Jharkhand High Court
Unknown vs Bhuban Sharma on 11 September, 2023
-1- S.A. No. 93 of 2000(R)
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No. 93 of 2000(R)
1(i) Adalat Mahto
1(ii) Kashi Nath Mahto
1(iii) Mahavir Mahto
1(iv) Bilashi Devi
2(i) Beni Madhav Mahto
2(ii) Bhola Nath Mahto
2(iii) Ashwini Mahto ..... ... Plaintiffs/Respondents/Appellants
Versus
Bhuban Sharma ..... ... Defendant/Appellant /Respondent
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CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Appellants : Mr. K.K. Ambastha, Advocate.
For the Respondent : Mr. Sachi Nandan Das, Advocate.
: Mr. Om Prakash Singh, Advocate.
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13/ 11.09.2023 Heard Mr. K.K. Ambastha, learned counsel appearing for
the appellants and Mr. Sachi Nandan Das, learned counsel appearing
for the respondent.
2. This second appeal has been filed being aggrieved and
dissatisfied with the judgment dated 22.08.2000 and the decree sealed
and signed on 04.09.2000, passed in Title Appeal No. 26 of 1990, by
the 1st Additional District Judge, Bokaro, whereby, he has been pleased
to allow the appeal by way of setting aside the judgment dated
12.04.1990 and the decree sealed and signed on 18.04.1990, passed in
Title Suit No. 09 of 1979, by the learned Munsif, Chas, the appellants
herein have preferred this second appeal.
3. This second appeal was admitted by order dated
31.05.2001 on the following substantial question of law:-
"Whether the court of appeal below erred in
negativing plaintiffs' case of amalgamation of
plot No. 1664 with 1665 and their continuous
possession thereon without reversing the trial
Court's findings in this regard ?"
4. Mr. K.K. Ambastha, learned counsel appearing for the
appellants submits that the learned trial court took issue Nos. 5, 6 and 7
as primary issues and after discussing the same between para-8 of the
judgment decided the same in favour of the plaintiffs / appellants
-2- S.A. No. 93 of 2000(R)
holding that the suit land, which is portion of plot No. 1665 has been
amalgamated with plot No. 1664, 47 years ago and the same is in
continuous possession of the plaintiffs. He submits that the suit was
instituted by the appellants-plaintiffs for declaring that the Plot No.
1665 was amalgamated in Plot No. 1664 and the appellants/plaintiffs
were in peaceful possession of the suit land. He further submits that the
learned trial court has appreciated all the facts and thereafter come to
that finding, which has been reversed by the learned appellate court
without giving any cogent reason. He also submits that two issues have
been framed by the learned appellate court. He further submits that the
suit land, in the meantime, has been settled in the name of Maheshwar
Napit except the five decimals of the land of the appellants/plaintiffs.
He further submits that the said Maheshwar Napit sold the said land in
question through registered sale deed to the Executive Magistrate
posted at Dhanbad. He also submits that without cancelling the sale
deed of the Executive Magistrate, said plot was sold to the defendant.
5. Learned counsel appearing for the appellants relied in the
case of State of Rajasthan & Ors. Versus Shiv Dayal & Ors., reported
in (2019) 8 SCC 637, where in paras-15 and 16, the Hon'ble Supreme
Court held as follows:-
"15. It is a trite law that in order to record any
finding on the facts, the trial court is required to
appreciate the entire evidence (oral and
documentary) in the light of the pleadings of the
parties. Similarly, it is also a trite law that the
appellate court also has the jurisdiction to
appreciate the evidence de novo while hearing
the first appeal and either affirm the finding of
the trial court or reverse it. If the appellate
court affirms the finding, it is called
"concurrent finding of fact" whereas if the
finding is reversed, it is called "reversing
finding". These expressions are well known in
the legal parlance.
16. When any concurrent finding of fact is
assailed in second appeal, the appellant is
entitled to point out that it is bad in law because
it was recorded dehors the pleadings or it was
based on no evidence or it was based on
-3- S.A. No. 93 of 2000(R)
misreading of material documentary evidence
or it was recorded against any provision of law
and lastly, the decision is one which no Judge
acting judicially could reasonably have
reached. (See observation made by learned
Judge, Vivian Bose, J., as his Lordship then was
a Judge of the Nagpur High Court
in RajeshwarVishwanathMamidwar v. Dashrath
Narayan Chilwelkar [RajeshwarVishwanath
Mamidwar v. Dashrath Narayan Chilwelkar,
1942 SCC OnLine MP 26 : AIR 1943 Nag 117]
para 43.)"
