Karim Khan vs Bibi Samna Khatoon
2023 Latest Caselaw 999 Jhar

                                        1

        IN THE HIGH COURT OF JHARKHAND AT RANCHI
                       S.A. No. 200 of 2012

        1. Karim Khan
        2. Sharir Arra Begum
        3. Bhagjogni Bibi


                                 ......Appellants/Respondents/Defendants
                           Versus
       1.   Bibi Samna Khatoon,
       2.   Zarita Khatoon
      3.    Quazi Sayed Matiur Rehman
      4.    Quazi Sayed
                                       ........Proforma Respondents
                   ---------

CORAM:      HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
                          ---------
For the Appellants         : Mr. Kundan Kumar Ambastha, Advocate
                             Md. Zafar Alam, Advocate
For the Respondent No.1 :Mr. Sudhir Kr. Sharma, Advocate


14/Dated: 01/03/2023

Heard Mr. Kundan Kumar Ambastha, learned counsel for the appellants

and Mr. Sudhir Kr. Sharma, learned counsel for the respondent no. 1.

2. Though, the second appeal has not been admitted as yet however, Mr.

Sudhir Kr. Sharma, learned counsel appeared on behalf of the respondent no. 1 suo

motu.

3. This second appeal has been filed being aggrieved and dissatisfied with

judgment dated 10th September, 2012 (decree signed on 28.09.12) passed by the

learned Principal District Judge, Chatra in Title Appeal No. 20 of 2011 whereby the

learned trial court has been pleased to allow the appeal preferred by the

respondent/plaintiff against the judgment dated 29.08.2011 (decree signed on

12.09.2011) passed by the learned Munsif, Chatra in Title Suit No. 06/2003 whereby

the suit of the plaintiffs and counter claim of the defendant no. 4 has been dismissed.

4. Title Suit No. 06 of 2003 was instituted by the respondent/plaintiff for

declaration of right, title and confirmation of possession over the suit land described

in schedule A of the plaint. Further prayer was made for permanent injunction, cost of

the suit and any other relief.

5. Defendant nos. 4 to 6 have counter claim the suit land and they have

brought suit for declaration of right, title, interest of defendant nos. 4 to 5 as well as

for delivery of possession over the suit land, cost of the suit and any other relied.

6. The learned trial court after framing of the issues and considering the

argument has been pleased to dismiss the suit vide judgment dated 29.08.2011.

Aggrieved with that respondent/plaintiff preferred title appeal which was numbered

as Title Appeal No. 20 of 2011 and vide judgement dated 10.09.2012 the said appeal

was allowed by the learned Principal District Judge, Chatra. Aggrieved with that the

appellant/defendant nos. 1 to 3 have filed the present second appeal.

7. The fact of the suit as dictated in judgments of the courts is that grand

mother of plaintiff namely, Bibi Saibun acquired 24 decimals of land under plot no.

49, khata no. 165 under Bihar Privilege Persons Homestead Tenancy Act in PUrcha

Case No. 51/74-75 situated at village Ghorighat P.S. Pratapur District Chatra described

in Schedule A. Grandmother came in possession mutated their name, got rent

receipt. She constructed house, shop towards road side in eastern portion for

residential and erected boundary wall. After death of son and husband of Saibun

plaintiff was living with grandmother Bibi Saibun rendered services. She having no

other legal heirs and successor. After death of Bibi Saibun plaintiff came and remain in

possession over schedule-A land. Again she got purcha for the same land vide

purcha Case No. 03/93-94, as such plaintiff came in possession over Schedule A land.

Her name was mutated she is getting rent receipt.

