Smt. Ram Dulari Devi vs Kapildeo Singh
2024 Latest Caselaw 10414 Jhar

Jharkhand High Court

Smt. Ram Dulari Devi vs Kapildeo Singh on 14 November, 2024

Author: Anil Kumar Choudhary

Bench: Anil Kumar Choudhary

IN THE HIGH COURT OF JHARKHAND AT RANCHI
                        S.A. No.327 of 2018
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(Against the judgment dated dated 23.05.2018 passed by the District Judge-II, Koderma in Civil Appeal No.18 of 2012)

1. Smt. Ram Dulari Devi, Aged about 66 Years, wife of Shri Madan Mohan Singh,

2. Smt. Reshma Devi, Aged about 68 Years, Widow of Late Ram Lakhan Singh,

3. (a) Sanjay Kr. Singh, S/o Late Madan Mohan Singh, R/o Koderma, P.O. & P.S.+ Dist.- Koderma

(b)Nancy Rajesh Singh W/o Late Rajesh Kumar Singh

(c) Veer Rajesh Singh (Minor) S/o Late Rajesh Kumar Singh

(d) Veronica Rajesh Singh (Minor) S/o Late Rajesh Kumar Singh 3(c) and 3(d) are minor son and daughter of Late Rajesh Kumar Singh through their mother and natural guardian All R/o 19/15 Molsiri Road, Shipra Sun City, Indrapuram Gaziabad, U.P.

4. Shyam Kishore Singh, aged about 37 Years, Son of Late Ram Lakhan Singh,

5. Amarnath Singh, Aged about 36 Years, Son of Late Ram Lakhan Singh All residents of Koderma, P.O. & P.S. : Koderma, District:

Koderma .... .... .... Plaintiffs/Respondents/Appellants Versus

1. Kapildeo Singh

2. Pradeep Singh

3. Mahesh Singh

4. Dilip Singh Sl. No.1 to 4 are sons of Late Bhuneswar Singh

5. Bijay Singh, Son of Late Mathura Singh

6. Navin Singh, Son of Late Mathura Singh

Sl. No.1 to 6 all residents of Village: Barsotiyabar, P.O. & P.S.:

Koderma, District: Koderma

7. Manju Singh, Wife of Manoj Singh, resident of Village: Khanpura, P.O.: Khanpura, P.S.: Rajauli, District: Nawada (Bihar)

8. Smt. Shakuntala Devi, Wife of Brij Narain Singh, Resident of Village: Manjhgawan, P.O. & P.S.: Padma, District: Chatra.

.... .... .... Defendants/Appellants/Respondents

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            For the Appellants            : Mr. Sudhir Kr. Sharma, Advocate
                                            Mr. Ram Prakash Singh, Advocate
                                            Mr. Shashi Shekhar Dwivedi, Advocate
                                            Ms. Anushka Jha, Advocate
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                                            PRESENT
            HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
                                                ------

By the Court:-     Heard the learned counsel for the appellants.

2. This Second Appeal, under Section 100 of Code of Civil Procedure, has

been preferred against the judgment of reversal dated 23.05.2018 passed by the

District Judge-II, Koderma in Civil Appeal No.18 of 2012 whereby and where

under the learned first appellate court allowed the appeal and set aside the

judgment and decree impugned before it passed by the Civil Judge-III,

Koderma in Title Suit No.01 of 2005A dated 31.07.2012.

3. The brief facts of the case is that the plaintiffs, who are the appellants of

the Second Appeal, filed Title Suit No.01 of 2005A in the court of Munsif,

Koderma with a prayer that on adjudication, a decree may be passed in favour

of the plaintiffs declaring their title over the suit land as described by

boundaries in the Schedule 'B' by holding that the land measuring 0.16 acres as

per the boundaries given in Schedule 'B' to the plaint, appertains to plot

No.4322 and not plot No.4323 under Khata No.29 of village Koderma, cost of

the suit and other reliefs. In the plaint, the Schedule 'B' land has been described

by its area of 0.16 acres and boundaries on north, south, east and west. In the

Schedule 'B', the plot number of the suit land has not been mentioned.

