Jharkhand High Court
Hari Kumhar vs Laldeo Kumhar on 20 March, 2025
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Second Appeal No. 240 of 2018
Hari Kumhar, son of Late Ganesh Kumhar, aged about 81 years,
resident of Village- Hutup, P.S.- Ormanjhi, P.O.- Irba, District-
Ranchi ... ... Plaintiff/Appellant/Appellant
-Versus-
1. Laldeo Kumhar
2. Sahdeo Kumar
Both sons of Late Chamra Kumhar, residents of Village- Hutup, P.S.-
Ormanjhi, P.O.- Hutup, District- Ranchi
... Defendants/Respondents/Respondents
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
---
For the Appellant : Mr. Rohitashya Roy, Advocate
: Mr. Tarun Kumar Mahto, Advocate
: Ms. Oishi Das, Advocate
For the Respondents : Mr. Kundan Kr. Ambastha, Advocate
: Mr. Anurag Chandra, Advocate
---
09/20.03.2025 Lastly heard on 30.01.2025
This second appeal has been filed against the Judgment dated
08.05.2018 (Decree signed on 21.05.2018) passed by the learned
Additional Judicial Commissioner-II at Ranchi in Civil (Title) Appeal
No.46 of 2016 whereby and whereunder the appeal preferred by the
plaintiff/appellant has been dismissed and the Judgment dated
29.11.2016 (Decree signed on 09.12.2016) passed by the learned
Munsif, Civil Court, Ranchi in Title Suit No.01 of 2010 has been
affirmed.
2. This appeal was admitted for hearing vide order dated
23.08.2023 on the following substantial questions of law:
(i) As the defendant admitted that the ancestor of the plaintiff
was the recorded tenant of the suit land, but the finding of
the learned trial court that the defendants have failed to
establish the surrender of the suit land by the ancestor of
the plaintiff namely Dayal Kumhar and the said finding of
the learned trial court having not been challenged by any
cross appeal or cross-objection by the learned first
appellate court and having reached finality; whether the
learned first appellate court committed perversity by not
decreeing the suit of the plaintiff by allowing the appeal?
(ii) Whether the learned first appellate court committed
perversity in overlooking the fact that though in the Ext.3
which is the certified copy of Khatiyan of Khata No.148,
in the column no. III, it has been mentioned that the nature
of the settlement is Kayami (permanent); hence, there is no
way, there could have been any surrender by the ancestors
of the plaintiff namely Dayal Kumhar?
Arguments on behalf of the Appellant
3. Learned counsel for the appellant submitted that the appellant
was the plaintiff before the learned trial Court and claimed that in the
record-of-rights, the property was shown as "Ardhbatai" and
settlement was Kayami (permanent) in favour of Dayal Kumhar. The
plaintiff is the descendant of Dayal Kumhar.
4. The learned counsel further submitted that the plaintiff was in
peaceful possession of the suit land without any interference.
However, some cloud was created when a proceeding under section
144 of Cr.P.C. was instituted and the defendants claimed right, title
and possession over the suit land. He submitted that the record-of-
rights was prepared in the name of Dayal Kumhar in the year 1935.
5. Consequently, the plaintiff filed the suit praying that a decree
may be passed in favour of the plaintiff on the basis of R.S. Khatiyan
and possession of the plaintiff may be confirmed and if found
dispossessed, possession may be delivered through the process of
Court. It was also prayed that if any surrender deed or subsequent
settlement was made, the same may be declared null and void and the
same may not bind the plaintiff.
6. The learned counsel for the appellant further submitted that the
defendants appeared in the suit and did not dispute that with regard to
the suit property, the name of Dayal Kumhar was recorded in the
finally published record-of-rights on 03.01.1935 as "Ardhbataidar",
but pleaded that Dayal Kumhar voluntarily surrendered the suit land
on 05.12.1939 to the then landlord Thakur Tilakdhari Singh who came
in physical possession of the suit land and it became his Bakast land.
The defendants further pleaded that the landlord orally settled the suit
land coupled with grant of rent receipt and delivery of possession
followed by customary Hukumnama dated 10.04.1940 to Chamara
Kumhar, the father of the defendants and he was put in physical
possession of the property and since then, they remained in physical
possession of the property.
7. The learned counsel for the appellant submitted that the
defendants had also placed reliance on certain rent receipts and also
Chowkidari receipts. He submitted that at the stage of trial, a detailed
finding was recorded after discussing the materials on record that the
defendants could not prove the surrender of the suit land in favour of
the then landlord which was claimed to have been surrendered on
05.12.1939. The learned counsel submitted that the learned trial Court
however ultimately dismissed the suit. He also submitted that the
plaintiff also raised a plea of adverse possession and the learned trial
Court framed an issue in that regard, but the learned trial Court
recorded that no evidence was produced in connection with the plea of
adverse possession.
