Smt. Kunti Devi vs Unknown
2023 Latest Caselaw 483 Jhar

                                      1                Second Appeal No. 40 of 1992 (R)


      IN THE HIGH COURT OF JHARKHAND AT RANCHI
             Second Appeal No. 40 of 1992 (R)
1.    Smt. Kunti Devi, widow of late Jaimangal Tiwary (Deleted vide order dated
      11.07.1997)
2(i). Savitri Kuer, widow of Late Sugriev Tiwari @ Ram Surgiev Tiwary
2(ii). Arvind Kr. Tiwari, S/o Late Sugriev Tiwari @ Ram Surgiev Tiwary
        Both 2(i) and 2(ii) are resident of Pahari Khurd, Toppakote, Porgano,
      P.S. Lesliganj, Palamau
2(iii). Gayatri Pandey, W/o Ravi Tiwari, D/o Late Sugriev Tiwari @ Ram
      Sugriev Tiwary, R/o Rajwadih, P.O Rajwadih, Palamau
2(iv). Manju Mishra, w/o Shyam Narayan Mishra, D/o Late Sugriev Tiwari
      @ Ram Surgiev Tiwary, R/o Sudna, P.O. Medininagar, Daltonganj, P.S.
      Daltonganj, Palamau
2(v). Asha Tiwari, w/o Nandlal Tiwari, D/o Late Sugriev Tiwari @ Ram
      Sugriev Tiwary, R/o Pahari Khurd, Lesliganj, Palamau
3. Gobind Tiwary, son of late Jaimangal Tiwary, resident of village Pahari
      Khurd, Toppa Kote Pargana, P.S. Lesliganj, District- Palamu, No.3 at
      present residing at D.T. Quarter No.1504, H.E.C. Limited, P.O. Dhurwa,
      Ranchi-4
4. Sabitri Devi, wife of Sri Jamuna Tiwary and daughter of late Jaimangal
      Tiwary, resident of Baralota, P.S. Daltonganj, District Palamau
5. Niridah @ Hira Devi, wife of Bachan Upadhya and daughter of Late
      Jaimangal Tiwary, resident of village Kewalkeria, P.S. Lesliganj, District-
      Palamau, at present village Manika, P.S. Paton, P.O. Kishunpur, District-
      Palamau
6. Geeta Debi, widow of late Santosh @ Satendra Shukla, daughter of
      late Jaimangal Tiwary, resident of village Kawal Keria, P.S. Lesliganj,
      District- Palamau                                  ... Appellants
                                 -Versus-
1(i). Nagendra Tiwari, son of Sri Gopal Tiwary
1(ii). Mostt. Nivala Kuwar, daughter of Sri Gopal Tiwary
1(iii). Champa Devi, daughter of Sri Gopal Tiwary
2(i). Ragho Tiwari
2(ii). Rajmani Tiwari
2(iii)(a). Most. Urmila Devi, w/o late Surendra Tiwari
2(iii)(b). Deepak Tiwari, s/o late Surendra Tiwari
2(iii)(c). Dipa Devi, daughter of late Surendra Tiwari
2(iii)(d). Pratibha Devi, daughter of late Surendra Tiwari
3.(i). Vidyadhar Tiwari
3(ii). Braj Kishore Tiwari
3(iii). Nand Kishore Tiwari
       All sons of late Saraswati Devi, R/o Vill. Pahari Khurd, P.O. & P.S.
       Lesliganj, District- Palamau
3(iv). Baijanti Devi, w/o Anil Tiwari, d/o Late Saraswati Devi, R/o Village-
       Atola, P.S. Meral, District, Garwah
4(a). Malti Devi, w/o Ram Nath Dubey
4(b). Prabhawati Devi
4(c). Laxmi Devi
4(d). Kanti Devi
4(e). Upender Tiwari @ Paras Nath Tiwari
                                                    2             Second Appeal No. 40 of 1992 (R)


