Dasrath Bind @ Tunu Bind And Others vs Shakuntala Vishwakarma And Others

Sanjay Kumar Dwivedi, J

Heard Mr. Kundan Kumar Ambastha, learned counsel for the appellants and Mr. Sanjay Kumar Pandey, learned counsel for the respondents.

This second appeal has been filed being aggrieved and dissatisfied with the judgment and decree dated 28.06.2005 (decree signed on 16.07.2005) passed by the learned District Judge, Garhwa dismissing the Title Appeal No.44/2003 and affirmed the judgment and decree dated 30.08.2003 (decree signed on 12.09.2003) passed by the learned Munsif, Garhwa in Title Suit No.27/1996.

The Title Suit No.27/1996 was instituted by the appellants/plaintiffs for declaration of title and possession and to declare the sale deed no.5730 dated 24.11.1961 as void. The said suit on contest was decided by the learned trial court, whereby, the suit was dismissed. Being aggrieved with that judgment, the appellants herein have preferred Title Appeal No.44 of 2003 and the said title appeal has also been dismissed vide judgment dated 28.06.2005 and the order of the learned trial court has been affirmed. Being aggrieved with this judgment, the appellants have preferred this second appeal.

The case of the plaintiff was that the suit land is situated in Khata no.54, plot no.116 area 26 decimal and plot no.117 area 4 decimal in village Nagwan, P.S. Garhwa which stands recorded as raiyati in the name of Monhar Bind and Maheshwari Bind. Both of them were own brothers and remained joint. During the course of jointness, Maheshwari Bind died issueless leaving behind his only brother Monhar Bind. The entire area of 26 decimal and 4 decimal came in right, title and possession of Monhar Bind by survivorship. After death of Monhar Bind, his two sons namely Bigan Bind and Ram Nath Bind (plaintiffs) succeeded over the entire property and came in actual right, title and possession of the suit land. Further case of the plaintiffs was that late Monhar Bind or Maheshwari Bind had never surrendered or abandoned the suit land during their life time. They had been peacefully enjoying the right, title and possession over the same. The defendant no.1 surreptitiously and cunningly got a forged and fabricated sale deed executed in his name. On the basis of the forged sale deed, the defendant started to claim the suit land without any legal basis. The demand in the name of the vendor of the defendant was not opened due to the reason that the plaintiffs had been coming in possession from the time of their grandfather. The defendant no.1 got the rent assessed in his name on the basis of illegal and invalid sale deed. When the matter came to the knowledge of the plaintiffs, they took steps for cancellation of Jamabandi in the name of the defendant no.1 which was subjudiced in the court of the D.C.L.R., Garhwa. In the said cancellation of the Jamabandi, Misc. case no.6/1993-94 has been registered in which the defendant has taken plea of surrender of the land by the recorded tenant in favour of the ex-landlord and subsequent settlement of the same in the name of Nand Keshwar Ram. The settlement took place in the year 1946 through Hukumnama executed by the ex-landlord. Defendant no.1 stated that he had purchased the suit land from Nand Keshwar Ram vide registered sale deed dated 24.11.1961 for consideration of Rs.850/-.The land of khata no.54 plot no. 116 area 26 decimal and plot no.117 area 4 decimal of village Nagwan is the suit land. Nand Keshwar Ram, vendor of the defendant, died leaving behind his son (defendant no.2) who has been made party in this suit to avoid any technical defect. The plaintiffs have stated that out of 30 decimal of suit land in plot no.116 and 117, plaintiff nos.1 and 2 have sold 15 decimal of land vide three sale deeds dated 23.08.1993 in the name of plaintiff no.3 to 5 and put them in actual right, title and possession of the suit land. The sale deed executed by the plaintiffs are legal,genuine and valid. There was no interference in the possession of the plaintiffs from any corner. On the basis of the bogus and invalid sale deed, the defendant no.1 forcibly constructed a house over plot no.116.covering an area of 3/4 decimal. Although village Nagwan is situated in the Municipal area of Garhwa Town, defendant no.1 did not take permission from Municipality. On being interfered by the plaintiffs on 12.09.1993 defendant no.1, threatened them of dire consequences. The plaintiffs immediately filed a petition in the court of the D.C.L.R. for cancellation of Jamabandi in the name of the defendant no.1. Again on 06.04.1996, defendant no.1 started laying down foundation over the remaining portion of plot no.116.covering an area of one decimal. The plaintiff no.2 Ram Nath Bind filed a petition in the court of the S.D.M., Garhwa which was enquired into by the local police and a proceeding u/s 144 Cr.P.C. was drawn up and notice was served upon the defendant no.1. In spite of prohibitory order, defendant no.1 violated the same and continued his construction over one decimal of land in plot no.116. Plaintiff no.2 Ram Nath Bind filed a petition in the court of the S.D.M., Garhwa for taking action under Section 188 I.P.C. After police enquiry, the S.D.M. issued show-cause notice on defendant no.1 for taking action under Section 188 I.P.C. and the matter is still pending. The defendant no.1 has been encroaching upon the suit land by applying illegal force and terror. The encroached portion of the suit land has been measured by one Sukhbir Pal, a private Amin, who traced out the map at the spot and prepared the map which is attached with the plaint. On 03.05.1996, the plaintiffs requested the defendant no.1 to remove the construction from the raiyati land of the plaintiffs, but the defendant became furious and extended the construction of wall over plot no.116 and did not stop the construction. Illegal sale deed executed by Nand Keshwar Ram in favour of defendant no.1 cast a cloud over the right, title and possession of the plaintiffs. Therefore it was prayed to declare the sale deed dated 24.11.1961 as null and void. Hence, the said suit was filed. The prayer was also made in the said suit to demolish and remove the illegal construction made by the defendant no.1 on the suit land.