6. Relying on this judgment, he submits that the learned
appellate court without meeting all the reasons provided by the learned
trial court, reversed the finding, which is against the mandate of law
and in view of that, the law point, framed by this Court, may kindly be
answered in favour of the appellants.
7. On the other hand, Mr. S.N. Das, learned counsel appearing
for the sole respondent submits that the learned appellate court has met
out with the reasons and thereafter passed the order. He submits that in
para-36, the learned appellate court has found that the khatiyan
mentions plot No. 1664, being bounded on the east by road. He further
submits that the plaintiff's argument is that this description of the
eastern boundary confirms that the identity of the suit land, which was
previously of plot No. 1665, has undergone a change and has become
part and parcel of plot No. 1664 and is property of the plaintiff and the
said argument was not accepted by the learned appellate court
considering that in the original plaint, the plot No. 1665, situated east
of the land of Plot No. 1664 has been shown as narrow strip. If this
identity was changed, then the khatiyan and the survey records should
have recorded as to how it had changed. He further submits that the
learned appellate court also found that P.W.-1 has admitted the entries
made in the khatiyan and not fully correct, as because though the lands
in plot No. 1665 is admittedly comprises to total 45 decimals, but
khatiyan mentions it wrongly comprising of 33 decimals, as such, no
reliance can be placed on the document, which per-se contains wrong
-4- S.A. No. 93 of 2000(R)
entries. He submits that the learned appellate court has also taken into
consideration the sale deed and thereafter come to the conclusion and
reversed the finding of the learned trial court. In view of that learned
counsel appearing for the respondent submits that there is no illegality
in the judgment of learned appellate court and the law point, framed by
this court may kindly be answered in favour of the respondent.
8. Mr. Das, learned counsel appearing for the respondent
submits that this is a second appeal and re-appreciation of evidence is
not permissible, that is well settled and to buttress his argument, he
relied in the case of Gurnam Singh (Dead) by Legal Representatives
& Ors. Versus Lehna Singh (Dead) by Legal Representatives,
reported in (2019) 7 SCC 641, where in para-15, the Hon'ble Supreme
Court has held as follows:-
"15. Applying the law laid down by this Court
in the aforesaid decisions to the facts of the case
on hand, we are of the opinion that the High
Court has erred in reappreciating the evidence
on record in the second appeal under Section
100 CPC. The High Court has materially erred
in interfering with the findings recorded by the
first appellate court, which were on
reappreciation of evidence, which was
permissible by the first appellate court in
exercise of powers under Section 96 CPC.
Cogent reasons, on appreciation of the
evidence, were given by the first appellate
court. The first appellate court dealt with, in
detail, the so-called suspicious circumstances
which weighed with the learned trial court and
thereafter it came to the conclusion that the
will, which as such was a registered will, was
genuine and did not suffer from any suspicious
circumstances. The findings recorded by the
first appellate court are reproduced
hereinabove. Therefore, while passing the
impugned judgment and order [Lehna
Singh v. Gurnam Singh, Civil Regular Second
Appeal No. 2191 of 1985, order dated 27-11-
2007 (P&H)] , the High Court has exceeded in
its jurisdiction while deciding the second appeal
under Section 100 CPC.
15.1. As observed hereinabove and as held
-5- S.A. No. 93 of 2000(R)
by this Court in a catena of decisions and even
as per Section 100 CPC, the jurisdiction of the
High Court to entertain the second appeal
under Section 100 CPC is confined only to such
appeals which involve a substantial question of
law. On going through the substantial questions
of law framed by the High Court, we are of the
opinion that the question of law framed by the
High Court while deciding the second appeal,
cannot be said to be substantial questions of
law at all. The substantial questions of law
framed by the High Court are as under:
"(i) Whether the appellate court can reverse
the findings recorded by the learned trial court
without adverting to the specific finding of the
trial court?
