Unknown vs Uday Nath Choudhry
2024 Latest Caselaw 5685 Jhar

Jharkhand High Court

Unknown vs Uday Nath Choudhry on 13 June, 2024

Author: Gautam Kumar Choudhary

Bench: Gautam Kumar Choudhary

IN THE HIGH COURT OF JHARKHAND AT RANCHI
                    Second Appeal No.92 of 1990(R)
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1(a)(i) Sumitra Kunwar 1(a)(ii) Pawan Kumar 1(a)(iii) Niraj Kumar 1(b) Madan Choudhary 1(c) Sadan Choudhary 1(d) Tarawaria Devi 1(e) Surendra Choudhary 1(f) Jitendra Choudhary 1(g) Sakindra Choudhary 1(h) Munilal Choudhary 1(i) Saroj Choudhary 1(j) Tripurari Choudhary 2(a) Hirawani Devi 2(b) Raj Kumar Choudhary 2(c)(i) Saraswati Kuer 2(c)(ii) Baban Choudhary 2(c)(iii) Ajay Kumar Choudhary 2(c)(iv) Govind Choudhary 2(d) Radhey Shyam Choudhary 2(e) Smt. Kakli Devi 3(b)(i) Narad Choudhary 3(b)(ii) Ramadhar Choudhary 3(b)(iii) Hiramani Devi 3(c) Baijnath Choudhary 3(d) Mukhram Choudhary 3(e)(i) Sunita Kuer 3(e)(ii) Bharat Choudhary (Minor) 3(e)(iii) Tarakant Choudhary (Minor) 4 Deo Nandan Manjhi 5(a) Kalia Kuer 5(b) Mahesh Manjhi 6 Bhageshwar Manjhi @ Bali Manjhi .... .... .... Appellants Versus Uday Nath Choudhry .... .... .... Respondent

CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

For the Appellants : Mr. Manjul Prasad, Sr. Advocate Mr. Akhouri Prakhar Sinha, Advocate For the Respondent : Mr. Tirtha Nandan Jha, Advocate

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CAV ON: 07.05.2024 PRONOUNCED ON: 13.06.2024

1. This second appeal has been preferred by the plaintiffs/appellants against the judgment of reversal passed in Title Appeal No.35 of 1989.

2. Plaintiff filed suit for declaration of title and confirmation of possession over the suit land measuring 2.79 acres appertaining to Khata No.81, Plot No.308, and 310 of village Purnadih, District Palamu fully detailed in Schedule A, B and C of the plaint.

3. The case of the plaintiffs is that plaintiff nos.1 and 2 are brothers and their father Lochan Choudhary was recorded raiyat of village Rajderwa and Purnadih. Plaintiff no.3-Rambrichh Choudhary is the Mama of plaintiff nos.1 and 2 who live at village Rajderwa, plaintiff no.4 is father of plaintiff nos.5 and 6 and they are joint. Plaintiff no.4 and 6 hold dar-raiyati land at Village Rajderwa recorded in the name of Ramdhari Manjhi, who is father of Plaintiff no.4. After the death of Ramdhari Manjhi, Plaintiff no.4 purchased Raiyati interest appertaining to the land of Khata No.8 of Rajderwa through registered sale deed dated 25.03.1947. Defendant Ramdeo Choudhary had no raiyati land in village Khamdih or at village Purnadih and they were not having residential house in Purnadih.

4. It is further averred that the residential house of the Plaintiff is situated at Purnadih which is south of village Rajderwa. The land in suit is situated to the West of village Purnadih. All the Plaintiffs have their separate land and the details of land in suit holds separately by them. Plaintiff nos.1 and 2 claims Schedule A land, plaintiff no.3 claims Schedule B land and plaintiff no.4 claims Schedule C land.

5. During last cadastral survey, Gairmazarua Khata No.81 of village Purandih was recorded under Khewat No.6 i.e. Shamilat Malikana and within this Khata No.81, Plot No.308, measuring an area 0.89 acres and Plot No.310 measuring 2.90 acres were recorded as Partigarha and Partikadim respectively.

