Jagnarain Singh vs Kashi Nath Sharma

Vihsnudeo Narayan, J.—This appeal at the instance of the plaintiff appellant has been preferred against the judgment and decree of reversal dated 30.11,1989 and 12.12.1989 respectively passed in Title Appeal No. 54 of 1986 by Shri Uma Shankar, 1st Additional District Judge, Hazaribagh whereby and whereunder the said appeal was allowed setting aside the judgment and decree of the trial Court as a result of which the son of the plaintiff was dismissed.

The plaintiff appellant has filed Title Suit No. 21 of 1981 for declaration of his title in respect of the suit land which is a portion of plot No. 1216 of Khata No. 2 situated in village Ramgarh, District Hazaribagh more fully described in Schedule C of the plaint and for recovery of possession by evicting the defendant respondent therefrom and the portion of plot No. 1216 in dispute is 27 feet east and west and 23-1/2 feet north to south bounded as north rasta, south parti kadim, east 19 feet wide east and west parti land left of Mahavir Sthan and, thereafter, gate and rasta of Kila Mandir, west shop building of the plaintiff.

The case of the plaintiff-appellant (herein referred to as the plaintiff) in brief, is that plot No. 1216 appertaining to Khata No. 2 having an area of 3.51 acres stands recorded in the Survey Records of Right as gair mazarua malik land and it was in possession of the landlord. Ramgarh Estate, Padma. Plot No. 1215 appertaining to Khata No, 3 having an area of 2 decimals is gair mazarua aam land adjacent north of plot No. 1216. One Golak Nath Singh took settlement of 10 decimals out of plot Nos. 1216 and 1215 detailed in Schedule A of the plaint from the then landlord and the landlord granted a hukumnama dated 27.3.1943 (Ext. 12) and Golak Nath came in possession over the same and paid rent to the landlord an continued in possession in respect thereof and rent receipt was granted to him by the landlord. Said Golaknath Singh executed a sale deed dated 12.11.1959 in favour of the plaintiff in respect of the said 10 decimals of land arid the plaintiff came in possession over the same and continued in possession, accordingly. The plaintiff applied for mutation before the Anchal Adhikari, Ramgarh and in course of enquiry it transpired that plot No. 1215 is gair mazarua aam land, the area of which is 2 decimal as per Ext. 7. Mutation was allowed in favour of the plaintiff in respect of 8 decimals of land of plot No. 1216 only and he paid rent to the State and got rent receipts. He applied before the Executive Officer, Cantonment, Ramgarh for sanction of a map for the construction over 8 decimals of plot No. 1216 leaving the eastern part of it adjacent west of the rasta and gate of the Kila Mandir, the area of which is 9 feet east west and 23 1/2 feet north south for Mahavir Sthan and the required sanction was accorded on 11.10.1969 and, thereafter he started making construction of the shop rooms and he constructed six rooms but could not construct the western four proposed rooms over the said land due to a dispute raised by Shri Narain Singh and a proceeding u/s 145 of the Code of Criminal Procedure took place between them in which the possession of the plaintiff, was confirmed and the said dispute came to an end in the year 1979 and, thereafter, the plaintiff again got the map sanctioned with some deviation and constructed further rooms on the said plot. It is further alleged that the plaintiff allowed the defendant in the month of October, 1969, to run his motor body repair work in a temporary shed in the enclosures made of loose brick work made by the plaintiff. The further case of the plaintiff is that the defendant clandestinely and collusively got a sale deed executed in his favour on 18.01.1970 by one Rameshwar Prasad Singh in respect of the identified land with slight variation in the area with a recital therein of the existence of a temporary shed and a room on the basis of an agreement date 23.3.1963. It is alleged that the plaintiff was in possession of 8 decimals of land of plot No. 1216 all along even on the date of the execution of the said sale deed in favour of the defendant and it contained set of rooms 66-1/2 feet in length east and west besides the temporary shed and a small loose brick enclosures. Thereafter, a panchayati took place and panches gave an award on 26.7.1971 holding that the plaintiff is the owner of the land and in possession in respect thereof and, thereafter, the defendant filed a petition on 11.7.1970 before the Executive Officer, Ramgarh Cantonment for sanction of the plan regarding his intended construction over the same which was rejected as it was overlapping over the sanctioned construction map in favour of the plaintiff. It is also alleged that the petition for mutation filed by the defendant was also rejected on due enquiry. The defendant did not abide by the award of the panches and in spite of that applied for mutation which stands rejected as already stated above and in spite of the repeated demands the defendant has refused to vacate the suit land,

