SA/14/1994
2023 Latest Caselaw 612 Jhar

                                                   1                  Second Appeal No. 14 of 1994(R)



                  IN THE HIGH COURT OF JHARKHAND AT RANCHI
                        Second Appeal No. 14 of 1994(R)
            1(a). Bijla Oraon
            2(a). Dhundha Oraon
            2(b). Santosh Oraon
            2(c). Tore Oraon
            2(d). Somari Orain
            2(e). Anjali Oraon
            2(f). Budhwa Oraon
            2(g).Parbati Orain
            3(a). Pramod Toppo
            3(b). Sonu Toppo
            3(c). Punit Toppo
            3(d). Soni Toppo
            3(e). Priya Oraon
            3(f). Anup Oraon                                      ... Appellants
                                        -Versus-
            1(i). Widow of deceased respondent no.1 (name not known)
            1(ii). Bihari Ram Ganjhu
            1(iii). Harinath Ram Ganjhu
            1(iv). Mukund Ram Ganjhu
            1(v). Shibu Ram Ganjhu
            2.     Kashinath Mahto
            3.     Rabi Oraon
            4.     The Deputy Commissioner, Ranchi            ... Respondents
                                           -----

            CORAM:      HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
                                           -----
            For the Appellants       : Mr. Sachi Nandan Das, Advocate
                                       Mr. Om Prakash Singh, Advocate
            For the Respondents      : Mr. Sidhartha Roy, Advocate
                                           -----

11/06.02.2023     Heard Mr. Sachi Nandan Das, learned counsel for the appellants and

Mr. Sidhartha Roy, learned counsel for the respondents.

2. This second appeal has been preferred being aggrieved and

dissatisfied with the judgment and decree dated 03.12.1993 passed by the

learned 6th Additional Judicial Commissioner, Ranchi in T.A. No.25/1991/T.R.

No.47/1991 dismissing the appeal and affirming the judgment and decree of

the learned trial court in Title Suit No.193/1985 dated 18.02.1991 passed by

the learned Sub-Judge I, Khunti.

3. The appellants/plaintiffs instituted Title Suit No.193/1985 for

confirmation of title and recovery of possession over the suit land, described

in detail in the Schedule, given at the foot of the plaint, besides cost of the

suit. On contest, the learned trial court has dismissed the suit. Being

aggrieved with that judgment, the appellants/plaintiffs have filed T.A.

No.25/1991/T.R. No.47/1991, which was dismissed vide judgment dated

03.12.1993 by the learned 6th Additional Judicial Commissioner, Ranchi

affirming the judgment of the learned trial court. Aggrieved with that

judgment, the present second appeal has been filed by the appellants.

4. The appellants/plaintiffs instituted Title Suit No.193/1985 alleging

therein the plaintiffs and defendant no.3 are the members of Schedule

Tribe. The suit land fully described in the schedule given in the plaint are

recorded in the R.S. in the name of Ravia Oraon, the father of the plaintiffs.

Ravia Oraon owned and possessed the same as his raiyati land. He died 8

years ago leaving behind the plaintiffs and the defendant no.3 as his heirs

and legal representative. After the death of Ravia Oraon, the plaintiffs and

defendant no.3 came in possession over the suit property. The suit land

corresponds to the lands recorded in C.S. Khata no. 36 standing in the

name of Budhua Oraon and Bandhana Oraon, son of Gande Oraon.

Bandhana Oraon died leaving behind his son Tore, who died issueless

sometimes before the R.S. Bandhana died, leaving behind his son Ravia

Oraon, the father of the plaintiff and defendant no.3. Ravia Oraon was in

possession of the suit property during the revisional survey and as such his

name was recorded in R.S. Khata no. 54 corresponding to C. S. Khewat

No.8 in R. S. Khewat no.8. The plaintiff's father and their grandfather used

to pay rent in respect of the land in suit to the landlord. At the time of

vesting of Jamindari in the State of Bihar, Ravia Oraon was found in the

possession of the suit land and as such rent was assessed in his name and

he used to pay rent to the State of Bihar regularly as raiyat. The ex-landlord

had no concerned or possession over the suit land. When the father of the

plaintiffs refused to pay the Adhbatai produce of the suit land to the

landlord after the vesting of his interest in the State of Bihar, the landlord

manufactured fictitious public document in collusion and conspiracy with the

local officials on the false allegations and the plaintiffs' father and plaintiff

no.1 were falsely involved in a criminal case. The plaintiff's father and

plaintiff no.1 were convicted in or about the year 1961-1962 for life. In spite

of the said fake document, the landlord never came in possession of the suit

property. Subsequently, the suit land were sold to Gajadhar Mahto and

other residents of Ormanjhi police station in the year 1967 by landlord. But

the said purchasers did not get possession of the suit land. The said

purchasers sold the suit land to defendant nos. 1 and 2 who were inimical

to the plaintiffs much before on a nominal price. The defendant nos. 1 and

2 being armed with fictitious sale deed started to lay false claim over the

suit land and tried to take the possession over the same but without any

success. Recently, the plaintiffs came to know that the defendant nos. 1 and

2 managed to get a case u/s 71(A) of the Chotanagpur Tenancy Act filed by

the defendant no.3 and obtained order in their favour. The plaintiff being

not party of that proceeding are not bound by the order. They are as usual

in possession over the suit land. It was further alleged that the defendant

nos. 1 and 2 being emboldened by the order passed u/s 71A of the C.N.T.