The defendant no.1 contested the suit and filed his written statement. It was stated that the suit is not maintainable and the plaintiffs have got no cause of action. The suit is barred by limitation and adverse possession. It was stated that after the Cadastral Survey and Settlement Operation, Maheshwari Bind died and Manohar Bind faced great trouble in residing in the house, situated on the suit land. He was puzzled, thinking that such land and house thereon not suitable for his family because of unfortunate happenings. He left the house of the suit land and constructed another house in the village on plot no.169. After the suit land and the house over the same was abandoned, the old house had fallen down and Manohar Bind did not cultivate the land for several years. Subsequently, Manohar Bind orally surrendered the suit land to the ex-landlord, who took khas possession of the same and made it his Bakast land. It is false to say that Manohar Bind continued in actual right, title and possession over the suit land. In fact, the suit land was surrendered by Manohar Bind and during his life time, the same was taken in khas possession of the ex-landlord. Hence there was no question of inheritance of the suit land by the plaintiffs. They never acquired right, title and possession over the suit land at any time and in any manner. The suit land was recorded as Rent Free land under khata no.54. By arrangement between the landlord and tenant after the oral surrender, the landlord continued to be in khas possession thereof till the year 1946. On that date, the landlord settled the suit land by issuing Hukumnama in favour of Nand Keshwar Ram and settled the suit land along with other lands in favour of Nand Keshwar Ram. Since the time of said settlement, Nand Keshwar Ram acquired absolute right, title and possession over the suit land along with other lands settled to him by the ex-landlord in the year 1946. Nand Keshwar Ram constructed his residential house over the suit land and was residing in the same. He cultivated the suit land as his Gharbari. Thereafter Nand Keshwar Ram transferred the suit land through registered sale deed executed in the year 1961 in favour of the defendant no.1 and put him in right, title and possession over the same. The said sale deed is legal, valid and has been acted upon by the defendant no.1. The transaction between Nand Keshwar Ram and defendant no.1 was within the knowledge of everyone and since then, defendant no.1 had been exercising him with absolute right, title and possession over the suit land. Transfer by Nand Keshwar Ram in 1961, which was immediately after the vesting and the defendant no.1 was recognized as tenant by the Revenue Authority after due enquiry and verification. Rent of the suit land was assessed in the name of the defendant no.1 and demand was opened in his name. The plaintiffs had knowledge of the transfer of the suit land to the defendant no.1 and they had also knowledge of settlement of the suit land by the ex-landlord in favour of Nand Keshwar Ram. No objection was raised by the plaintiffs or their ancestor against the tenancy of the defendant no 1. The plaintiffs had been set up by one Sarju Prasad Vishwakarma, who had obtained bogus sale deed from plaintiff no.1 and 2 in the name of his daughter and daughter in-law. The case of cancellation of Jamabandi had been decided against the plaintiffs and in favour of the defendant no.1. After settlement of the suit land by the ex-landlord, Jamabandi was opened in the Sirista of Zamindar and Return under Section 3 (b) of the Bihar Land Reforms Act, 1950 showing Nand Keshwar Ram as raiyat with respect to the suit land, was filed. Defendant no.2 is not a necessary party to the suit. The sale deed executed by the plaintiff no.1 and 2 in favour of plaintiff nos. 3 to 5 is a bogus sale deed in order to create litigation against the defendant. The defendant has house over the suit land since the day of his purchase. Hence, the defendant has purchased house over the suit land and is residing in the same with his family members. He has extended the old house and constructed house therein. The holding has been recognized by the Municipality and defendant no.1 is paying holding tax since 1972 within the knowledge of the plaintiffs. On 06.04.1996, there was no new foundation since the house has been standing since long over the suit land. The proceeding under Section 144 Cr.P.C. has been decided against the plaintiffs and they have been restrained from going over the suit land. The matter for taking action under Section 188 I.P.C. has also been decided against the plaintiffs. The measurement by a private Amin and preparation of map has been denied by the defendants. It was also stated that the plaintiffs have got no cause of action and the suit is fit to be dismissed.