4. The case of the plaintiff in brief is that the common ancestor of the

parties being the recorded tenant- Khirodhar Singh allotted portion of his land

as 'Jethansh' to his eldest son namely Darbari Singh and the rest of the lands

were partitioned in equal shares between two sons. Darbari Singh out of love

and affection and being pleased by the services rendered by Gujari Devi (his

daughter-in-law) transferred 8.12 acres of land including half of plot No.4322

under khata No.29 to Smt. Gujari Devi under registered Deed of Gift No.2809

dated 07.09.1939. On her acceptance of the gift, after Smt. Gujari Devi was put

in possession, she got her name mutated and separate rent receipt on payment

of rents was issued in her favour. Out of the said land of Smt. Gujari Devi, 0.12

acres of land were taken by Patna-Ranchi National Highways Road leaving the

suit land of 0.16 acres on the east of the road. Gujari Devi sold the said 0.16

acres of land of the suit land to Abdul Gaffar and Quadir Ali vide registered

sale-deed No.5324 dated 30.10.1950 but by mistake in the sale-deed, a portion

of plot No.4323 in place of 4322 was mentioned. Abdul Gaffar and Quadir Ali

sold the suit land to Sushila Devi vide registered sale-deed No.867 dated

19.01.1970. The plaintiffs purchased the suit land from Sushila Devi vide

registered sale-deed No.7451 dated 06.05.1970. The plaintiff Nos.1 and 2 filed

an application for correction of plot number in the mutation case bearing Misc.

Case No.09 of 2003-04 dated 05.07.2003 in which the defendants filed their

objection. A proceeding under Section 144 of the Code of Criminal Procedure

vide Misc. Case No.38 of 2003 was instituted and the proceeding was

ultimately dropped; and both the cases, of Misc. Case No.09 of 2003-04 for

correction of plot number and the Misc. Case No.38 of 2003 under Section 144

of the Code of Criminal Procedure, were dropped but the defendant No.2,

taking advantage of the orders, filed Eviction Suit No.05 of 2003 alleging that

the plaintiff Nos.1 and 3 were inducted in the house as a tenant by his father.

Hence, the plaintiffs filed the suit.

5. In their written statement, the defendants challenged the maintainability

of the suit on various technical grounds and further pleaded that the ancestral

lands were never partitioned between Darbari Singh and Anurudh Singh and

Darbari Singh was never given any land as 'Jethansh'. The parties were

cultivating the land as per their convenience. Gujari Devi never became owner

of the land-in-question, nor she had any concern with the suit land or any land

of plot No.4322. The Gift-deed remained a paper transaction only and never

came into effect but the gift-deed was without any boundaries of the land

gifted. Gujari Devi never came in actual possession of the land gifted. The

description of the land of the gift-deed is a vague one without any plot

covering 8.12 acres. Gujari Devi, being the only daughter-in-law of Darbari

Singh, is the wife of his only son- Durga Singh; there was no occasion for

Darbari Singh to gift the property to his natural class-I heir. Gujari Devi sold

more than the alleged gifted land of plot No.4316, which shows that Gujari

Devi sold the land in a rampant manner and she also sold the lands beyond the

gift-deed. The defendants challenged the boundaries of the schedule 'B' land.

Neither Darbari Singh nor Gujari Devi remained in possession over any land of

plot No.4322 but the land of plot No.4322 remains with the ancestors of the

defendants and the defendants succeeded to the same. Darbari Singh was

given the land of plot No.4316. Since Gujari Devi never got any land in plot

No.4322, therefore, there was no question of her selling any land of plot

No.4322 to Ram Dulari Devi and Reshma Devi. The defendants specifically

pleaded that there is no vacant land of 0.16 acres in plot No.4322.

6. On the basis of the rival pleadings of the parties, the learned trial court

settled the following eight issues:-

1) Is the suit maintainable in its present form?

2) Have the plaintiffs got valid cause of action for the suit?

3) Is the suit properly valued?

4) Is the suit barred by law of limitation, adverse possession, acquiescence,

waiver and estoppel?

5) Is the suit suffer from mis-joinder and non-joinder of parties?

6) Have the plaintiffs got their right, title and interest over the suit land?

7) Is the suit land appertaining to plot no.4322 and not on plot no.4323 under

khata no.29 of Village Koderma?

8) To what other relief or reliefs, the plaintiffs are found to be entitled?

7. In support of their case, the plaintiffs examined three witnesses and

proved the documents which have been marked Ext.1 to 12/b whereas from

the side of the defendants, four witnesses were examined and the defendants

also proved the documents which have been marked Ext. A to D.

