Ali Imam vs (A) Idul Ansari
2024 Latest Caselaw 10511 Jhar

Jharkhand High Court

Ali Imam vs (A) Idul Ansari on 19 November, 2024

Author: Anil Kumar Choudhary

Bench: Anil Kumar Choudhary

IN THE HIGH COURT OF JHARKHAND AT RANCHI
                     S.A. No.164 of 2009
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(Against the judgment dated 18.04.2009 passed by learned Additional Judicial Commissioner-XVII, Ranchi in Title Appeal No.109 of 2007)

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1. Ali Imam

2. Sk. Akhtar (Serial No.1 to 2 are the sons of Late Hussain)

3. Sk. Nawsad

4. Sk. Asraf

5. Sk. Asgar (Serial No. 3 to 5 are the sons of Late Sk. Yunus) All are by caste Muslim, by profession cultivators, resident of village: Kokodoro, P.S. : Pithoria, District : Ranchi.

6. (i) Halima Khatoon wife of Late Hadis Ansari resident of Kokodoro P.O. Kokodoro, P.S. Pithoria, District Ranchi.

(ii) Majina Khatoon (daughter) Wife of Mansur Ali resident of Math Toli, P.O. Mudma P.S. Nagri, District Ranchi.

(iii) Sajina Khatoon (daughter) wife of Sakil Ahmad resident of Village & P.O. Kokodoro, P.S. Pithoria, District Ranchi.

(iv) Rajina Khatoon (daughter) Wife of Sabir Ahmad, resident of village Badaghi P.O. Lem Badagai P.S. Sadar, District Ranchi.

(v) Akhter Ansari son of Late Hadis Ansari, resident of Village & P.O. Kokodoro, P.S. Pithoria, District Ranchi.

.... .... .... Plaintiff-Appellants /Appellants.

Versus

1. (a) Idul Ansari, Son of Late Sk. Kasim, resident of- Village Kokodoro, P.S. Pithoria, District- Ranchi.

(b) Reyazual Ansari, Son of Late Sk. Kasim, resident of- Village Kokodoro, P.S. Pithoria, District- Ranchi.

2. (a) Moin Ansari, Son of Late Sk. Jasim, resident of- Village:

Kokodoro, P.S. Pithoria, District- Ranchi.

(b) Nayum Ansari, Son of Late Sk. Jasim, resident of- Village:

Kokodoro, P.S. Pithoria, District- Ranchi.

(c) Ainul Ansari, Son of Late Sk. Jasim, resident of- Village: Kokodoro, P.S. Pithoria, District- Ranchi.

(d) Izhar Ansari, Son of Late Sk. Jasim, resident of- Village:

Kokodoro, P.S. Pithoria, District- Ranchi.

3. (a) Shakil Ansari, Son of Late Sk. Ahmad, resident of- Village:

Kokodoro, P.S. Pithoria, District- Ranchi.

(b) Najbul Ansari, Son of Late Sk. Ahmad, resident of- Village:

Kokodoro, P.S. Pithoria, District- Ranchi.

(c) Javed Ansari, Son of Late Sk. Ahmad, resident of- Village: Kokodoro, P.S. Pithoria, District- Ranchi.

(d) Parvez Ansari, Son of Late Sk. Ahmad, resident of- Village: Kokodoro, P.S. Pithoria, District- Ranchi.

(e) Ali Imam Ansari, Son of Late Sk. Ahmad, resident of- Village:

Kokodoro, P.S. Pithoria, District- Ranchi.

4. Sk. Naimullah

5. Sk. Enamul (Serial No. 4 to 5 are the sons of Late Sk. Leakat).

6. Sk. Hafijulla, son of Sk. Miajan Sr. No. 4 to 6 All are by caste Muslim, by profession cultivators, resident of village : Kokodoro, P.S. : Pithoria, District:

Ranchi.

.... .... .... Defendant- Respondents/Respondents

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For the Appellants        : Mr. Shadab Bin Haque, Advocate
                            Mr. S. K. Sharma, Advocate
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                              PRESENT
 HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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By the Court:- Heard the learned counsel for the appellants.