8. The learned counsel for the appellant further submitted that
thereafter the plaintiff filed appeal and at the appellate stage, no cross
objection was raised from the side of the defendants who were
respondents in the appeal with regard to the finding of the learned trial
Court that they had failed to prove the surrender of the suit land. He
also submitted that no argument was also advanced in connection with
the said finding on behalf of the defendants before the learned First
Appellate Court.
9. However, in spite of the fact that the finding in connection with
surrender having not been proved by the defendants attained finality,
still the learned appellate Court recorded that the plaintiff has not been
able to prove his title or possession even on the principles of
preponderance of probability. The learned counsel submitted that this
finding was recorded primarily on the basis of draft record-of-rights
i.e. Exhibit-5 which had not attained finality. He submitted that such
finding was not in accordance with law. The learned counsel
submitted that on the face of the finding that the defendants could not
prove the surrender, the learned appellate Court ought to have decreed
the suit in favour of the plaintiff.
10. The learned counsel also submitted that so far as substantial
question no. (ii) is concerned, the entry in the record-of-rights, which
is Exhibit-3 which remained undisputed, was sufficient to prove the
title of the plaintiff and it has got presumptive value. He relied upon
the Judgment passed by the Hon'ble Patna High Court reported in AIR
1997 Patna 124 (Janandan Rai and others Vs. Mandeo Rai and
others) (Paragraph-28). He further submitted that it was not in
dispute that such entry was made in the record-of-rights and Dayal
Kumhar was in possession of the property as Adhbataidar, but it was
the case of the defendants that he had surrendered the property in
favour of the landlord, but the surrender having not been proved, the
cloud with respect to the title of the plaintiff was no longer existing
and therefore, the learned First Appellate Court ought to have decreed
the suit in favour of the plaintiff.
11. The learned counsel accordingly submitted that both the
substantial questions of law are fit to be answered in favour of the
appellant and an appropriate order be passed decreeing the suit.
Arguments on behalf of the Respondents
12. The learned counsel appearing on behalf of the respondents
opposed the prayer and referred to the Judgment passed by the
Hon'ble Supreme Court reported in (1999) 7 SCC 435 (Ravinder
Kumar Sharma Vs. State of Assam and others) and specifically
referred to Paragraph- 19 to 21 to submit that there was no need to
challenge the finding with regard to the surrender by filing any cross-
objection and the same could have been asserted by the defendants in
the appeal filed by the plaintiff. He submitted that therefore, the first
substantial question of law is fit to be decided in favour of the
respondents.
13. However, during the course of arguments, the learned counsel
for the respondents has not been able to show any material from the
records that the finding of the learned trial court that the defendants
could not prove surrender, was agitated before the learned First
Appellate Court by the respondents.
14. Learned counsel for the respondents further submitted that the
law is well-settled that the plaintiff has to prove his own case and his
case cannot rest on the weakness of the case of the defendants. For
this purpose, the learned counsel has relied upon the Judgment passed
by the Hon'ble Supreme Court reported in (2014) 2 SCC 269 (Union
of India and Others Vs. Vasavi Cooperative Housing Society
Limited and Others) (Paragraph- 12 to 15) and submitted that in a suit
for declaration of title, burden always lies on the plaintiff to make out
and establish a clear case for granting such a declaration and the
weakness of the case set-up by the defendants would not be a ground
to give any relief to the plaintiff. The learned counsel submitted that
such argument assumes importance in view of the fact that the
defendants had throughout remained in possession of the property and
the rent receipts were issued in their favour after vesting since the year
1954. The learned counsel further submitted that Chowkidari rent
receipts were also issued prior to vesting.
15. However, during the course of argument, the learned counsel
has fairly submitted that so far as Zamindari rent receipts are
concerned, the same have not been produced by the defendants.
16. The learned counsel for the respondents also relied upon the
Judgment passed by this Court reported in 2004 (3) JCR 662 (Manki
Mali & another Vs. Radhika Devi & others) (Paragraph-16) to
submit that there is a presumption of correctness of 30 years old
document. In the present case, Hukumnama was a 30 years old
document and therefore, the same was required to be accepted as valid
by reference to Section 90 of the Indian Evidence Act.
17. The learned counsel also relied upon the Judgment passed by
the Hon'ble Supreme Court reported in (2024) Supreme (SC) 1065
(State of Haryana and Another Vs. Amin Lal (Since Deceased)
Through His Lrs and Others) (Paragraph-8.2) to submit that the
entries in the record-of-rights do not create or extinguish any title. The
title is to be proved by producing appropriate documents. He submits
that the rent receipt produced by the defendants is strong evidence of
possession.
