Jharkhand High Court
2025:Jhhc:19508 vs Dhanmati Devi on 17 July, 2025
2025:JHHC:19508
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Second Appeal No. 457 of 2003
[Against the Judgment dated 11.07.2003 and decree signed on
22.07.2003 passed by learned Additional District Judge, Fast Track
Court, Seraikella-Kharswan in Title Appeal No. 5/1996 ].
1. Lal Bihari Kumhar.
2. Krishna Kumhar @ Kishun Kumhar.
Both sons of Manoranjan Kumhar and resident of Village
- Jhimri, P.O. - Muru, P.S. - Nimdih, District -
Saraikela.
3. (a) Sindhu Devi, wife of Late Bijay Kumhar.
3. (b) Rajendra Kumhar.
3. (c) Deepak Kumhar.
3. (d) Dhananjay Kumhar.
3. (e) Trilochan Kumhar.
3. (f) Umesh Kumhar.
Nos. 3(b) to 3(f) all sons of Late Bijay Kumhar.
3. (g) Ganesh Kumhar.
3. (h) Mahesh Kumhar.
3. (i) Ramesh Chandra Kumar.
Nos. 3(g) to 3 (i) all sons of Late Prem Chand Kumhar.
Sl. Nos. 3(a) to 3(i) All are resident of Village - Jhimri,
P.O. - Muru, P.S. - Nimdih, District - Saraikela.
3. (j) Promila Devi, wife of Genda Prajapati, D/o Late Prem
Chand Kumhar, resident of Raurkela, P.O., P.S. -
Raurkela, District - Sundergarh, Orissa.
3. (k) Phagu Prajapati, s/o Dhaneshwar Prajapati, resident
of Buti More, P.O. - Buti, P.S. - Sadar, District - Ranchi.
3. (l) Laxami Devi, w/o Binod Prajapati, resident of
Jagarnathpur, P.O. - Baghbera, P.S. - Baghbera,
Jamshedpur, District - East Singhbhum.
4. Deb Charan Kumhar.
5. Biren Kumhar.
6. Dhiren Kumhar @ Dhiru Kumhar.
(4) to (6) all are sons of Late Kalu Ram Kumhar and
resident of Village-Jhimri, P.O. - Muru, P.S. - Nimdih /
P.S. - Chandil, District - Singhbhum West now at
District - Seraikella-Kharswan.
7. Tilottama Kumharin @ Tilottama Kumhar, daughter of
Late Kalu Ram Kumhar and wife of Hare Krishna
Kumhar, resident of Village - Sindri, P.O. and P.S. -
Baghmundih, District - Purulia (West Bengal).
8. Jhiman Kumhar, son of Radhanath Kumhar, resident of
Village-Jhimri, P.O. - Muru, P.S. - Nimdih / P.S. -
Page 1 of 14
2025:JHHC:19508
Chandil, District - Singhbhum West now at District -
Seraikella-Kharswan.
... Defendants/Respondents/
Appellants
-Versus-
1. Dhanmati Devi, wife of Late Chiranji Ram.
2. Pralap Prajapati.
3. Ram Chandra Prasad.
4. Raj Kumar Prajapati.
5. Karn Kumar.
Nos. 2 to 5 all are sons of Late Chiranji Ram.
6. Smt. Sulamoni Devi, wife of Late Nand Kishore Prasad.
7. Arun Kishore.
8. Sanjoy Kumar Prajapati.
Nos. 7 & 8 both sons of Late Nand Kishore Prasad.
9. Shovha Devi, daughter of Late Nand Kishore Prasad
and wife of Shri Kedor Kumar.
Nos. 1 to 9 are residents of Bhalubasa, Jamshedpur,
P.S. - Sitaramdera, P.O. - Bhalubasa, District -
Singhbhum East.
10. Asha Devi, daughter of Late Nand Kishore Prasad and
wife of Shri Rajendra Pandit, resident of Dhurwa, P.O.
and P.S. - Dhurwa, Town and District - Ranchi.
11. Kiran Devi, daughter of Late Nand Kishore Prasad
and wife of Sri Bishun Prasad, resident of Musaboni,
P.O. and P.S. - Musoboni, District - Singhbhum East.
12. Jugal Prasad, son of Late Raghu Kumhar, resident of
Mohalla-Kumhartoli, P.O. and P.S. - Chaibasa Sadar,
District - Singhbhum West.
... Plaintiffs / Appellants / Respondents
.....