            4(f). Suresh Kr. Tiwari
            4(g). Sushila Devi
            5(a). Sunil Tiwari
            5(b). Sanjay Tiwari
                 Both sons of Late Balram Tiwari, resident of village Pahari Khurd, P.O.
                 & P.S. Lesliganj, District- Palamau
            5(c). Sakola Devi, w/o Murli Tiwari, resident of village Sinduria, PO. & P.S.
                 Satbarwa, District- Palamu
            5(d). Gulab Devi, w/o Pradeep Dubey, daughter of Balram Tiwari, resident
                 of village Gopalpur, P.O. Harigawan, P.S. Garhwa, District- Garhwa
            5(e). Chinta Kuer, w/o Late Satendra Pandey, daughter of Balram Tiwary,
                 resident of village Pandeypura, P.O. Kishunpur, P.S. Patan, District-
                 Palamu
            5(f). Rita Devi, wife of Bhola Dubey, daughter of Balram Tiwari, Resident of
                 village Pathrahi, P.O. & P.S. Lesliganj, District- Palamu
            6. Ramlal Tiwary, son of Rampyari Tiwari, since now attained majority,
                 resident of village Pahari Khurd, P.S. Lesliganj, District- Palamau
            7. Brahmeshwar Tiwari
            8. Narbadeshwar Tiwary
            9. Brajeshwar Tiwary
                 Nos. 8 and 9 having since attained majority, Respondent nos. 7 to 9
                 sons of late Sarju Prasad Tripathi, resident of village Paharikhurd, P.O.
                 Dhangaon, P.S. Lesliganj, District- Palamau
            10. Amrawati Devi, wife of Kamla Kant Tiwary, resident of village Jamudih,
                 P.S. Jamudih, P.S. Lesliganj, District- Palamau
            11. Rohini Devi, wife of Satya Pandey, village Rajwadih, P.S. Daltongaj,
                 District- Palamau
            12. Kamni Devi, wife of Ashok Tiwary, resident of village Harnama, P.O.
                 Harnama, P.S. Chainpur, District- Palamau
                 All daughters of late Sarju Prasad Tripathi, Nos. 10 to 12 previously
                 minors but having since attained majority and been married.
                 Respondent Nos. 1 to 6 residents of village Pahari Khurd, P.S.
                 Lesliganj, District- Palamau
            13. Deopati Kunwar, widow of late Ram Bachan @ Ram Briksh Dubey
            14. Dinesh Dubey, son of late Ram Bachan @ Dubey
            15. Sushila Devi, daughter of late Ram Bachan @ Ram Briksh Dubey, wife
                 of Gangeshri Pandey, resident of village Dendar, P.S. Panki, P.O.
                 Konwar, District- Palamau
            16. Jagdish Dubey, son of late Bimal Dhari Dubey @ Man Kuer,
                 respondent nos. 13, 14 and 16, residents of village Ambabar, P.S.
                 Panki, P.O. Ambabar, District- Palamau                ... Respondents
                                           -----

            CORAM:      HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
                                           -----
            For the Appellants        : Mr. Akashdeep, Advocate
            For the Respondents       : Mr. K.K. Ambastha, Advocate
                                           -----

51/30.01.2023    Heard Mr. Akashdeep, learned counsel for the appellants and Mr. K.K.

            Ambastha, learned counsel for the respondents.

2. This second appeal has been filed being aggrieved and dissatisfied

with the judgment dated 10.04.1992 and decree signed on 20.04.1992 by

the learned 2nd Additional District Judge, Palamau at Daltonganj in Title

Appeal No.24 of 1969 dismissing the same and thereby confirming the

judgment and decree dated 29.09.1969 passed by the then learned Munsif

at Palamau in Title Suit No.49 of 1964.

3. The plaintiffs/respondents instituted Title Suit no.49 of 1964 in the

court of the learned Munsif, Palamau for obtaining a relief of declaration of

title and recovery of possession after having been defeated in an inter-

parties proceeding under Section 145 of the Code of Criminal Procedure,

with respect to the suit lands.

4. The plaintiffs/respondents claimed title to the suit lands by reason of

a registered sale deed dated 22.01.1960 said to be executed by one Moti

Kuer for a sum of Rs.2,000/-. Apart from the said Moti Kuer, the said sale

deed dated 22.01.1960 was also executed by Baijnath and Biswanath

Tiwary, sons of the daughter of Rajwanti Kuer as Moti Kuer had earlier

executed a registered Kewala dated 25.05.1948 in favour of Baijnath and

Biswanath Tiwary, but the said earlier Kewala was alleged to have remained

inoperative and accordingly the entire consideration was paid only to Moti

Kuer, who alone was in possession on the day of vesting and rent had been

assessed in her name. M form is also executed in the name of Moti Kuer.

The plaintiff-respondents traced title with Moti Kuer in the manner that one

Bhagwat Tiwary was the original owners of the lands. The said Bhagwat

Tiwary had four sons, namely, Harihar Tiwary, Kanhai Tiwary, Kameshwar

Tiwary and Deoki Tiwary and also a daughter named Moti Kuer. All the said

four sons are said to have died issueless. Kameshwar Tiwary had never

however a widow named Rajwanti Kuer, who alone succeeded on the death

of Bhagwat Tiwary and remained in possession till 1945 till she died and on

her death Moti Kuer succeeded as a female reversioner.