18. The learned counsel thereafter relied upon the Judgment passed
by this Court reported in 2007 (3) JLJR 308 (HC) (Bishwanath Ram
and others Vs. Most. Lawangwas Kuer and others) and referred to
Paragraph-13 to submit that Register-II is a document maintained by a
Circle Officer and these documents only show strong evidence of
possession. He also relied upon the Judgment passed by this Court
reported in 2004 (3) JCR 292 (Naman Kahar Vs. Khankhan Kahar)
(Paragraph-11) in support of the same proposition that entry in
record-of-rights is not a document of title at all.
Rejoinder argument on behalf of the Appellant
19. In response, the learned counsel appearing on behalf of the
appellant referred to the findings recorded by the learned trial Court
and submitted that the learned trial Court had also doubted the
correctness of the rent receipts produced by the defendants in view of
the fact that when information was furnished from the Circle Officer
vide Exhibit- 4, no entry was found in the column in Register-II. The
learned counsel submitted that the Register-II maintained by the State
did not record the rent receipt having been issued in favour of the
defendants, rather it did not say that the property was running in the
name of the defendants and therefore, the rent receipt as well as the
Hukumnama was disbelieved by the learned trial Court. He submitted
that this finding has also attained finality and there was no challenge
or argument with regard to such findings recorded by the learned trial
Court.
20. During the course of argument, it revealed that in Paragraph-25
of the appellate court's judgment, it has been recorded by the learned
First Appellate Court that from the oral and documentary evidence,
the plaintiff/appellant has not been able to prove either his title or his
possession, even on the preponderance of all probability.
Case of the plaintiff/appellant/appellant
21. The case of the plaintiff is that the suit land is recorded in
records of right in the name of Dayal Kumhar as is mentioned in
Schedule 'B' of the plaint and the plaintiff Hari Kumhar is the
grandson of Dayal Kumhar. The recorded tenant died leaving his son
Ganesh Kumhar, who also died leaving the plaintiff Hari Kumhar and
Bipta Kumhar. Bipta Kumhar also died leaving his wife Sonamati
Devi as mentioned in Schedule 'A' of the plaint. The defendants were
admittedly the descendants of Majju Kumhar, who died leaving only
son Chamra Kumhar, who also died leaving both the defendants
Laldeo Kumhar and Sahdeo Kumhar. It is further pleaded that Bipta
Kumhar has one married daughter living with her husband. As per
plaint, the suit land was recorded in the records of right as 'Kaimi"
"Adbatai me sesh". The suit property was in the peaceful possession
of Dayal Kumhar and after his death, in the peaceful possession of
Ganesh Kumhar and after his death, is in peaceful possession of Hari
Kumhar and Bipta Kumhar jointly and further after death of Bipta
Kumhar, in the joint possession of Hari Kumhar and Sonamati Devi.
A 'Bunda Purcha" (unrecognized document of settlement) was also
issued in favour of the plaintiff without any challenge. It is the case of
the plaintiff that since the date of creation of records of right, the
ancestor of plaintiff and thereafter, the plaintiff, is in peaceful
possession of the suit land without any interference from anyone.
22. Further case of the plaintiff was that all of a sudden, the
defendants started disturbing physical possession of the plaintiff on
the suit land resulting registration of Misc. Case No. 1694/2009, U/s
144 of Cr.P.C. The defendants appeared and filed their show-cause
with the ground that though the suit land is recorded in the records of
right in the name of Dayal Kumhar which was prepared in the year
1935, but in the year 1939, Dayal Kumhar surrendered the said land to
the ex-landlord and thus, the suit land became the Bakast land of ex-
landlord, who, later on, orally settled the said land coupled with rent
receipt and delivery of possession and later on, also granted
Hukumnama on 10.04.1940 (Exhibit-A) in favour of the Chamra
Kumhar, the father of defendant, who came in possession since the
date of settlement and Chamra Kumhar also constructed a house
thereon and was living peacefully. Several Chowkidari receipts
(Exhibit-B to B/9) have been issued in favour of Chamra Kumhar
showing his possession on the suit land. The proceeding under Section
144 Cr.P.C. was dropped with an observation to knock the door of
civil court for deciding the right of the parties and thus, the cause of
action arose for the suit. It is the specific case of the plaintiff that the
story of surrender of land is false and the claim of the defendants is
not maintainable in the eye of law.