It is further case of the plaintiff that grand mother out of her free will

executed a gift deed in favour of plaintiff on 13.05.1983. Land of plot no. 496, khata

no. 165 area 24 decimals of village Ghorighat P.S. Pratappur, District Chatra and

plaintiff came in possession with its boundary which was previously bounded as North

Mahadeo Sao, South Bari, East Road, West Dhankhet, thereafter land of Faiju Rahman

and boundary as Eastern side of plot no. 496 and present boundary North Jagarnath

Sao, South Road, East Harshnat Babu, West Jagarnath Halwai of Plot No. 496 khata

no. 165 and during lapse of time alleged road which was situated towards Eastern

side turned towards South of plot no. 496 and on which grand mother has right, title

and possession. Boundary of gift deed no. 2576 dated 13.05.1983 was wrongly

scribed due to mistake of scriber is schedule B of the plaint.

It is further alleged that plaintiff sold eastern portion of plot no. 496 out of

gifted land to defendant no. 1 to 6 by three registered sale deed dated 22.09.1989

which she got from Bibi Saibun by registered gift deed which Bibi Saibun inherited the

same from her husband with certain boundary as described in schedule B of the

plaint.

The plaintiff being an illiterate lady, not knowing about the wrongly affair,

believe in defendant no.1 to 3 who taking benefit of illiteracy, fraudulently scribed plot

no. 49 in place of 496 along with wrong boundary given in the aforesaid deed. In

place of boundary of Schedule-C or of plot no. 496 the scriber and witnesses and

identifier of aforesaid deed dated 22.09.1989 were the person of defendant no. 1 to 3

committed fraud by defendant no. 1 to 3. As also apparent from perusal of gift deed

dated 13.05.1983 in which plot no. 496 was gifted by said Bibi Saibun. Plaintiff was

only entitled to execute sale deed out of gift property dated 13.05.1983. She was not

right to sale plot no. 49 which was given to her under Bihar Privilege Person Home

Stead Tenancy Act as such sale deed dated 2.09.1989 is void and illegal.

On the basis of fraudulent act committed by defendant no.1 to 3

threatened on 21.01.2003 to dispossess plaintiff from 12 decimal of land and house

towards the North and East side, which was acquired property of plaintiff under

Privilege Perons Homestead Tenancy Act, which is part of Schedule A land. Plaintiff

having right, title possession over Schedule A land obtained by Purcha. Defendant

having no right title and possession over the schedule A property on the basis of sale

deed dated 22.09.1989. It is further alleged that on 06.01.2003 defendant no. 1 to 3

came to dispossess plaintiff from schedule A property. But on the intervention of

villagers they could not succeeded. Again they are threatening to plaintiff to

dispossess from schedule A property.

That the cause of action arose on 21.01.2003 and 06.01.2003. On the

basis of pleading prayed for declaration of title and injunction etc.

8. The defendant no. 1 to 3 filed a separate written statement and

defendant nos. 4 to 6 filed their counter claim.

It is asserted by defendant first party that plaintiff has no cause of

action. Suit is barred by waiver, estoppel and acquiescence, mis-joinder and non

joinder. Bad for multifarious of cause of action. Suit property has been under valued.

No proper court fee has been paid.

It is further asserted that as a matter of fact plaintiff not only want

declaration of title, but recovery of possession. Further it is asserted that as a matter

of fact Seikh Abdul Hakim had never owned came in possession on portion over plot

no. 496. As a matter of fact Abdul Hakim grandfather of plaintiff owned and

possessed plot no. 49, under khata no. 165, situated at village Ghorighat, Thana No.

142, Khewat 210, Tauzi No. 158. After vesting the estate ex-landlord submitted rent in

the name of Raiyat as well as in the name of persons in whose possession different

land of different plot of said village were in possession and said return is submitted

under compensation case no. 131/61-62. Plot No. 49 having a large area was in

possession of different persons including under raiyat under direct possession of

Kazi Abdul Faizul Rahman. From the copy of return it would appear that grand father

of plaintiff owned and posses land of plot no. 49, 15 decimals. The story propounded

by plaintiff that by registered sale deed dated 24.04.1956 Abdul Hamid came in

possession on plot no. 496 is incorrect. The description of boundary of gift deed is

same as deed of 24.04.1956 in which boundary of plot no. 49 is there not with

respect of plot no. 496. The description of boundary of deed gift dated 13.05.1983 is

with respect of plot no. 49 not in respect of plot no. 496. Plot No. 496 having total

area of 2.31 acres came in the possession of different raiyat. At present plot no. 496

is in possession of 20 persons. The details of which given at Annexure-B of written

statement. Several persons namely, Arjun Pd. Gupta, Sattar Khalifa, Jaggarnath Sao,