5. The defendants/appellants contested the said suit by filing a written

statement, mainly contending that the plaintiffs/respondents had neither

title nor had any possession ever on the suit lands, the suit lands were

never in Khas possession of Moti Kuer at the date of vesting under the Bihar

Land Reforms Act. The defendant/appellant's predecessor-in-interest were

all along in possession, previously as Bataidars of Moti Kuer and later as

purchaser from one Ayodhya Tiwary, son of Kailash Kuer, another daughter

of Bhagwat Tiwary, by terms of a registered deed of sale dated 06.06.1961

and since then they have been in possession of the suit lands in their own

rights.

6. On the basis of the above pleadings, the learned trial court at

paragraph 6 of the judgment, has framed 8 issues to be decided. The

learned trial court vide judgment dated 29.09.1969 decreed the suit

answering all the issues in favour of the plaintiffs/respondents and against

the defendants/appellants. Being aggrieved with that judgment, the

defendants/respondents preferred Title Appeal 24 of 1969, which was

dismissed on 26.06.1973. The defendant/appellant thereupon preferred

second appeal bearing S.A. No. 5 of 1978(R) which was allowed and

remanded vide judgment dated 20.4.1976. On remand, the Title Appeal was

allowed by terms of judgment and order dated 02.09.1977 and the

judgment passed by the learned Munsif, Palamau was set-aside. Thereafter,

the plaintiffs/respondents preferred a second appeal before this Court

bearing S.A. No. 203 of 1977(R), which was allowed and remanded by

terms of judgment and order dated 16.01.1989. On remand, the learned

appellate court has affirmed the judgment passed by the learned trial court

vide judgment dated 10.04.1992. Being aggrieved with said affirmation, this

second appeal has been filed.

7. This second appeal was admitted on 02.11.1992 on the following

substantial questions of law:

"(i) Whether the learned courts below have gravely erred in law in not at all considering that the plaintiff-respondents case regarding acquisition of title to the suit properties as pleaded in paragraph 3 of the plaint which was completely demolished by the recitals in their own sale deed dated 21.01.1960 (Ext.3) and whether the learned lower appellate court has committed a grave error of record in not noticing that no part of the sale consideration was paid to Moti Kuer under Ext.3 and the entire consideration of Rs.2,000/- paid thereunder Exhibit 3 to Bishwanath Tiwary and Baijnath Tiwary only who were not even impleaded as parties to the suit and accordingly the finding of the learned lower appellate court on the questions of acquisition of title by the plaintiff is patently perverse and unsustainable in law?

(ii) Whether the finding of the learned lower appellate court regarding the plaintiff-respondent's title being mainly based on the observations of Hon'ble Mr. Justice S.N. Sinha in paragraph (11) and 12 of the Judgment dated 16.01.1989 in Second Appeal no.203 of 1977(R) which were themselves contrary to the contents and recitals of Exhibit-3 being thus a clear case of error of record was open for fresh consideration in view of the open remand order passed in the aforesaid second appeal?

(iii) Whether the learned courts below have gravely erred in not applying the doctrine of estoppel by deed against the plaintiff-respondents as they being persons claiming under or through Moti Kuer were bound by the recitals of the sale

deed dated 22.05.1948 Exhibit C/2 and that dated 22.01.1960 (Ext.3) admittedly executed by Moti Kuer and two others respectively?"

8. Mr. Akashdeep, learned counsel for the appellants submits that the

learned appellate court has wrongly considered the documents and come to

the conclusion that the defendants' documents are helpful in proving the

story of Adhabatai settlement with defendant nos. 3 and 5. He further

submits that the learned appellate court not only Ext.-C/2 but also the deed

of Adhabatai settlement executed if any by Moti Kuer was not acted upon,

has not been considered in right perspective. He also submits that right,

title and interest passed on to the plaintiffs through the sale deed (Ext.3)

was also not correctly interpreted by the learned appellate court. He

submits that compromise entered into between the plaintiffs and defendant

nos. 1, 3 and 4 is final and irreparable as regards half of the suit properties

is concerned, that finding of the learned appellate court is erroneous. He

further submits that in view of the compromise, the learned appellate court

held that the defendants did not derive any right, title and interest in the

suit property, the compromise becomes redundant. He further submits that

consideration amount as has been held by the learned appellate court was

paid for transaction, which is not correct. He further submits that on the

remand by the High Court, all points have not been decided by the learned

appellate court. On these grounds, he submits that the law points framed

by this Court may kindly be answered in favour of the appellants/

defendants.

9. On the other hand, Mr. Ambastha, learned counsel for the

respondents submits that compromise petition was filed and some of the

defendants filed objection and the learned court entered into the enquiry,

found that the compromise was lawful compromise and passed the order in

the year 1969. He further submits that D.W.10 has stated before the

learned trial court that no document with regard to Bataidar was produced

by the appellants/defendants. He also submits that with regard to transfer

of the sale deed by Ayodhya Tiwary on the same plot in favour of the

appellants, that finding has not come in the finding of the learned trial court

as well as appellate court. He further submits that the learned appellate

court on remand by the High Court vide judgment dated 10.04.1992, at

paragraphs 9 to 25, has discussed all issues. He further submits that in view

of Section 48 of the Transfer of Property Act, first sale deed will prevail and

subsequent sale deed will void ab initio. On these grounds, he submits that

in such a situation, there is no substantial question of law.