23. The plaintiff prayed that his title be declared and possession be
confirmed and in alternate, if the plaintiff is not found in possession,
his possession be recovered through the process of law and any
surrender deed or subsequent settlement, if relied upon by the
defendants, may be declared null and void and not binding upon the
plaintiff.
Case of the defendants/Respondents/respondents
24. The defendants admitted Dayal Kumhar as recorded tenant in
the records of rights, finally published on 03.01.1935 as Adh-bataidar
but stated that Dayal Kumhar voluntarily surrendered the suit land on
05.12.1939 to the then landlord "Thakur Tilakdhari Singh", who came
in physical possession of the suit land and it became his Bakast land.
Thereafter, the landlord orally settled the suit land, coupled with grant
of rent receipt and delivery of possession followed by customary
Hukumnama dated 10.04.1940 to Chamara Kumhar, father of the
defendants and put him in possession and he remained in peaceful
possession of the suit land. Chamara Kumhar also constructed house
over the suit land and started residing there with the family members
and by virtue of such long possession since 10.04.1990 their right,
title and interest has become absolute to the knowledge of the real
owner, adverse to the recorded tenant Dayal Kumhar including the
plaintiff and thus, there is no cause of action for filing the suit.
According to the defendants Ganesh Kumhar was not the son of Dayal
Kumhar rather Hari Kumhar was the son of Dayal Kumhar, Bipta
Kumhar was not the brother of Ganesh Kumhar. Several Chowkidari
receipts have been issued in favour of the defendants showing their
possession on the suit land. The proceeding U/s 144 of Cr. P.C. vide
Misc. Case No. 1694/2009 is admitted to have been initiated and have
been dropped with direction to the parties to approach to the Civil
Court.
25. The learned trial Court had framed the following issues for
consideration:
1. Is the suit maintainable in the present form?
2. Has the plaintiff any valid cause of action for the present suit?
3. Is the suit barred by law of limitation and adverse possession?
4. Is the suit bad for non-joinder of necessary parties?
5. Whether Dayal Kumhar the ancestor of the plaintiff being the
Adh-bataidar surrendered the land to the Ex-landlord and the
then Ex-landlord settled the land to ancestors of the defendant?
6. Whether the plaintiff is the grandson of Dayal Kumhar?
7. Whether Bipta Kumhar was the brother of Dayal Kumhar?
(Wrongly written as Dipta Kumhar in Title Suit No. 01/2010).
8. Whether name of ancestors recorded in the Khatiyan as a Kaimi
or Adh-batai?
9. What other relief or reliefs the plaintiff is entitled to?
26. The plaintiff examined 06 witnesses. PW-1 is Khemlal Mahto,
PW-2 is Magnu Mahto, PW-3 is Meghnath Singh, PW-4 is Dhirju
Kumar Mahto, PW-5 is Charku Mahto who is the son of the plaintiff
and PW-6 is Hari Kumhar, the plaintiff. Certified copy of order
passed in Case No.1694/09 by the court of the Sub-Divisional Officer,
Ranchi is Exhibit-1. Original copy of information dated 17.09.2009
provided under the Right to Information Act by the Circle Officer,
Ranchi is Exhibit-2. Certified Copy of Khatiyan of Khata No.148 is
Exhibit-3. Information dated 24.09.2009 to the Circle Office. Banda
Parcha No.68/161 of Khata No.147 is Exhibit-5.
27. The defendants examined 05 witnesses. DW-1 is Md. Hanif.
DW-2 is Chhedi Mahto. DW-3 is Karamdeo Singh. DW-4 is Dillu
Mahto. DW-5 is Sahdeo Kumhar. The defendants exhibited the
Hukumnama dated 10.04.1940 as Exhibit-A, Choukidari receipts as
Exhibits- B to B/9 and rent receipts as Exhibits- C to C/13.
28. The learned trial court decided the various issues as under:-
a. The learned trial court took up the Issue Nos.1, 2 and 5
together and recorded the evidence of the witnesses of the
plaintiff and that of the defendants in which the witnesses of
both parties supported their respective cases in their oral
evidences.
b. Referring to the documentary evidence filed the plaintiff, the
learned trial court recorded that the R.S. Khatiyan (Exhibit-3) is
the main basis of the claim of the plaintiff which is of the year
1935 and in which name of Dayal Kumhar son of Chamo
Kumhar is mentioned. The Banda Parcha, which has not been
published finally, is in his name, but the plaintiff has not filed
any rent receipt. Apart from this, in the reply to the information
sought under the Right to Information Act which has been
exhibited as Exhibits- 2 and 4, it is also stated that name of
none is recorded in Register-II i.e. the names of both, the
defendants and the plaintiff, are not recorded which goes
against the plaintiff. This also means that since the time of
vesting of the zamindari in the State Government to till now,
name of none is recorded in Register-II in the Circle Office.