The case of the defendant respondent (hereinafter referred to as the defendant) inter alia is that Golak Nath Singh has never taken settlement of 10 decimals of land of plot Nos. 1215 and 1216 and he was never in possession over any portion of land of plot No. 1216 and the story of his settlement of the year 1943 is a cock and bull story and the paper of settlement in his favour is a forged fabricated and antedated document created for the purpose of the suit and the plaintiff has not acquired any right, title and interest in plot No. 1216 by virtue of the alleged sale deed dated 12.11.1959 purported to have been executed by Golaknath Singh in his favour and the order of mutation in his favour is a collusive one without jurisdiction and the plaintiff has obtained sanction for the construction collusively from the Cantonment Board. It is alleged that Rameshwar Prasad Singh got settlement of 7 decimals of plot No. 1216 boundled as in the north sadak, south Kila Mandir rasta, east Kila Mandir Gate and west Sardar Narain Singh on 26.11.1944 and hukumnama was granted by the State of Maharani Sahiba of Padma and Rameshwar Prasad Singh came in possession over the same and paid rent to the landlord and got rent receipts and this defendant approached said Rameshwar Prasad Singh in the year 1960-61 for his permission to utilize the said 7 decimals of land for the purpose of motor repair work center and on his permission and on acceptance of some amount for this use a occupation this defendant constructed a temporary shed and also a temporary room for motor body repair work as well as for his residence. The further case of defendant is that Rameshwar Prasad Singh aforesaid entered into an agreement with him of the sale of the said land in the year 1963 and received Rs. 1000/- as earnest money and subsequently he executed a sale deed on 15.1.1970 in favour of the defendant on acceptance of the balance of the consideration money in respect of 7 decimals of land of plot No. 1216 aforesaid and since then this defendant is in possession of 7 decimals of land of plot No. 1216 as of his rights and the eastern boundary given in the sale deed dated 15.1.1970 was a wrong one and was due to the confusion that at some distance on the western side from 7 decimals land of this defendant, house of Sardar Narain Singh only existed and the land in between was a no man''s land. It also alleged that on the western side of the land purchased by this defendant there existed a Mahavirji Sthan 10 feet north to south and 8 feet east to west on the land within 7 decimals so purchased by this defendant and so it was specifically mentioned in the sale deed dated 15.1.1970 executed by Rameshwar Prasad Singh in his favour. His case further is that he is in possession in the northern side contiguous south to, the road one chain east to west and it extends up to 7 links north to south and, thereafter, further south to the ditch or parti kadim or gadha land. There had been a Panchayti in themonth of September to November, 1971 and the panches gave their award on 25.09.1971 and 26.11.1971 and the award bears the signature of both the parties and other local persons and it was settled that out of 3 feet land on the western side of the land of defendant each party shall leave 1 1/2 feet land and, accordingly, the defendant gave a wall on the western extremity of his land which is still in existence. Lastly it has been alleged that the plaintiff is not in possession of 7 decimals of land which defendant has purchased from Rameshwar Prasad Singh.

In view of the pleadings of the parties the learned trial Court has framed the following issues for adjudication in this case :

(i) Is the suit legally maintainable?

(ii) Is the suit barred by law of limitation, estoppel and Specific Relief Act?

(iii) Has the plaintiff valid cause of action to file the suit ?

(iv) Whether the plaintiff has got any right, title and interest in the suit land

(v) Is the plaintiff entitled to any decree ?

(vi) To what other relief or reliefs the plaintiff is entitled ?