For the Appellants : Mr. Manjul Prasad, Sr. Advocate.
Mr. Baban Prasad, Advocate.
Mr. Akhouri Prakhar Sinha, Adv.
Mr. Aman Kedia, Advocate.
Page 2 of 14
2025:JHHC:19508
For the Respondents : Mr. Sudhir Kr. Sharma, Advocate
Mr. Shashi Shekhar Dwivedi, Adv.
.....
P R E S E N T
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
JUDGMENT
C.A.V. on 08.07.2025 Pronounced on 17.07.2025
1. Heard Mr. Manjul Prasad, learned senior counsel
assisted by Mr. Baban Prasad, learned counsel for the
appellants and Mr. Sudhir Kumar Sharma, learned
counsel assisted by Mr. Shashi Shekhar Dwivedi,
learned counsel for the respondents.
2. The instant second appeal has been preferred against
the judgment of reversal dated 11.07.2003 and decree
signed on 22.07.2003 passed by learned Additional
District Judge, Fast Track Court, Seraikella-Kharswan
in Title Appeal No. 5/1996, whereby and whereunder,
the appeal has been allowed and the judgment dated
18.01.1996 and decree signed on 05.02.1996 passed
by learned Subordinate Judge-II, Seraikella in Title
Suit No. 47/1988 has been set aside.
FACTUAL MATRIX
3. The factual matrix giving rise to this second appeal is
that the plaintiffs / respondents have instituted a title
suit bearing Title Suit No. 47 of 1988 seeking relief for
declaration of their right, title and interest over the
property described in Schedule-A of the plaint and
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also for recovery of khas possession thereof after
ejecting the defendants from the suit land along with
cost of the suit.
The case of the plaintiffs is that the suit
Schedule-A land stands recorded in the name of one
Raghu Kumhar, son of Gopal Ram in survey
settlement operation which have been finally
published on 05.02.1964. In the remarks column of
the said Khatian, against Plot No. 2692 of Khata No.
325, the name of one Ganga Ram has been shown as
sikmi dakhaldar. Similarly, against the rest plots of
the said Khata, the name of one Radha Kumhar had
been entered as sikmi dakhaldar. The said Ganga Ram
is the father of Radha Nath Kumhar.
It is further alleged that the father of the
plaintiffs Raghu Kumhar entrusted the suit land to
look after the cultivation work on remuneration basis,
which was fixed as half of the yield. The said Ganga
Ram used to deliver half of the total yield only of the
suit land to Raghu Kumhar during his life time and
after his death, son of Ganga Ram namely, Radha
Nath Kumhar approached the plaintiffs' father and, on
his request, the said system of cultivation and share
continued as usual on the basis of half share of
annual yield of the suit property.
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It is further alleged that Radha Nath Kumhar
died near about 9-10 years ago, leaving behind his
four sons namely, Manoranjan Kumhar, Premchand
Kumhar, Kalu Ram Kumhar and Jhiman Ram
Kumhar, who approached the plaintiffs for cultivation
on above terms and conditions and also started giving
half yield to the plaintiffs, but in the year 1987, when
the defendants, who are sons and grandsons of Radha
Nath Kumhar did not paid the half yield to the
plaintiffs and on demand of the plaintiffs, they refused
to pay anything in kind or cash and started claiming
title over the suit property, casting clouds over the
title and right of the plaintiffs over the suit property.
Hence, the suit.
4. On the other hand, the case of defendants, as per
their written statement, is that they have denied the
right, title and interest of the plaintiffs. It was also
denied that Raghu Kumhar was the recorded raiyat
and the survey record of right is not correct, wherein
it has shown that land is raiyati land of Raghu
Kumhar and the suit land is raiyati land of Ganga
Ram Kumhar and he was possessing the land in his
own right. The defendants have also denied that they
were never sikmi dakhaldars or bataidars of the
plaintiffs at any point of time. Therefore, no cause of
action for the suit arises in favour of plaintiffs.
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5. The trial court, on the basis of pleadings of the
parties, has settled following issues for adjudication:-
I. Is the suit, as framed, maintainable?
II. Have the plaintiffs cause of action for the suit?
III. Is the suit barred under Section 34 of Specific
Relief Act or under the provisions of C.N.T. Act?
IV. Is the suit barred under Article 65 of Limitation
Act?
V. Whether any Notice U/S 106 of the T.P. Act was
necessary to be served on the defendants before
filing of this suit ?
