Usha Devi & Others vs Mohd. Ekram & Others
2025 Latest Caselaw 972 Jhar

Jharkhand High Court

Usha Devi & Others vs Mohd. Ekram & Others on 9 June, 2025

Author: Anubha Rawat Choudhary

Bench: Anubha Rawat Choudhary

         IN THE HIGH COURT OF JHARKHAND AT RANCHI
                         S.A. No. 361 of 2016

    Usha Devi & Others
                           ...     ...    Defendants/Appellants/Appellants
                                 Versus
    Mohd. Ekram & Others
                        ...      ... Plaintiffs/Respondents/Respondents
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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       For the Appellants          : Mr. Sudhir Kr. Sharma, Advocate
       For the State               : Mr. Sanjay Kumar Tiwari, Advocate

For the Private Respondents : Mr. Munna Lal Yadav, Advocate

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th 13/9 June 2025

1. Heard the learned counsels appearing on behalf of the parties.

2. This second appeal has been filed by the defendants against the judgment and decree dated 27.06.2016 passed by the learned District-I, Chatra in Civil Appeal No. 05 of 2010 whereby the learned 1 st appellate court has confirmed the judgment and decree dated 15.12.2009 passed in Title Suit No. 10 of 1999 by the learned Subordinate Judge-I, Chatra.

3. This second appeal was admitted for final hearing vide order dated 02.08.2023 after framing the following substantial questions of law: -

1. Whether learned First Appellate Court committed perversity, as though vide order dated 03.12.2015, in the Civil Appeal no. 05 of 2010, it was ordered by the learned First Appellate court that the petition under Order XLI Rule 27 of CPC, shall be decided at the time of pronouncing the judgment but neither took into consideration the Khewat, which was sought to be introduced as an additional evidence by the appellants - defendants nor rejected the said petition under Order XLI Rule 27 of CPC?

2. Whether both the courts below have committed perversity by holding that the Exhibit C is not a valid document, as the settlement by vide Ext. C, has not been

made by the SDO, Chatra who, according to the courts below, was the competent authority to settle the lands to landless persons?

3. Whether both the courts below committed perversity by holding that the Demand Register-II, marked Exhibit A and A1, do not contain the reference of Exhibit C, which is the original copy of the purcha of the Settlement Case No. 09 / 1984-85?

Arguments of the appellants.

4. The learned counsel for the appellants while referring to the 1st substantial question of law has referred to the order dated 03.12.2015 passed by the learned 1st appellate court to submit that the same is in relation to additional evidence filed under Order XLI Rule 27 read with Section 151 of CPC. He submits that after detail discussion, the learned 1st appellate court has recorded that clause (a) of Rule 27(1) of CPC was not applicable and as far as clause (b) of Rule 27(1) of CPC is concerned, the stage had not reached as to whether the document is required for just decision of the case or for any substantial cause and therefore, an observation was made that the petition would be decided at the time of pronouncement of judgment.

5. The learned counsel for the appellants has submitted that in the entire judgment passed by the learned 1st appellate court, there is no consideration of the additional evidence. Neither the same has been taken into consideration nor the petition has been rejected. The learned counsel submits that this omission has a serious bearing in the matter in view of the fact that the plaintiffs were claiming the property through Hukumnama executed by a person other than the Khewatdar and the Khewat was sought to be brought on record by way of additional evidence to show that the person who was claimed to have issued Hukumnama to the plaintiffs did not have the right to issue Hukumnama as he was not the Khewatdar.

The learned counsel submits that the khewat was in fact required to be

brought on record by the plaintiffs to show that the person from whom he was claiming through Hukumnama was the ex-zamindar or the khewatdar of the property, but the khewat was brought by way of additional evidence by the defendants. It is submitted that if the plaintiffs had purchased the property or share of the Khewatdar, then also it was required to be proved by the plaintiffs to claim title over the property. However, the additional evidence was sought to be produced by the defendants which has not been considered. He has submitted that in view of this aspect of the matter, the 1st substantial question of law be answered in favour of the appellants and consequently, the matter be remanded to the court concerned for fresh adjudication.