The learned trial Court in view of the evidence oral and documentary on the record while deciding issue No. (iv) has held that Golaknath Singh had title and possession over the suit land since before the settlement in favour of Rameshwar Prasad Singh and he rightly sold the same to the plaintiff and put him possession of the sold land. If has further been held that the existence of plaintiffs house, mutation, sanctioned plan by the Cantonment Board, order in the proceeding u/s 145 of the Code of Criminal Procedures and the award support the plaintiffs title and possession on the entire purchased land and the defendant cannot be supposed to be in possession of the disputed land on the basis of purchase from Rameshwar Prasad Singh. It has also been held that defendant has no right, title, interest and possession in the disputed land detailed in Schedule C of the plaint. While deciding issue No. (v) and (vi) it has been held that the plaintiff is entitled to get a decree of declaration of his title and recovery of possession in respect of the disputed land measuring an area of 24 feet east-west and 23-1/2 feet north-shout leaving 3 feet east west for joint passage.

Being aggrieved the defendant filed Title Appeal No. 54 of 1986. The plaintiff has also filed cross objection assailing the finding of the trial Court on the basis of Ext. 11 that parties were in joint-possession of a piece of land measuring 3 feet east and west and 23-1/2 feet north and south out of the suit land. The learned appellate Court below on re-appraisal and re-appreciation of the evidence on the record allowed the appeal and set aside the judgment and decree of the trial Court and dismissed the suit of the plaintiff. It has been held be the appellate Court below that the plaintiff has failed to prove that his vendor had acquired valid title over plot No. 1216 and when his vender himself has no valid title over the suit land it is difficult to hold that the plaintiff acquired a valid title over the suit land on the basis of sale deed Ext. 2 executed by Golaknath Singh in his favour in the year 1959 and plaintiff has also not succeeded in proving his possession over the suit land for more than 12 years.

This Court while admitting this appeal for hearing has formulated the substantial question of law vide order dated 14.1.1991 which runs thus ;

"whether the learned Court of appeal below mis-directed himself in reversing the judgment of trial Court without taking into consideration the evidences of PWs 15, 17 and 20."

Assailing the impugned judgment it has been submitted by the learned counsel for the plaintiff that the learned appellate Court below has wrongly construed hukumnama dated 27.3.1943 (Ext. 12) and Fard Report Amin (Ext 7) and the fact of continuous possession of Golaknath Singh since the day of settlement till 1959 when he transferred the aforesaid two plots to the plaintiff and thereby committed a manifest error in dismissing the suit of the plaintiff. It has also been submitted that there was cogent evidence on the record to substantiate the fact that Golaknath Singh had come into possession of the aforesaid plots and finding of the learned appellate Court below that no evidence has been laid to prove that Golaknath Singh came into possession of the land in question is an error of record. It has also been submitted that the report of the Pleader Commissioner clinchingly evidences the fact that the plaintiff was in physical possession of 8-1/2 decimals of land of plot No. 1216 and as per law the plaintiff has to prove only his title and the person asserting that the title of the plaintiff has extinguished has to prove the same and the learned Court below has considered this case on wrong angle of law and the impugned judgment suffers with illegality due to the non-consideration of the evidence on the record and thus the impugned judgment is unsustainable. In support of his contention reliance has been placed upon the ratio of the case of Neelu Narayani V/s. Lakshmanan, (1999) 9 SCC 237; Ishwar Dass Jain (Dead) Thr. Lrs. Vs. Sohan Lal (Dead) By Lrs., , and Md. Abdul Sattar v. The State of Bihar through Collector, Muzaffarpur 1999 (2) PLJR 784.

In contra, it has been submitted by the learned counsel for the defendant that the substantial question of law as formulated by this Court is in fact not a substantial question of law involved for adjudication in this appeal. Elucidating it has been submitted that the learned appellate Court below has properly construed the oral and documentary evidence on the record and specially the evidences of PWs 15, 17 and 20 and has come to the finding that the plaintiff has failed to prove his title and possession over the suit land and for that he has assigned good and tenable reasons for reversing the finding of the trial Court. It has also been submitted that the settlement made in favour of the vendor of the defendant is not of the identical land of which settlement has been taken by the vendor of the plaintiff from Ramgarh Estate and thus the claim of the plaintiff is vague. It has also been submitted that the land which the vendor of the defendant has acquired by settlement is east of the land of plaintiff and the western boundary of the land in the sale deed of the defendant has been inadvertently mentioned as Narayan Singh and due to inadvertence the word "Jug" has been left out therein and, therefore, the suit area is part and parcel of the land acquired by the vendor of the defendant and thus the impugned judgment of the learned appellate Court below is sustainable.