(ii) Whether the judgment passed by the
learned lower appellate court is perverse and
outcome of misreading of evidence?"
The aforesaid cannot be said to be substantial
questions of law at all. In the circumstances, the
impugned judgment and order passed by the
High Court cannot be sustained and the same
deserves to be quashed and set aside. At this
stage, decision of this Court in Madamanchi
Ramappa v. Muthaluru Bojjappa [Madamanchi
Ramappa v. Muthaluru Bojjappa, AIR 1963 SC
1633] , is required to be referred to."
9. Relying on this judgment, he submits that the facts have
been rightly found by the learned appellate court and in view of that no
case of interference is made out.
10. He submits that the adverse possession also cannot be
taken into consideration as the law is well settled that as there is no
pleading as to when and in what manner, such assertion began and to
buttress his argument, he relied in the case of Narendra & Ors. Versus
Ajabrao S/o Narayan Katare (Dead) through Legal Representatives,
reported in (2018) 11 SCC 564, where in para-26, the Hon'ble
Supreme Court has held as follows:-
"26. There is no assertion on the part of the
original defendant to claim ownership over the
suit property or its part to the exclusion of the
whole world including its true owners. Second,
-6- S.A. No. 93 of 2000(R)
it is not pleaded as to when and in what manner
such assertion began. In other words, it is not
pleaded as to from which date so as to enable
the courts to count the period of 12 years or 40
years, as claimed by the defendant, his assertion
began which got converted into his absolute
right of ownership over the suit house on the
expiry of 12 years."
11. Relying on this judgment, learned counsel appearing for
the respondent submits that on the ground of adverse possession, the
case of appellants is not fit to be considered.
12. Title Suit No. 9 of 1979 was instituted by the appellants-
plaintiffs for a decree for declaration of the title as a permanent jotedar
of the suit lands, described in Schedule to the plaint.
13. The said Title Suit was decreed in favour of the appellants
by judgment dated 12.04.1990 corresponding to decree dated
18.04.1990.
14. The suit land is a piece of land measuring 165' X 13'
equivalent to five decimals within Plot No. 1665 under Khata No. 224
at Village Kandra, District-Dhanbad (now Bokaro).
15. The plaintiffs-appellants instituted the suit, stating therein
that the suit land was originally recorded in the last cadastral survey in
the name of one Shantu Choudhary and his brother but both of them
left the village and settled at village Tilabani. However, when the
village Tilabani was acquired by the State Government for Bokaro
Steel Company, but the brothers returned to village Dewaganj in 1960
and lived there till their death. It was during their absence from the
village Kandra that the five decimals of land, being the suit land,
within plot No. 1665 which was a fallow land, was amalgamated with
the adjacent plot of land under plot No. 1664. Likewise, the northern
portion of land in plot No. 1665 was amalgamated with the lands of
plot Mo. 5001 by the then owner of plot No.5001. The southern portion
of the land in plot No. 1665 measuring remained intact. The suit land
being a narrow strip of land measuring 165 x 13' by the side of the
P.W.D. road was amalgamated with the land adjacent west of plot No.
1664 and such amalgamation was never noticed by anyone on account
-7- S.A. No. 93 of 2000(R)
of its situation. The further case of the plaintiffs is that after the
departure of Shantu Choudhary and his brother from the village
Kandra, the ex-landlord of Kandra settled illegally some portions of
their land within plot No. 1665 and 5000 to one Maheshwar Napit in
1946 without noticing that the western strip and tie northern portion of
the land in plot No. 1665 were already amalgamated with the lands in
plot No. 1664 in the west and with the lands under plot No. 5001 by
the respective owners of these adjacent plots. Maheshwar Napit sold
his land to a Magistrate of Dhanbad about 13 years ago, who in turn
sold 17 decimals of the land to the present defendant. However, in all
these transfers the amalgamated portions of the land of plot No. 1665
was not taken notice of and the entire land in plot No. 1665 shown as
sold though none of these transferee had ever taken possession of the
amalgamated portions, including the suit land since it was always in
possession of the plaintiff and vas not capable of being possessed by
these transferees. The plaintiffs' further case that while this situation
continued, the defendant being tempted by the increase in value of the
suit land on account of its proximity with the main road, began
entertaining ideas of grabbing the suit land by taking advantage of the
fact that the suit land was mentioned as part of the demised land sold to
him by the Magistrate. In furtherance of such intentions, the defendant
on 07.01.1979 raised a wall on the northern limit of plot No. 1664
measuring 140' long and 1'-3" high. This act of the defendant had given
cause of action for the plaintiff to file this suit for declaration of her
right, title as well as confirmation of her possession over the suit land.
