Bhikhuwa Oraon And Ors vs Baraik Krishnadeo Singh And Ors

Heard Mr. Arun Kumar, the learned counsel appearing for the appellants.

The appellant has preferred this Second Appeal against the judgment and decree dated 29.03.2017 and 18.04.2017, respectively passed by the

learned Principal District Judge, Gumla in Title Appeal No.21 of 2012 whereby the learned court of appeal has dismissed the appeal and confirmed the

judgment and decree dated 12.09.2012 and 29.09.2012, respectively passed by learned Civil Judge, Junior Division-I, Gumla in Title Suit No.11 of

2001.

The appellant-plaintiffs instituted the suit against the five defendants including Deputy Commissioner, Gumla with a direction to confirm their

possession over the suit land and sought a declaration to the effect that the R.S.Khata No.2 prepared in the name of Baraik Deonandan Singh null and

void and not binding against the plaintiffs and lastly to award the costs of the suit.

It was the case of the appellant/plaintiffs that during the preparation of C.S records of right the C.S. Khata No.111 of village Telgaon, P.S. Gumla

District Ranchi (now, Gumla) was prepared in the name of Hariyari Oraon, S/o Kathhar Thupar Oraon as Rajhas lands but just before the R.S.

operation Hariyari Oraon died leaving behind his minor sons and there was no male adult member in the family to look after the preparation of R.S.

Survey operation, therefore, taking the advantage of death of Hariyari Oraon, the then land lord Baraik Deonandan Singh got the said land recorded in

his name as Bakast Malik under R.S. Khata No.2 of village Telgaon. Further, the lands of C.S. Khata No.111 Plot No.1852, area 5.33 acres and R.S.

Khata No.2 plot no.2817 area 5.30 acre of village Telgaon is the same land over which the plaintiffs are uptill now in peaceful possession being the

heirs of C.S. recorded tenants Hariyari Oraon. Further, the genealogical table given below shows the relationship in between the parties.

Further, sons of Hariyari Oraon namely Bratia Oraon, Balku Oraon, Bandhna Oraon and Birsai Oraon died issueless, where as Bandhna Oraon

died leaving behind his two sons Hari Oraon and Liba Oraon plaintiff No. 2 and 3 and Birsai Oraon died leaving behind plaintiff No.1. Further, the

plaintiffs/appellants had been in continuous peaceful possession of the land in question and during the recent survey operation plaintiffs came to know

that draft publication of the record of right (Bandaparcha) has been prepared and issued in the name of defendant No. 3 and thereafter the

plaintiffs/appellants filed a case U/S 89 of the C.N.T Act being Ranchi Misc. Judicial case No. 53/1989 in the Court of Survey Settlement Officer,

Ranchi for issuance of Draft publication of the record of right in the name of plaintiffs for the land described in Schedule A of the plaint and the

plaintiffs/appellants claimed before the Settlement Officer that even after the preparation of Khata No. 2 as Bakast Malik in the name of the then land

lord Deonandan Singh, the plaintiffs or their predecessors are always coming in possession over the suit land and they have never been parted with the

possession of the suit land and on the basis of the claims of the plaintiffs, the settlement Officer made an enquiry and after enquiry, it was found that

the plaintiffs are in possession over the suit land. Further, the Settlement Officer while passing the dismissal order of the case has observed that

plaintiff's case is based on title suit, Civil Court is only competent Court to decide the title of the plaintiffs for the suit land and in the order the

Settlement Officer has wrongly mentioned gift deed number as 1894 dated 4.3.42 executed by Baraik Deonandan Singh in favour of Balmati Kumari

W/O Ishwari Prasad Singh and thereafter obtained the certified copy of the said order, the plaintiffs search out the gift deed No. 1894 dated 4.3.42

executed by Baraik Deonandan Singh in favour of Balmati Kumari W/O Ishwari Prasad Singh rather she was daughter of Ishwari Prasad Singh who

has been married with Umesh Singh. Further, on 25.12.2000 the defendant No. 4 came on the land and claimed that he has purchased the said land

from Basmati @ Blamati Devi through a registered sale deed but the defendant No. 4 did not show the sale deed and even after the search the

plaintiffs could not be able to find out the sale deed, therefore, this case has been filed and the plaintiffs sought the following reliefs:- a confirmation of

possession over the suit land and decree be passed declaring the R.S Khata No. 2, prepared in the name of Baraik Deonandan Singh null and void and

not binding against the plaintiffs, full cost of the suit be awarded to the plaintiffs and for any other relief or reliefs the plaintiffs be found entitled be also

awarded to them.