2. This Second Appeal filed under section 100 of the Code of Civil

Procedure, 1908 has been preferred against the judgment of concurrence dated

18.04.2009 passed by learned Additional Judicial Commissioner-XVII, Ranchi

in Title Appeal No.109 of 2007 whereby and where under the learned

Additional Judicial Commissioner-XVII, Ranchi being the learned first

appellate court confirmed the judgment and decree passed by the trial court

being the Additional Munsif-1st, Ranchi in Title Suit No.150 of 1995 dated

17.08.2007 whereby and where under the learned trial court dismissed the suit

of the plaintiffs/appellants filed with a prayer for declaration of the plaintiffs'

title over the suit land and for removal of the construction made by the

defendants thereon and cost of the suit.

3. The case of the plaintiffs in brief is that the ancestors of the plaintiff Nos.1

to 5 as well as the plaintiff No.6 himself purchased the suit land by a registered

sale-deed executed by Maharaja Chintamani Saran Nath Sahdeo. As the

defendants created trouble in the enjoyment of the suit of the plaintiffs, the

plaintiffs filed a case under Section 144 of the Cr.P.C. The plaintiffs claimed

that the defendants have no right, title and interest over the suit land and they

are trespassers. As the defendants did not accede to the request to handover

the possession of the suit land, hence, the plaintiffs filed the suit.

4. The defendants in their joint written-statement challenged the

maintainability of the suit on various technical grounds. Besides it was

pleaded by the defendants that the plaintiffs have no right, title and interest

over the suit land; as Maharaja Chintamani Saran Nath Sahdeo had no right,

title and interest over the suit land, to transfer the same to the plaintiffs as the

said Maharaja Chintamani Saran Nath Sahdeo was neither in possession of the

suit land, on the date of alleged transfer in favour of the plaintiff No.6 and the

ancestors of the plaintiff Nos.1 to 5 i.e. on 05.11.1965 nor on the date of vesting

of the said property with the State of Bihar. The defendants further pleaded

that Maharaja Chintamani Saran Nath Sahdeo orally settled 0.270 acres of land

out of the suit plot in favour of Sheikh Ahmad- who is the father of the

defendant Nos.1, 2 and 3. The oral settlement was confirmed by delivery of

possession and grant of rent receipts coupled with customary Hukumnama

dated 13.12.1948; upon which the settlee came and continued in possession of

the settled land and paid rent to the landlord, upon grant of rent receipts. After

death of the settlee Sheikh Ahmad, the defendant Nos.1 to 3 inherited the same

and they in the family arrangement, have allowed their nearest relatives being

the defendant Nos.4 and 5 to come in the possession over the said settled land.

Thus, the defendant Nos.1 to 5 have valid right, title, interest and possession

over the suit land. Even if there is any defect in the title of the defendants, the

same stood perfected in favour of the defendants by way of adverse

possession, by the defendants remaining in possession over the suit land. The

said Maharaja Chintamani Saran Nath Sahdeo also orally settled 0.40 acres of

land, out of the suit plot No.51, in favour of Sheikh Miya Jan, who is the father

of the defendant No.6 and the same was confirmed by delivery of possession

and grant of rent receipts followed by customary Parwana dated 13.12.1938.

The said settlee also came and continued in possession of the settled land by

paying rent to the landlord on grant of rent receipts. The defendants further

denied the entire pleadings of the plaintiffs; made in the plaint.

5. The learned trial court upon recasting the issues, settled the following

eight issues:-

     (1)      Whether the suit is maintainable as framed?
     (2)      Whether plaintiffs have any valid cause of action for the suit?
     (3)      Whether Maharaja Ratu, Chinta mani Nath Sahdeo sold and had right to

sell the lands including the suit lands to the plaintiffs' ancestors as alleged?

(4) Whether the plaintiffs' ancestor came in possession of the lands, including the suit lands by virtue of the alleged sale deed dated 5.1.1965 in respect thereof in favour of the plaintiffs' ancestor and after plaintiffs' ancestors, the plaintiffs came and are in possession thereof? (5) Whether said Maharaja settled the lands including suit land with the defendant's ancestors as alleged and they came and after them the defendants are in possession of the same including the suit land? (6) Whether defendants dispossessed the plaintiffs from the suit land and made construction thereon forcibly in 1995 as alleged by the plaintiffs or the construction on suit land are since long before, as alleged by the defendants?

(7) Whether the plaintiffs are entitled to recover possession of the suit land from the defendants as claimed?

(8) What relief, if any, is the plaintiffs entitled to?

6. In support of his case, the plaintiffs altogether examined six witnesses

and proved the documents which have been marked Ext. 1 to Ext. 3, while the

defendants examined nine witnesses and also proved the documents which

were marked Ext. A to Ext. C/1.