The plaintiff has further claimed that after purchasing plot of land
under plot No. 1664 on 4.11.47, Bibi Mahatani had converted her land
in plot No. 1664 and the present suit land into three khets while plot
No. 1664 was recorded as consisting of total six khets. The plaintiff
had purchased these three khets from Bibi Mahatain on 10.6.69 by
registered sale deed.
16. The defendant-respondent contested the suit by way of
filing the written statement stating therein that entire claim of the
plaintiffs are denied and disputed the entire claim of the plaintiffs.
-8- S.A. No. 93 of 2000(R)
Besides taking the plea that the plaintiff has no cause of action for the
suit, and that the suit is not maintainable being barred by the law of
limitation, principles of waiver, estoppels and acquiescence as also due
to the suit property being grossly under valued, the defendant asserts
that no portion of the lands in plot No.1665 was ever amalgamated
with the land either of pact No. 1664 or 5000 or 5001 .The contention
of the defendant is that the suit land which is adjacent west of the land
in plot No. 1664, is actually at a higher level ranging from 3 to 4 and
hence there could be no scope for amalgamation of the suit land with
the land in plot No.1664 nor could there be any occasion either for the
plaintiff or her predecessor in interest, to reclaim the suit land or to
convert the suit along with her portion of the lands in plot No. 1664
into three khets for cultivation .The defendant asserts that the suit land
was in possession of his vendor and to whom the defendant has
succeeded and came into possession after purchase and that the
plaintiff had never acquired possession over the suit land by any act on
her part.
17. The learned trial court has framed eight issues to decide the
suit and since issue Nos. 5, 6 and 7 were main issues to decide the
dispute, the learned trial court has taken the said issues together. The
learned trial court has decreed the suit in favour of the plaintiffs-
appellants on the ground that plot No. 1665 was amalgamated in Plot
No. 1664 and on the ground that the plaintiffs-appellants were in
possession of the suit land since last 47 years.
18. The learned appellate court has discussed all the evidences
adduced on behalf of the appellants / plaintiffs and respondent-
defendant and the learned appellate court has elaborately dealt with the
evidences of P.Ws. and D.Ws.
19. P.W.-1 has stated that the suit land originally belonged to
Shantu Choudhary, who left Kandra and thereafter the ex-landlord had
sold the land of Plot No. 1665 to Maheshwar Napit and he has further
stated that although the land was transferred in favour of Maheshwar
Napit, the said purchaser never came to see the land nor did he ever
acquired possession of the land, he had purchased nor did he sell to the
-9- S.A. No. 93 of 2000(R)
defendants. He has further stated that the dispute arose for the first time
when the defendant arose in January, 1979 constructed the boundary
wall around the suit land and he has further corrected himself by way
of stating that Bibi Mahatain had transferred her entire lands in favour
of the plaintiffs by single deed of conveyance executed on 04.11.1969
and he has admitted that there is no document in respect of the
plaintiff's claim over the suit land. He further disclosed that Bibi
Mahtain in her turn had purchased the land in plot Nos. 1664 and 5001
from Man Puran Mahato and Mukteshwar Mahato and others and he
has admitted about 47 decimals of area of that land. He has also
admitted that the suit land is at the height of 2- 2 ½ ft from the adjacent
land.
20. P.W.-2 has also has stated that the suit land was
amalgamated with the adjacent plot Nos. 1665 and 1664 and he has
disclosed that he is not aware of the name and particular of the
occupants of the northern portion of the land in plot No. 1665 or of the
adjacent plot.
21. P.W.-3 is the nephew of the plaintiff and he has also stated
that the suit land originally belonged to Shantu Mahatha and others and
were recorded in their names, but they left village Kandra. In his cross-
examination, he expressed his ignorance as to how many plots are there
in plot No. 224 and admitted that he does not know about any other
plot except Plot No. 1665.