VI. Is the suit bad for non-joinder of necessary
party?
VII. Is the suit under-valued and has ad valorem
court fee been paid?
VIII. Have the defendants perfected right, title and
interest in the suit property by adverse
possession?
IX. Whether the defendants are and their forefathers
were Sikmidar of the suit land in question and
can they be evicted?
X. To what relief or reliefs the plaintiffs are entitled?
6. The learned trial court has decided almost all the
issues against the plaintiffs and dismissed the suit on
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wrong assumption that the sikmi kashtkar / under
raiyat is a lessee and as per provisions of Section
46(1)(a) of the C.N.T. Act, no lease can be created
beyond five years. It was also found that the suit is
barred by the provisions of Section 34 of the Specific
Relief Act inasmuch as the plaintiffs has not claimed
any relief for declaration that in the Khatian, the
status of Radha Nath Kumhar recorded as sikmi
dakhaldar as wrong entry and not binding to the
plaintiffs. It was also held that no notice under
Section 106 of the Transfer of Properties Act was given
by the plaintiffs to the defendants.
7. The trial court with respect to the vital issue nos. VIII
& IX has held that since the defendants are in
continuous possession over the suit land since the
time of their forefathers, who have perfected their
right, title and interest over the suit land through
adverse possession. Therefore, the suit of the plaintiffs
was dismissed on contest with cost.
8. The plaintiffs have filed Title Appeal No. 5 of 1996.
The appellate court formulated sole point for
determination i.e. What is the nature of possession of
the defendants over the suit land against which the
plaintiff has demanded recovery of possession after
ejecting them?
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9. The learned appellate court re-appreciated the oral as
well as documentary evidence adduced during trial of
the case and arrived at different finding that Exhibit-1
and 1/A relied upon by the plaintiffs shows that rent
was being paid by the plaintiffs for the disputed land
No rent receipt has been filed by the defendants.
Exhibit-2 (Khatian) also shows that in ownership
column, the name of Raghu Kumhar is there, whereas
the name of Ganga Ram and Radha Nath Kumhar are
mentioned in remarks column as Sikmidar. The above
documents are unrebutted by the defendants by
adducing any other documents. It was further
observed that the burden of proving the adverse
possession is on the defendants. They have examined
only oral witnesses claiming to be possessing the suit
land since 70-75 years. For first 30 years Ganga Ram
Kumhar was in possession and after him, his son
Radha Nath Kumhar was in possession for 20-25
years and after his death, present defendants came in
possession of the suit land since last 20-22 years. It
was admitted that the suit was filed in 1988 and his
father Radha Nath Kumhar has died in the year 1978-
79. Thereafter, the present defendants' possession
comes around 9-10 years ago. The defendants have
also denied cultivation of land as adh-bataidar. The
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defendants have also admitted that the settlement
entries during survey settlement operation was never
objected nor they requested to Settlement Officer to
enter their names in the ownership column. All the
defendant witnesses have failed to prove as to how
and in what capacity they have come in possession of
the suit property. The revenue record shows the
ownership of ancestors of plaintiffs and in remarks
column ancestors of defendants have been shown as
sikmi dakhaldar. There is no legal necessity to get
declaration to remove the names of sikmi dakhaldar
mentioned in the record of right by the plaintiffs. It
was also held that the interest of an under raiyat with
occupancy status is not heritable under the law
though it may be heritable by custom. The defendants
are not claiming themselves to be sikmi dakhaldar as
against the entry in the survey record of rights.
Therefore, the status of defendants is nothing more
than that of a trespasser, who are liable to be ejected
from the suit property.
10. On the basis of discussion of evidence, the learned
appellate court set aside the judgment and decree of
dismissal of suit of the plaintiffs and reversed the
finding of the learned trial court with sound reasoning
and allowed the appeal, decreeing the suit of the
plaintiffs.
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11. This second appeal has been admitted for hearing on
the following substantial question of law:-
"Whether in view of the specific pleading of
Bataidar since the time of grandfather of the
defendants, against the entry of record of right
by the plaintiffs, the learned Court of appeal
below erred in making out a third case of
trespassers and erred in reversing all the main
issues ?"
12. Learned counsel for the appellants pressing the
aforesaid substantial question of law has vehemently
argued that the learned trial court has very wisely and
aptly hold that the suit is barred by provisions of
Section 34 of the Specific Relief Act as well as Section
46(1)(a) of the C.N.T. Act and Section 106 of the
Transfer of Property Act, which has been ignored by
the learned first appellate court without assigning any
valid reasons.