6. It is further pleaded that Rambrichh Choudhary (Plaintiff no.3) was living with Plaintiff No.1 and 2 to look after their affairs at Rajderwa where the suit land is situated.

7. Plaintiff nos.1 and 2 with Plaintiff no.3 reclaimed 10 decimals of Plot No.308 and 58 decimals of Plot No.310, about 35 years back as fully detained in Schedule A of the Plaint. Similarly Plaintiff No.3 reclaimed 1.11 acres out of Plot No.310 as detailed in Schedule B, Plaintiff no.4 reclaimed 10 decimals out of Plot No.308 and 90 decimals in of Plot No.310 as detailed in Schedule C.

8. One Jhawal Choudhary also reclaimed 69 decimals of Plot No.308 and 31 decimals in Plot No.310 and he is in possession and paying rent to the state of Bihar. He is related to the Defendants and there was no land left for reclamation in these two plots.

9. Plaintiff no.4 has raiyati lands in both villages and has also purchased land through registered sale deed on 26.02.1966 at village Purnadih and Rajderwa.

10. The defendant filed a petition for settlement of same portion of Plot Nos.308 and 310, but the claim of defendant was rejected on 25.03.1960 in Case No.VIII/2 of 1955-56 holding that Defendant was not in possession of the land.

11. Plaintiff nos. 1, 3 and 4 had also filed petition for settlement of land which

was reclaimed by them in Settlement Case No.44 of 1962-63 in the Court of Circle Officer, Sadar, Daltonganj. The Circle Officer found possession of the plaintiffs and recommended for settlement to the DCLR, Sadar who also recommended to the SDO, Sadar for approving the settlement in favour of the plaintiffs. SDO (Sadar) kept the matter pending for considerable period and on 27.01.1978 directed the DCLR to make spot enquiry, but the said order had not been complied.

12. Taking advantage of this, a proceeding under Section 145 of the Cr.P.C. was initiated in respect of portion of Plot No.308 and 310 against Plaintiff by the Defendant vide Misc. Case No.1062 of 1978, in which, the defendant falsely claimed Raiyati settlement from Mukund Ali, although the property of Mukund Ali had been already auction sold. It is also pleaded that Raiyati Plot Nos.311 and 312 belonging to plaintiff nos.1 and 2 situated in the middle of Plot Nos.310. Plot Nos.308, 310 and 312 stood amalgamated by plaintiff nos.1 and 2 with their reclaimed land.

13. Ex-land lord used to accept the rent in cash and kind, but no receipt was given, therefore the Plaintiffs applied for settlement for fixation of rent.

14. The settlement was denied to the Plaintiffs by Executive Magistrate vide order dated 16.04 1981, hence the suit.

15. Further case of the plaintiffs is that in Execution Case No.187/39, the proprietary interest over land to which the land in suit appertained, was auctioned sold through Court auction held on 09.10.1939 by Munsiff, Palamau. Lalmohan Prasad purchased interest and Lalmohan Prasad had filed return at the time of vesting of Zamindari. Tawakkal @ Nunoo Shah and Idu Shah were brothers. Tawakkal Shah had left behind a widow Basia Sahun and three sons. In execution of mortgage decree in Suit No.70 of 1932, Execution Case No.187 of 1939 was filed by Lalmohan Prasad. The interest of Balmukund Ali and Latoo Bibi having been sold in an auction, they consequently were not the proprietors to settle the land or issue rent receipt. Therefore, claim of settlement made by the defendant from Balmukund Ali and Latoo Bibi was intrinsically false.

16. It is further Case of the plaintiffs that the defendants had tried that the settlement of land when it was settled by their father Jhawal Choudhary, their claim for settlement was denied and consequently the initiated proceeding under Section 145 Cr.P.C.

