Jharkhand High Court
Smt. Indramani Devi Aged About 67 Years vs Maheshwar Mahto on 27 February, 2025
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
IN THE HIGH COURT OF JHARKHAND, RANCHI
S.A. No. 136 of 2024
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1. Smt. Indramani Devi aged about 67 years, W/o - Shri Raghubir
Prajapati
2. Raghubir Prajapati aged about 73 years, S/o Late - Sheo Barat
Prajapati, Both are resident of village - Sarkoni, PO - Semaura,
PS - Kandi (Earlier Majhiaon), District - Garhwa, Jharkhand
.... Appellants
-- Versus --
Maheshwar Mahto, S/o - Late Deodhari Mahato, R/o - Village
- Barwadih, PO - Belhath, PS - Kandi (Earlier Majhiaon),
District - Garhwa, Jharkhand ....
Respondent
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Appellants :- Mr. Manoj Kumar Choubey, Advocate
For the Respondent :-
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06/27.02.2025 Heard learned counsel appearing for the appellants.
2. This second appeal has been preferred against the
judgment dated 9th August, 2024 and decree prepared on 20th
August, 2024 and decree signed on 23.08.2024 whereby the Civil
Appeal No.08 of 2022 has been dismissed by the learned Principal
District Judge, Garhwa confirming the judgment dated 30th June,
2022 and decree prepared on 30.06.2022 and signed on 05.07.2022
by learned Civil Judge (Jr. Div.)-II, Garhwa, passed in Title Suit
No.43 of 2008.
3. Title Suit No.43 of 2008 was instituted by one Maheshwar
Mahto/plaintiff for declaration of indefeasible right, title and interest
over the suit land and for permanent injunction against the
defendants and cost is also prayed which was decided in favour of
the plaintiff by judgment dated 30th June, 2022 when the decree
was prepared and aggrieved to that the appellants/defendants has
preferred the Civil Appeal No.08 of 2022 which was decided by
judgment dated 09.08.2022 and by the said judgment the appeal
was dismissed and the judgment of the learned trial court was
affirmed.
4. Mr. Choubey, learned counsel appearing for the appellants
submits that learned both the Courts have failed to appreciate the
fact that the entire area of Khata No.54 which is the subject matter
of Title Suit No.11 of 1991 was not claimed and only the share of
land has been claimed and in view of that, that is the substantial
question of law and this second appeal may kindly be admitted.
5. The said suit was instituted by the plaintiffs/respondents
stating therein that Mathura Mahto S/o Sukhdeo Mahto of village-
Sarkoni, P.S Majhiaon, Distt Garhwa had his share of ancestral land
in village- Sarkoni and Bhilama, P S. Majhiaon, Distt - Garhwa.
Mathura Mahto had no son and he had only four daughters Jirwa
Devi, Premini Devi, Bimala Devi and Kamla Devi, who are married.
Sheo Ratiya Devi was mother of Mathura Mahto, who was alive till
the year 1988. It is further averred that in 1986, 1987 and 1988
several persons conspired with Bimala Devi and Sheo Ratiya Devi to
grab the land of Mathura Mahto and brought the sale deeds and
deed of gift in existence purported to be executed by Mathura
Mahto, and Sheo Ratiya Devi and subsequently to several others
which have been mentioned in detailed in Schedule 'A. The deed of
gift by Sheo Ratiya Devi and subsequently sale deeds to transfer the
land to others were void ab-initio and similarly, the sale deed
fraudulently obtained from Mathura Mahto was also void ab-initio.
Subsequent deeds of transfer of such land by said transferees Sheo
ratiya Devi and Mathura Mahto were also void which do not affect
the convey of the land of Mathura Mahto. Mathura Mahto firstly
cancelled the deeds alleged to be executed by him and thereafter,
instituted the T.S. No. 10/1991 titled as Mathura Mahto Vrs. Udai
Mahto & others and another T.S. No 11/1991 titled as Mathura
Mahto Vrs. Saguni Devi & 18 others. Both the suits were for the
declaration of deeds mentioned in Schedule 'A' as void, illegal and
without effect. It is further averred that Sale Deed No. 5745/1990 of
Principal defendant no.1 the wife of Principal defendant no.2, was
the subject of TS. 11/1991 which is relevant for the purpose of this
suit. The land of Sale Deed No. 5745/1990 alleged to be executed
by Bimala Devi in favour of Principal defendant no. 1. Indramani
Devi contains the land 9½ decimals in plot no. 31 and 10½
decimals in plot no 32 under Khata no. 54 of village-Sarkoni PS
Majhiaon, Distt. Garhwa, which is the subject matter of the suit Sale
Deed no. 5745 of 1990 did not convey the right, title, interest and
possession to the principal defendants as the sale deed of the suit
land was not given effect for any purpose and for any point of time.
