Abdul Mannan vs Nurul Huda
2023 Latest Caselaw 309 Jhar

        IN     THE HIGH COURT OF JHARKHAND AT RANCHI
                             S.A. No. 128 of 2012
        1. Abdul Mannan
        2. Hannan Sk.
        3. Firoj Sk. @ Saptu Sk.
        4(a) Nargisa Bibi
        4(b) Rajia Bibi
        4(c) Dolena Bibi
        4(d) Sultan Thanedar
        5. Nasima Bibi
        6. Norjahan Bibi
        7. Golenur Bibi @ Rebika
        8(a) Musabbir Hussain
        8(b) Firdos Bibi
        9. Hasibur Rahman
        10. Habibur Rahman
        11. Idema Bibi
        12. Muslema Bibi
        13. Mujrameen Bibi
        14. Mujefa Bibi
        15. Majeda Bibi
        16. Rashida Khatoon
        17. Norjem Sk.
        18. Sojam Sk.                           ..... ... Appellants
                                    Versus
        1. Nurul Huda
        2. Enamul Huda
        3. Md. Aktar Jaman
        4. Md. Badrudoja
        5. Mst. Saban Bibi
        6. Rahida Khatun
        7. Ansar Sk.
        8. Nur Amin
        9. Maju Bibi
        10. Kamala Bibi
        11. Nespati Bibi
        12. Badna Bibi
        13. Saju Bibi
        14. Ajeba Bibi
        15. Arman Sk.
        16. Matin Sk.
        17. Atiur Sk.
        18. Nazabor Sk.
        19. Altafur Sk.
        20. Latifur Sk.
        21. Khadiza Bibi
        22. Rajoba Bibi
        23. Nosiba Bibi
        24. Hasiba Bibi
        25. Manauwara Bibi                      ..... ...     Respondents
                                --------

CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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        For the Appellants         :     Mr. Ayush Aditya, Advocate.
        For the Respondents       :      Mr. Birendra Kumar, Advocate.
                                   :     Mr. Md. Asadul Haque, Advocate.
                                ------
08/ 18.01.2023      Heard Mr. Ayush Aditya, learned counsel appearing for the

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

2. This second appeal has been filed being aggrieved and dissatisfied with the judgment dated 18.07.2012 and the decree following thereupon signed on 24.07.2012, passed in Title Appeal No. 07 of 2007, by the learned District Judge-I, Pakur, dismissing the said appeal and thereby confirming the judgment dated 03.06.2007 and the decree signed on 10.07.2007, passed in Title Suit No. 40 of 1993, by the learned Sub- ordinate Judge-I, Pakur.

3. The Title Suit No. 40 of 1993 was instituted by the respondent-plaintiff for declaration that the plaintiffs and proforma defendant have got their complete right, title and interest in the suit property and further declaration that the registered deed of Hiba-Bil-Ewaz No. 573 of 1945 is legal and valid and the defendant 1st party, 2nd party and 3rd party have no right, title or interest in the suit land and that any subsequent deed or document if created is / are illegal, void and ineffective and for recovery of possession and cost of the suit. The said suit, on contest, was decided and the defendants were directed to restore the possession of the suit lands to the plaintiffs within two months from this order, failing which, the plaintiffs have liberty to get the decree executed through the process of the court.

4. The plaintiffs case in brief is that Legaran Bibi pre-deceased, Meharjan Bibi and thereafter Meharjan Bibi succeeded her share in above mentioned land and her properties came under her exclusive possession and ownership. Meharjan Bibi executed on Hiba-Wil-Ewaj in favour of Meraj Hussain on 16.05.1945 and it was registered on 05.07.1945 bearing Deed No. 573 of 1945 and by virtue of said deed Meraj Hussain acquired the suit property and came in actual possession of the same immediately after execution of said deed and after her death the plaintiff and proforma defendants occupied the land in dispute peacefully without any objection from any corner. Miraj Hussain died in year 1985.. It is further case of the plaintiffs that Miraj Hussain generally resided in village-Aatgram, P.S.- Nalhatti and often used to take help of uncle Hamjad Sk. and Gurjar Sk. for cultivating and harvesting the land in dispute. Occasionally he use to stay at village Salla, P.S. Pakuria during season. After death of Miraj Hussain in 1985, plaintiff No. 1 Nurul Hoda for him and on behalf of co- sharers cultivated the suit land during year 1986 to 1988. In 1989 Hamjad Sk. died and after his death in 1990, the defendants first set dispossess the

plaintiffs and proforma defendants from the suit land on false claim without any right, title or interest.