22. P.W.-4 is the brother-in-law of the plaintiff and he has
stated that the plaintiff was in possession of the land in question since
20 years, however, he has not been able to disclose about the khata
number of plot No. 1665 nor does he know as to how many person are
in occupation of the land in Plot No. 1665.
23. D.W.-1, who is nephew of the defendant and he has
admitted that he lives at 2- 2 ½ miles away from the suit land and has
no concern with the suit land and does not know anybody of the
neighbouring land.
24. D.W.-3 admitted that the name of Bhubneshwar Sharma is
recorded in the khatiyan and the suit land is bounded by the land under
-10- S.A. No. 93 of 2000(R)
plot No. 1664 and Plot No. 5002.
25. D.W.-8 was the Bhubneshwar Sharma and he stated that
Maheshwar Napit had earlier sold land to one Anirudh Prasad, a
Magistrate and to him jointly and both of them have purchased total
area of 17 decimals and has also purchased from Satyadeo Pandit. The
corresponding sale deed has been marked as Exhibit-A/1 and A/2 by
the learned trial court and this was proved by D.W.-8. The rent receipts
were also produced, which were marked as Exhibit-B series. The map
was also filed, which was marked as Exhibit-C. The amalgamation of
plot No. 1665 with plot No. 1664 was denied by him. He stated that he
has purchased the land on 16.06.1975.
26. The learned appellate court has further considered and
found that the plaintiffs' own case, she has not claimed that these lands
were ever purchased by her or by any of her predecessors-in-interest.
As such, these lands have not been mentioned in the sale deed of the
plaintiff, executed in her favour by Bibi Mahatain as the demised land
under such sale. The learned appellate court further hold that the suit
land was claimed by virtue of amalgamation and that she has preferred
title over the suit land by adverse possession, onus lies on her to
specify the date, on which, she had come into adverse possession and
the date when the amalgamation was made. The witnesses and the
plaintiffs have not been able to ascertain the purported amalgamation
when took place and in view of the above background, the learned
appellate court found that the evidences of the witnesses, when they
have not described exactly the alleged amalgamation to suit land take
place and they have also not been able to confirm that the adjoining
plots when the amalgamation was made, whether with Plot No. 1664 or
with plot No. 1665 or 5001 and what is the exact boundary after
amalgamation. The plaintiffs' witnesses have not been able to specify
the suit land by consistent description of its boundary nor have they
been able to specify the date when the alleged amalgamation was made
nor the person by whom such amalgamation was made. The learned
appellate court further held that relying on the Pleader Commissioner
report, which was cancelled was also unwarranted by the learned trial
-11- S.A. No. 93 of 2000(R)
court and the pleader commissioner was also not examined.
27. In view of the above, learned appellate court found that the
ground of adverse possession is not made out in favor of the
appellants-plaintiffs and the learned appellate court found that title
deed of the lands acquired by the defendant by way of sale, do include
the plot No. 1665 and the description and the boundary of the demised
land as mentioned in the sale deed, do confirm that the suit lands are
part and parcel of the lands purchased by the defendant and the
evidence of D.W.-4 Maheshwar Napit supports the claim of the
defendant that he had erected the boundary wall around the lands
purchased by him.
28. In view of the above, it appears that the learned appellate
court has given the cogent reason and thereafter reversed the finding of
the learned trial court. The appellants-plaintiffs by way of adducing the
evidence has not been able to prove the amalgamation as well as
possession by way of adverse possession and also in view of the two
judgments relied by Mr. Das, learned counsel appearing for the
respondent in the case of Gurnam Singh (Dead) by Legal
Representatives & Ors. (Supra) and also in the case of Narendra &
Ors. (Supra) are helping the respondent-defendant.
29. The court finds that there is no perversity in the judgment
of the learned appellate court. Accordingly, the law point, framed by
this court is answered in favour of the respondent-defendant and
against the appellants-plaintiffs.
30. In view of the above, no interference is required,
accordingly, this second appeal is dismissed.
31. Let the Lower Court Records be sent back to the concerned
court forthwith.
(Sanjay Kumar Dwivedi, J.)
Amitesh/-