8. Learned trial court first took up issue Nos.6 and 7 together and after

considering the evidence in the record, came to the conclusion that the first

vendor- Gujari Devi intended to sell her gifted share of 16 decimals land to

Abdul Gaffar Khan and Quadir Khan which was subsequently sold to Sushila

Devi and thereafter to the plaintiff namely Ram Dulari Devi and Reshma Devi

in plot No.4322 in place of plot No.4323 as mentioned in sale-deed concerned.

Boundaries of the disputed 16 decimals of schedule 'B' land tally with the

boundaries declared by the defendants and the learned trial court went on to

hold that the plaintiffs have right, title and interest over the plot No.4323 and

decided the issue Nos.6 and 7 in favour of the plaintiffs.

9. The learned trial court next took up issue No.5 and held that in absence

of any disclosure made by the defendant as to which of the parties has not been

made parties to the suit, decided issue No.5 in favour of the plaintiffs.

10. The learned trial court then took up issue Nos.2, 3 and 4 together and

held that the plaintiffs have valid cause of action and the suit property was

properly valued and the suit is not barred by limitation and the learned trial

court decided the issue Nos.2, 3 and 4 in favour of the plaintiffs.

11. Lastly, the learned trial court took up issue Nos.1 and 8 and decreed the

suit without specifically mentioning as to what relief is granted.

12. Being aggrieved by the judgment and decree passed by the learned trial

court, the defendants filed Civil Appeal No.18 of 2012 in the court of Principal

District Judge, Koderma which was ultimately heard and disposed of by the

learned first appellate court as already indicated above.

13. The learned first appellate court, on the basis of the materials available in

the record and the submissions made before it, formulated the following five

points for determination:-

i) Is the boundary of the suit land comes under plot no. 4322 and not under

plot no. 4323?

ii) Whether the first vendor, namely, Gujri Devi intended to sell the suit

land in plot no. 4022 and not in plot no. 4323 to first purchaser Abdul

Gaffur and Kadir Ali vide registered sale deed no. 5324 dt. 30.10.1950

and due to mis-description the plot no. 4323 was mentioned in the said

sale deed instead of plot no. 4322 and similarly in subsequent sale deeds of

the suit land?

iii) Whether the respondents/plaintiffs are entitled for declaration of their title

over the suit land?

iv) Whether all the issues were rightly and correctly decided by the lower

court?

v) Whether the judgment & decree of the lower court are liable to be set

aside?

14. The learned first appellate court first took up the point for determination

Nos.(i) and (ii) and made independent appreciation of the evidence in the

record and answered both the points for determination in the affirmative.

15. The learned first appellate court then took up the point for determination

No.(iii) and considering the fact that the suit has not been filed for rectification

of the sale-deed executed by Gujari Devi; the learned first appellate court

considered that the gift-deed executed in favour of Gujari Devi does not

contain any description of the boundary of the land gifted. There is no specific

pleading of the plaintiff that after execution of the gift-deed, any partition took

place in the family of the original owner of Khirodhar Singh. From the gift-

deed, it cannot be ascertained as to what size of portion of suit plot No.4322, 29

½ decimals land out of 59 decimals of land was allotted to Gujari Devi.

16. The learned first appellate court considered the principle of law settled

by the Hon'ble Supreme Court of India in the case of Keshavlal LaluBhai Patel

& Others vs. Lalbhai Trikumlal Mills Ltd. reported in AIR 1958 SC 512

wherein the Hon'ble Supreme Court of India observed that if, on fair

construction, the condition mentioned in the document is held to be vague or

uncertain, no evidence can be admitted to remove the said vagueness or

uncertainty and in the light of the said principle of law, the learned first

appellate court went on to hold that the vagueness and uncertainty in the gift

deed, which is devoid of boundary, cannot be removed by any extrinsic

evidence more so where the plaintiffs have also failed to establish that after the

execution of the gift deed, the donee was allotted the southern portion

including the suit land in plot No.4322 and the plaintiffs failed to establish the

antecedent title of the donee Gujri Devi over the suit land (in the particular

boundary over the plot No.4322), though inadvertently in place of plot

No.4322, plot No.4323 was mentioned in the sale-deed executed by Gujari

Devi. The plaintiffs are not entitled for declaration of title of the suit land as