Therefore, the plaintiff's claim does not appear to be
maintainable only on the basis of Khatiyan and Banda Parcha.
c. The learned trial court also considered the case of the
defendants and observed that the defendants claim that when
the plaintiff's ancestor surrendered the disputed property in
favour of the then landlord, the then landlord settled the
disputed property in favour of the defendants through a Sada
Hukumnama on 10.04.1940 and since then, they are in
possession of the land and the defendants have also submitted
the rent receipts. Sada Hukumnama dated 10.04.1940 Exhibit-1,
Chowkidari receipts Exhibit-B to B/9 and rent receipts
Exhibits- C to C/13 have been submitted as documentary
evidences. The learned trial court held that the defendants have
neither proved the surrender in their case, nor they have proved
that when the then landlord Shri Tilakdhari Singh Sahdev has
settled the disputed property in favour of the defendant through
Hukumnama dated 10.04.1940, then it is not clear as to when
the jamindari was vested in the State Government and whether
he had given declaration at that time to this effect to the State
Government or not, because no document is available on record
to support the settlement on the basis of which the said
Hukumnama can be considered legally valid. After considering
the case records and the materials, the learned trial court held
that as per Exhibit-2 and 4, the Circle Office has informed that
name of none is recorded under the authority column in the
Register-II and consequently held that Exhibit-C to C/13, rent
receipts, which have been submitted by the defendants are
doubtful. The learned trial court further held that the argument
of the defendants claiming ownership of the disputed property
without registering their name in the Circle Office, only on the
basis of Hukumnama Exhibit-1, Chowkidaari Receipt Exhibit-B
to B/9 and Rent Receipt Exhibit-C to C/13 does not seem to be
consistent. It was also observed that the defendants have also
claimed that the plaintiff's ancestor had surrendered his right of
the disputed property, which was recorded as Ardhbataidar, to
the then landlord, but they have not been able to prove the same
which should have been done under Section 72 of the
Chotanagpur Tenancy Act, 1908. The learned trial court
rejected the claim of right, title, interest and possession of the
defendants also.
d. After having rejected the claims of both, the plaintiff as well as
the defendants, the learned trial court was of the view that in the
present circumstances, the principle of Res-nulis comes into
operation and held that therefore the suit is not maintainable in
its present form and when the suit is not maintainable in its
present form, the cause of action for filing this suit has also not
arisen. On the basis of the above analysis, the learned trial court
decided the Issue Nos.1, 2 and 5 against the plaintiff.
e. The learned trial court disposed of Issue Nos.3 and 4 by
recording that both the parties did not produce any evidence on
record on the issues of limitation, adverse possession and non-
joinder of necessary parties.
f. With regard to Issue Nos.6, 7 and 8, the learned trial court
recorded that the plaintiff has provided the genealogy at
Schedule-A of the plaint which shows that the plaintiff is the
grandson of Dayal Kumhar and Bipta Kumhar is not the brother
of Hari Kumhar, rather Bipta Kumhar is the brother of the
plaintiff Hari Kumhar. The defendants have not raised any
objection in their written statement in this regard. The learned
trial court further recorded that the land is recorded as Kayami
in Column No.3 of the Khatiyan and the nature of land is
recorded as Ardhbatai in Column No.5 of the Khatiyan. The
learned trial court disposed of Issue Nos.6, 7 and 8 accordingly,
which were apparently in favour of the plaintiff.
g. With regard to Issue No.9, the learned trial court recorded its
conclusion that after considering all the facts available on
record and the oral and documentary evidences produced by
both the parties, the plaintiff is not entitled to any relief as
claimed in the plaint and decided the Issue No.9 against the
plaintiff.
29. Although the learned trial court clearly rejected the claim of
right, title, interest and possession, but the defendants did not file any
cross appeal. In the appeal filed by the plaintiff, the learned first
appellate court framed the following points for determination:
1. Whether the plaintiff has proved his case on the basis of
evidence, who have declaration of title and confirmation of
possession and if found not in possession, recovery of
possession?
2. Whether the suit of the plaintiff/appellant is maintainable in its
present form?
3. Whether the judgment of the learned lower court is sustainable in
the eye of law or/and is fit to be confirmed or it require
interference/alteration or modification?
30. The learned first appellate court considered the Point of
determination No.1 from Paragraph 16 to 30 of its judgment. The
learned first appellate court recorded in Paragraph-23 that from the
whole oral evidence of plaintiff, neither the title, nor even the
possession of the plaintiff has been proved. Paragraph 23 of the first
appellate court's judgment is quoted as under: -
"23. In this way, on appreciation of the oral evidence
produce by both the parties, it appears that though, DW-1
also has not been able to describe the whole facts of the suit
land in proper way, but as because, this suit is filed by the
plaintiff, the plaintiff cannot take the benefit of
witness/evidence/weakness of the defendants rather he has
to prove his all pleadings by his own independent evidence.