Mathura Mahto remained in right, title, interest and possession of
the suit land along with his other land, regularly and continuously
for his all purposes. After hearing of T.S. No. 11 of 1991 it has been
decided that the sale deeds and deed of gift, the subject of the Title
Suit No.11 of 1991 are not valid and genuine and the purchaser in
deeds cannot claim title on the basis of deeds and the plaintiff
Mathura Mahto continued in right, title and possession and
accordingly the suit was decreed. The Sale Deed No.5745 of 1990
was within the subject of T.S. 11/1991. Another TS No. 10/1991 has
been decided in favour of Mathura Mahto declaring that the deed of
gift no 6770 dated 27.07 1987 purported to be executed by Mathura
Mahto with respect to the suit land is ab-initio void and complete
nullity, not having conveyed any interest of the suit land, the subject
matter of the deed. Some of the defendants of TS 10/1991 and TS
No. 11/1991 have filed Misc. Case No. 7 and 9 of 1995 for setting-
aside the ex-parte order and decree within the knowledge of all the
defendants of the T.S. No. 10/1991 and T.S. 11/1991 which they
lost. They preferred Misc. Appeal No.1 of 2000 which also they lost.
The judgment and decree of TS No. 11 of 1991 was also the subject
of Misc Case No.10 of 1995 for setting aside the judgment and
decree which has also been dismissed before 2000. The judgment
and decree of T.S. 10/1991 and TS 11/1991 became absolute and
conclusive which cannot be challenged in any proceeding of the
court of law because of the lapse of the period. Thus, Mathura
Mahto continued his right, title and possession of the land 3.17
acres of village Sarkoni and 3.64 acres in village-Bhilama. Till he
transferred the entire area of land on 27 11.2006 to the plaintiff
through registered Sale Deed No 8508 dated 27.11.2006 and put
the plaintiff in right, title and possession thereof. After the
acquisition of land by plaintiff through sale deed no. 8508/2006 in
his right, title and possession, the defendants in absence of the
plaintiff in first week of the month of March, 2008, got a small hut
and room of mud and tiles constructed by encroaching upon the
land area 0.09½ acre of plot no. 31 and 0.10½ acre land of plot no.
32 under khata no. 54 of village- Sarkoni which was shown in the
Sale Deed No. 5745/1990 executed by Bimala Devi in the name of
defendant no 1 and such Sale Deed 5745/1990 has been declared
void inoperative to alienate/convey the land in said deed in T.S. 11
of 1991. The plaintiff came in the village and found the high
handedness of the principal defendants with the associate of the
unsocial elements of the society. The defendants now have also
started collecting materials, the bricks and sand in the portion of
said land of plot no. 31 and 32. The land 0.09½ acre of plot no. 31
and 0.10½ acre of plot no. 32 under khata no 54 of village- Sarkoni
is the subject-matter of the suit detailed in Schedule 'B', hereinafter
called the "suit land. The plaintiff has no claim against the proforma
defendant no.3 but the plaintiff is the purchaser of the suit land
along with other from the proforma defendants, hence, impleaded
him as party to avoid the future complications. The plaintiff has
acquired well established right, title and possession of the suit land
and the act of the principal defendants 1 and 2 for encroachment
and trespass over the suit land in March, 2008 is highly illegal and
the construction of the room and hut and collection of the materials
for further construction is and shall be their high handedness to
cause the injury and loss and harassment to the plaintiff physically
and financially in the multiplicity of the litigation in the court of law.