DEFENDANT CASE

17. Sole defendant Ramdeo Choudhary, has contested their claim of reclamation of the schedule land. The plaintiffs have lost the case under Section 145 Cr.P.C. vide Misc. Case No.1062 of 1978 on 16.11.1981. Defendant has acquired

indefeasible right, title and interest in the suit land. It is said that Defendants are the dehi raiyati, of village Khamdih and Purnadih where they have got ancestral raiyati land. The defendants have got the lands in village Purnadih in 1940 which is quite adjacent to the suit land. There are several residential houses in village Purnadih and the plaintiffs have no concern with the suit land. The entire suit land forms one part and has never been divided into three parts, the boundaries given in Schedule A, B and C is totally incorrect. The defendant had reclaimed the suit land more than 45 years ago with permission of ex-land lord.

18. Plaintiff no.3 had no land in village Khamdih, Purnadih and Rajderwa. He lived with Lochan Choudhary, but he had nothing to do with cultivation of Plaintiff no.1 and 2. Plaintiffs never reclaimed the land in plot no.308 or 310, nor defendant no.4 reclaimed any land in these two plots.

19. Defendant reclaimed the suit land plus one acre much before Lal Mohan Prasad purchased some zamindari interest in the auction sale. No rent receipt was however granted by the ex-landlord with respect to the land in question, but being in possession for more than 12 years, he had perfected his title.

20. It is also pleaded that Jhawal Choudhary had also not reclaimed any land in plot no.308 or 310. Defendants reclaimed the suit land more than 45 years ago with the permission of the ex-landlord, who granted rent receipt and recognized them to be raiyat of plot nos.308 and 310 of Purnadih and they are in possession of the land. The settlement case was never rejected.

21. There is no Khata no.8 in village Rajderwa. He has also took plea that the suit of the plaintiffs was barred by limitation and adverse possession under Section 258 of CNT Act.

22. It is also pleaded by the defendants that Jhawal Choudhary had no right or title over plot no.308 or 310 and the defendants do not claim title over it through Jhawal Choudhary.

23. Rambrichh Choudhary was admittedly an out-sider, as he had no land in Purnadih, Khamdih and Rajderwa.

24. On the basis of the pleadings of the parties, following main issues were framed:

Issue No.III- Did plaintiffs reclaimed the land on the basis of which they got title and possession over the suit land? Issue No.IV- Did the defendant takes settlement of the suit land from the ex-land lord Balmukund Ali and his wife Lato Bibi?

25. Learned trial Court decreed the suit, recording its finding on both these issues in favour of plaintiff against the defendant on the basis of oral and documentary evidence.

26. Learned first appellate Court formulated the following point for determination:

i. Has the plaintiffs/respondents acquired title and possession over the suit land through reclamation?

ii. Whether the defendant/appellant got title and possession through settlement from ex-landlord and as a result of Korkar right? iii. Was the suit barred under Section 42 of the Specific Relief Act? iv. Are the plaintiffs/respondents entitled to any relief?

27. The First Appellate Court allowed the appeal and dismissed the suit of the plaintiffs mainly on the ground that the plaintiffs claimed land by reclamation, was not supported by rent receipts issued by the Ex-landlord.

Secondly, it was held that under Section 64 of the C.N.T. Act, 1908, a tenant can bring the land under cultivation as Korkar only after obtaining oral or written consent of the landlord, but there was no evidence in support of such consent to have been given.

Thirdly, the plaintiffs had filed a petition for settlement in Case No.VIII/44 of 1962-63 before the Sub-Divisional Officer. Had such settlement been made, there would not have been the need to file a petition for settlement before the S.D.O. Fourthly, a petition was filed by the defendants/appellants for settlement of land in suit in their favour. The objection petition of the plaintiff was rejected vide order passed in Case No.VIII/2 of 1955-56 (Exhibit-4/b).

Fifthly, possession was declared in favour of the defendants vide order dated 22.01.1982 in Misc. Case No.145/1981 under Section 145 Cr.P.C. (Exhibit-4).

Sixthly, the petition of the defendants was rejected on 25.03.1960 in Case No.VIII/2 of 1955-56 (Exhibit-4/b), vide order dated 04.06.1984.

Seventhly, the plaintiff had not prayed for recovery of possession although they were declared out of possession by the order of a competent court in proceeding under Section 145 Cr. P. C.