It is an admitted fact that Ramgarh Estate was the proprietor of Ramgarh village Revenue Thana No. 82 and plot No. 1216 appertaining to Khata No. 2 having an area of 3.51 acres stands recorded in the Cadastral Survey Records of Right as gair mazarua malik and in khas possession of the proprietor whereas plot No. 1215 having an area of 2 decimals is gair mazarua land. Golaknath Singh, the vendor of the plaintiff got settlement of 10 decimals of land of plot Nos. 1215 and 1216 by virtue of hukumnama dated 27.3.1943 (Ext 12) and came in possession over the same and paid rent to the landlord and got rent receipts. One rent receipt dated 20.10.1948 in the name of Golaknath Singh granted by the proprietor is on the record which is Ext. 1/1. This rent receipt is for the payment of rent of the aforesaid 10 decimals of land of plot No. 1215 and 1216 of the period from Sambat 2002-2005. On calculation Sambat 2005 is equivalent to English calendar year 1948. It is relevant to mention here that the learned appellate Court below has misconstrued the rent receipt Ext. 1/1 and observed that the absence of rent receipt of the year 1943 or 1944 makes the title of Golaknath Singh over the suit land doubtful by virtue of the said hukumnama. Prior to the settlement in favour of Golaknath Singh a report of" Amin was obtained which in known as Fard Report Amin and it is Ext. 7 and it appears from its perusal that plot No. 1215 is bounded in the north by rasta, south the land of the proprietor, east rasta and west gadha (ditch) and the area of plot No. 1215 is 2 decimals. It further appears from Fard Report Amin (Ext. 7) that 8 decimals out of 3.51 acres of land of plot No. 1216 which is proposed to be settled with Golaknath Singh is bounded in the north by the land of the proprietor, south parti kadim east rasta and west gadha (ditch). This Fard Report Amin is dated 29.1.1943. Thereafter, the aforesaid 10 decimals of land of plot No. 1215 and 1216 was settled by the Ramgarh Estate by virtue of hukumnama dated 27.3.1943 (Ext. 12) with Golaknath Singh on payment of Rs. 125/- as premium which is evident from Ext. 12 itself and said Golaknath Singh was put in possession thereon. Said Golaknath Singh transferred 10 decimals of land aforesaid to the plaintiff by virtue of the sale deed dated 12.11.1959 (Ext. 2) and in the sale deed the said 10 decimals of land is bounded and butted in the north rasta, south parti kadim. East rasta and west gadha (ditch) and, thereafter, house of Narayan Singh and Joginder Singh. The plaintiff after the said purchase came in possession of the aforesaid land and there is cogent legal evidence on the record of the witnesses of the plaintiff which support the factum of possession of the plaintiff thereon. Even the fact of the possession of the plaintiff over the said land stands admitted by the defendant in para 5 read with paras 24 and 25 of his testimony in which defendant has categorically deposed that in his sale deed dated 18.1.1970 (Ext. E) executed in his favour by Rameshwar Prasad Singh in respect of 7 decimals of land of plot No. 1216 there has been an error in describing the western boundary of the land sold and there was vacant land is the west of the said 7 decimals land which he has purchased and further west to that parti land was the house of Narayan Singh is the land of the plaintiff and the said parti land is situated east of his shed and west of the gate of Kila Mandir. In para 24 he has deposed that he has constructed the shed in the western side of the disputed land and the shed is bounded in the north road, south ditch and, thereafter, Kila Mandir, east parti land and west Mahavir Asthan and, thereafter, parti land west of Mahavir Asthan. Said Mahavir Asthan has been shown in the sketch map by the Pleader Commissioner by letter C and gate of Kila Mandir is further east of the said Mahavir Asthan which has been shown as D in the said map and the garage of the defendant is shown by letter B which is between the Mahavir Asthan shown by letter C and the land of the plaintiff in the west of the said garage of the said land is shown as A in the map. It appears queer enough that the appellant Court below has lost sight of this evidence and did not at all consider. His evidence has erroneously come to the finding that the plaintiff and prior to him his vendor was not in possession of the land of plot No. 1216. It is also pertinent to mention here that the report of the survey knowing Pleader Commissioner (Ext. N) and the map enclosed with it amply demonstrate the fact regarding possession of the plaintiff over portion of land of plot No. 1216. I will later on discuss in detail the report of the survey knowing Pleader Commissioner at its appropriate place. Thereafter, the plaintiff applied for mutation and on proper enquiry his mutation was allowed in respect of 8 decimals of the land of plot No. 1216 and his mutation in respect of 2 decimals of land of 1215 was not allowed in view of the fact that it was gair mazarua aam land. The plaintiff, therefore, got the plan sanctioned from the prescribed authority for construction of building consisting of 10 shop rooms etc. on the said land. According to the case of the plaintiff he has allowed the defendant to run his motor body repair shop on the vacant portion of plot No. 1216 on which he had a loose brick structure. It is also the specific case of the plaintiff that he has left 27 feet east west and 23-1/2 feet north south in the eastern portion of plot No. 1216 vacant. Rameshwar Prasad Singh, the vendor of the defendant has also claimed settlement of 7 decimals of land of plot No. 1216 by virtue of hukumnama dated 26.11.1944 (Ext. I) executed by Ramgarh Estate which was preceded by Fard Report Amin (Ext. C). Boundary of the said 7 decimals of land purported to have been settled with Rameshwar Prasad Singh is bounded in the north sadak, south Kila Mandir, east Kila Mandir Gate and west house of Sardar Narain Singh. According to the defendant himself the western boundary of this 7 decimals land is wrong and this part of the case of the defendant is prima facie correct in view of his evidence referred to above. Therefore, in the west of this 7 decimals of land is definitely the land of Golaknath Singh, the vendor of the plaintiff. The eastern boundary of this 7 decimals of land is Kila Mandir Gate. Therefore, the 7 decimals of land of the vendor of the defendant is definitely west of Kila Mandir Gate and in the map attached with the pleader Commissioner report the gate of the Kila Mandir has been shown by letter D.