It is further averred that the balance of convenience is also in
favour of the plaintiff in view of the facts contended aforesaid. The
entire acts of the principal defendants in the matter of the case for
encroachment and trespass are illegal. As the principal defendants
have trespassed and encroached over the suit land, recently in
March, 2008, and have collected materials, for further construction,
they are liable to be evicted from the suit land under the process of
the court. It is further averred that the cause of action arose on
05.03.2008, when the defendants enter upon the suit land and
constructed room and hut and collected materials and on
10.03.2008 when the principal defendants refused to remove the
materials and structure from the suit land within the jurisdiction of
this court. For the purpose of court fee, the suit is valued at Rs.
7,000/- (Rs. Seven thousand) on which ad-valorem court fee of Rs.
1096/- has been paid.
Schedule 'A'
List of the Sale Deeds and Deed of Gift, the subject of T.S. No.10
1991 and T.S. No.11/1991, decided by the competent
1. Sale Deed No.6258 dated 22.07.1988
2. Sale Deed No.6257 dated 22.07.1988
3. Sale Deed No.5745 dated 06.07.1990
4. Sale Deed No.4435 dated 31.05.1990
5. Sale Deed No.4487 dated 01.06.1990
6. Sale Deed No.4488 dated 01.06.1990
7. Sale Deed No.9131 dated 28.11.1990
Schedule-'B'
Description of the suit land
Village-Sarkoni, PS-Majhiaon, District- Garhwa
Khata No. Plot No. Area A.D. Boundary
------ ------ ------ ------
54 31 0.09½ N. - Plaintiff
54 32 0.10¼ S. - Rasta
E. - Plaintiff
W. - Plaintiff
6. Defendants' appeared and filed their written statements.
The first one has been filed jointly by the defendants Nos.1 & 2.
The second one has been filed by defendant No.3.
7. The case of defendant Nos.1 & 2 according to their joint
written statement is that the suit is not maintainable. The plaintiff
has no cause of action for this suit and cause of action mentioned in
plaint is false, wrong and baseless. The suit is barred by law of
limitation, waiver, estoppels and acquiescence The suit is also bad
for mis-joinder of party as well as non-joinder of necessary party.
The suit is also barred under section 34 of Specific Relief Act. This
suit is undervalued as the proper value of suit land is not less than
two lakh fifty thousand rupees (Rs 2,50,000/-) because of the fact
that residential house of defendant nos.1 & 2 is also situated over
the suit land and the suit land is best valuable land. That there is no
land on spot as per the boundary given in schedule of the plaint and
as such the boundary of suit land as given in schedule of the plaint
is incorrect and wrong, the correct boundary of suit land is as
follows:-
Village Khata no. Plot No. Area (A.D.) Boundary
Sarkoni 54 31 0.009½ Acre N. - Udal Mahto
& Sunil Mahto
S. - Rasta
E. - Plot No.52
W. - Jagdish Mahto
In rough sketch the suit land may be shown as follows :-
North - Udal Mahto & Sunil Mahto
West -
Jagdish Mahto Plot No.31 Plot No.32 East -
Jagdish Mahto
0.009½ Acre 0.10¼ Acre
South - Rasta Grade III Road
A. The above referred boundary of suit land may be inquired
into and verified through spot verification by appointing
Commissioner for the same. Giving of wrong and false boundary of
suit land itself proves that the claim of plaintiff over suit land is
totally false, wrong and baseless. The suit in also barred by the
principle of adverse possession. These defendants are coming in
possession over suit land since 06.07.1990 and they are in its
occupation exclusively and their exclusive possession since then is
continuous, regular, uninterrupted, hostile, open, and against the
will of the plaintiff or Mathura Mahto. These defendants have also
constructed their residential house over the suit land and they are
living and residing therein with the family. As such, their possession
since 06.07.1990 over suit land perfected their right, title and
interest over it through completing statutory period. It is admitted
that Mathura Mahto had no son but only four daughters, namely,
Jirwa Devi, Premani Devi, Bimla Devi and Kamla Devi and the name
of mother of Mathura Mahto is Sheoratia Devi but other contents of
para no. 1 and 2 of the plaint is wrong, false and baseless hence
denied. In fact, Sukhdeo Mahto, the father of Mathura Mahto had
landed property in village- Sarkoni and Bhilma and he had absolute
raiyati night title and interest over it. Sukhdeo Mahto died leaving
behind his widow Sheoratia Devi, a son Mathura Mahto and two
daughters Kayeeli Devi and Neuri @ Saguni Devi in which Neuri @
Saguni Devi was elder than her brother and sister. The genealogy of
Sukhdeo Mahto is essential for proper appreciation of this case
which is as follows :-
Ghogha Koeri
Sukhdeo Mahto
Neuri @ Saguni Devi Mathura Mahto Kayeeli Devi
Jira Devi Premani Devi Bimla Devi Kamla Devi
(Husband) (Husband) (Husband)
Jagdish Maheshwar Suneshwar
Mahto Mahto Mahto
(Plaintiff)
Son - Sunil Mahto
B. After death of Sukhdeo Mahto, when Sheoratiya Devi
became widow, her sole son Mathura Mahto began to neglect his
mother and did not take any care of his widow mother in her
maintenance and to meet her need and necessity. In such state of
affairs Neuri @ Saguni Devi, the daughter of Sheoratiya Devi began
to maintain her and also began to take care of her need and
necessity. Sheoratiya Devi had share in the landed property of her
deceased husband Sukhdeo Mahto (situated in village Sarkoni and
Bhilma). So Sheoratiya Devi made gift of the land of her share of
village - Sarkoni and Bhilma to her daughter Neuri @ Saguni Devi
and transferred the same to her through executing Gift Deed No.