28. The judgment passed by learned first appellate Court is under challenge in the instant second appeal. Earlier vide order dated 15.01.1990, the following substantial question of law was framed being:-

"Whether the learned court of appeal below erred in law in reversing the judgment and decree passed by the trial court on the basis of fact finding that the orders of settlements were not controverted, although the said orders were found to be illegal and without jurisdiction by the trial court?

29. Earlier Second Appeal was allowed by the judgment dated 24.06.2005 setting aside the judgment of the First Appellate Court and restoring the judgment and decree passed by the learned Trial Court in favour of plaintiffs/ appellants.

30. Defendant preferred Special Leave to Appeal before the Hon'ble Apex Court which was converted into Civil Appeal No. 880 of 2009 and the judgment dated 24.06.2005 was set aside and the matter was remanded to this Court with direction to frame additional question of law as well as to decide previously framed substantial question of law. In pursuance of the direction, further substantial question of law has been framed by order dated 21.11.2022 :-

"Whether the opinion of learned first appellate court that when the plaintiffs-respondents were found out of possession, in a proceeding under Section 145 Cr.P.C, it was incumbent upon them to make the prayer for recovery of possession irrespective of the fact that learned trial Court has returned a finding that the plaintiff has been in possession of the suit land in view of the evidence available in the record."

31. It is argued by learned senior counsel for the appellants that learned trial Court in Para-16 of the judgment has assigned specific and strong reasons for not accepting the claim of the defendants of title over the land on the basis of the reclamation.

32. It is submitted that the learned trial Court found that reclaiming of the land, in question by the plaintiff was made after taking due permission of the Ex-landlord. Further, the plaintiffs was in possession and in this regard, finding under Section 145 Cr. P. C. of possession was not binding on the Civil Court. Exhibit 3/a and Exhibit 4/6 show that defendants has applied for settlement which was rejected by the Ex-landlord.

33. It has been argued by the learned counsel on behalf of the respondent, that had the land been reclaimed by the plaintiff, then there was no occasion to file settlement case No. 44 of 1962-63 for settlement of the land. FINDINGS

34. Under Section 64 of the Chotanagpur Tenancy Act (C. N. T. Act), 1908, cultivator or landless labourers resident of Village or a contiguous village had the right of reclamation to convert land in that village into korkar. There are two sets of evidence. One is to show that the party concerned was a resident of village Purnadih or the contiguous village Rajderwa, to buttress the claim of reclamation as only the raiyats of the village, or contiguous village were permitted to reclaim the land. The other set of documentary evidence is concerning possession over the land after reclamation.

35. Plaintiff claim the land by reclamation, whereas the defendant claims it to be settled by the ex-landlord after its reclamation.

36. Relevant documentary evidence on the point of settlement and possession led on behalf of the defendant(s) is as under :-

Ext-1 executed in 24.02.1966 executed by Keshwar Lal and others in favour of Plaintiff no.4 to show that he had raiyati land in village- purnadih.

Ext-1/a Sale deed executed dated 25.03.1947 in favour of Plaintiff no.4 to show that he had raiyati land in Rajderwa.

Ext-2 series Rent receipts in the name of Lochan Choudhary, Plaintiff- no.4 and Jahaul Choudhary of village Rajderwa. Ext.3 Petition dated 21.08.1957 of Ramdeo Choudhary in Misc Case No.2 of 55-56. Jahaul Choudhary was found to be in possession. Ext-3/a Petition dated 16.08.1955 filed by Defendant Ramdeo Choudhary and Jahaul Choudhary for allotment of Plot no.308 and 310 of village Purnadih. In this petition there is no reference to previous settlement by the Ex-landlord.

Ext-4/a Certified copy of order dated 17.07.1972 in Misc Case No.VIII/of 1962-63 to show that settlement was recommended in favour of the Plaintiffs by the Circle Officer after rejecting the objection of the Defendant.

Exhibit-4/b, Petition for settlement of defendant was rejected vide order dated 25.03.1960 in Misc Case No.VIII/2 of 1955-56. Ext- 4/c Certified copy of order dated 22.03.1983 in mutation case no. 13 of 83-84 by which the petition of Ramdeo Choudhary for mutation was rejected.

