, there cannot be any claim of the plaintiff to acquire half share of plot No. 798 from Indi in favour of Prayag Mandal, son of Yadav Mandal. The adverse possession has also been negated by the appellate court and affirm the judgment of the learned trial court and the appeal was dismissed by order dated 12.08.1996.

15. So far as the argument with regard to adverse possession is concerned, the court finds that this issue is no more res-integra. The Hon'ble Supreme Court in the case of Roop Singh (Dead) through Lrs. Versus Ram Singh (dead) through Lrs., reported in (2000) 3 SCC 708 has held that the plea of adverse possession is inconsistent with the plea of right of possession on the basis of the part occurrence of the contract. When a claim is made on the basis of registered sale deed, the ground of adverse possession itself is contradictory one. Looking into that, the learned trial court as well as learned appellate court has rightly decided those issues. The two fact finding courts have come to the conclusion and there is no adversity in judgments of both the courts, the point argued by Mr. Niraj Kishore, learned counsel appearing for the appellants that the non-framing of issue by learned appellate court is out of record, as the court finds that at para-7 of the appellate court judgment, the leaned appellate court has formulated the point whether the judgment passed and the decree prepared in the case is fit to be upheld or not. In that view of the matter, that point is also not accepted by the learned appellate court.

16. Admittedly, there is dispute of right, title and interest and

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there are jointness of the entire property and in the case of such nature in absence of legal representatives of deceased respondents, it will not be proper to hear the appeal as against other respondents, then the appeal requires to be abated in totality, as held by the Hon'ble Supreme Court in Sunkara Lakshminarasamma (supra). In that view of the matter, the Court is not required to call upon to make two inconsistent decrees about the same subject matter. In order to avoid conflicting decrees, the Court has no alternative but to dismiss the appeal in its entirety. Moreover, the present second appeal has not been admitted on any substantial question of law.

17. The court finds that there were concurrent findings of the learned trial court as well as first learned appellate court and the said findings of both the courts are upon appreciation of the entire evidence available on record and, therefore, unless concurrent findings recorded by the courts were found to be perverse, same was not required to be interfered by the High Court in exercise of powers sitting under Section 100 of the CPC.

18. In view of the above facts, reasons and analysis, this appeal is dismissed. Pending I.A., if any, stands dismissed.

(Sanjay Kumar Dwivedi, J.) Amitesh/-