Unknown vs Chopni Devi
2023 Latest Caselaw 682 Jhar

                                           -1-           S.A. No. 521 of 2003


        IN     THE HIGH COURT OF JHARKHAND AT RANCHI
                              S.A. No. 521 of 2003
        1(a) Ramdhan Bedia
        1(b) Ram Balak Bedia
        1(c) Naresh Bedia                             .....   ...   Appellants
                                      Versus
        1. Chopni Devi
        2(i) Most. Bhudani Devi
        2(ii) Sunil Bedia
        2(iii) Mithilesh Bedia
        2(iv) Azad Bedia
        3. Jagu Bedia
        4. Inder Bedia
        5. Tulsi Bedia
        6. Kailash Bedia
        7(i) Balesh Bedia
        7(ii) Mohan Bedia
        8.     Jogeshwar bedia
        9.     Rameshwar Bedia
        10. Sarlu Bedia
        11. Marlu Bedia
        12. Sohrai Bedia
        13. Mohrai Bedia
        14. Gando Bedia
        15. Binod Bedia
        16. Chamni Devi
        17. Ramni Devi
        18. Jhamni
        19. Bigan Bedia
        20. Surdhan Bedia
        21. Gudo Bedia                               .....    ...   Respondents
                                --------

CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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        For the Appellants        :      Mr. R.N. Sahay, Sr. Advocate.
                                 :       Mr. Yashvardhan, Advocate.
                                 :       Mr. Y.P. Pathak, Advocate.
                                 :       Ms Rishika Kaushik, Advocate.
        For the Respondents       :      Mr. Ashok Kumar Sinha, Advocate.
                                ------
17/ 09.02.2023      Heard Mr. R.N. Sahay, learned senior counsel appearing for

the appellants and Mr. Ashok Kumar Sinha, learned counsel appearing for the contesting respondents.

2. This second appeal has been filed being aggrieved and dissatisfied with the judgment dated 30.09.2002 and the decree following thereupon signed on 08.10.2002, passed in Title Appeal No. 02 of 2001, by the learned ADJ-VII, Hazaribag, dismissing the said appeal and

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thereby confirming the judgment dated 12.09.2000 and the decree signed on 22.09.2000, passed in Partition Suit No. 45 of 1993, by the learned Addl. Sub Judge, Hazaribag.

3. The appellants/plaintiffs have instituted the Partition Suit No. 45 of 1993 for a decree of partition of 1/2 share in the suit property detailed in Schedule-B of the plaint. Further prayer has been made for declaration of their full right over khata No. 32 detailed in Schedule-C of the plaint and also the cost of the suit.

4. On framing of the issues and on contest, the partition suit, being Partition Suit No. 45 of 1993, filed by the appellants/plaintiffs was dismissed by the learned trial court by judgment dated 12.09.2000. Aggrieved by that, the appellants/plaintiffs filed Title Appeal No. 02 of 2001, which was decided by the judgment dated 30.09.2002, 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.

5. The appellants/plaintiffs instituted the suit stating therein that the parties in the suit are descendents of one common ancestor namely Sukher Bedia, who died before the Cadestral Survey and settlement operation leaving 3 sons Jethu Badia, Jitu Bedia and Lado Bedia, who inherited the properties of Sukher Bedia and came in possession of the same, the genealogical table has been given in Schedule-A of the foot of this plaint. Jethu Bedia, Jitu Bedia and Ledo Bedia separated in mess and cultivation without partition for sake of convenience. Jitu Bedia died leaving behind a son Sahur Bedia before survey, Sahur Bedia also died leaving behind a son Chetlal Bedia. The land of Jitu Bedia recorded under Khata No.-13 in the name of Chetlal Bedia and one daughter of Chetlal Bedia are in possession over which these parties have no concerned. Ledo Bedia died leaving behind one son namely Megnath Bedia. During survey operation Jethu Bedia was Karta of his family and looked after the survey affairs and he got 19.96 acres of land recorded in his name under Khata No.17 of village Jabo, whereas, he got the area of 14.27 acres recorded in the name of Megnath Bedia under Khata No.-32 of village Jabo. Both Jethu Bedia and Megnath Bedia in spite of the separate record of right

