Full Judgment Text
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CASE NO.:
Appeal (civil) 7350 of 2000
PETITIONER:
Bandhu Mahto (dead) by L.Rs. & Anr
RESPONDENT:
Bhukhli Mahatain & Ors
DATE OF JUDGMENT: 14/02/2007
BENCH:
C. K. Thakker & Lokeshwar Singh Panta
JUDGMENT:
J U D G M E N T
Lokeshwar Singh Panta, J.
This appeal has been filed by the appellants against the
final judgment dated 06.01.1999 of the learned Single Judge
of the High Court of Judicature at Patna, Ranchi Bench,
Ranchi, whereby the Regular Second Appeal No. 59 of 1983
filed by the appellants challenging the judgment and decree
dated 03.03.1983/11.03.1983 of the Additional District Judge,
3rd Court, Dhanbad, in Title Appeal No.20 of 1980 was
dismissed.
The appellants are the plaintiffs and the respondents are
the defendants in Title Suit No.206/74 and 1968/76 and for
the convenience, they are referred to as such in this judgment.
Briefly stated the facts giving rise to the filing of this
appeal are that one Sriram Mahto had two sons, namely, Kinu
Mahto and Richu Mahto and one daughter Chandwa
Mahatain. Sriram Mahto owned and possessed raiyati lands
in Mouza Garga. Chandwa Mahatain (defendant No.7) was
married to Churu Mahto, the father of defendant Nos.1 and 2
and grandfather of defendant Nos.3 to 6. As the Defendant
No. 7 was married in a poor family, Sriram Mahto, finding his
daughter (defendant No.7) in financial stringency, gave some
lands to his daughter Chandwa and her husband Churu
Mahto with clear understanding that they would not acquire
any permanent right therein. Sriram Mahto died much before
the publication of the record of rights. During the last
cadastral survey operation, the lands belonging to Sriram
Mahto had been recorded in raiyati Khatiyan No.2 of Mouza
Garga. Chandwa Mahatain and Churu Mahto both died before
the survey operation leaving behind four sons, namely, Mani
Mahto (defendant No.1), Fadu Mahto (defendant No.2), Chhutu
Mahto (defendant No.3) and Bandhu Mahto (defendant No.4).
Kinu and Richu, two sons of deceased Sriram Mahto, allowed
the sons of their sister to occupy the lands bearing Plot
Nos.139, 140, 142, 208, 209 and 243. During the survey
operation, the said plots were shown in the names of the
defendants in the remark column as "Bhagina Raiyat". After
the survey operation, the defendants became solvent and gave
up the possession of the plots described in Schedule ’A’ of the
Plaint and since then Kinu and Richu came in khas (actual)
possession of the same and enjoyed the usufruct without any
hindrance from any quarter. Kinu and Richu constructed a
tank on Plot Nos.110, 128, 131, 132, 207, 208 and 213. For
the construction of tank, they took the lands from Magan
Mahto, Churu Mahto, Manga Ram and Chhotu Dobi through
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oral sale and all the said vendors put Kinu and Richu in
possession thereof. One portion where the tank was excavated
has been described in Schedule ’C’ of the Plaint. Jatali
Mahatain, widow of the son of Kinu Mahto, sold her 1/6th
share in favour of Babulal Mahto, father of plaintiff No.2.
Richu died about 39 years before the filing of the suit, leaving
plaintiff No.10 as his sole heir. Defendant Nos.1, 2, 3, 5 and 6
purchased Plot No.139 and some portion of Plot Nos.140 and
142. Defendant No. 3 also purchased a portion of Plot No.245
and those defendants constructed a residential house on Plot
No.139. Except the aforesaid lands, other lands including the
tank remained in possession of the plaintiffs. The land
described in Schedule C and C-1 of the Plaint had all along
been shown in possession of the plaintiffs and defendant No.7.
However, some time in 1968, the defendants dispossessed the
plaintiffs. On these premises, the plaintiffs filed Suit No.
206/74 and 1968/76 on the file of the Court of Munsif,
Second Court at Dhanbad for a declaration of title over the
lands reflected in Schedule ’A’ and ’C-1’ of the Plaint and for
recovery of khas possession by eviction of the defendant Nos. 1
to 6 from the lands described in Schedule ’C’ and ’C-1’ of the
Plaint and further seeking a decree for permanent injunction
restraining the defendants from disturbing the possession of
the plaintiffs.
