Jharkhand High Court
Dasrath Bind @ Tunu Bind vs Unknown on 19 January, 2023
1 Second Appeal No. 285 of 2005
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Second Appeal No. 285 of 2005
1. Dasrath Bind @ Tunu Bind
2. Butan Bind
Both sons of late Ramnath Bind, resident of village Nagawari (Garhwa
Town), P.S. & District- Garhwa ... Appellants
-Versus-
1(a). Shakuntala Vishwakarma, wife of Gupteshwar Vishwakarma and
daughter of Late Ramdas Vishwakarma
1(b). Sarita Vishwakarma, wife of Sunil Vishwakarma and daughter of late
Ramdas Vishwakarma
1(c). Usha Vishwakarma, wife of Sanjay Vishwakarma and daughter of late
Ramdas Vishwakarma
Respondent nos. 1(a) to 1(c) are residng of Village Nagwa, P.O., P.S. &
District- Garhwa
1(d). Pankaj Vishwakarma
1(e). Niraj Vishwakarma
1(f). Dhiraj Vishwakarma
Respondent nos. 1(d) to 1(f) are sons of late Asha Vishwakarma,
residing at Village Kumpri, P.O. Kumpri, P.S. Leshliganj, District-
Palamau
2. Shila Devi, wife of late Gobind Ram
3. Shankar Ram, son of Late Govind Ram
4. Bablu Kumar, son of late Govind Ram
Respondent nos. 2 to 4 are resident of village Kajari, P.O. Kajari, P.S.
Patan, District- Palamau
5. Mostt. Kawal Pasiya, w/o late Dharmjeet Bind
6. Binod Bind, son of late Dharmjeet Bind
7. Manoj Bind, son of late Dharmjeet Bind
8. Bhola Bind, son of late Dharmjeet Bind
9. Pachiya Devi (Abated vide order dated 10.08.2022)
10. Raj Kumari Devi, w/o Sri Indrasen Vishwakarma
All residents of village Nagawari (Garhwa Town), P.O., P.S. & District-
Garhwa ... Respondents
-----
CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
-----
For the Appellants : Mr. Kundan Kumar Ambastha, Advocate
For the Respondents : Mr. Sanjay Kumar Pandey, Advocate
-----
19/19.01.2023 Heard Mr. Kundan Kumar Ambastha, learned counsel for the
appellants and Mr. Sanjay Kumar Pandey, learned counsel for the
respondents.
2. This second appeal has been filed being aggrieved and dissatisfied
with the judgment and decree dated 28.06.2005 (decree signed on
16.07.2005) passed by the learned District Judge, Garhwa dismissing the
Title Appeal No.44/2003 and affirmed the judgment and decree dated
30.08.2003 (decree signed on 12.09.2003) passed by the learned Munsif,
Garhwa in Title Suit No.27/1996.
3. The Title Suit No.27/1996 was instituted by the appellants/plaintiffs
for declaration of title and possession and to declare the sale deed no.5730
dated 24.11.1961 as void. The said suit on contest was decided by the
learned trial court, whereby, the suit was dismissed. Being aggrieved with
that judgment, the appellants herein have preferred Title Appeal No.44 of
2003 and the said title appeal has also been dismissed vide judgment dated
28.06.2005 and the order of the learned trial court has been affirmed. Being
aggrieved with this judgment, the appellants have preferred this second
appeal.
4. The case of the plaintiff was that the suit land is situated in Khata
no.54, plot no.116 area 26 decimal and plot no.117 area 4 decimal in village
Nagwan, P.S. Garhwa which stands recorded as raiyati in the name of
Monhar Bind and Maheshwari Bind. Both of them were own brothers and
remained joint. During the course of jointness, Maheshwari Bind died
issueless leaving behind his only brother Monhar Bind. The entire area of 26
decimal and 4 decimal came in right, title and possession of Monhar Bind by
survivorship. After death of Monhar Bind, his two sons namely Bigan Bind
and Ram Nath Bind (plaintiffs) succeeded over the entire property and came
in actual right, title and possession of the suit land. Further case of the
plaintiffs was that late Monhar Bind or Maheshwari Bind had never
surrendered or abandoned the suit land during their life time. They had
been peacefully enjoying the right, title and possession over the same. The
defendant no.1 surreptitiously and cunningly got a forged and fabricated
sale deed executed in his name. On the basis of the forged sale deed, the
defendant started to claim the suit land without any legal basis. The
demand in the name of the vendor of the defendant was not opened due to
the reason that the plaintiffs had been coming in possession from the time
of their grandfather. The defendant no.1 got the rent assessed in his name
on the basis of illegal and invalid sale deed. When the matter came to the
knowledge of the plaintiffs, they took steps for cancellation of Jamabandi in
the name of the defendant no.1 which was subjudiced in the court of the
D.C.L.R., Garhwa. In the said cancellation of the Jamabandi, Misc. case
no.6/1993-94 has been registered in which the defendant has taken plea of
surrender of the land by the recorded tenant in favour of the ex-landlord
and subsequent settlement of the same in the name of Nand Keshwar Ram.