7. The learned trial court first took up issue Nos.(3) to (7) together and after

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

Maharaja Chintamani Saran Nath Sahdeo had no subsisting right, title and

interest to sell the land including the suit lands to the plaintiffs' ancestors by

virtue of Ext. 3, hence, the defendants have succeeded in establishing that the

suit lands were orally settled and possession was delivered in favour of their

ancestors. The learned trial court also came to the finding that the evidence in

the record suggests that the defendants never came in possession of the suit

land by virtue of the Ext. 3- the sale-deed executed by Maharaja Chintamani

Saran Nath Sahdeo. The learned trial court did not consider the second plea of

alternative plea of adverse possession of defendants; as according to the

learned trial court, since the defendants have succeeded in establishing their

title by way of ownership, there is no necessity for considering their plea of

perfection of title by way of adverse possession and decided the issue Nos.(3)

to (7) against the plaintiffs and in favour of the defendants.

8. The learned trial court next took up the issue Nos.(1), (2) and (8) together

and on the basis of its findings in respect of the issue Nos.(3) to (7) went on to

hold that the plaintiffs have failed to establish any valid cause of action for the

suit and the suit framed against the defendants, is also not maintainable. The

learned trial court further held that the plaintiffs are not entitled to get any

relief as prayed for and dismissed the suit on contest.

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

court, the plaintiffs filed Title Appeal No.109 of 2007 in the court of Additional

Judicial Commissioner-XVII, Ranchi which was ultimately heard and disposed

of by the learned first appellate court by the impugned judgment, as already

indicated above.

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

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

points for determination:-

"(i). Whether the Plaintiffs have been able to prove their 'title' to the Suit lands? If Yes.

(ii). Whether the Defendants have been able to prove acquisition of title through adverse possession?

(iii). Whether the judgment and decree under appeal requires any interference by this First Appellate court?"

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

Nos.(i) and (iii) together and made independent appreciation of the evidence

in the record and considered that neither in the recital of the sale-deed nor in

the plaint of the plaintiff nor in the evidence of any of the six witnesses

examined by the plaintiffs, it has come that the vendor of the sale-deed namely

Maharaja Chintamani Saran Nath Sahdeo authorized any person specifically to

Bhaiya Raghomani Nath Sahdeo, to accept the execution of the sale-deed

marked Ext. 3 on his behalf before the Registrar nor any document containing

such authority to represent the vendor before the Registrar, is attached in the

sale-deed nor is available anywhere in the record. The learned first appellate

court considered the judgment rendered by the five judges full Bench of

Hon'ble Patna High Court in the case of Mossamat Ugni vs. Chowa Mahto

reported in 1968 BLJR page-93 wherein the law was settled that oral settlement

accompanied with delivery of possession and acknowledgment of tenancy by

acceptance of rent by landlord is sufficient to prove the acquisition of raiyati

rights and went on to hold that the plaintiffs have failed to prove their title to

the suit land. The learned first appellate court also considered that the

documents put forth by the defendants go to show that the State Government

also recognized the father of the defendants namely Sheikh Miya Jan- as a

raiyat of the land settled and accordingly opened Jamabandi of the suit lands

in his name. The learned first appellate court then considered that after vesting

of the estate into the State Government, the ancestors of the defendants who

were the settlee were recognized as tenant of the settled land, which is the suit

land and created Jamabandi in his name. The learned first appellate court also

considered that in the sale-deed marked Ext. 3, no manner of the vendor of the

sale-deed having right, title and interest over the land sold, was mentioned

and went on to hold that the plaintiffs have not come to court with clean hands

and mind and miserably failed to prove their title and answered the points for

determination Nos.(i) and (iii) against the appellants/plaintiffs and in favour

of the respondents/defendants.

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

No.(ii) and considering the fact that the plaintiffs filed the suit, the defendants

are not required to prove their adverse possession; did not record any finding

in respect of the point for determination No.(ii) and dismissed the appeal.

13. Learned counsel for the appellants 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 paragraph-17 of which reads as under:-

"17. 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. In this case, the High Court could do so after framing substantial questions of law as required under Section 100 of the Code. It was, however, not done."

and submits that it being a settled principle of law that when the Court is

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

question of law and the learned first appellate court has committed a grave

illegality in interpreting the documents marked Ext. 3 i.e. the sale-deed

executed by Maharaja Chintamani Saran Nath Sahdeo in favour of the

ancestors of the plaintiff Nos.1 to 5 and the plaintiff No.6 himself. Therefore,

the necessary substantial question of law is to be framed and this Second

Appeal be admitted.