claimed by them. The learned first appellate court also considered that the

plaintiffs have taken the contradictory plea of adverse possession also which

cannot go simultaneously with the plea for title. The learned first appellate

court also concluded that the plaintiffs have failed to establish their case that

there was a partition by metes and bounds of the recorded ancestor- Khirodhar

Singh including the land of suit plot No.4322 of khata No.29 between the sons

of Khirodhar Singh during his lifetime and the fact that no boundary has been

mentioned in the gift-deed, itself, is prima facie sufficient to draw a

presumption that no partition of the land recorded in the name of Khirodhar

Singh including the plot No.4322 was taken place before or at the time of

execution of the gift deed-in-question. On the basis of the above consideration,

the learned first appellate court decided the point for determination against the

plaintiffs by holding that the plaintiffs are not entitled for declaration of their

title over the suit land.

17. The learned first appellate court next took up the point for determination

Nos.4 and 5 together and found fault with the finding of the learned trial court

and held that the learned trial court has erroneously, without going into fact

that antecedent title of donee Gujari Devi who sold the land in favour of the

vendors of the vendors of the plaintiffs without considering the fact that the

gift-deed was executed without any description of boundary but the vendors

of the vendors of the plaintiffs purchased the suit land with a particular

boundary. Hence, the plaintiffs having filed the suit for confirmation of the

boundary of the suit land, the trial court erred in deciding the issue No.6 and

declaring right, title, interest and possession of the plaintiffs erroneously and

reversed the said finding and allowed the appeal and set aside the judgment

and decree impugned before it.

18. Learned counsel for the appellants relies upon the judgment of the

Hon'ble Supreme Court of India in the case of Mukulika Mandal & Others vs.

Bankim Mandal & Others reported in 2022 (3) JLJR 685 wherein this court

relied upon the judgment of the Hon'ble Supreme Court of India in the case of

Bhagwan Dayal (since deceased) through L.Rs. vs. Most. Reoti Devi

(deceased through LR) reported in AIR 1962 SC 287, which was also followed

in the case of Arjun Mahto & Others vs. Monda Mahatain & Others reported

in AIR 1971 Patna 215 by the Hon'ble Patna High Court, wherein it was held

that even though no formal document of partition could be produced, still the

partition can be proved by the intention of the parties, manifest by their

subsequent conduct by their sole and independent enjoyment of the property.

In the facts of that case, where the father of the opposite party-appellant and

his brothers were having separate mess and separate cultivation which has

been mentioned in the recital of the sale-deed marked Ext.A/1 in that case as

well as in the fact that case, as the brothers of the father of the

plaintiffs/opposite parties/appellants have sold portion of the land in their

possession without involving the father of the opposite party-appellant;

submits that as in this case also, since both Gujari Devi as well as the

defendants have executed several sale-deeds which goes to show that partition

by metes and bounds has taken between them.

19. Learned counsel for the appellants in this respect also relies upon the

judgment of the Hon'ble Patna High Court in the case of Pata Sahu & Another

vs. Hiru Sahu & Others reported in AIR 1991 Patna 276 wherein in the facts

and circumstances of that case it was held that there had been a partition by

metes and bounds amongst the parties and all the acquisitions standing in the

names of the defendant or the plaintiffs are their self-acquired properties

though there was no formal document of partition put forth in that case.

20. Learned counsel for the appellant next relies upon the judgment of the

Hon'ble Supreme Court of India in the case of SK. Bhikan vs. Mehamoodabee

& Others reported in (2017) 5 SCC 127 and submits that therein it has been

observed by the Hon'ble Supreme Court of India that when the Court is called

upon to interpret the documents and examine its effect, it involves questions of

law. It is, therefore, obligatory upon the High Court to decide such questions

on merits. It is then submitted that in this case, the High Court could do so

after framing substantial questions of law as required under Section 100 of the

Code of Civil Procedure. In this respect, the learned counsel for the appellant

also relies upon the judgment of the Hon'ble Patna High Court in the case of

Radhamoni Bhuiyanin & Others vs. Dibakar Bhuiya & Others reported in

AIR 1991 Patna 95 and submits that therein the Hon'ble Patna High Court

reiterated the well settled law that although there is a presumption of jointness

in a Hindu family but that presumption is stronger where the parties are full

brothers but such presumption gets weaker and weaker as time passes and

parties in third or fourth generation are found to be in separate possession of

the lands. It is next submitted by the learned counsel for the appellants that the

learned first appellate court erred by ignoring the fact that the plaintiffs and

the defendants being the third and fourth generation of the original recorded

tenant; by now, partition by metes and bounds must have been presumed by it.