13. It is further submitted that the learned appellate court
has miserably failed to appreciate the possession of
the defendants / appellants by remaining in
possession since time of their forefathers i.e. 70-75
years. As per Village Custom, Sikmidar right is
heritable one. Therefore, the appellants have got
status of permanent occupancy raiyat, which has not
been considered by the first appellate court.
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14. It is further submitted that as regards nature of
possession of the appellants, the learned first
appellate court has set up a third case, which was not
pleaded by either party that the defendants are
trespassers over the suit land.
15. On the other hand, refuting the aforesaid contentions
raised on behalf of the appellants, learned counsel for
the respondents has submitted that the learned first
appellate court has very wisely and aptly appreciated
the documentary evidence adduced by the plaintiffs,
who are owner of the suit property which is an
admitted fact. The basis of claim of title of
respondents is only that their forefathers were
recorded as sikmi dakhaldar in the remark column of
records of right. The defendants never approached
before the competent authority to correct entries and
showing their status as an absolute owner on the
basis of permanent occupancy rights.
16. It is further submitted that the right of Sikmidar
extinguishes upon his death. It is apparent from
evidence on record that at first Raghu Nath Kumhar
was Sikmidar under the recorded raiyat, his son
Ganga Ram Kumhar also remained in same status,
who died in the year 1978-79. No custom has been
proved by defendants / appellants regarding heritable
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right of Sikmidar through customs prevailing in the
locality.
17. Learned counsel for the respondents has placed
reliance upon the reported judgment in the case of
Johan Uraon (Ekka) & Another Vs. Sitaram Sao
(Bhagat) reported in AIR 1964 Patna 31, wherein it
has been held that :-
"It is well settled that the interest of an under-
raiyat (dar raiyati interest) with occupancy
status is not heritable under the law though it
may be heritable by custom. Where, in a suit
for eviction the defence was that the
defendants had acquired permanent occupancy
rights in the disputed lands from their father
who had acquired those rights by prescription,
and both the Courts below concurrently held
that the custom of heritability was not
established, the status of the defendants was
nothing more than that of a trespasser and
they were liable to be ejected."
18. Learned counsel for the respondents has further
placed reliance upon the reported judgment of Hon'ble
Apex Court in the case of Roop Singh (dead) through
Lrs. Vs. Ram Singh (dead) through Lrs., reported in
(2000) 3 SCC 708, wherein doctrine of adverse
possession has been entertained and it was held that
permissive possession for long does not convert to
adverse possession - Claimant by cogent and
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convincing evidence must show hostile animus and
possession adverse to the knowledge of real owner.
19. In the instant case, the essential ingredients for
claiming adverse possession has not been proved by
defendants and rightly been held by the first appellate
court. Hence, this appeal has not no merits and fit to
be dismissed.
20. I have gone through the impugned judgment passed
by the learned trial court as well as first appellate
court in the light of submissions raised on behalf of
both the parties. The substantial question of law
formulated in this case appears to be absurd and
against the documentary evidence filed by the
plaintiffs / respondents. The admitted position in this
case is that the defendants' forefather i.e. father and
grandfather were sikmi dakhaldar over the suit land
and the plaintiffs are descendants of recorded raiyat of
the Survey Settlement Khatiyan (Exhibit-2) and
regularly paying rent to the Government.
21. It is settled law that the dar raiyat interest is not
heritable unless repugnant to the prevailing customs
is proved. Therefore, continuance of the possession of
appellants / defendants is nothing more than of a
trespasser as has been held in the case of Johan
Uraon (Ekka) & Another (Supra) and relied upon by
first appellate court.
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22. In view of aforesaid discussions and reasons, I do not
find any merit in the argument advanced by learned
counsel for the appellants regarding bar of suit under
Section 46(1)(a) of the C.N.T. Act or under Section 34
of the Specific Relief Act or Section 106 of the Transfer
of Property Act, which are not applicable at all.
23. In view of the above discussions, I do not find any
merit in this appeal, which stands dismissed.
24. Pending I.A., if any, stands disposed of.
25. Let a copy of this judgment along with trial courts
record be sent back to the court concerned for
information and needful.
(Pradeep Kumar Srivastava, J.)
Jharkhand High Court, Ranchi
Dated, the 17 t h July, 2025.
Sunil / A.F.R.