14. It is next submitted that both the courts below have committed perversity

by not considering the settlement of the land in favour of the ancestor of the

plaintiff Nos.1 to 5 and the plaintiff No.6 himself through registered Patta

transferring 2.48 acres of land conferring right, title and interest upon them. It

is next submitted that both the courts below ought to have held that the

plaintiffs upon purchase of the suit land from Maharaja Chintamani Saran

Nath Sahdeo, had been paying rent of the land continuously to the State of

Bihar and thus, the appellants/plaintiffs have established their right, title and

interest. It is next submitted that both the courts below committed a serious

error of law in not considering that the Bakast Maalik lands were the personal

lands after the cultivation of the ex-landlords and the ex-landlords were the

owners thereof. It is further submitted that both the courts below ought to

have treated the defendants to be the trespassers. It is lastly submitted that

both the judgment and decree passed by the learned trial court as well as the

learned first appellate court, are not sustainable in law, hence, the same be set

aside and the suit of the plaintiffs be decreed after formulating appropriate

substantial question of law.

15. Having heard the submission of the learned counsel for the appellants

made at the Bar and after carefully going through the materials available in the

record, it is pertinent to mention here that 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 a settled principle of law but the

fact is that in this case no error has been committed either by the learned trial

court or by the learned first appellate court in interpretation of any document

or examining its effect. The case of the parties is crystal clear and it is that the

plaintiffs and the ancestors of the plaintiff Nos.1 to 5 as well the plaintiff No.6

himself and the ancestors of the defendants claim respective title over the suit

land on the basis of the acquisition made by them from the one and the same

person i.e. Maharaja Chintamani Saran Nath Sahdeo. The case of the

defendants is that their ancestors acquired the same by way of oral settlement

followed by delivery of possession which was acknowledged by acceptance of

rent and executing Hukumnama and Parwana. Prior to a sale-deed

purportedly executed by Maharaja Chintamani Saran Nath Sahdeo which was

presented for registration before the Sub-Registrar's Office by a person

supposed to have been authorized by Maharaja Chintamani Saran Nath

Sahdeo and not by Maharaja Chintamani Saran Nath Sahdeo himself. As has

rightly been pointed out by the learned first appellate court, there is absolutely

no pleading of the plaintiffs in the plaint that someone other than Maharaja

Chintamani Saran Nath Sahdeo presented the sale-deed for registration. So, as

rightly held by the learned trial court, the vendor of the ancestor of the plaintiff

Nos.1 to 5 and the plaintiff No.6 himself was not having any right, title and

interest in respect of the suit land, the same having ceased to exist in his favour

after oral settlement of the suit land by him in favour of the ancestors of the

defendants followed by acceptance of rent and execution of Hukumnama and

Parwana.

16. Under such circumstances, this Court do not find any error having been

committed by the courts below in holding that consequent upon the oral

settlement of the suit land in favour of ancestor of the defendants and even the

State of Bihar recognizing the settlee being the ancestor of the defendants as

the tenant even after vesting of the land, with the State of Bihar and opening

Jamabandi in their favour as also the fact that the plaintiffs have failed to

establish their possession over the suit land and it is the admitted case of the

plaintiffs that the defendants are in possession of the suit land and the failure

of the plaintiffs to show their possession of the suit land by any cogent

evidence as well as the defect in registration of the sale-deed marked Ext. 3, the

same having been produced by a person other than the executant of the sale-

deed, this Court do not find any perversity in the finding of the facts of both

the courts below and in view of such clear case of the defendants, no illegality

has been committed by either of the courts below in interpretation of the

documents brought on record by way of evidence.

17. So far as the contention of the learned counsel for the appellants that the

suit land was earlier the Bakast land of Maharaja Chintamani Saran Nath

Sahdeo is concerned, there is no bar for the Maharaja to transfer his Bakast

land in favour of anyone else of his choice. So, this contention of the appellants

has no legs to stand.

18. Under such circumstances, this Court is of the considered view that there

is absolutely no substantial question of law involved in this Second Appeal.

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

under the circumstances without any costs.

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

(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 19th of November, 2024 AFR/ Animesh