Rambriksh Sao, Lakhan Sao, Arjun Sao, Jaibun Nisha, Nasib Ahmad, Sheodhari Mahto,

Nehal Ahmad are residing there by making house as well as running shop in their said

portion. Raiyat whose names have been described in serial no. 11 to 20 they have

after purchase of the portion of plot no. 496 have almost bounded by erecting wall.

Sketch map is annexure-3. Entire plot no. 496 is just adjacent north to the road,

which is a main road for all purposes going from Pratappur to Ghorighat. Further it is

asserted that plaintiff announce for sale in respect of portion of plot no. 49. These

defendants paid consideration amount of plot no. 49 over which construction were

standing. Actually land measuring 12 decimal of plot no. 49 under specific boundary

were sold by plaintiff executed sale deed. Her husband were present for all purposes

and identifying her before registering authority. So both party participated in

negotiation in respect of transfer of portion of plot no. 49. After purchase defendant

no. 1 to 3 applied for mutation and after spot verification and finding possession

defendant no. 1 to 3 have been mutated and getting rent receipt.

In the eastern boundary of said purchased land, there is road, passing

through village road up to Daltonganj. Road became up and in order to leveling plinth

area of house these defendants stock sand, brick, soil etc. and plaintiff and her

husband on instigation of enemies started claiming over the said land and

fraudulently filed this suit. These defendants are in possession over portion of plot

no. 49. On the basis of three sale deed dated 22.09.1989.

The allegation made in paragraph no. 1 to 9 is false, incorrect. It has

already stated that grand father of plaintiff Abdul Hakim owned on plot no. 49 and

not portion of plot no. 496 were sold by ex-landlord in favour of Abdul Hakim vide

registered sale deed dated 24.04.1956. Bibi Saibun came in possession over plot no.

49 by way of succession in lieu of Dain Mehar. She came in possession . Hence, the

question of purchase case does not arises, if any Wasgit purcha issued by Anchal

Staff, same is fraudulent, mischief on the part of Anchal Staffs cannot confer any

benefit on the said land of plot no. 49. Allegation made in para 10 to 17 of the plaint

are false and incorrect. It has already been stated that after purchase defendant

came in possession , started residing thereon and after construction of road, their

house became low, as such in order to leveling they were storing sand, brick etc..

Plaintiff is not entitled to claim with respect to plot no. 49 which she has already sold

to these defendants. Allegation regarding granting of purcha in Case No. 03/92-93 is

concerned she is not a privileged person. So question of any succession under Bihar

Privilege Person Homestead Tenancy Act, suit land does not arises. In fact it deed of

1983 of plot no. 49 was gifted not any other land.

9. A separate written statement filed by way of counter claim on behalf of

defendant no. 4 to 6 denied averment made in para 1 of plaint as afforded illegal,

baseless. As a matter of fact suit land and other land belonging to Bibi Amna Khatoon

who was sister of these defendant. Said Amna Khatoon was ex-landlord lady, of the

suit land along with other land under Khewat No.210. She died living behind him three

sons, namely, Kazi Kamrun Hassan, Kazi Waliur Rahman, who is father and husband of

these defendants and Kazi Faizul Rahman and one daughter, namely, Anisha Khatoon

as her legal heirs and successor. After the death of deceased mother said Kazi Hasan,

Kazi Faizul Rahman and Kazi Waliur Rahman as well as Anisha Khatoon had got right

over possession over the estate of said deceased including the suit land.