3513 dated 08.04.1986 and delivered its right, title and possession
to her. As such, Neuri @ Saguni Devi acquired valid right, title,
interest and possession over this land. Subsequently, Neuri @
Saguni Devi transferred half area of her so acquired land (i.e., 89¼
decimal of land of village - Sarkoni and 82½ dec. land of village
Bhilma) to Gopal Krishna Trivedi, Arvind Kumar Trivedi, Satendra
Kumar Trivedi, Arun Kumar Trivedi and Akhilesh Trivedi on proper
consideration through executing sale deed on 21.03.1988 and also
transferred remaining half area of her so acquired, land, 89¼
decimal of land of village Sarkoni and 82½ decimal land of village
Bhilma) to Ambika Singh, Ram Pravesh Singh, Shambhunath Singh,
Sachchida Nand Singh and Kuldeep Narayan Singh on proper
consideration through executing sale deed No.21.03.1988. Later on,
Gopal Krishna Trivedi and others transferred their land so acquired
from Neuri @ Saguni Devi to Jagdish Mahto who is the husband of
Jira Devi (daughter of Mathura Mahto) by executing Sale Deed No.
6238 dated 22-07-1988. Ambika Singh and others also transferred
their land so acquired from Neuri @ Saguni Devi to Bimla Devi wife
of Suneshwar Mahto and daughter of Mathura Mahto by executing
Sale Deed No. 6257 on 22.07 1988.
C. It was further contended that as Mathura Mahto had no son
so he also made gift of his landed property to his daughter's son
Sunil Kumar Mahto (son of Jira Devi and Jagdish Mahto) and Udal
Mahto (son of Bimla Devi and Suneshwar Mahto) by executing gift
deeds in their favour.
D. Out of the land so acquired as referred above, Jagdish
Mahto and his son Sunil Kumar Mahto have also transferred 0.30½
acre land of plot no. 134, 135, 136, 811 and 812 of village Sarkoni
on proper consideration to Jagarnath Prasad Mahto of village
Ranadih by executing Sale Deed No. 4435 dated 31.05.1990.
Jagdish Mahto out of his so acquired land through Sale Deed No.
6258 dated 22.07.1988 transferred 0/12 acre land of plot no 32
under Khata no. 54 of village-Sarkoni on proper consideration to
Ram Awtar Sah of village Semaura through Sale Deed No. 9131
dated 28.11.1990. Bimla Devi and Udal Mahto through his father
Suneshwar Mahto have also transferred 0.37 acre of plot no: 170
and 171 under Khata No. 54 and 0.30½ acre of plot nos. 134, 135,
136 under khata no. 54 and plot nos. 811, 812 under khata no. 28
of village Sarkoni on proper consideration to Jiwesh Pd. Gupta,
Dharamraj Pd Mahto, Satendra Pd. Mehta and Upendra Pd. Mehta
sons of Jagarnath Pd. Mehta of village Ranadih through Sale Deed
No 4487 and 4488 both dated 01.06 1990. On the basis of all these
purchasers, namely, Jagarnath Prasad Mehta and his sons Jiweish
Prasad Gupta and others and Ram-Awtar Sah are enjoying their
exclusive possession respectively over their above referred
purchased land and this fact may be inquired into through
appointing Commissioner. All the above referred deeds of transfer
are valid, legal, and effective and conferred valid, right, title and
interest to its respective transferees. To adjudicate the matter in
controversy of this suit the presence of above named transferers
and transferees are necessary and in their absence the matter in
controversy cannot be adjudicated effectively and completely and as
such, this suit is bad for non-joinder of necessary party.