6. With respect to the 2nd substantial question of law, the learned counsel submits that both the learned courts have committed perversity by entering into the issue as to whether the SDO has the jurisdiction to settle the property in favour of the defendants, inasmuch as, no such specific issue was framed by the learned trial court or even by the learned 1 st appellate court. He has also submitted that there was no occasion to frame such an issue as the specific case of the plaintiffs was that the property is the raiyati land of the plaintiffs and therefore the State or its authorities do not have any jurisdiction to settle the land to anybody else. The learned counsel for the appellants has also submitted that the fact as to whether the Circle Officer/LRDC had the jurisdiction to grant parcha or not at the relevant point of time is essentially a question of fact and the power is governed by circulars issued by the government from time to time and since no specific issue was framed with respect to the power of SDO or power of the Circle Officer or LRDC in view of the stand taken by the plaintiffs that the property being the raiyati property of the plaintiffs, it cannot be settled by any of the authorities of the State, the finding with regard to exclusive power of SDO to issue settlement parcha ( Exhibit-C) is itself perverse. He submits that since the parties did not join issue

regarding power /jurisdiction of SDO to issue settlement parcha (Exhibit- C) on behalf of the state, the defendant also did not adduce evidence to substantiate the power of SDO to issue settlement parcha (Exhibit-C) and the defendants asserted that the property was not the raiyati land of plaintiff and hence could be settled by the state in favour of defendant.

7. The learned counsel submits that accordingly the 2nd substantial question of law be also answered in favour of the appellants.

8. So far as 3rd substantial question of law is concerned, the learned counsel for the appellants has submitted that Exhibit-A to A/5 were the rent receipts and Exhibit-A1 was the certified copy of the Register-II. He has submitted that in the substantial question of law though exhibit-A and A1 has been referred to as demand register, but exhibit-A is the rent receipt and exhibit-A1 is the demand register-II. He has referred to Exhibit-A1 to submit that Exhibit-A1 clearly refers to the Settlement Case No. 9/84-85 which was the proceeded by issuance of parcha in favour of the defendants. The learned counsel submits that the parcha has been exhibited as exhibit-C and it contains the description of the suit land and also gives the Settlement Case No. 9/84-85 and it is signed by the Circle Office and also signed by the Land Reform Deputy Collector. The learned counsel submits that the parcha (Exhibit-C) and Register-II (Exhibit-A1) has co-relation with each other as in both the documents, the Settlement Case No. 9/84-85 has been mentioned and therefore, exhibit-A1 was clearly relatable to the parcha (Exhibit-C). The learned counsel has further submitted that so far as Exhibit-A is concerned, there was no need to make any reference to Exhibit-C in view of the fact that exhibit-A was the rent receipt and exhibit-A referred to the description of property and issuance of rent receipt, which tallied with the parcha. The learned counsel submits that the 3rd substantial question of law be also answered in favor of the appellants.

Arguments of the respondents.

9. Learned counsel appearing on behalf of the respondents, on the other hand, has opposed the prayer and has submitted that there are concurrent findings of both the courts and every aspect of the matter has been taken into consideration by both the courts and the impugned judgments do not call for any interference and all the substantial questions of law are fit to be answered against the appellants.

10. However, during the course of argument, the learned counsel for the respondents is not able to point out any finding or any discussion by the learned 1st appellate court with regard to the additional evidence which was sought to be adduced on behalf of the defendants by filing a petition under Order XLI Rule 27 of CPC.

11. With respect to 2nd substantial question of law, the learned counsel for the respondents has submitted that since the defendants were relying upon the parcha, therefore, it was for the defendants to prove that the parcha was validly issued and no evidence was produced on behalf of the defendants to show that the Circle Officer or LRDC had the jurisdiction to issue parcha and therefore issuance of parcha by itself is a void document. The learned counsel has further submitted that jamabandi was running in the name of the plaintiffs and therefore there was no occasion to issue parcha and open jamabandi in the name of the defendants. He has submitted that the State authorities had committed error in opening jamabandi in the name of the defendants and therefore 2 nd substantial question of law is fit to be answered in favour of the respondents and against the appellants. He has submitted that if it is ultimately found that Exhibit-C was wrongly issued, the entire right of the defendants based on settlement (Exhibit-C) would be nullified.

12. During the course of arguments it transpired that the plaintiffs had taken a specific stand before the learned trial court that since the property was the raiyati property of the plaintiffs, therefore the State authorities or the Circle Officer had no jurisdiction to issue parcha in favor of the

defendants as settlement can be issued only in case of government land and no settlement can be issued with respect to raiyati lands and thus , jurisdiction or power of one or the other authority of the state in particular to issue parcha ( Exhibit-C) was not under challenge.

13. With respect to the 3rd substantial question of law, the learned counsel for the respondents is not in a position to dispute that exhibit-A is the rent receipt and exhibit-A1 is the demand register-II and in the demand register-II, there is a reference of settlement Case No. 9/84-85 and the settlement parcha (Exhibit-C) also contains the reference of Settlement Case No. 9/84-85.

14. Post this case for further dictation on 13.06.2025 at 10:30 a.m.

(Anubha Rawat Choudhary, J.) Mukul