That, legal heirs and successor made an amicable family partition among

themselves and in the said partition suit land along with other were allotted to Kazi

Waliur Rahman and since then he has got full right, title and interest and came in

peaceful, possession over the suit land along with other land. After vesting the

Zamindari rent was fixed regarding the suit land along with other land under Rent

Assessment Case No.339/60-61, his name was entered into Register of Government

on payment of arrears of rent and said rent receipt also been granted with respect to

the suit land along with other land .

That, said Kazi Waliur Rahman died leaving these defendants including their

heirs and surviving their legal heirs and successor. Defendants and others got full

right, title and interest over the suit land along with other lands. Since defendants

were feeling great problem in cultivation work and these defendants put the matter

for partition besides other co-sharer on amicable partition amongst them. Suit land

along with other land allotted to these defendants and these defendants has right,

title, interest and possession over the suit land.

That Kazi Walliur Rahman executed a registered sale deed No. 754 dated

24.04.1956 of the land of plot no. 496 under khata no. 165 measuring 24 decimals in

favour of plaintiffs grand father Seikh Abdul Hakim, but it was mistake on the part

scriber, wrongly mentioned boundary, North Mahadeo Sao, South Lakhiya Mahto, East

Road, West land of Babu, in place of North Jagarnath Sao, South Road, east Harsnath

Babu, West Jagarnath Halwai.

That, after perusal of the said deed no. 754 dated 24.04.1956 when

plaintiff was found that the deed writer wrongly written boundary of the sale deed and

when plaintiff requested to these defendants to rectify the boundary in the said sale

deed. These defendants rectify the boundary of plot no. 496 through registered

verification deed no. 4947 dated 22.09.2004. The vendee of deed no. 754 dated

24.04.1956 got fraudulently a privilege purcha under Bihar Privilege Person

Homestead Tenancy Act in the name of his wife, grand mother of plaintiff in respect of

plot no. 49 through Case No. 51/74-75 and after the death of said grand mother of

plaintiff she has also got a privilege purcha in respect of Schedule A land under Bihar

Privilege Person Homestead Tenancy Act in collusion through Case No. 03/93-94

which is illegal void without jurisdiction.

That, land of Plot No. 19 is the Bakast land of ancestor of these

defendants and Anchal authority have also no authority to issue Purcha in favour of

grand mother of plaintiff and after death of grand mother in the name of plaintiff with

respect to Bakast land of these defendants, Further averment made in para 2 to 7 are

wrong and baseless. It is asserted that Anchal authority were neither entitled to issue

any privilege purchase in favour of grand mother of plaintiff and plaintiff. No delivery

of possession of the suit land to them, rather these defendants and their father and

husband had have got full right, title, interest over schedule-A land. That averment

made in para 8 to 8A of plaint, the burden of proof of which is on the plaintiff. It is

wrong to say that the father and husband of these defendants executed a sale deed

on 19.05.56, rather father and husband of these defendants executed of sale deed

dated 24.04.56.

That, averment made in para 9 & 10 are baseless. Similarly, paragraph 11

of plaint is concerned plaintiff has not entitled to execute a deed in respect of land of

Privilege purcha to any person or defendant No.1 to 3 and she could not be entitled to

delivery of possession to them over the suit land. Schedule-A land belong to these

defendants. The land is Bakast land of ancestor of these defendants, as such para 12

is denied. So far para 13 is concerned it is wrong and incorrect. It is wrong to say that

plaintiff have right, title and possession over the schedule-A land. Neither plaintiff and

his grand father has right, title over he same. Rather the defendant having right, title

over the schedule -A land. Plaintiff fraudulently has acquired the said land through

purcha, on the basis of wrong scribed boundary in previous sale deed.

That, it is further asserted that plaintiff as well as defendant nos. 1 to 3 are

liable to restrain from schedule A land. That cause of action for the suit arose on

18.01.2003 as well as when the plaintiffs have executed two forged and fabricated

sale deed in favour of defendant nos. 1 and 2 on 22.09.1989. Also when Bibi Saibun

got fraudulent purcha and plaintiff got purcha as such these defendants prayed for

declaration of their right and their interest over Schedule A land as well as delivery of

possession, cost of suit etc.

