Jharkhand High Court
Pushan Mahto And Others vs Kamakhya Saw And Others on 24 November, 2025
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No. 4 of 2004
With
I.A. No. 15654 of 2025
Pushan Mahto and Others ... ... Appellants
Versus
Kamakhya Saw and Others ... ... Respondents
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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Appellants : Mr. Ayush Aditya, Advocate
For the Respondents : Mr. Kundan Kr. Ambastha, Advocate
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21/24.11.2025 Heard the learned counsels appearing on behalf of the parties.
2. I.A. No. 15654 of 2025 has been filed for framing additional
substantial questions of law. The following additional substantial
questions of law are proposed to be framed:
"(i) Whether the gift deed executed in the year 1947
could have been held as a document, which was never
acted upon and no title would have been transferred in
favour of the plaintiffs on the basis of the gift deed,
particularly in view of the fact that Exhibit-5 filed by the
plaintiffs themselves shows the name of recorded raiyat
Gopal Sahu in the year 1960-61 and therefore, the story
of gift deed of the year 1947 stands vitiated in view of
Exhibit-5?
(ii) Whether the finding with respect to title of the
plaintiffs, which have been decided by the first appellate
court as Issue No. II at Paragraph-21, is based upon
irrelevant consideration and in ignorance of relevant
exhibits, as the first appellate court while deciding the
title of the plaintiffs have taken into consideration
Exhibit-7 i.e. certified copy of the decree of title suit, in
which the defendants are not a party and said suit
belongs to a different plot, which is not the suit plot in
question and so far as Exhibit-2 has been considered,
which is entry in Register-II, it is well settled that record
of right /mutation entry does not create or extinguish
right, title, interest and further relying upon the weakness
of the defendants' case, title in favour of plaintiffs has
been declared, in view of the above, whether the
judgment of the learned first appellate court while
deciding the title of the plaintiffs is vitiated for
consideration or irrelevant exhibit and non-consideration
of relevant exhibit i.e. Exhibit-5, which shows that the
deed of gift of the year 1947 was never acted upon as in
the year 1960, the Return was filed showing the name of
recorded raiyat Gopal Sahi even after 13 years of the gift
deed, from which it is evident that the deed of gift was
never acted upon coupled with the fact that the plaintiffs
never came in possession of the suit property, rather
possession was all throughout with the defendants?
(iii) Whether the judgment of the court below is vitiated
for not at all deciding the issue with respect to the
relationship of plaintiffs with recorded raiyat Gopal Sahu
more particularly when the defendants had denied the
relationship and no document was exhibited on behalf of
the plaintiffs to prove the relationship and even the
evidence of the P.Ws. shows that the plaintiffs and
recorded raiyat were of different caste, in view of such,
whether without deciding the relationship between
plaintiffs and recorded raiyat, the suit of the plaintiffs
could have been decreed?
(iv) Whether the finding given by the first appellate court
with respect to requirement of notice under Section 106
of the Transfer of Property Act is concerned, is bad in
law in terms of the judgment reported in AIR 1957 Pat
Page 37, where a similar issue of under raiyat as that of
in the present case was under consideration and the court
have dismissed the suit on the ground of notice under
Section 106 of the Transfer of Property Act as in the
present case, it is admitted fact that no notice under
Section 106 of the Transfer of Property Act was ever
issued as there is no pleading in the plaint with respect to
notice under Section 106 of the Transfer of Property Act
and no exhibit have been marked on behalf of the
plaintiffs to show that notice was issued under Section
106 of the Transfer of Property Act and therefore, the suit
of the plaintiffs was not maintainable?"
3. Learned counsel appearing on behalf of the appellants, while
referring to the 1st and 2nd proposed additional substantial questions of
law, has submitted that the learned 1st appellate court has
misconstrued the exhibits- 2 and 7 and not considered exhibit 5 while
deciding issue no. II. He submits that for additional substantial
question of law no. (i) and (ii), it would be sufficient if a substantial
question of law be framed to the following effect.
"Whether the finding of the learned 1st appellate court on issue
no. II is vitiated on account of mis-construction of exhibit-2
and 7 and non-consideration of exhibit- 5?"
4. The learned counsel for the appellants has not pressed so far as
proposed additional substantial question of law no. (iii) is concerned.
5. With respect to proposed additional substantial question of law
no. (iv), the learned counsel for the appellants has referred to the
appellate court's judgment and has submitted that this point has been
considered vide paragraph 20 under point no. (V) and the learned 1 st
appellate court has held that notice under section 106 of the Transfer
of Property Act was not required as the defendants had challenged the
title of the plaintiffs over the suit property.
6. The learned counsel for the appellants has referred to the
judgment which has been relied upon by the learned 1 st appellate court
which is reported in 1959 AIR (Pat) 562 (Gajadhar Lodha Vs. Khas
Mahatadih Colliery Co. and others) and has submitted that in the said
case, it was an admitted case that there was a relationship of landlord
and tenant and the rent was being tendered by the defendants to the
plaintiffs of the said case. He submits that in the present case, finding
that no notice was required to be issued under section 106 of the
Transfer of Property Act is not in accordance with law and
accordingly, a substantial question of law is required to be framed.
7. The learned counsel for the respondents, while opposing the
prayer, has submitted that in a suit seeking declaration of title and
recovery of possession, no notice under section 106 of the Transfer of
Property Act is required. He has further submitted that the defendants
had ultimately claimed that they had occupancy right over the
property, though at previous point of time, the original defendant was
a Dar Raiyat.
8. Learned counsel for the respondents has further submitted that
the point regarding additional evidences as argued by the appellants
were never raised before the learned 1st appellate court and the same is
essentially a question of fact.
9. After hearing the learned counsel for the parties and
considering the facts and circumstances of this case, this Court is of
the view that the exhibits- 2, 5 and 7 have important bearing in the
matter and exhibit- 5 has not been considered while deciding issue no.
II by the learned 1st appellate court, although it has been considered
while deciding other issues.
10. Accordingly, an additional substantial question of law, as
suggested by the learned counsel for the appellants, is framed as under
:
"Whether the finding of the learned 1st appellate court on
issue no. II is vitiated on account of mis-construction of
exhibit-2 and 7 and non-consideration of exhibit- 5?"
11. So far as the proposed additional substantial question of law no.
(iii) is concerned, learned counsel for the appellants has not pressed
the same.
12. So far as the proposed additional substantial question of law no.
(iv) is concerned, this Court finds that the suit was filed seeking
declaration of title and recovery of possession and the plaintiffs have
alleged that the original defendant was put as Dar Raiyat, but he failed
to make payment of Ad-Batai/Rent to the plaintiffs. On the other hand,
the defendants have claimed that they have acquired occupancy right
in connection with the suit property and denied the relationship as
claimed by the plaintiffs.
13. The learned 1st appellate court, while deciding point no. (V)
dealing with service of notice under section 106 of the Transfer of
Property Act, has recorded that the defendants denied the title of the
plaintiffs and the plaintiffs had filed the suit for declaration of title and
recovery of possession and therefore, no notice under section 106 of
the Transfer of Property Act was required to be served.
14. This Court is of the considered view that no additional
substantial question of law is required to be framed with respect to the
proposed substantial question of law no. (iv).
15. At this, learned counsel for the appellants has prayed for some
time to challenge this order before the Hon'ble Supreme Court and
prays that the matter be posted after four weeks.
16. With the consent of the learned counsel for the parties, post this
case on 06th January 2026.
(Anubha Rawat Choudhary, J.)
Date of Order : 24.11.2025
Pankaj