Therefore, it can safely be said that the 7 decimals land of the vendor of the defendant is definitely west of gate of Kila Mandir shown by letter D in the survey map of the Pleader Commissioner. The defendant claims to have acquired the aforesaid 7 decimals of land by virtue of the sale deed dated 18.1.1970 executed by Rameshwar Prasad Singh and after the purchase his petition for mutation in respect thereof was rejected which is evident from Ext. 11/A. Therefore, it is crystal clear that Rameshwar Prasad Singh, the vendor of the defendant has got subsequent settlement of 7 decimals of land from the Ramgarh Estate which is definitely west of Kila Mandir Gate and east of 8 decimals of plot No. 1216 acquired earlier by the vendor of the plaintiff. There is also another important aspect which the learned appellate Court below has lost sight of deciding the title of the plaintiff against him. There had been a proceeding u/s 145 of the Code of Criminal Procedure between the plaintiff and Sardar Narain Singh in which the subject matter of dispute was in respect of 8 decimals of plot No. 1216. The house of Sardar Narain Singh is admittedly in the west of the said 8 decimals of land aforesaid. This proceeding has terminated in favour of the plaintiff. It is, therefore, established that 8 decimals of land east of the house of Sardar Narain Singh is of the plaintiff. The learned appellate Court below has again committed a manifest error overlooking the admission of the defendant himself regarding the title of the plaintiff over 8 decimals of land of plot No. 1216 which is west of Kila Mandir Gate and his finding that the plaintiff has failed to prove his title over 8 decimals of land of plot No. 1216 is manifestly erroneous. The portion in dispute as per Ext. C is 23-1/2 feet from east to west and 27 feet from north to south as per Schedule C of the plaint. PW 15 has deposed in para 1 of his evidence that the suit property measuring 27 feet x 25 feet is the land of the plaintiff and the same was in his possession on which the defendant has made a garage 10 or 12 years ago with the permission of the plaintiff and there was a shed from before on the said suit land. He has also deposed that the area of the suit land is more than 1 decimals. His evidence is further to the effect that house of the plaintiff is adjacent west of the said suit land over the portion of the land which he has acquired by purchase. This witness in para 3 of his cross-examination has also stated the boundary of the suit which is bounded in the north rasta, south Kila Mandir and parti jamin east Mahavir As-than and road and west house of the plaintiff. PW 17 has deposed that the suit land is of the plaintiff for the last 20-22 years and prior to that it belonged to Golaknath Singh who was in possession thereon and, thereafter, the plaintiff is in possession over the same and plaintiff has constructed a hut which is now in possession of the defendant who has made a garage therein for the last 8 or 10 years. He has further deposed that Mahavir Asthan is adjucent east of the suit land and further east to this Mahavir Mandir is parti land and a rasta for going to the Kila Mandir. His evidence is very specific that there are 8 or 10 shops of the plaintiff adjacent west of the suit land and the house of Narayan Singh is west of the aforesaid 8 or 10 shops. PW 20 has deposed that the suit plot was earlier belonged to Golaknath Singh who was in possession over the same and the plaintiff has purchased the same by virtue of the sale deed and since then he is in possession. He has further deposed that the defendant is in permissive possession over the suit land for the last 8 or 10 years and is running a garage thereon- He has further