It is also submitted that as the learned first appellate court has affirmed the

finding that Gujari Devi intended to sell the plot No.4322 but erroneously in

the sale-deed executed by her in favour of Abdul Gaffar and Quadir Ali, the

plot number has been mentioned as 4323; it ought to have held that the land

sold to Abdul Gaffar and Quadir Ali was of plot No.4322 with the boundaries

as has been mentioned in schedule 'B' of the plaint. Hence, it is submitted that

the judgment and decree passed by the learned first appellate court be set aside

and the judgment and decree passed by the learned trial court be restored after

formulating appropriate substantial questions of law.

21. Having heard the submission made at the Bar and after carefully going

through the materials available in the record, so far as the contention of the

learned counsel for the appellants regarding observations made by the learned

first appellate court of the partition by metes and bounds is concerned, it is

pertinent to mention here that the learned first appellate court has confined the

partition by metes and bounds during the lifetime of Khirodhar Singh and not

thereafter. The learned first appellate court has held that if Khirodhar Singh

partitioned the properties during his lifetime, as is the case of the plaintiffs,

then in the gift-deed, son of Khirodhar Singh namely Darbari Singh ought to

have mentioned the plot number with boundaries particularly, when the

property gifted consisting of 29 ½ decimals, was part of the full plot, whereas

the full plot was undisputedly of 59 decimals. So, the judgment of the Hon'ble

Patna High Court in the case of Radhamoni Bhuiyanin & Others vs. Dibakar

Bhuiya & Others (supra) is not applicable in the facts of the case because the

observations made by the learned first appellate court is not regarding the

partition took place between the third generation or fourth generation, rather

the partition referred to was in respect of the original recorded tenant as

pleaded by the plaintiffs. For similar reasons, the judgment of this Court in the

case of Mukulika Mandal & Others vs. Bankim Mandal & Others (supra) is

also not applicable because the sale-deeds were executed by the descendants of

Khirodhar Singh and there is no sale-deed in the record to show that the same

were either executed by Khirodhar Singh or Darbari Singh or Anurudh Singh

and the observations of the learned first appellate court was only to the extent

and to the period of time when Khirodhar Singh was alive. So, for the similar

reasons, the facts of this case being inter alia different from the facts of the case

of Pata Sahu & Another vs. Hiru Sahu & Others (supra), the ratio of the

judgment of Pata Sahu & Another vs. Hiru Sahu & Others is also not

applicable in the facts and circumstances of the case.

22. So far as the judgment of the Hon'ble Supreme Court of India in the case

of SK. Bhikan vs. Mehamoodabee & Others (supra) is concerned, the same is

no doubt a settled principle of law but the fact is that in this case, there is no

occasion for interpretation of any document. The undisputed fact remains that

the gift-deed executed by Darbari Singh in favour of Gujari Devi does not bear

the description of boundary sufficient to identify the land even though

undisputedly the land is part of a full plot of land bearing plot No.4322. In the

suit, the plaintiffs are praying for title over the land with specific boundaries

and there is no material in the record to suggest that the plot number with

specific boundaries was ever gifted to Gujari Devi. So, as the plaintiffs have

failed to establish any title of Gujari Devi in respect of the suit land, which is a

land with specific boundaries as has been mentioned in the plaint, but there is

no corresponding reference to the boundaries in the land which was gifted to

Gujari Devi. Hence, this Court do not find any illegality having been

committed by the learned first appellate court in holding that the plaintiffs

have failed to establish their title over the suit land and having failed to prove

the antecedent title of their vendors.

23. In view of the discussions made above, this Court is of the considered

view that there is absolutely no substantial question of law involved in this

appeal.

24. Accordingly, this appeal, being without any merit, is dismissed but

under the circumstances without any cost.

25. Let the copy of this judgment be sent to the courts concerned forthwith.

(Anil Kumar Choudhary, J.)

High Court of Jharkhand, Ranchi Dated the 14th of November, 2024 AFR/ Saroj