10. In view of the above facts and submissions of the learned counsel for

the parties, it appears that admittedly the suit was filed in the year 1964

itself, which was decided vide judgment dated 29.09.1969 and the title

appeal was decided on 26.06.1973 and thereafter twice the matter was

remanded by the High Court to the learned appellate court to decide afresh

and once the appeal was allowed and pursuant to that this second appeal

has been filed and last second appeal, which was remanded, that was

dismissed and both the learned courts have concurrently held that the

plaintiffs are having right, title ad interest in the suit property. While

remanding the matter to the learned appellate court, this Court vide

judgment dated 16.01.1989 in S.A. No. 203 of 1977(R) has held in

paragraph 11 of that judgment that Biswanath Tiwary and Baijnath Tiwary

received the amount of consideration as stipulated in the deed of sale dated

22.01.1960 and it has also been observed that Moti Kuer has also received

the consideration amount and against that finding of the High Court, no

S.L.P. was preferred by the appellants and in view of this fact, that finding

has attained finality. The learned appellate court on remand, has considered

the statement of D.W.11- Jai Mangal Tewari, who has admitted in his

evidence that assessment of rent was made in the name of Moti Kuer and

demand was opened in her name. Ext.6 is the certified copy of M form and

Ext.7 is the certified copy of Register II which support the fact of

assessment and opening of demand in the name of Moti Kuer and

considering these documents, the learned appellate court has come to the

conclusion that this has completely negatived the story of Adhbatai

settlement in favour of Jaimangal Tewari. The learned appellate court has

also come to the conclusion that had Jaimangal Tewari been in possession

of the lands as Adhbataidar, he would have objected to the assessment of

rent and opening of demand in the name of Moti Kuer. Ext. C/2 suggests

that Moti Kuer has been still assessed to rent. Ext. F is the certified copy of

Panchayati Faisla filed on behalf of the defendants to show that there was

Section 145 of the Code of Criminal Procedure proceeding between Sarju

Tewari and others on the one hand and Awadh Bihari and others on the

other hand in the year 1958-59 and in the said proceeding certain lands of

Bhagawat Tewari were also involved. The learned appellate court has come

to the conclusion that Ext. F shows that the Panches found certain land in

possession of Jaimangal Tewari and Sarju Tewari also and the learned lower

trial court has rightly observed that the defendants could not be allowed to

make a capital out of that because this document was inadmissible in

evidence in view of the fact that neither the plaintiffs nor Moti Kuer were

parties to the said proceeding. At paragraph no.12, the learned appellate

court has further discussed oral evidences and documentary evidence

adduced on behalf of the parties. The learned appellate court has further

considered recitals in the sale deed (Ext.3) and found that according to the

recitals in the sale deed Moti Kuer simply joined in the sale deed as her

name continued in the office of the State of Bihar, whereas according to the

case of the plaintiffs in the plaint, Baijnath Tewari and Bishwanath Tewari

were made co-executants because of earlier sale-deed ( Ext. C/2) in their

favour. The learned appellate court has come to the conclusion that in spite

of execution of sale deed (Ext. C/2) in favour of Baijnath Tewari and

Bishwanath Tewari, Moti Kuer continued in possession of the lands and they

were made to join as co-executant in the sale-deed (Ext. 3) only as a

matter of abundant precaution by the plaintiffs and considering the

observation of the High Court in earlier round of litigation that Moti Kuer

also received the consideration, the learned appellate court held that it can

safely be the held that right, title and interest passed on to the plaintiffs

through the sale deed(Ext. 3) and thereafter the learned appellate court has

affirmed the judgment of the learned trial court discussing the oral

documents and exhibits. There are concurrent finding on the point of the

sale deed as well as possession. The consideration amount received was

affirmed by the High Court at paragraph 11 of the judgment dated

16.01.1989 in S.A. No.203 of 1977(R), which was not challenged by the

appellant in higher court.

11. In view of the above facts, the learned court and the learned trial

court given due consideration of the case of the parties and law points

framed on the point of exhibits, has been discussed rightly and in that view

of the matter, the law points framed is answered accordingly. There are

concurrent findings of the court, which is not required to be reversed by this

Court sitting under Section 100 of the Code of Civil Procedure.

12. Accordingly, this second appeal stands dismissed.

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

(Sanjay Kumar Dwivedi, J.) Ajay/