The settlement took place in the year 1946 through Hukumnama executed
by the ex-landlord. Defendant no.1 stated that he had purchased the suit
land from Nand Keshwar Ram vide registered sale deed dated 24.11.1961
for consideration of Rs.850/-.The land of khata no.54 plot no. 116 area 26
decimal and plot no.117 area 4 decimal of village Nagwan is the suit land.
Nand Keshwar Ram, vendor of the defendant, died leaving behind his son
(defendant no.2) who has been made party in this suit to avoid any
technical defect. The plaintiffs have stated that out of 30 decimal of suit
land in plot no.116 and 117, plaintiff nos.1 and 2 have sold 15 decimal of
land vide three sale deeds dated 23.08.1993 in the name of plaintiff no.3 to
5 and put them in actual right, title and possession of the suit land. The sale
deed executed by the plaintiffs are legal,genuine and valid. There was no
interference in the possession of the plaintiffs from any corner. On the basis
of the bogus and invalid sale deed, the defendant no.1 forcibly constructed
a house over plot no.116.covering an area of 3/4 decimal. Although village
Nagwan is situated in the Municipal area of Garhwa Town, defendant no.1
did not take permission from Municipality. On being interfered by the
plaintiffs on 12.09.1993 defendant no.1, threatened them of dire
consequences. The plaintiffs immediately filed a petition in the court of the
D.C.L.R. for cancellation of Jamabandi in the name of the defendant no.1.
Again on 06.04.1996, defendant no.1 started laying down foundation over
the remaining portion of plot no.116.covering an area of one decimal. The
plaintiff no.2 Ram Nath Bind filed a petition in the court of the S.D.M.,
Garhwa which was enquired into by the local police and a proceeding u/s
144 Cr.P.C. was drawn up and notice was served upon the defendant no.1.
In spite of prohibitory order, defendant no.1 violated the same and
continued his construction over one decimal of land in plot no.116. Plaintiff
no.2 Ram Nath Bind filed a petition in the court of the S.D.M., Garhwa for
taking action under Section 188 I.P.C. After police enquiry, the S.D.M. issued
show-cause notice on defendant no.1 for taking action under Section 188
I.P.C. and the matter is still pending. The defendant no.1 has been
encroaching upon the suit land by applying illegal force and terror. The
encroached portion of the suit land has been measured by one Sukhbir Pal,
a private Amin, who traced out the map at the spot and prepared the map
which is attached with the plaint. On 03.05.1996, the plaintiffs requested
the defendant no.1 to remove the construction from the raiyati land of the
plaintiffs, but the defendant became furious and extended the construction
of wall over plot no.116 and did not stop the construction. Illegal sale deed
executed by Nand Keshwar Ram in favour of defendant no.1 cast a cloud
over the right, title and possession of the plaintiffs. Therefore it was prayed
to declare the sale deed dated 24.11.1961 as null and void. Hence, the said
suit was filed. The prayer was also made in the said suit to demolish and
remove the illegal construction made by the defendant no.1 on the suit
land.
5. The defendant no.1 contested the suit and filed his written statement.
It was stated that the suit is not maintainable and the plaintiffs have got no
cause of action. The suit is barred by limitation and adverse possession. It
was stated that after the Cadastral Survey and Settlement Operation,
Maheshwari Bind died and Manohar Bind faced great trouble in residing in
the house, situated on the suit land. He was puzzled, thinking that such
land and house thereon not suitable for his family because of unfortunate
happenings. He left the house of the suit land and constructed another
house in the village on plot no.169. After the suit land and the house over
the same was abandoned, the old house had fallen down and Manohar Bind
did not cultivate the land for several years. Subsequently, Manohar Bind
orally surrendered the suit land to the ex-landlord, who took khas
possession of the same and made it his Bakast land. It is false to say that
Manohar Bind continued in actual right, title and possession over the suit
land. In fact, the suit land was surrendered by Manohar Bind and during his
life time, the same was taken in khas possession of the ex-landlord. Hence
there was no question of inheritance of the suit land by the plaintiffs. They
never acquired right, title and possession over the suit land at any time and
in any manner. The suit land was recorded as Rent Free land under khata
no.54. By arrangement between the landlord and tenant after the oral
surrender, the landlord continued to be in khas possession thereof till the
year 1946. On that date, the landlord settled the suit land by issuing
Hukumnama in favour of Nand Keshwar Ram and settled the suit land along
with other lands in favour of Nand Keshwar Ram. Since the time of said
settlement, Nand Keshwar Ram acquired absolute right, title and possession
over the suit land along with other lands settled to him by the ex-landlord in
the year 1946. Nand Keshwar Ram constructed his residential house over
the suit land and was residing in the same. He cultivated the suit land as his
Gharbari. Thereafter Nand Keshwar Ram transferred the suit land through
registered sale deed executed in the year 1961 in favour of the defendant
no.1 and put him in right, title and possession over the same. The said sale
deed is legal, valid and has been acted upon by the defendant no.1. The
transaction between Nand Keshwar Ram and defendant no.1 was within the
knowledge of everyone and since then, defendant no.1 had been exercising
him with absolute right, title and possession over the suit land. Transfer by
Nand Keshwar Ram in 1961, which was immediately after the vesting and
the defendant no.1 was recognized as tenant by the Revenue Authority
after due enquiry and verification. Rent of the suit land was assessed in the
name of the defendant no.1 and demand was opened in his name. The
plaintiffs had knowledge of the transfer of the suit land to the defendant
no.1 and they had also knowledge of settlement of the suit land by the ex-
landlord in favour of Nand Keshwar Ram. No objection was raised by the
plaintiffs or their ancestor against the tenancy of the defendant no 1. The
plaintiffs had been set up by one Sarju Prasad Vishwakarma, who had
obtained bogus sale deed from plaintiff no.1 and 2 in the name of his
daughter and daughter in-law. The case of cancellation of Jamabandi had
been decided against the plaintiffs and in favour of the defendant no.1.