10. Mr. Kundan Kumar Ambastha, learned counsel appearing for the

appellants/defendant nos. 1 to 3 submits that the learned courts have failed to take

into consideration the Exhibit B and B1 the revenue receipts in the name of Bhagjogni

Bibi and Karim Khan issued in the year, 2003 which goes to show the possession of

the defendants/appellants are there. He further submits that Exhibit C and C1 goes to

show the possession of defendant of plot no. 496 which has been sold by the plaintiff

to defendants. He further submits that the learned appellate court has wrongly

considered that plot no. 496 has been in place of plot no. 49 and there is no finding

to the effect and in that view of the matter there is substantial question of law and

this second appeal may be admitted.

11. On the other hand, Mr. Sudhir Kumar Sharma, learned counsel for the

respondent no. 1/plaintiff submits that the learned appellate court has framed issues

and thereafter proceeded to look into the documents brought on record and held that

plot no. 496 was sold considering the exhibit 5 and it was on the basis of gift deed

exhibit-1. He further submits that finding of the two facts finding Court is there and

the learned appellate court has rightly reversed the finding of the learned trial court

and there is no illegality in the judgment of the learned appellate court. He submits

that there is no substantial question of law involved in the present case and only on

the facts this second appeal is not required to be admitted.

12. In view of above submission of the learned counsel for the parties, the

Court has gone through the judgment of the learned trial court as well as the

appellate court and finds that the learned trial court came to the conclusion that both

the parties as well in counter claim also all parties have claimed for the land of plot

no. 49, area 24 decimals of khata no. 165. The plaintiffs have claimed that they have

acquired 24 decimal land of plot no. 49 by her grand mother Bibi Saibun and after her

death plaintiff Samna Khatun had got it through Basgit parcha in the year 1994 and as

per plaint 24 decimal land of plot no. 49 acquired by Bibi Saibun as landless person

through Bihar Privilege Persons Homestead Tenancy Act (hereinafter referred to the

Act) by government under Case No. 51/74-75, but as per exhibit 1 mutation was

made by the above case no. 51/74-75 by the plaintiff. Learned court has held that it

is not possible that would be the same case no. 51/74-75 in mutation case as well as

in case settled by government under the Act. Learned trial court has found that as per

Exhibit 5 both plot no. 49 and 496 are situated in khata no. 165 which is in the name

of Bibi Amna Khatun and came to conclusion that both the plots are bakast land of

private person but under the Act only government land can be settled to any landless

privilege persons but land of khata no. 165, plot no. 49 is in name of private raiyat,

hence land of plot no. 49 could not be settled by government record that land of plot

no. 49 was government land. On these grounds the learned trial court dismissed the

suit.

13. The learned appellate court framed three points which are as under:-

(A) Whether plaintiff sold to defendant nos. 1 to 3 portion of plot no. 49

plot no. 496 ?

(B). Whether plaintiff got right, on the basis of purcha over plot no. 49,

exercise her right and as to whether she got right by gift deed over portion of plot

no. 496.

(C). Whether plaintiff is entitled for Schedule-A land or defendant no. 1

to 3 or defendant no. 4 to 6?

14. The learned appellate court taken point nos. A and B together and has

also perused the exhibit 3 which is original document with respect to sale of 24

decimals of land of plot nos. 496 of khata no. 165 out of total area 2.31 decimal.

Learned appellate court has considered that only disputed question is that actually

Seikh Abdul Hamid got plot no. 49 and he purchased plot no. 49. Boundary of plot

no. 49 is there in sale deed of 1953 i.e. Exhibit 3. Further in third page of exhibit 3

learned appellate court found that there is description of the land purchased by Seikh

Abdul Hamid grandfather of plaintiff. In description column, description of village

Ghorighat Khata No. 165, plot no. 496 area 2.21 decimal Madhe 24 decimal has been

disclosed.