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cultivated separate land in both khata Nos. 17 and 32 according to convenience without partition by metes and bounds. Jathu Bedia died after survey, leaving one son Megha Bedia, who came in possession also. Megnath Bedia died leaving behind 3 minor sons Doman Bedia, Barhan Bedia and Ramcharan Bedia and his wife Kewato Devi who inherited the interest of his father, the wife of Megnath Bedia Kewato Debi remarried with Megha Bedia son of Jethu Bedia as first wife of Megha Bedia had died earlier. Megha Bedia has 2 sons Ghuja Bedia and Bansi Bedia from his first wife and after marriage with Kewato Devi 3 sons born namely Tulsi Bedia, Munsi Bedia and Mahadeo Bedia were born from second wife Kewato Devi. Since Doman, Barhan and Ramcharan Bedia were minor so Megha Bedia took care of them and cultivated all the lands of Khata No.-17 and 32 jointly and when Doman and his two brothers attained majority he divides the lands of Khata no.-17 and 32 half and half between his 05 sons on one hand and three sons of Meghnath Bedia on the other hand and all remained in possession paid rent jointly and got rent receipts being granted in the name of Jethu Bedia and Megnath Bedia but rent are being paid half and half for both khatas by the plaintiff and his brothers defendant No. 1 to 13. They turned dishonest and started claiming 5 shares in land of both Khatas 17 and 32 from the year 1984 and tried to make some papers through panchayat although no such award was intended by panches but they admitted to create some papers in their favour which is void ab initio, and there was a proceeding before the Anchal Adhikari, Patratu, as Miscellaneous case no. 17/84-85 and after inquiry of Karamchari the Anchal Adhikari directed the parties to get the matter decided by Civil court and dropped the proceeding on 23.10.84.

The further case of the plaintiffs-appellants that after order of the Anchal Adhikari, the defendant again started claiming 5 share from both the khatas also started obstruction in proper cultivation of the land as such the plaintiff felt necessity to have the land partition by metes and bounds and demanded partition of the half share of the plaintiff and defendant Nos. 14 to 17, but the defendant Nos. 1 to 13 always put off the matter and lastly refused to make amicable partition in the month of April, 1993. The plaintiff and defendant

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Nos. 14 to 17 together have half share in the Land of Khata No.-17 fully described in Schedule-B of the plaint and Khata no.-32 fully described in Schedule -C of the plaint. The cause of action for the suit arose on 1989, and on 23.10.84 and lastly in the month of April 1993 when defendant refused to partition the share of the plaintiff in the above 2 Khatas and hence this suit.

6. The defendant Nos.-1 to 13 appeared, contested the suit by filling a common written statement. Defendant nos.14, 14(A), (B) and 15 also filed a separate written statement and excepted the claim of the plaintiff, and they do not contest the suit. Defendant Nos.-16 and 17 compromised the suit with the plaintiff and so a joint compromise petition has been filed.

7. Thus, the contest is between the plaintiff and defendant Nos.- 1 to 13. It is stated by the defendant Nos.-1 to 13 in their written statement that defendant No. 4, Riju Bedia died issueless on 26.4.79, whereas defendant Nos. 8, 9, 11,12, and 13 are minor and they have not been represented properly, the contesting defendants have also denied the unity of title and unity of possession between the contesting defendants in respect of the properties, according to the contesting defendant Sukhber Bedia had 2 sons namely Jethu Bedia and Ledo Bedia. Jethu Bedia was not son of Sukhber Bedia and hence the geological table given in schedule-A of the plaint is not correct. The defendants have given a separate genealogical table in Schedule-A and B of the written statement. It is further stated that plaintiff has only concerned with the Land of khata No.-13 and not with khata No. 17 and 32 of the village Jobo. The land of Khata No.-17 was recorded in the name of Jethu Bedia and the land of khata no. 32 was recorded in the name of Meghnath Bedia. The land of khata no.-13 of village Joba was recorded in the name of Chetlal Bedia. It is stated that Bikhman Bedia and Sabur Badia sons of Jithu Bedia were full brothers, Jitu Bedia was the son of Seba Bedia. Bekhman Bedia and Sabur Bedia left the village and went to Assam in search of Job, and before Last Cadestral Survey, Chetlal Bedia, son of Sabur Bedia was living in the village during survey operation and it because the land of Khata no. 13 was recorded in the name of Chetlal Bedia for an area