Ext-5- and 5/a shows sale of Khewat No. 6 and 1/1. Ext. 8 certified copy of order dated 16.11.1981 Ext. 9/c and 9/d- certified copy of khatiyan of Khata No. 75 and 55 in the name of the ancestors of plaintiff No. 1, and plaintiff No. 2 appertaining to village Purnadih Exhibit-A is the rent receipt issued on 24.11.1984 in favour of the defendants and there is no other collateral evidence of mutation in their favour.

Exhibit-A/1 to A/3 are jamindari rent receipts. Ext. B report of karamchari and Circle Inspector in mutation case No. 13/83-84- the reports are not relevant as the mutation application as rejected (Ext. 4/c) Ext. J is the order of DCLR dated 17.01.1978 passed in Settlement case No. 44 of 62-63 by which the application for settlement of land under

Khata No.81 Plot no.310 and 308, area 2.79 acre filed by Deonandan Manjhi was rejected.

ExtJ/1 Order dated 11.01.1984 passed by the circle officer in Rent fixation Case No.13 of 1983-84 Ramdeo Choudhary Vs Jaikishan Choudhary, Rambrichh Choudhary, Deonandan Manjhi- Land appertained to Gairmajaruwa of Khamdih and the circle officer recommended for rent fixation.

Ext-J/2 - order passed on 04.06.1984 in Misc case no.13/83-84 wherein it was recommended to settle the land in favour of the applicant Ramdeo Choudhary.

Exhibit-E and F as well as H are not relevant as they do not relate to the suit land.

37. One of the impediment in civil adjudication is the manner in which the false statement on sworn affidavit in pleadings are made with impunity. In order to preserve the sanctity of the pleading, 2002 amendment was introduced requiring the person verifying the pleading to furnish an affidavit in support of his pleading. Despite the fact that a false affidavit can give rise to criminal prosecution, things do not appear to have improved much. Hon'ble Supreme Court in R. Karuppan, Advocate, Suo Motu Proceedings against In re, (2001) 5 SCC 289 stressed upon the requirement of maintaining the sanctity of affidavit filed by the parties and at the same time, filing of irresponsible statement without any regard to accuracy has to be discouraged. It was observed, "13. Courts are entrusted with the powers of dispensation and adjudication of justice of the rival claims of the parties besides determining the criminal liability of the offenders for offences committed against the society. The courts are further expected to do justice quickly and impartially not being biased by any extraneous considerations. Justice dispensation system would be wrecked if statutory restrictions are not imposed upon the litigants, who attempt to mislead the court by filing and relying upon false evidence particularly in cases, the adjudication of which is dependent upon the statement of facts. If the result of the proceedings are to be respected, these issues before the courts must be resolved to the extent possible in accordance with the truth. The purity of proceedings of the court cannot be permitted to be sullied by a party on frivolous, vexatious or insufficient grounds or relying upon false evidence inspired by extraneous considerations or revengeful desire to harass or spite his opponent. Sanctity of the affidavits has to be preserved and protected discouraging the filing of irresponsible statements, without any regard to accuracy."

38. The above observation becomes relevant in this case because both the parties stake claim over the suit property on the basis of reclamation and of being in settled possession of the suit. In a civil adjudication superior title is to be decided on the basis of preponderance of probabilities. Burden of proof rests on the plaintiff in terms of Section 101 and 102 of the Evidence Act. However, when the plaintiff has discharged his initial onus to lead evidence to prove a particular fact then, onus shifts on the defendant to rebut the said evidential fact. It has been held in Anil Rishi Vs. Gurbuksh Singh (AIR 2006 SC 1971) that in terms of Section 102 of the Evidence Act initial onus is always with the plaintiffs and if he discharges his onus and makes out a case which entitles him to a relief, onus shifts to the defendant to prove those circumstance which would disentitle the plaintiff to the same. Illustration (b) to Section 101 states:-

"A desires a court to give judgment that he is entitled to certain land in the possession of B, by reason of facts which he asserts, and which B denies, to be true. A must prove the existence of those facts".