After summons defendant No. 1,3 and 4 appeared and filed the separate written statement. Defendant No. 3/respondent No. 3 by filing written

statement claimed that the suit is not maintainable in its present from, it is also barred by the principle of waiver, estoppel and acquisence, as well as

suit is barred by law of limitation and adverse possession. Further, the defendant/respondent No. 3 denied this fact that landlord got the Khata No. 2

recorded in his name during the R.S operation by playing foul, rather fact is that during the revisional Survey operation the lands which were in

possession and cultivation of the then landlord were recorded as Bakast Malik lands under Khata No. 2 and after the death of the recorded tenant, the

then landlord son Baraik Ishwari Prasad Singh came into the possession and the plaintiffs/appellants were never been in possession of the suit land.

Further, the said Baraik Ishwari Prasad Singh by a registered gift deed executed on 10.12.1982 gifted the property to the defendant No. 3 and on the

basis of that gift deed, the defendant came into the possession over the suit land and got her name mutated in the record of right and she is paying the

rent. Further, the defendants had also constructed a small room over a portion of the suit land and the room constructed was Kacchha and the same

was later on fallen down because during that period the defendant used to live at Ranchi for the treatment of her husband, who subsequently died.

Further, this defendant also sold and area of one acre to defendant No. 4 vide registered deed of sale No. 9962 executed on 10.12.1982 and defendant

No. 4 is in peaceful possession of the land. Further, the draft publication of record of right is rightly been prepared in the name of this defendant.

Further, the claim of plaintiff over the remaining portion of the suit land is false rather earlier the suit land was in possession of Baraik Ishwari Prasad

Singh and same came into the possession of this defendant and she has been in continuous possession over the suit land, which has been sold to

defendant No. 4. Further, against the decision of Settlement Officer, there is provision for appeal U/S 89 of the C.N.T Act but the plaintiffs/appellants

have not preferred any appeal. Further the plaintiffs/appellants have not challenged the gift deed, which has been executed in the year 1964 and

therefore, the suit is also barred by law of limitation and adverse possession.

Defendant No. 1 has adopted the written statement filed by the defendant No. 3.

Defendant No. 4 has stated almost same statement in his written statement which has been stated by the defendant No. 3, except that he claimed

that he has purchased one acre suit land in the year 1982 from Balmati Kumari @ Basanti Kumar (defendant No. 3) through registered sale deed No.

9962 dated 10.12.1982 and on the basis of that he has been in possession of the suit land. Further, he claimed the revisional survey record of right has

published in the year 1933 and that has never been challenged by anyone and therefore, that shall prevail.

On the basis of the above pleadings, the trial court entered into the lis and formulated eight issues to decide the suit. The trial court after discussing

the evidences and the exhibits came to the finding that the appellant-plaintiffs have failed to prove their case and accordingly the suit was dismissed

vide judgment dated 12.09.2012.

Aggrieved with this, the appellants herein filed the appeal which was numbered as Title Appeal No.21 of 2012 which was decided by the District

Judge, Gumla by judgment dated 29.03.2017. The appellate court after discussing the evidences as well as the exhibits, re-casted the issue to decide

the appeal and came to the finding that there is no illegality in the judgment and decree of the trial court and dismissed the appeal by judgment dated

29.03.2017.

Aggrieved with this, the appellants have filed this Second Appeal.

Mr. Arun Kumar, the learned counsel appearing for the appellants submits that the trial court as well as the appellate court has not considered the

law point raised by the appellants and dismissed the appeal. He further submits that there is substantial question of law involved in this second appeal

which is fit to be admitted by this Court.

This Court has perused the judgment of the trial court as well as the appellate court. The appellate court has re-casted the issue to decide the lis

and came to the finding that the provisions of Section 84 of the C.N.T. Act is a conclusive evidence of such publication and it shall be presumed to be

correct until it is proved, by evidence, to be incorrect. Therefore, in view of Section 84 of C.N.T. Act, the appellate court came to the finding that

since the record of rights during the Revisional Survey is prepared in the name of Baraik Deonandan Singh as Bakast Malik, therefore, the

presumption is in favour of the respondents and it was recorded in the name of predecessor of the respondent/defendant no.3 Baraik Deonanda Singh

and since the appellant/plaintiffs claimed that by playing foul the then landlord Deonandan Singh got his name entered in the record of right prepared

during the Revisional Survey, the onus is upon the appellant/plaintiffs to prove that it has been wrongly recorded. The appellant/plaintiffs have failed to

prove their case. The two facts finding courts have come to the concurrent finding, this Court is not inclined to further appreciate the evidences

adduced by the parties in the Second Appeal.

There is no substantial question of law involved in this Second Appeal and accordingly, S.A. No.298 of 2017 stands dismissed.