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measuring 10.81 acres of land. After survey operation both Bekhman Bedia and Sabur Bedia return to their village and a dispute arose in between the plaintiff and Birajo Devi, daughter of Chetlal Bedia for the settlement of the dispute, Birajo Devi took permission u/s-46 of C.N.T. Act vide case no. 231/81-82 to transfer some land in favour of the plaintiff. It is further stated that Megnath Bedia died issueless, and after his death entire land of Khata no.-32 fall into the share of Meghnath Bedia son of Jethu Bedia. The land of khata no.-17 was recorded in the name of Jethu Bedia and accordingly devolved upon his son Megha Bedia and his descendants after the death of Jethu Bedia, therefore, the land of khata nos. 17 and 32 are in cultivating possession of the defendants being descendents of the recorded tenants. As such neither the plaintiff nor the proforma defendant nos.14 to 17 have any title, right and interest over the said land, which are the subject of dispute in the present suit. It is stated by the contesting defendant that Kewato Devi was a widow of Bikhman Bedia and not Meghnath Bedia, and plaintiff is the son of Bikhman Bedia born from Kewato Devi. Bikhman Bedia had 3 sons namely Ramcharan Bedia (plaintiff), Doman Bedia and Barhan Bedia, Barhan Bedia was defendant no.14, Bigan Bedia son of Barhan Bedia also died during the pendency of the suit, he was defendant no.-15, defendant no.-16 and 17 are the sons of late Doman Bedia. The legal heirs of defendant no.-15 has been substituted in the suit, the marriage of Kewato Devi is admitted by the defendant the sons of Meghe Bedia from first wife and second wife was also admitted by the defendant, but contesting defendant denied that Ramcharan Bedia and his brothers were looked after by Meghe Bedia during their minority. This defendant have also denied the claim of the plaintiff the land of Khata no.-17 and 32 has been a divided half and half after attaining majority of Ramcharan Bedia and his brother, the fact is that the plaintiff, Barhan and Doman Bedia have no interest in khata no. 17 and 32 and hence the question of payment of rent, cultivation of land jointly, does not arise. The claim of the plaintiff is only with a view to grab the land of these defendants. Since the plaintiff and defendant no.-14 to 17 have no right and interest with respect to the land of Khata no.-17 and 32, the claim of partition by the plaintiff is not correct and therefore,

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in view of that matter the suit in fit to be dismissed with cost.

9. Mr. R.N. Sahay, learned senior counsel appearing for the appellants submits that the findings of both the learned courts are perverse on the ground that the plaintiffs claimed to be the descendents of Jethu Bedia, which is contrary to the pleading of the plaint that the plaintiffs claimed to be the descendants of Jethu Bediya. He submits that P.W.,-6, who is son of Bikhman Bedia, which is contrary to the evidence of the plaintiffs as there is specifically stated that Exhibit-C is the voter list, wherein, it has been disclosed that he is son of Bikhman Bedia is totally wrong. He further submits that Exhibit-C i.e. the voter list, the parentage of the plaintiffs has been proved at para-24 of his evidence, which is contrary to the records and perverse, as it appears from the evidence of the plaintiff P.W.-6, wherein he has specifically denied the name of the father, recorded as Bikhman Bedia, in the voter list. He further submits that a partition suit was filed, wherein the jointness is proved, the learned trial court as well as the learned appellate court was bound to issue the decree for partition amongst the parties. According to him, this is the substantial question of law and on this ground he submits that this appeal may kindly be admitted.

10. On the other hand, Mr. Ashok Kumar Sinha, learned counsel appearing for the respondents-defendants submits that the learned trial court as well as learned appellate court has given the cogent finding on all the grounds, on which, this second appeal has been argued on behalf of the appellants and there are concurrent findings of two fact finding courts, as such, this court may not interfere in the matter, considering the fact that no substantial question of law is involved in this second appeal.