Mr. Ambastha, learned counsel for the appellants submits that the learned trial court as well as the appellate court has failed to consider about not tracing of any document with regard to surrender and in that view of the matter, he submits that this second appeal is fit to be admitted on substantial question of law.

On the other hand, Mr. Pandey, learned counsel for the respondents submits that the learned trial court as well as the appellate court has elaborately dealt with the contention of the appellants/plaintiffs and thereafter passed the judgments. He further submits that there is no illegality in the judgments.

In view of the above submissions of the learned counsel for the parties, the Court has gone through the judgments of the learned trial court as well as the appellate court and finds that both the learned courts have elaborately discussed the materials on the record, oral as well as documentary. After discussing the entire materials, the learned appellate court has framed 8 issues and while deciding issue nos. 4,5, 6 and 7, the learned appellate court has held that Nand Keshwar Ram took settlement in 1946 and remained in possession over the suit land till 1961 when he sold the same to the defendant no.1. The dispute arose in 1993 when the plaintiff no.3 to 5 purchased the suit land from plaintiff no.1 and 2. Therefore, the descendant of recorded tenant cannot challenge the title of defendant no.1 and his vendor Nand Keshwar Ram after 47 years. The case of the defendant no.1 was corroborated by oral and documentary evidence on record. Ext.-F is Bandobasti Patta executed by ex-landlord in favour of Nand Keshwar Ram in the year 1946. Ext.- G (series) are the Zamindari rent receipts granted by the ex-landlord to Nand Keshwar Ram which go to show that Jamabandi was created in the Revenue Sarista of ex-landlord in the name of Nand Keshwar Ram, Ext.-H is sale deed of 1961 executed by Nand Keshwar Ram in favour of the defendant no.1. Ext.-I is certified copy of order passed by revenue authority in favour of the defendant no.1. Ext.-K is sanction by Garhwa Municipality given to the defendant no.1 for construction of his house. Ext.-J is the Return filed by the ex-landlord after vesting in which Nand Keshwar Ram has been shown as raiyat of the suit land and, thereafter, the learned appellate court has affirmed the judgment passed by the learned trial court.

It is well settled that indiscriminate and frequent interference under Section 100 of the Code in cases, which was totally devoid of any substantial question of law, is not only against the legislative intention, but is also the main cause of huge pendency of second appeals leading to colossal delay in administration of justice.

In view of the aforesaid facts, reasons and analysis, there are concurrent findings of both the learned courts and there is no substantial question of law involved in this second appeal.

Accordingly, this second appeal is dismissed.