From the whole evidence of the plaintiff, neither the title
nor even the possession of the plaintiff has been proved."
31. The learned first appellate court thereafter from Paragraph-24
onwards considered the documentary evidence of the parties and
recorded that the plaintiff has heavily relied upon Exhibit-3 as the
prime document in his favour, but Exhibit-3 did not contain the date
of its publication under Section 83 of the Chhota Nagpur Tenancy
Act, 1908. However, the learned first appellate court observed that as
because the defendants have admitted this fact that in the Khatiyan the
name of Dayal Kumhar is recorded, Exhibit-3 being a genuine
document or not, is ignored for just decision of the case.
On the fact of admission of Exhibit-3, the learned first appellate court
considered the Exhibit-3 and observed that in Column 3, the nature of
settlement is mentioned as "Kayami" (permanent), in column 4 it is
mentioned that the seeds and plants have to be invested by the settlee
but the products of land were to be divided ½ to the landlord. The
nature of settlement is said to be Adhbatai along with cess. The
learned first appellate court having considered the Exhibit-3 further
proceeded to consider the argument of the plaintiff that the term
'Ardhbatai' means ½ share as the remaining share was a type of rent,
but this argument was rejected by the first appellate court. Thereafter,
the first appellate court examined Exhibit-5 which was banda parcha
of settlement and was of the view that the same has no legal sanctity
and observed that the entries made therein were not explained and the
plaintiff in his whole evidence had not explained the entries made in
banda parcha. The learned first appellate court refused to
acknowledge Exhibit-5 as genuine document which could be treated
as document of either proof of title or proof of possession. The
learned first appellate court recorded that from the oral and
documentary evidence, the plaintiff is not able to prove either his title
or his possession even on the principle of preponderance of
probability.
Thereafter, the learned first appellate court considered numerous
judgments in connection with evidentiary value of revenue records
and observed that the revenue records are not documents of title,
rather it only raises the presumption of possession; the presumption is
rebuttable if the entry does not find support with possession for quite
long time and in the case at hand, the plaintiff failed to prove
possession since long. The learned first appellate court recorded that
even on going through the judgments cited by the plaintiff, there is no
substance in the claim of the plaintiff to have made out a case before
the learned trial court seeking declaration of his title and confirmation
/ recovery of his possession. The learned appellate court observed that
in the case in hand, the plaintiff has failed to prove his possession in
the suit land since long and therefore, the judgment does not help the
plaintiff in any manner and ultimately recorded the findings in
paragraph 30 as under:-
"30. Thus, on the above legal aspects of the matter also, I find
and hold that during whole trial before the lower court, either
from pleading or from his evidence, the plaintiff/appellant has
not made out a case to get declaration of title and
confirmation/recovery of his possession on the suit land and
therefore, the suit is bound to be dismissed as the learned trial
court has done. Therefore, this point for determination is
decided against the appellant."
32. The learned first appellate Court thereafter proceeded to decide
Point Nos.2 and 3 and recorded its finding as under:
Point No.2
"31. It is admitted by the plaintiff as PW-6 in his evidence that
Ganesh Kumhar is his brother, he had a sister, though married,
but only solemnization of marriage in Hindu law does not make
a female child dis-entitled her interest in the parental property.
The suit land is admittedly the parental property. The
plaintiff/appellant with expression, though, has admitted the
existence of his brother, a widow of deceased brother as well as
his sister, has neither made them plaintiffs nor made them even
the proforma defendants and therefore, in their absence, the suit
becomes defective. He has further admitted the sisters and other
descendants in the family of defendants also but he has also not
made them party and in absence of them also the suit is
defective. Though, he has brought this suit for relief and he was
in bounden duty to plead truth, but he has made a doubtful claim
that if he is not found in possession, in alternate, his possession
may be recovered through the process of law. In whole of the
suit, he has not proved any particular date when he was
dispossessed from the suit land. However, he himself has not
claimed and proved to be in possession of the suit land.
Therefore, in one hand, when the suit is defective due to non-
joinder of the parties, on the other hand, the suit is also bad due
to vague pleadings. Therefore, point No. 2 is also decided
against the plaintiff/appellant that the suit of the
plaintiff/appellant is held to be not maintainable in its present
form."