5. The contesting defendants have stated in their written statement that the said Hiwa-Wil-Ewaj 573 of 1945 is illegal document, invalid and inoperative in the law. they have also stated that the said Meharjan Bibi had cancelled deed no. 573 of 1945 by a registered cancellation deed dated 04.07.1949. They have also stated that the deed No. 573 of 1945 was obtained by playing fraud on Meharjan Bibi. They have stated that being successor and by inheritance, they have come in possession of land in dispute and the statement of plaintiffs for possession of it since 1945 is false and concocted story.

6. Mr. Ayush Aditya, learned counsel appearing for the appellants submits that it is an admitted fact that the suit property was recorded in the name of seven persons and only Meharjan Bibi has executed the Heba-Bil-Ewaz and without formulating the question of law, the learned trial court has decided the suit, which was affirmed by the learned appellate court, without framing the substantial question on that point. In that view of the matter, there is requirement to frame the substantial question of law in the second appeal and to buttress his argument he relied in the case of Somakka (Dead) by Lrs. Versus K.P. Basavaraj (Dead) by Lrs., reported in (2022) 8 SCC 261.

7. By way of relying the aforesaid judgment, learned counsel appearing for the appellants submits that the spirit of Section 96 of the CPC as well as Order-41 Rule-31 has been considered therein and by way of referring several earlier judgments of Hon'ble Supreme Court, it has been held that the appellate court is the final fact finding court and the learned appellate court is required to answer all the issues in the judgment. He submits that in that view of the above, this second appeal may kindly be admitted.

8. On the other hand, Mr. Birendra Kumar, learned counsel appearing for the contesting respondents submits that the learned trial court has framed the issue and considering the law laid down and also the Mohemmadan Law and has rightly passed the judgment and there is no illegality in that. He draws the attention of para-42 of the trial court judgment and submits that the learned trial court has found specific finding that the Meharjan Bibi has only given her share and interest. He further submits that Articles 167 and 168 of the Mohammandan Law has also been considered by the learned trial court in para-39 of the judgment.

He further submits that there is no illegality in the judgment of the learned trial court. He draws the attention of the judgment of the learned appellate court and submits that the learned appellate court has formulated the point at para-7 of the said judgment and thereafter has answered that point in para-8 of the said judgment and has rightly considered that in Mohammadan Law, there is no presumption of jointness of properties. On these grounds, learned counsel appearing for the contesting respondents submits that there is no substantial question of law involved in the case in hand.

9. In view of the above submissions of learned counsel appearing for the parties and upon going through the materials as well as the judgments of the learned trial court as well as learned appellate court, the court finds that the learned trial court has considered Articles 167 and 168 of the Mohammandan Law. Learned trial court has also considered the Heba-Bil-Ewaz and looking into that he has come to the conclusion that the execution of the gift deed, there was partition between the recorded tenants and Meharjan Bibi has gifted her own share and interest. The learned appellate court has formulated the point 'whether Miraj Hussain acquired right, title and got possession of the suit land by Heba- bil-ewaz No. 573 of 1945', which has been dealt with in para-8 and thereafter has rightly come to the conclusion that every person has a described area of land in his share and thereafter has confirmed the judgment of learned trial court.

10. Thus, there is no illegality in the judgment of the learned trial court and the learned appellate court as well. So far as judgment relied by Mr. Ayush Aditya, learned counsel appearing for the appellants in the case of Somakka (Dead) by Lrs.(Supra), is not in dispute as it is well settled proposition of law and in the case in hand, the learned trial court as well as the learned appellate court has dealt with every aspect of the matter and after adjudicating the issues and points, they have decided the case, as such the aforesaid judgment is not helping the appellants.

11. It is well settled that indiscriminate and frequent interference under Section 100 of the Code in cases, which was totally devoid of any substantial question of law, is not only against the legislative intention, but is also the main cause of huge pendency of second appeals leading to colossal delay in administration of justice.

12. In view of the above facts, reasons and analysis, this second appeal is dismissed.

(Sanjay Kumar Dwivedi, J.) Amitesh/-