11. 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. The learned trial court has framed seven issues and the issue No. 5 is with regard to has the plaintiff any right, title, interest or possession over the lands of khata No. 17 and 32 of village-Jobo P.S.-Patratu, and learned court after discussing the evidence adduced on behalf of the appellant as well as respondents as also the exhibits, have come to the conclusion that the plaintiffs have not

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been able to show the right, title and interest over the property in question and the partition was already made between the parties earlier and dismiss the suit.

12. The learned appellate court has affirmed the judgment of the learned trial court and the points of Mr. R.N. Sahay, learned counsel appearing for the appellants have been dealt with by the learned appellate court in para-12 of the judgment. The learned appellate court found that admittedly lands of khata Nos. 13, 17 and 32 were recorded in the name of Chetlal Bedia, Megnath Bedia and Jethu Bedia during survey and settlement operation, this fact goes to show that the there had already been a partition in the family and their respective shares had been allotted to different branches of the late Sukhber Bedia. The plaintiff claimed that the land of Khata No. 32 was cultivated by Megnath Bedia, the land of Khata No. 13 cultivated by Chetlal Bedia and land of Khata No. 17 being cultivated jointly by Jethu Bedia and Megnath Bedia half and half and considering on that, the learned appellate court has found that it also got corroboration that parties were cultivating the land separately since long time. The learned appellate court further hold that when the parties have been in possession of land exercising right of ownership over separate block of land for a long time, it can be presumed that those lands have already been divided and the right of the parties defined with regard to them in such manner preclude their being repartition. The learned appellate court further hold that the properties are not joint, as there is no unity of title and unity of possession over Schedule-B land between the parties concerned and in that view of the matter, the learned appellate court has been pleased to affirm the judgment of the learned trial court by dismissing the title appeal.

13. P.W.-6 is the plaintiff himself and his statement was found to be full of contradiction and there are discrepancies, so far his father is concerned. He has stated that in the voter list, the name of the father is Bikhman Bedia. These voter lists were marked as Exhibits-C and C/1 on the record and both the voter lists reveal that the name of the father of the plaintiff has been mentioned as Bikhman Bedia and that fact found corroboration from the pleading of the defendant that actually plaintiff is

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not the son of Megnath Bedia, as claimed, rather he is the son of Bikhman Bedia, who was the son of Jitu Bedia and said Jitu Bedia had no relation whatsoever with Sukhber Bedia. Both the disputed khatas belong to the heir of Sukhber Bedia and in the last cadastral survey operation, both khatas were recorded in the name of Megnath Bedia and Jethu Bedia respectively. The learned appellate court has further considered the rent receipt in respect of khata No. 32, in order to show the possession of that land and the rent receipts are Exhibit-1 series and recently granted in favour of appellants-plaintiffs, but plaintiff could not file rent receipt from the year 1953 to 1995 after vesting of the State. The court found that only to make out a case, the rent receipts have been obtained. The court further hold that the rent receipts issued by the State are not perfect proof of title, because they are issued without prejudice and it is merely a monetary transaction between a person and the State. On the other hand defendant Nos. 1 to 13 have also filed certain Government rent receipts, zamindari rent receipts, which are Exhibits-A series and Khatiyans Exhibit-D and D/2 and these khatiyans suggest that land of khata Nos. 13, 17 and 32 were recorded in the name of Chetlal Bedia, Jethu Bedia and Megnath Bedia respectively and the learned appellate court found that in this regard there is no dispute amongst the parties. Considering the aforesaid facts, the learned appellate court has affirmed the judgment of learned trial court.

14. 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 the points argued by Mr. R.N. Sahay, learned senior counsel appearing for the appellants has been dealt with effectively by the learned courts and also no substantial question of law is involved in this second appeal, accordingly, this second appeal is dismissed.

15. Pending I.A., if any, stands dismissed.

(Sanjay Kumar Dwivedi, J.) Amitesh/-