E. It was further contended that once a deed of transfer is
executed by executants, transferring the right, title and interest to
transferee from the property of executants, he (executants) no
more remain capable of dealing with such property after transfer is
made and so if document for cancellation is executed the same
cannot have any force over the deed of transfer already executed.
Hence, the act of Mathura Mahto to cancel the deed of transfer
executed by him is arbitrary, wrong, illegal and was his unitary act,
and such cancellation deed has no any force or effect, as it is quite
illegal and ineffective. These defendants have no any knowledge or
information in respect of Title Suit No. 10 of 1991 or Title Suit No.
11 of 1991 or in respect of the proceeding or judgment or decree if
any, in respect of T.S. No 10 of 1991 or T.S. No 11 of 1991 nor there
was any service of summon of the suit against these defendants
hence, any order, judgment or decree, if any passed in T.S. No.
10/1991 or T.S. 11/1991 has/have no any binding effect over the
right, title and interest of these defendants over suit land. Hence,
contrary to what has been stated above, contents of para no. 3 of
the plaint is hereby denied as false and wrong.
F. That as stated above, Bimla Devi had acquired 0.89¼
acres land of village Sarkoni and 0.82 acre land of village Bhilma
from Ambika Singh and his brothers through Sale Deed No 6257
dated 22.07 1988 and came in its possession. Thereafter out of her
so acquired land Bimla Devi, wife of Suneshwar Mahto and daughter
of Mathura Mahto transferred the suit land to defendant Indramani
Devi-through Sale Deed No.5745 dated 06.07.1990 on proper
consideration and delivered the possession of suit land to him. They
are coming in possession over suit land by defendant no. 1 and her
husband defendant no. 2 since 06.07.1990 is well within the
knowledge of plaintiff Maheshwar Mahto, who is husband of Preman
Devi (daughter of Mathura Mahto) within the knowledge of this
plaintiff. These defendants also constructed their residential house
over the suit land and began to live therein with family members
which is continued up to this day and remaining land is being used
by these defendants as their Sahan and Gharbari. These defendants
have no any other residential house except the house situated over
suit land. As such these defendants are coming in actual physical
possession over suit land continuously, regularly, openly and
uninterruptedly and hostile to the plaintiff since 06.07.1990 and this
occupation and possession of these defendants over the suit land is
well within the knowledge of plaintiff. Therefore, these defendants
have perfected their right, title and interest over suit land by way of
adverse possession against the plaintiff. As stated above, these
defendants have/had no any knowledge or information in respect of
T.S. No. 11 of 1991 nor any summon of the suit was ever served
upon them, so order judgment or decree if any passed in the suit
has no any binding effect on right, title and interest of these
defendants over suit land. It is further contended that the plaintiff
has not stated that whether he was party of T.S. No. 11 of 1991.
Contrary to what nave been stated above, contents of para no. 4 of
the plaint is denied as false and wrong.
G. As stated above, Mathura Mahto never came in possession
of suit land nor he ever got right, title or interest over it before
06.07.1990 as Bimla Devi wife of Suneshwar Mahto and daughter of
Mathura Mahto had acquired valid right, title and interest over the
suit land through Sale Deed No. 6257 dated 22.07.1988 and she
was in rightful possession over suit land before 06.07 1988 and
Bimla Devi has rightly transferred the same to defendant no 1
through Sale Deed No 5745 dated 06.07.1990 and delivered it's
right, title and possession over it. As such, these defendants came
in possession over suit land on 06.07.1990 which is continuing up to
this day and the residential house of these defendants is situated
over it and they are residing therein with family. Therefore, these
defendants have perfected their right title and interest over suit
land. As such, Mathura Mahto had remained no right, title, interest
or possession over suit land before 06.07.1990 or thereafter. Hence,
contrary to what have been stated above, contents of para no. 5 of
the plaint is hereby denied as false and wrong.