Act, are denying the title of the plaintiff over the suit land and threatened to

take possession of the same and therefore, the suit was filed.

5. The defendants have appeared and contested the suit by filing written

statement, wherein, they stated that the suit as framed is not maintainable

and the same is barred by law of limitation, adverse possession, and u/s

139 of the C.N.T. Act. The suit is bad for non-joinder of Gajadhar Mahto and

others, vendors of defendant nos. 1 and 2 as they are necessary parties to

the suit. The plaintiffs have no cause of action for the suit. It has been

admitted that the suit land stands recorded in the R. S. in the name of Ravia

Oraon, but it was denied that the suit land are ancestral lands of the

plaintiffs. It was also denied that Ravia Oraon was in possession of the suit

land during his life time and after his death the plaintiffs and defendant no.3

came in joint possession of the same. In para 7 of the written statement,

the defendants have denied that Cadestral Survey Khata No. 36 corresponds

to R.S. Plot No. 54. It was also denied that the father and grandfather of

the plaintiff's paid rent in kind after the R. S. It was the plea of the

defendants that Ravia Oraon was cultivating the suit land in batai at the

time of R.S. and hence R. S. record of right was prepared in his name. But

soon after the final publication of the record of rights, the said Ravia Oraon

gave up cultivation of the suit lands as he was not in a position to pay half

of produce of the suit land to the ex-landlord according to the entries in the

khatian. The landlord took the suit land in his khas possession and

continued to possess the same at all points of time. At the time of vesting of

tenure interest under the provisions of Bihar Land Reforms Act 1950, the

ex-landlord was in khas possession of the land and hence rent for the suit

land was assessed in the names of the ex-landlord under Sections 5,6 and 7

of the Bihar Land Reforms Act, 1950. The ex-landlord, therefore, acquired

statutory occupancy rights over the suit lands. The successor in interest of

the ex-landlord transferred the suit land to Gajadhar Mahto and others by

registered deed of sale dated 25.04.1967. After purchase the transferee

duly came in possession over the suit land. Their names were mutated and

they paid rent till they sold the suit land to the defendants nos. 1 and 2 by a

registered sale deed dated 10.06.1975. After purchase of the suit land

these defendant nos. 1 and 2 came in peaceful possession of the suit

land and they are still in possession of the same. Their names have also

been mutated and they are paying rent for the same to the State of

Bihar. In para 12 of the written statement, it was submitted that the

defendant no.3 is the own brother of the plaintiffs. The defendant no.3

had filed an application against the defendant nos. 1 and 2 for

the restoration of the suit land, which was rejected after contest. The

defendant no.3 filed an appeal and the same was also dismissed.

The aforesaid facts was within the knowledge of the plaintiffs. The

defendants have also denied that the sale deeds executed by the

ex-landlord in favour of Gajadhar Mahto and others on 25.04.1967 and

subsequent sale deed executed by Gajadhar Mahto and others in favour of

the defendants are false and fabricated documents. The plea that the

aforesaid sale deeds are genuine documents and they are in possession of

the suit lands on the basis of the aforesaid documents. The other assertions

made in the plaint was also denied by the defendants. According to the

defendants, the plaintiffs have got no right, title and interest in the suit

property. It was also denied that the plaintiffs are continuing in possession

of the suit land.

6. Vide order dated 18.07.1995, this second appeal was admitted on the

following substantial questions of law:

A) Whether adverse inference drawn against the plaintiffs on the

basis of dismissal on the basis of dismissal of the petition under

Section 71-A of the Chotanagpur Tenancy Act was proper and

legal?

B) Whether the statutory presumptions as to the correctness of

entries in the Khatian is available to the plaintiffs-appellants

even after vesting of the property under the Bihar Land

Reforms Act?

7. Mr. Das, learned counsel for the appellants submits that the learned

courts dismissed the suit and appeal on erroneous approach of law. He

further submits that the learned courts committed error of law even after

discussing all the evidences both documentary and oral adduced on behalf

of the appellants/plaintiffs regarding entries in the record of right regarding

possession, merely decided the issues in favour of defendant nos. 1 and 2

without assigning any reason why such evidences are disbelieved in giving

such findings. He also submits that mere reliance on the declaration of

erstwhile landlord under the Land Reforms Act, 1950 and form-M

thereunder cannot be relied only on the basis of vague general notice

without any personal notice served upon the appellants who are successor

of recorded tenant and as such the declaration and subsequent orders are

illegal and passed in collusion with the authorities to grab the land of the

appellants. On these points, he submits that the law points are required to

be answered in favour of the appellants.