The defendants in their written statement pleaded that
late Sriram Mahto gave the land in dispute with a constructed
house to his daughter Chandwa and son-in-law Churu by way
of permanent tenancy and after the death of Chandwa and
Churu, their four sons inherited the said property. Their
specific defence was that there was no question of giving up
possession of Schedule ’A’ land by the sons of Chandwa and
Churu to Kinu and Richu as claimed by them and the plea of
their being in possession of the land was false and fabricated.
The claim of Kinu and Richu showing sympathy to their
Bhaginas was categorically denied by the defendants. The
defendants asserted that their predecessor excavated the tank
in question and had been in khas possession of the same. The
defendants asserted that late Sriram Mahto had given the
lands to his daughter permanently and the sons of deceased
Chandwa had constructed their residential house on Plot No.
139 and their names were recorded in the record of rights in
respect of the said house. Mani, Chhotu, Khedu, Tahlu and
the other defendants in the suit, constructed a residential
house on Plot No.140 and as such, all the defendants are in
possession of the plot in exercise of their heritable rights. The
defendants pleaded that they were misled and duped by the
plaintiffs in getting formal sale deed executed in respect of Plot
Nos.139, 140 and 142 without paying any consideration by
the plaintiffs.
On the controversial pleadings of the parties, the trial
court framed as many as six issues, which need not be
reproduced herefor unnecessarily burdening the records.
Issue Nos. 3, 4 and 5 were decided jointly and findings thereon
were given in favour of the plaintiffs and against the
defendants.
Feeling aggrieved, the defendants filed Title Appeal
No.20/80 before the First Appellate Court challenging the
impugned judgment and decree of the trial court. The learned
Additional District Judge, after hearing the parties and re-
appreciating the entire evidence on record, reversed the
finding of the trial court and, accordingly, dismissed the suit
of the plaintiffs. The plaintiffs, aggrieved, have filed Second
Appeal before the High Court. The Second Appeal came to be
admitted by the learned Single Judge of the High Court on
31.10.1984 on the following substantial question of law:
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"Having held that the plaintiffs’
predecessors-in-rights was the owner of
the lands in dispute, was it open to the
court below to throw out the plaintiffs’
case on the grounds stated by it?"
Finally, the learned Single Judge of the High Court came
to the conclusion that the reasoning recorded and the
conclusion arrived at by the First Appellate Court in
dismissing the suit of the plaintiffs do not call for interference
in the Second Appeal as the above-said substantial question of
law does not involve the facts and circumstances of the case.
Hence, the plaintiffs are in appeal before this Court.
We have heard the learned counsel for the parties in
detail and perused the judgments of the courts below and
other material placed on record.
Mr. Himanshu Munshi, learned counsel appearing on
behalf of the appellants, contended that the First Appellate
Court as well as the High Court both have failed to appreciate
the findings recorded by the trial court. He submitted that the
learned trial court had rightly appreciated the entry made in
the main column and the entry made in the remark column in
the record of rights wherein predecessor-in-interest of the
defendants was shown as under-raiyats (sub-tenants) as their
interest in the land was not heritable and, therefore,
concluded that the tenancy ended with the death of the
predecessor-in-interest of the defendants. He then contended
that the findings of the trial court based upon the appreciation
of the evidence holding that the settlement between deceased
Sriram Mahto on the one hand and his daughter and son-in-
law on the other was in the nature of tenancy at will.
According to the learned counsel, it is proved on record by the
plaintiffs that predecessor-in-interest of the plaintiff sold the
plots in dispute to the predecessor-in-interest of the
defendants and the defendants after becoming solvent had
returned the property given by deceased Sriram Mahto to his
daughter to the plaintiffs. Lastly, it was urged that the
learned trial court has rightly held that predecessor-in-interest
of the defendants were raiyats (sub-tenants) and as such, their
rights in the land in dispute was not heritable and, therefore,
the defendants ceased to have any rights over the said land
after the death of their predecessor-in-interest.
On the other hand, Mr. Manoj Saxena, learned counsel
appearing on behalf of the defendants, contended that there
was no substantial question of law involved in the Second
Appeal filed by the plaintiffs and therefore the High Court has
to rightly dismissed the appeal being devoid of any merit. The
learned counsel submitted that this Court will not be obliged
to interfere in the well-reasoned judgment of the First
Appellate Court which has been affirmed by the High Court.
We have given our careful consideration to the respective
contentions of the learned counsel for the parties.