H. As stated above, these defendants have no any information
or knowledge in respect of Title Suit No. 11 of 1991 or Title Suit No.
10 of 1991 or Misc. Nos. 7, 9 and 10 of 1995 of Misc. Appeal No. 1
of 2000, nor any summon of the suit was ever served upon them
and so any order judgment or decree passed in the above
suit/appeal or miscellaneous case has no any binding effect on
these defendants. It has not been mentioned that in which court
this suit was instituted and on which date it was decided and what
was its subject-matter. In fact, Mathura Mahto was not in
possession over suit land before or after 06.07.1990 as he had no
right, title or interest over it. It has not been mentioned that
whether plaintiff was party in all these cases contrary to what have
been stated above, contents of para nos. 6 to 8 of the plaint is
hereby denied as false and wrong.
I. The contents of para nos. 9 to 15 of plaint is false, wrong
and baseless, hence denied. As stated above, the above-named
transferees/purchasers are coming in actual possession over their
respective acquired land. The Sale Deed No.8508 dated 27.11.2006
said to be executed by Mathura Mahto in favour of the plaintiff is
showy forged, fake, wrong, false and illegal documents and through
such documents plaintiff never acquired right, title or possession
over any piece of land much less over suit land as Mathura Mahto
had no right title interest or possession over it. As stated above, the
residential house of these defendants is situated over suit land
which has been constructed by them and they are living therein
with family. So it is false to allege that these defendants constructed
a small hut and mud built room over suit land in March 2008. As
stated above, these defendants are coming in actual physical
possession over suit land since 06.07.1990 regularly, continuously,
openly, uninterruptedly and within the knowledge of all concerned
persons much less Mathura Mahto and plaintiff and as such these
defendants have perfected the right, title and interest through
completing statutory period by way of adverse possession against
the plaintiff and Mathura Mahto. These defendants are landless and
their residential house is over suit land. These defendants have not
encroached the suit land but they are in its possession since
06.07.1990 and their house situated over suit land is also seventeen
years old.
J. It is further contended that Mathura Mahto had/has no
interest over suit land and he has wrongly been impleaded in the
suit and so this suit is bad for mis-joinder of party.
K. As stated above, plaintiff has never got any interest over
suit land, nor he ever came in its possession for any moment and
the alleged Sale Deed No. 8508 dated 27.11.2006 has always
remained ineffective and inoperative in respect of suit land and
through such ineffective sale deed the plaintiff never acquired any
interest over suit land, nor came in its possession for any moment.
Therefore, all the claims of plaintiff over suit land is false, wrong
and baseless and he has no right, title or interest over suit land, nor
he ever entered in its possession or occupied it for any moment.
Hence, submitted that this suit is false, frivolous and vexatious,
hence fit to be dismissed with cost.
8. The case of proforma defendant No. 3 according to his
written statement dated 12.12.2008 is that the plaintiff is the son-
in-law of the defendant no. 3 who has transferred his land to the
plaintiff through Sale Deed No. 8508 dated 27.11.2006 including the
suit land and put him in right, title and possession of the same. The
plaintiff is the actual rightful owner of the suit and in the absence of
plaintiff, the defendant No. 1 and 2 entered upon the land of
plaintiff and constructed a small hut and tried to extend the same
over the suit land. The defendant no.1 and 2 have lost their case
and claim over the suit land in the competent civil court. The
plaintiff has valid cause of action for the suit and the same is
maintainable. Defendant no. 3 admits all the facts contained in
para-1 to 17 of the plaint and supports the case of the plaintiff. It is
pertinent to mention that the defendant no.3, though appeared in
the suit and filed his written statement, but he admitted the case of
the plaintiff and never contested the suit.
9. The learned trial court has framed eight issues for deciding
the suit. Issue No.5 was with regard to right, title and interest over
the suit property and issue No.6 was with regard to illegally
trespassing into the suit property by the principal defendant, these
two issues along with issue No.7 and 8 was decided by the learned
Court simultaneously as all these issues were interlocked. While
deciding the said issue, the learned trial court has appreciated the
oral and documentary evidences.