After settlement of the suit land by the ex-landlord, Jamabandi was opened
in the Sirista of Zamindar and Return under Section 3 (b) of the Bihar Land
Reforms Act, 1950 showing Nand Keshwar Ram as raiyat with respect to the
suit land, was filed. Defendant no.2 is not a necessary party to the suit. The
sale deed executed by the plaintiff no.1 and 2 in favour of plaintiff nos. 3 to
5 is a bogus sale deed in order to create litigation against the defendant.
The defendant has house over the suit land since the day of his purchase.
Hence, the defendant has purchased house over the suit land and is
residing in the same with his family members. He has extended the old
house and constructed house therein. The holding has been recognized by
the Municipality and defendant no.1 is paying holding tax since 1972 within
the knowledge of the plaintiffs. On 06.04.1996, there was no new
foundation since the house has been standing since long over the suit land.
The proceeding under Section 144 Cr.P.C. has been decided against the
plaintiffs and they have been restrained from going over the suit land. The
matter for taking action under Section 188 I.P.C. has also been decided
against the plaintiffs. The measurement by a private Amin and preparation
of map has been denied by the defendants. It was also stated that the
plaintiffs have got no cause of action and the suit is fit to be dismissed.
6. Mr. Ambastha, learned counsel for the appellants submits that the
learned trial court as well as the appellate court has failed to consider about
not tracing of any document with regard to surrender and in that view of
the matter, he submits that this second appeal is fit to be admitted on
substantial question of law.
7. On the other hand, Mr. Pandey, learned counsel for the respondents
submits that the learned trial court as well as the appellate court has
elaborately dealt with the contention of the appellants/plaintiffs and
thereafter passed the judgments. He further submits that there is no
illegality in the judgments.
8. In view of the above submissions of the learned counsel for the
parties, the Court has gone through the judgments of the learned trial court
as well as the appellate court and finds that both the learned courts have
elaborately discussed the materials on the record, oral as well as
documentary. After discussing the entire materials, the learned appellate
court has framed 8 issues and while deciding issue nos. 4,5, 6 and 7, the
learned appellate court has held that Nand Keshwar Ram took settlement in
1946 and remained in possession over the suit land till 1961 when he sold
the same to the defendant no.1. The dispute arose in 1993 when the
plaintiff no.3 to 5 purchased the suit land from plaintiff no.1 and 2.
Therefore, the descendant of recorded tenant cannot challenge the title of
defendant no.1 and his vendor Nand Keshwar Ram after 47 years. The case
of the defendant no.1 was corroborated by oral and documentary evidence
on record. Ext.-F is Bandobasti Patta executed by ex-landlord in favour of
Nand Keshwar Ram in the year 1946. Ext.- G (series) are the Zamindari rent
receipts granted by the ex-landlord to Nand Keshwar Ram which go to show
that Jamabandi was created in the Revenue Sarista of ex-landlord in the
name of Nand Keshwar Ram, Ext.-H is sale deed of 1961 executed by Nand
Keshwar Ram in favour of the defendant no.1. Ext.-I is certified copy of
order passed by revenue authority in favour of the defendant no.1. Ext.-K is
sanction by Garhwa Municipality given to the defendant no.1 for
construction of his house. Ext.-J is the Return filed by the ex-landlord after
vesting in which Nand Keshwar Ram has been shown as raiyat of the suit
land and, thereafter, the learned appellate court has affirmed the judgment
passed by the learned trial court.
9. 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.
10. In view of the aforesaid facts, reasons and analysis, there are
concurrent findings of both the learned courts and there is no substantial
question of law involved in this second appeal.
11. Accordingly, this second appeal is dismissed.
(Sanjay Kumar Dwivedi, J.)
Ajay/