It is not in dispute that the deceased Sriram Mahto,
father of Kinu and Richu, had given some portion of the land
to his daughter Chandwa to extend some financial stability to
her and his son-in-law, over which subsequently a residential
house was constructed. The claim of the plaintiffs before the
trial court was that deceased Sriram Mahto gave some
portions of land to Chandwa and her husband with a specific
understanding that they would not acquire any permanent
right therein, whereas the defendants asserted that no such
understanding was in existence and Chandwa and her
husband Churu acquired permanent tenancy over the land in
dispute. From the evidence on record, it is clear that the plea
of conditional settlement of the lands between the deceased
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Sriram Mahto and his daughter and son-in-law has not been
proved by the plaintiffs. It stands proved from the record that
Chandwa Mahatain and Churu Mahto had been in possession
of the lands described in Schedule ’A’ of the Plaint in exercise
of their independent rights to the knowledge of all including
the plaintiffs. On the death of Churu Mahto, his interest in
the said land was inherited by his four sons and his widow
Chandwa who surrendered her interest in favour of her four
sons. The four sons of deceased Chandwa and Churu
remained in possession of the Schedule ’A’ property in exercise
of their independent rights having equal status as that of
original raiyats and as such they acquired permanent
indefeasible right over the land described in Schedule ’A’ of
the Plaint.
A close scrutiny of the survey and settlement record
would show that the Plots mentioned in Schedule ’A’ of the
Plaint had been recorded in possession of Bandhu Mahto,
Fadu Mahto, Mani Mahto and Chhotu Mahto as "Bhagina
Raiyat" in equal share. The survey settlement operation,
admittedly, started in the year 1920 and had been finally
published in 1925. All the four sons of Chandwa Mahatain
were adult and major during the settlement operation. The
First Appellate Court, after going through the record of rights,
came to the conclusion that Bandhu Mahto, Fadu Mahto,
Mani Mahto and Chhotu Mahto had been occupying one
house and courtyard along with Gharbari lands in Plot Nos.
139, 140 and 142 and the remaining plots in Schedule ’A’ were
also in possession of the four sons of Chandwa Mahatain.
PW-3 Shashi Bhushan Chaudhary, who was examined by
the plaintiffs has admitted in his deposition that deceased
Sriram Mahto had got constructed a separate residential
house for his son-in-law, Churu Mahto. The evidence of this
witness has corroborated the plea of the defendants that much
prior to the survey operation Chandwa Mahatain came in
possession of Schedule ’A’ plots and the family continued in
possession of the aforesaid house as well as lands described in
Schedule ’A’ of the plaint from one generation to other
generation without any hindrance from any one. The
successors-in-interest of deceased Sriram Mahto have not
made any attempt to evict the defendants or their predecessor
from the lands in dispute. As regards tenancy, the plaintiffs
have introduced three types of pleadings, namely, (i) that soon
after the survey settlement operation the ancestor of the
defendants became solvent and thereafter they surrendered
the land to Kinu Mahto and Richu Mahto, who came into
possession of the land; (ii) the plea of surrender by the
defendants of the land in dispute; and (iii) the dispossession of
the plaintiffs by the defendants from the tank in the year
1968.
The First Appellate Court, on scrutiny of the oral and
documentary evidence, recorded clear and positive finding that
none of the pleading has been proved by the plaintiffs in their
evidence. It has come on record that Bandhu Mahto was the
most competent witness to depose in regard to the solvency of
the defendants’ ancestors or about the surrender of the lands
by the defendants, was not examined by the plaintiffs for the
reasons best known to them, despite the fact that the witness
was present in the trial court for recording the evidence. The
defendants and prior to them their predecessor-in-interest
remained in possession of the lands, in question, for over a
period of 100 years and the house, which was situated on Plot
Nos.139 and 140, had been held by them from generation to
generation. In view of this evidence on record, the First
Appellate Court came to the conclusion that the tenancy held
by the defendants will be deemed as permanent tenancy and
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not tenancy-at-will as alleged by the plaintiffs. The First
Appellate Court has found that PW-11, Rijhu Mahto, had
failed to prove the dispossession of the plaintiffs from the
portion of the land over which tank was constructed.
On examination of the reasonings recorded by the First
Appellate Court, which are affirmed by the learned Single
Judge of the High Court in Second Appeal, we are of the view
that the judgments of the First Appellate Court as well as the
High Court are well-reasoned based upon proper appreciation
of the entire evidence on record. No question of law much
less a substantial question of law was involved in this case
before the High Court. We do not find any perversity or
infirmity in the concurrent findings of fact recorded by the
First Appellate Court and affirmed by the learned Single Judge
of the High Court to warrant interference in this appeal. None
of the contentions of the learned counsel for the plaintiffs-
appellants can be sustained.
For the above-said reasons, there is no merit in this
appeal and it is, accordingly, dismissed. The parties are,
however, left to bear their own costs.