Point No.3
"32. I have carefully gone through the judgment of the learned
trial court and find some grave omission of facts and law in the
judgment of the learned trial court as is evident from the last
line of page No. 2 and opening line of page No. 3 that some
relevant materials are missing to be quoted apart from other
defects in the grammatical terminology and legal discussions
which were required to be discussed in the suit, while arriving at
a legal conclusion but even after re-writing, the whole judgment
as per the materials available on record by myself on all the
relevant points of facts and laws, I also come to the independent
but on the same conclusion that the suit is not maintainable.
Therefore, the defects made in the judgment of the learned lower
court has been cured on the factual and legal aspects of the
matter in hand in this judgment in appeal. By virtue of coming
into existence of this judgment of appeal, there is nothing bad in
approving the conclusion arrived at by the learned trial court
and the same is approved. In this way, this point No.-3 is also
decided against the plaintiff/appellant.
33. In the result, as because, all the points for determination
have been decided against the appellant, the appeal stands
dismissed on contest with cost. Rs. of 500/- as Advocate fee and
Rs. 50/-of the Advocate clerk's fee, in addition to the usual
stationary charges and other costs of the appeal. Office Clerk is
directed to prepare the decree as per rules and send back the
L.C.R. along with copy of the judgment of appeal to the learned
trial court for information and needful. Record of appeal be
consigned to the record room accordingly thereafter."
Findings of this Court
33. Both the substantial questions of law are related. If the
substantial question of law no. 1 is decided in favour of the appellant
/plaintiff, there is no question of consideration of the case of the
defendants regarding surrender by the ancestors of the plaintiff
namely Dayal Kumhar which is a part of the second substantial
question of law.
34. This Court finds that it was admitted case between the parties
that the suit land was recorded in the record of rights prepared in the
year 1935 in the name of the ancestor of the plaintiff, namely, Dayal
Kumhar and the plaintiff is the descendant of Dayal Kumhar and the
entry was kayami adh-batai with cess (exhibit-3). This fact is not in
dispute. However, the case of the defendant was that Dayal Kumhar
surrendered the land in favour of ex-zamindar who in turn settled the
land in favour of the ancestor of the defendants and also produced
choukidari rent receipts/ rent receipts. The learned trial court
disbelieved the hukamnama relied upon by the defendants and found
that the Register -II did not show entry in favour of any person and
hence the claim of the defendants with respect to issuance of rent
receipt etc was also rejected and the learned trial court completely
discarded the claim of right, title, interest and possession of the
defendants with respect to the suit property. Thus, the claim of the
plaintiff and also that of the defendants was rejected by the learned
trial court and the suit was dismissed.
35. Admittedly the defendants neither filed any separate appeal, nor
any cross objection in the appeal filed by the plaintiff. The first
appellate court also did not consider the claim of the defendants on
merits, nor the records reveal that the defendants ever raised any
arguments with regards to their claim of right, title, interest and
possession of the suit property and thus the finding of the learned trial
court with respect to the claim of the defendants has attained finality
at the stage of the trial itself. The learned first appellate court still did
not decree the suit in favour of the plaintiff primarily by observing
that adh-bataidar as recorded in the khatiyan does not amount to
payment of rent and the revenue records are not documents of title,
rather it merely raises presumption of possession which is a rebuttable
presumption and if the entry does not find support with the possession
for quite long time, it also does not help the plaintiff even on the
admitted fact that the Dayal Kumhar was the recorded tenant in the
khatiyan. This Court is of the view that both the above cited reasons
not to decree the suit in favour of the plaintiff are perverse as
discussed below.
36. Once the case of right, title, interest and possession of the
defendants was completely discarded by the trial court and this
finding was not even the subject matter of consideration before the
first appellate court, either by filing any cross appeal/cross objection
or by advancing arguments by the defendants to sustain the judgment
and decree of the trial court dismissing the suit, the finding has
attained finality and remained unchallenged. Accordingly, the
judgement passed by the Hon'ble Supreme Court reported in (1999) 7
SCC 435 (supra) wherein it has been held that there is no need to
challenge a finding by cross objection and the same could have been
asserted by the defendants in the first appeal, does not help the
defendants/ respondents in any manner as the defendants neither filed
cross objection, nor filed cross appeal, nor agitated their case of
right/title/interest/possession in the first appeal to sustain the judgment
and decree passed by the learned 1st appellate court.
37. The other judgement relied upon by the defendants in the
second appeal with respect to their right/title/interest/possession are
also of no use as the claim of title/possession etc. of the defendants
was not agitated and accordingly not considered and no finding has
been recorded in favour of the defendants by the learned 1st appellate
court.