deposed in para 2 of his evidence that there are 10 shops of the plaintiff adjacent west of the suit land. The evidence of the aforesaid witnesses clearly establishes the fact that Golaknath Singh was the owner of 8 decimals of land of plot No. 1216 and the plaintiff has acquired the said land by virtue of the sale deed in the year 1959 from him and he was in possession thereon and the defendant was in permissive possession of the eastern 27 feet east to west and 23-1/2 north to south where he had his garage and in the remaining portion of the 8 decimals of land adjacent west of the suit land is in possession of the plaintiff over which he has his shops. The learned appellate Court below has mis-read and misconstrued the evidence on the record and has misdirected himself in coming to the conclusion that the plaintiff has failed to prove his title over the suit land and the said finding cannot be sustained. Question of limitation does not arise in this case as the suit is within the statutory period of limitation. An adverse inference has to be drawn against the case of the defendant of the existence of his motor garage since 1961-62 due to the non-production of the agreement of sale of the year 1963 executed between him on the one hand and his vendor Rameshwar Prasad Singh on the other and in respect thereof. It has been observed by the Apex Court in the case of Neelu Narayani (supra) that when a question of title arises on the basis of interpretation of the proved document it is certainly a question of law and necessarily such a question can be examined even in a Second Appeal. In the case of Ishwar Dass Jain (supra) it has been observed that there are two situations in which interference with findings of the fact is permissible. The first one is when material or relevant evidence is not considered which, if considered would have led to an opposite conclusion. The second situation in which interference with findings of fact is permissible is where a finding has been arrived at by the appellate Court by placing reliance on inadmissible evidence which if it was omitted, an opposite conclusion was possible. In either of the above situations a substantial question of law can arise. In the case of Mohd. Abdul Sattar (supra) the Patna High Court has observed that the High Court will interfere in Second Appeal where the evidence adduced have not been appraised by the Court below correctly. The ratios of the cases aforesaid are fully applicable in this case, I, therefore, see substance in the contention of the learned counsel for the appellant. The learned trial Court relying upon Ext. H, in which it was agreed between the parties that 3 feet out of the suit land is to be left for joint-passage and the remaining 24 feet east and west and 23-1/2 feet north and south was given to the plaintiff in lieu of which the plaintiff has to shift the Mahavir Asthan standing thereon, has decreed the suit declaring his title and ordering for recovery of possession of the suit land measuring 24 feet east and west and 23-1/2 feet north and south leaving 3 feet east and west for joint possession and it appears to be correct and proper in the facts and circumstances of this case. The learned appellate Court below has misdirected himself in reversing the judgment of the trial Court without properly construing the evidence oral and documentary on the record in proper perspective and viewed thus the impugned judgment is unsustainable.

There is merit in this appeal and it succeeds. The impugned judgment of the appellate Court below is hereby set aside. The appeal is allowed and the judgment and decree of the trial Court are hereby restored. There shall be no order as to costs in the facts and circumstances of this case.