10. P.W. 1 - Maheshwar Mahto is the plaintiff of the suit
property and he has stated that total area of the disputed land is
19¾ decimals which has encroached upon by Indramani Devi and
her husband Raghubir Prajapati and they have also constructed a
room of mud when he was away from village - Sarkoni by claiming
the same as their purchased land. He has further deposed that after
request, these defendants did not vacate the land hence, present
suit was instituted. He has stated that the disputed land as well as
some other lands of Mathura Mahto was purchased by him and he is
in possession of the same. He has further deposed that earlier some
sale deeds as well as gift deed were executed against which
Mathura Mahto had filed two cases being Title Suit No.10/1991 and
Title Suit No.11/1991 which were declared null and void and not
binding upon Mathura Mahto. Defendant Nos.1 and 2 are claiming
the disputed land on the basis of those gift deed and sale deed.
Mathura Mahto was his father-in-law who was in need of money at
the time of illness and paralysis of his wife, therefore, he has stated
that Mathura Mahto sold his land to him and he came in right, title
and possession over the same. The said land has also been mutated
in his name and rent receipt is also being issued in his name. During
his cross-examination, he has deposed in para-7 that his house is
situated at village- Sarkoni and his old house is situated at Barwadih
but he does not reside there. He has further deposed in para 10
that khata No. of disputed plot is 54 and plot nos. 31 & 32. Total
area of land is said to be 19¾ decimals. In paragraph No.11, he has
stated that the boundary of disputed land of plot No.32 is north,
east & west, his own land south-road. In paragraph No.13, he has
stated that the disputed land is situated in the same boundary. In
paragraph No.18, it has been disclosed that he cannot tell the plot
nos. of the land situated in the north, west or east of the disputed
land. In paragraph No.21, it has been disclosed that Mathura Mahto
is son of Sukhdeo Mahto who had died prior to attainment of his
sense. Sheoratiya was widow of Sukhdeo Mahto. He further stated
in paragraph No.22 that Sheoratiya had two daughters and one son
Neuri @ Saguni, Kaylee and Mathura Mahto. Mathura Mahto had
four daughters Jirwa, Premani, Bimla and Kamla. Jagdish Mahto is
husband of Jirwa and Sunil Mahto is son of Jirwa. Suneshwar Mahto
is husband of Bimla and Udal Mahto is son of Bimla. He is husband
of Premani and one of the son-in-law of Mathura Mahto. Sukhdeo
Mahto had lands in village Sarkoni and Bhilma.
11. PW-2 Kameshwar Prasad Mehta has supported the case of
the plaintiff as well as PW-3 Ram Nandan Mahto and further PW-4
Risheshwar Pandey as well as PW-5 Dev Narain Shukla and he was
the formal witness and he has identified Government Rent Receipt
No.1628709 issued in handwriting of Halka Karmachari, Bijendra
Upadhaya, whose signature and handwriting has been identified by
him and further identified Government Rent Receipt No.838152
issued in handwriting of Halka Karmachari, Rajendra Ojha, whose
signature and handwriting has been identified by him and the same
has been marked as Ext.-7 and 7/A.
12. PW-6 Krishna Tiwari has deposed in his examination-in-chief
that the registered sale deed No.8508 dated 27.11.2006 has been
instituted by Mathura Mahto in favour of Maheshwar Mahto. The
sale deed was drafted by Shiv Shankar Sao, Tayid on the instruction
of Mathura Mahto and the same was read over to both the parties.
Thereafter, Mathura Mahto had put his left thumb impression on the
same. The same was witnessed by Jitendra Yadav and Umesh
Prajapati.
13. PW-7 Pravin Kumar Singh has identified registered
cancellation deed No.2146 dated 21.03.1990 against Udal Mahto
written by deed writer Gopal Prasad. He further deposed in his
examination-in-chief that the same was written in his presence and
read over to Mathura Mahto who had put his left thumb impression
over the same. The deed was paginated in his presence by Bipat
Mahto and the same was signed as witness by Parikha Singh and
Srinath Choubey. Deed writer-Gopal Prasad had also put the
signature of the same. The cancellation deed is marked as Exhibit-9.
14. DW-1 Raghubir Prajapati, DW-2 Sateshar Tiwary, DW-3
Suneshar Mahto, DW-4 Saryu Prajapati, DW-5 Nageshwar Saw, DW-
6 Dilip Kumar Dwivedi, DW-7 Ramchandra Prasad was further
considered by learned trial court.