8. On the other hand, Mr. Roy, learned counsel for the respondents

submits that the learned trial court has framed 12 issues and while deciding

issue nos. vii, viii, ix, x and xi, the learned trial court has considered entire

evidence and thereafter has come to the conclusion about the possession of

the defendants. He further submits that the learned appellate court has also

framed the points and thereafter decided the appeal. According to him,

when concurrent findings are there on the issue in question, the High Court

may not interfere sitting under Section 100 of the Code of Civil Procedure.

9. In view of the submissions of the learned counsel for the parties, the

Court has gone through the L.C.R. as well as the judgment of the learned

trial court and the appellate court. The learned trial court has framed 12

issues and while deciding issue nos. vii, viii, ix, x and xi and after going

through the evidence as well as exhibits, the documentary evidence

adduced on behalf of the plaintiffs and defendant nos. 1 and 2 and the

decision relied by the counsel for the plaintiffs, the learned trial court held

that alleged M form is a genuine, valid and legal document. Rent was paid

in terms thereof by the ex-landlord and the father of the plaintiffs was a

Adhabataidar and therefore he was not a raiyat. The learned trial court has

further held that even if he was a raiyat (tenant), the purchaser Gajadhar

Mahto and others or the defendant nos. 1 and 2 came in possession over

the suit lands through their respective purchases paid rent to the State of

Bihar. Therefore, the sale deeds of the year 1967 and 1955 are genuine and

valid and for consideration and have been acted upon. The learned trial

court has also taken into consideration Chotanagpur Tenancy Act, 1908

especially Sections 6 and 19 and found that the defendants failed to prove

their tenancy right in light of occupancy over the land and to continue

possession and, thereafter, the learned trial court has dismissed the suit.

10. The learned appellate court has framed points as to whether the

plaintiffs have got right, title and possession over the suit land and

considering that the learned appellate court has considered the petition filed

under Section 71-A of the Chotanagpur Tenancy Act by defendant no.3,

which suggests that it was within the knowledge of the plaintiffs for

restoration of the suit lands, but the same was unsuccessful. The learned

appellate court found that revisional record of right suit property stands

recorded in the name of Ravia Oraon, father of the plaintiffs and original

defendant no.3 as Adhbataidar. Abdul Hamid was the tenure holder of

village Tiki, Ext.8/a is the certified copy of Khewat of village Tiki, Ext.8/A

suggests that Khata No.54 of village Tiki stands recorded in the name of

Ravia Oraon, son of Budhua Oraon. The rent payable for the suit property to

the tenure holder was half of the produce of the lands. In column 5 of

Ext.8/A, the status of Ravia Oraon has been shown as of Adhbataidar. The

Khewat stands in the name of Abdul Sattar. Ext.3 series are the certified

copy of sale deed transferring the tenure interest of Mouza Tiki by Abdul

Sattar in favour of Sk. Rehman and by Sk. Rehman in favour of Sk. Abdul

Hamid and Jalil Mian. Considering that the learned appellate court has come

to the conclusion that recorded tenure holder transferred his interest in

favour of Sk. Rehman and Sk. Rehman transferred the same in favour of Sk.

Abdul Hamid and Sk. Jamil Mian by two separate sale deeds, even the

witnesses of the plaintiffs have also supported the same. Exts. 4, 5, 5/a and

6 also supported the conclusion that Sk. Jalil and Sk. Abdul Hamid were the

tenure holder of village Tiki. Ext.4 is the certified copy of the plaint of rent

suit no.5/1952 filed in the court of the S.D.O., Khunti by Sk. Jalil and Sk.

Abdul Hamid against Ravia Oraon for realization of arrear of rent for Sambat

2008. Ext.5 is the deposition of Ravia Oraon recorded in the aforesaid rent

suit. It is an admitted position that Ravia Oraon was raiyat. Considering all

these aspects, the learned appellate court has come to the conclusion that

the appellants/plaintiffs have been able to prove possession of the suit land

only till the year 1951. The rent roll was prepared in the name of the

admitted tenure holder Sk. Abdul Hamid just after vesting of the estate in

the State of Bihar. The appellants/plaintiffs did not file any suit in the court

for declaration of the order for preparation of fair and equitable rent in M

form as null and void and without jurisdiction. Rent roll was prepared after

due observation of the provisions of law and no objection was filed by the

appellants/plaintiffs before the camp court of the Circle Officer and after

considering all these aspects of the matter, the learned appellate court has

affirmed the judgment of the learned trial court and dismissed the appeal.

11. The learned trial court and the appellate court have given cogent

reason and come to that finding. In that view of the matter two fact finding

courts have come to concurrent findings. There is no illegality in the

judgments. No perversity has been shown against the judgments of the

learned courts. The law points framed by this Court are answered

accordingly. No interference is required in this second appeal by this Court.

12. Accordingly, this second appeal stands dismissed.

13. Let the L.C.R. be sent back to the concerned court forthwith.

(Sanjay Kumar Dwivedi, J.) Ajay/