39. When claim over land by reclamation or unregistered settlement is made, in order to judge the veracity of such claim, it becomes incumbent to look for evidential facts preceding, and following the act on which such claim is made. There is not much difficulty in case of registered instrument, as there is a presumption in its favour and the title in it passes, on its execution in terms of Section 47 of the Registration Act. Difficulty arises when title or possession is claimed on the basis of an unregistered instrument. In such cases there arises need to look for collateral evidence in support or against it.

40. Oral evidence do not help much in such cases, and the clue is provided by the documentary evidence of possession following such reclamation or settlement. Pleading of reclamation or settlement by itself is not sufficient, unless there is some documentary evidence to support that the party came in possession of the land in question in pursuant to it. Law is settled that a person in possession of land in assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against the whole world but not against the rightful owner. When the facts disclose no title in either party, possession alone decides. The Court quoted Loft's maxim - "Possessio contra omnes valet praeter eur cui ius sit possessionis. [Refer to Rame Gowda v. M. Varadappa Naidu, (2004) 1 SCC 769].

41. Here in the present case, the learned trial Court took into consideration relevant documentary evidence as discussed above and other oral evidence to record a finding of fact in para-16 & 17 of the Judgment that pursuant to the reclamation

the Plaintiffs had entered into possession of the land. Trial court disbelieved documentary evidence purported to be issued in favour of the defendant by the ex- landlord as manufactured documents. Further revenue receipt issued in 1984 in favour of defendant without any order of mutation was not accepted as evidence of possession.

42. The appellate Court erred in declaring possession of the defendant only on the order passed in Misc. Case No.1062 of 1978 on 16.11.1981 under Section 145 Cr.P.C without discussing the oral and documentary evidence considered by the trial Court or meeting the reasoning of the trial Court in differing with its finding.

43. Law is settled that findings of the criminal courts are not binding on the civil court. Provision of Section 145 of the Cr.P.C finds place in chapter X which is for maintenance of public order and tranquility. The proceeding under Section 145 is summary in nature and the object is to prevent breach of peace and decision regarding possession is to be taken by the Magistrate without any reference to the merit of the claim of the parties to a right to possess the same. Such findings are not final but temporary subject to determination of right and title by competent court. It has been held in Devendra v. State of U.P., (2009) 7 SCC 495.

12. In Shanti Kumar Panda v. Shakuntala Devi [(2004) 1 SCC 438 : 2004 SCC (Cri) 320] this Court held: (SCC p. 452, para 23) "23. (3) A decision by a criminal court does not bind the civil court while a decision by the civil court binds the criminal court. An order passed by the Executive Magistrate in proceedings under Sections 145/146 of the Code is an order by a criminal court and that too based on a summary enquiry. The order is entitled to respect and wait before the competent court at the interlocutory stage. At the stage of final adjudication of rights, which would be on the evidence adduced before the court, the order of the Magistrate is only one out of several pieces of evidence."

44. This being the position of law, the first appellate Court completely misdirected itself to discard the evidence and reasoning of the trial Court with regard to the possession of the Plaintiff, only on the basis of the order passed in a proceeding under Section 145 of the Cr.P.C.

45. Finding of the appellate Court that the suit of the Plaintiff was barred by the proviso to Section 34 of the Specific Relief Act, as the plaintiff was not in possession is therefore not sustainable. Furthermore, the prayer of the plaintiff was for confirmation, which includes within its meaning recovery of possession. Plaintiff who has been dispossessed during the pendency of trial, cannot be denied the relief prayed for only on the ground that recovery of possession had not been prayed for.

Title and possession of a party cannot be defeated by such technical pleas [Refer to Pasupuleti Venkateswarlu v. Motor and General Traders, (1975) 1 SCC 770 ] Both the substantial questions of law are accordingly answered in favour of the plaintiffs/appellants. Judgment and decree of the first appellate court is set aside and that of the trial court is restored.

Appeal is allowed.

(Gautam Kumar Choudhary, J.) Jharkhand High Court, Ranchi Dated, 13th June, 2024 AFR/Anit