15. Considering all these aspects, the learned trial court has
found that there is no contesting defendants regarding the specific
date from when their possession became adverse to the knowledge
of the plaintiff. After becoming the true owner of the suit land and
not only this but the defendants have also does not admit that the
owner of the suit land is the plaintiff or is predecessor in interest.
16. The learned Court has further appreciated that the plaintiff
has adduced Exhibit-5 and Exhibit-5/A which is the certified copy of
order and decree respectively passed in Title Suit No.11/1991 and
on perusal of the said the learned Court has found that Bimla Devi
was defendant No.12 and Indramani Devi was defendant No.19 in
that suit and the said suit was filed by Mathura Mahto, who is
defendant No.3 in the present case and defendant No.3 was found
to be predecessor-in-interest of the title over the suit land as held in
Title Suit No.11/1991 (Ext.-5). In para-3 of Exhibit-5 after service of
notices defendants appeared and later on did not turn up in the
case and ultimately the case was fixed for ex-parte hearing. In para-
5 it has been concluded that the sale deeds as well as gift deed is
not valid and genuine as the executants have executed more than
of their share and on the basis all the sale deeds and gift deed,
purchasers cannot claim title rather the plaintiff perfected his title.
The suit is decreed ex-parte without cost.
17. Exhibit-4 is another certified copy of the decree passed in
Title Suit No.10 of 1991 wherein Gift Deed No.6770 dated
27.07.1987 executed by Mathura Mahto in favour of Udal Mahto &
Sunil Mahto has been declared void ab-initio which also relates to
the Khata No.54, Plot No.31, area 0.38 decimals and Plot No.32
area 0.41 which were also the subject matter of the said gift deed
which has been declared void. Ext.-6 is the order dated 11.03.1999
passed in Misc. Case No.07/1995 and Misc. Case No.09/1995
through which both the Misc. Cases are dismissed which were filed
for setting aside the ex-parte order and decree passed and for
restoration of the same to its original file and the Title Suit
No.10/1991 Ext-9 was the cancellation deed executed by Mathura
Mahto for cancellation of Gift Deed No.6770 dated 27.07.1987
executed by Mathura Mahto in favour of Udal Mahto and Sunil
Mahto. All these facts have also been corroborated by the oral
evidences.
18. The learned trial court further appreciated Exhibits 5, 5/A,
Exhibits-2, 2/A, Exhibit-1 and Exhibit-6 which are certified copy of
order and decree passed in Title Suit No.11 of 1991, certified copy
of petition filed by Jagdish Mehta and Bimla Devi registered as Misc.
Case No.10 of 1995 in Title Suit No.11 of 1991 order passed in Misc.
Case No.10 of 1995, certified copy of order passed in Misc. Appeal
No.1 of 2000 and certified copy of order passed in Misc. Case No.7
of 1995 in Misc. Case No.9 of 1995 respectively and from there the
learned Court has come to a finding in view of the documentary and
oral evidences, the plaintiff has been able to establish that he has
got valid right, title and interest over the suit property and principal
defendants illegally tress-passed and encroached upon the suit land
and are occupying thereon and, therefore, they should be evicted
by the process of the Court and the judgment of Title Suit No.10 of
1991 and 11 of 1991 are binding upon the party and the same has
been passed in accordance with law in light of those issues have
been decided in favour of the plaintiff and by judgment dated 30th
June, 2022 the suit was dismissed against that the appeal has been
preferred before the learned Principal District Judge, Garhwa in Civil
Appeal No.8 of 2022 by judgment dated 09th August, 2024 the
learned appellate court has further dismissed the appeal and
affirmed the judgment of the learned trial court. The learned
appellate court has further framed the point to decide the appeal
and answered the same and dismissed the appeal affirming the
order of the learned trial court.
19. The two Courts have given the concurrent finding, the facts
have been rightly appreciated. There is no perversity in the
judgments of the learned Courts and in absence of any substantial
question of law for admitting the second appeal, the High Court is
not required to re-appreciate the facts. There is no illegality in the
judgment of learned both the courts, as such this second appeal is
dismissed.
(Sanjay Kumar Dwivedi, J.)
Sangam/