38. It is not in dispute that the entry in record of rights gives a
presumption of possession and is a rebuttable presumption, but there
is no material on record to rebut the presumption as the defendants
have completely failed to prove their right, title, interest and
possession over the suit property and there is no adverse and contrary
entry in the Register-II showing possession of the suit property by
someone else. On the face of the admitted facts between the parties
that the record of rights of the year 1935 shows Dayal Kumhar as adh-
bataidar and accordingly his possession and in absence of any material
to show that he or his successors have ever been dispossessed from
the property, this Court is of the considered view that by mere efflux
of time, the legal presumption in connection with possession based on
entry in record of rights is neither diluted, nor loses its significance.
The approach and finding of the learned first appellate court in
rejecting the various judgements relied upon by the appellant by
observing that presumption of possession which is a rebuttable
presumption and they do not help the plaintiff if the entry in record of
rights does not find support with the possession for quite long time, is
ex-facie perverse. The legal presumption cannot be lost or diluted by
efflux of time when the claim of the defendants with respect to right,
title, interest and possession was completely discarded and there was
no material to show that Dayal Kumhar or the plaintiff was ever
dispossessed from the property. In the present case, there is no
evidence of surrender or resumption of land by the landlord and it is
nobody's case that the Dayal Kumhar or their successors had
abandoned the land and the landlord had resumed possession in terms
of Section 73 of the Chota Nagpur Tenancy Act, 1908.
39. So far as the status of kayami adhbataidar is concerned, the
same has been subject matter of consideration by this Court in the
judgement reported in 2004 (1) JCR 407 (Jhr) (Jamhir Ansari -vs-
Ketna Oraon) wherein it has been observed that it is well settled that
an adhbataidar has to give to the landlord half of the produce of the
land he cultivates as rent and it has been held that in case of kayami
adhbataidar, the relationship of landlord with the occupant is that of
occupancy raiyat. The paragraphs relevant for the purposes of this
case are quoted as under:
"11. ................... It is well settled that an Adhbataidar has to
give to the landlord, half of the produce of the land he cultivates as
rent. The status of an Adhbataidar is that of a tenant and not that of
a hired labourer and there is a relationship of landlord and tenant
between the landlord and his Adhbataidar and Sheikh Shohabat as
per entry in the Survey Records of Right is a Kaimi Adhbataidar and
it means that he has occupancy right as Adhbataidar in respect of
the suit plot and Sheikh Shohabat has died intestate having the right
of occupancy in the suit plot which was inherited by the plaintiff-
appellant as per provision of Section 23 of the said Act. ......
40. In view of the fact that the story of surrender as set up by the
defendant having been disbelieved by the trial court and such finding
has not been interfered under the circumstances explained above, the
learned first appellate court committed a serious error of law in
overlooking exhibit-3 and its consequences which was an admitted
document on record where the nature of possession was shown as
kayami adhbatai with cess, and it is not in dispute that kaiyami means
permanent. The story of surrender by ancestors of the plaintiff having
been disbelieved and such finding having attained finality, no further
observation is required to be made with respect to surrender as
claimed by the defendants.
41. Thus, both the substantial questions of law are answered in the
following manner: -
a. As the defendants admitted that the ancestor of the plaintiff was
the recorded tenant of the suit land, but the finding of the
learned trial court that the defendants have failed to establish
the surrender of the suit land by the ancestor of the plaintiff
namely Dayal Kumhar and the said finding of the learned trial
court having not been challenged by any cross appeal or cross-
objection before the learned first appellate court and having
reached finality, the learned first appellate court committed
perversity by not considering the case of the plaintiff which was
primarily based on Exhibit-3.
b. However, so far as decreeing the suit is concerned, which is a
part of 1st substantial question of law, the suit could not have
been decreed as the point of determination no. 2, regarding
maintainability of the suit in the present form, was also decided
against the plaintiff/appellant by the learned 1st appellate court
in connection with which no substantial question of law has
been framed and no argument has been advanced.
c. The learned 1st appellate court committed perversity in
overlooking the fact that in Ext.3 which is the certified copy of
Khatiyan of Khata No.148, in the column no. III, it has been
mentioned that the nature of the settlement is Kayami
(permanent). Since the story of surrender by the ancestor of the
plaintiff as set up by the defendants has been rejected by the
trial court and not disturbed by the first appellate court, no
further observation/finding is required as to whether there could
or could not have been any surrender by the ancestors of the
plaintiff namely Dayal Kumhar.
42. Accordingly, this second appeal is disposed of in terms of the
answers to both the substantial questions of law and observations
made in paragraph 41 of this judgment.
43. Pending interlocutory application, if any, is dismissed as not
pressed.
(Anubha Rawat Choudhary, J.)
Saurav/