15. The learned appellate court further found that sale deed of 1956

boundary with respect to Plot No. 49 is given but plot number is described as 496.

The learned appellate court has considered this aspect of the matter and has further

perused the exhibit 5 -Khatiyan describing area of both the plots. Plot no. 49 having

an area 1.20 decimal, plot no. 496, having area 2.21 decimal and there is dispute

with respect to plot number 49 in a case of plot number boundary it is settled that

boundary given in the sale deed will prevail and considering all these aspects of the

matter including looking into Exhibit 3, 5, 1 and exhibit 7 rectification deed, found

that actually Abdul Hamid purchased land from Waliur Rahman out of plot no. 496, 24

decimals, out of total area of 2.31 decimals. The learned appellate court has further

considered Exhibit A, A/1. Exhibit A is sale deed in favour of Karim Khan with respect

to six decimal of land of plot no. 49. Considering the averments as well as oral

evidence and mark exhibits the learned appellate court found that actually plot no. 49

was acquired by sale deed of 1956 in the name of Abdul Hamid. In that deed instead

of 49, 496 has been written but the land was with respect to 49 and boundary of plot

no. 49 is described therein. The learned appellate court has further looked into Exhibit

5 which is khatiyan and found that in khata no. 165 plot no. 49 and 496 is there.

Area of plot 496 is 2.31 decimal and in the deed of 1956 land has been sold out of

plot no. 496, the total area of which was 2.31 decimal. Though in that deed boundary

of plot no. 49 is described and considering all these facts the learned appellate court

has come to the conclusion that sell from plot no. 496 and not from plot no. 49. The

defendant no. 3 in annexure-B of written statement gave description of several

persons who are in possession over plot no. 496 and considering that Annexure-B, the

learned appellate court found that annexure-B is not with respect of entire area of

plot no. 496. P.W.3 who was present at the time of negotiation of the land in

question. He has admitted that it was for the plot no. 496. Further in para 17 of

cross examination it came that in presence of this witness there was talk and

negotiation for sale and purchase. The learned appellate court has considered that

basgit purcha cannot be issued with respect to bakast land and it cannot be granted

to landless person. Section 18 of the Bihar Privilege Person Home Stead Tenancy Act

was also taken care of by the learned appellate court in para 42 of the judgment and

rightly has held that suit is not maintainable under section 18 of the Bihar Privilege

Person Home Stead Tenancy Act.

16. The learned appellate court has further discussed in para 43 about the

Purcha Case No. 03/93-94 and also taken care of Case No.51/74-75 and has held that

it was with respect to land of khata no. 165, plot no. 49, area 24 decimals situated at

Ghorighat under Thana No. 42 and that purcha in the name of Saibun Khatoon has

been filed by Karim Khan respondent on 30.05.2006. Rent receipt filed by the parties

was also taken care of by the learned appellate court and the learned appellate court

has rightly held that it was not parameter to decide the right title and possession of

any parties and discussing all these facts the learned appellate court came to the

conclusion that it was plot no. 496 and not plot no. 49 and in that view of the matter

it appears that the learned appellate court has rightly came to the conclusion and has

allowed the appeal in above terms.

17. The argument advanced herein on behalf of the appellants/defendants

has been taken care of by the learned appellate court and each point has been

answered perfectly. It is well settled law that any substantial question of law is not

involved, the second appeal is not required to be admitted only on the facts and on

the fact, the learned appellate court has given cogent reason to come to that the

conclusion which can not be said to be perverse finding of the learned appellate court.

In that view of the matter this Court finds that there is no substantial question of law

is involved in this second appeal and this appeal cannot be admitted only on the

facts. There is no perversity in the judgment of the learned appellate court and in

absence of perversity, sitting under section 100 of the C.P.C., the High Court is not

required to admit this second appeal in absence of any substantial question of law

and accordingly, this second appeal is dismissed. Pending, I.A., if any, stands disposed

of.

( Sanjay Kumar Dwivedi, J.) Satyarthi/