Kishun Mahto vs Bhikho Mahto

Anil Kumar Choudhary

Heard the learned counsel for the appellants.

This appeal under Section 100 of Code of Civil Procedure has been filed against the judgment and decree of reversal dated 06.04.2017 passed by the District Judge-VIII, Giridih in Title Appeal No. 30 of 2008 whereby and where under, the learned first appellate court allowed the appeal on contest and set aside the judgment and decree passed by the Sub-Judge – IV, Giridih in Title Suit No. 60 of 1998 dated 23.05.2008.

The case of the plaintiffs in brief is that the plaintiffs filed Title Suit No. 60 of 1998 to declare the raiyati right over the Schedule ‘A’ and ‘B’ land of the plaint. The plaintiffs claimed that they jointly acquired the suit property mentioned in the schedule of the plaint from the then landlord by oral settlement on annual rent of Rs.2/8 besides cess of payment of salami of Rs.75/- and came in possession over the suit property. The plaintiffs further contended that there is a hukumnama dated 11.05.1945 in favour of the plaintiffs. The plaintiffs made Schedule ‘A’ land of the suit cultivable and paid rent in respect of the same to the ex-landlord. It is the further case of the plaintiffs, that the plaintiffs acquired the suit Schedule ‘B’ land by virtue of registered sale deed executed by the then landlord Tikait Khagendra Narayan Singh, vide sale deed no. 25359 and put in possession of the same and the plaintiffs enjoyed the same. The plaintiffs made an application for mutation of the Schedule ‘B’ land vide mutation case no. 9/71-72 and the same was allowed and their name was entered in the revenue registers. The plaintiffs have been paying rent regularly. Janki Mahto died in the year 1992 leaving behind his son Shibu Mahto who inherited the share of his father and came in continuous possession of Schedule ‘A’ and ‘B’ land of the plaint and thus claimed to have acquired right and title on adverse possession.

The defendants in their written statement challenged the maintainability of the suit on various technical grounds besides the ground that the suit is barred by limitation, adverse possession and hit by Section 34 of Specific Relief Act. The defendants denied any settlement having been made by Tikait Khagendra Narayan Singh and also denied existence of hukumnama made in favour of the plaintiffs and also contended that the hukumnama if any produced by the plaintiffs is forged and fabricated. The defendants contended that the Schedule ‘B’ land of the plaint has already been settled in favour of different raiyats including the father and mother of the defendant nos.1 and 2 by the ex-landlord so ex-landlord has no right to transfer the Schedule ‘B’ land in favour of the plaintiffs with a sham and collusive sale deed without consideration dated 30.09.1970. The defendants challenged the mutation in favour of the plaintiffs being without any legal sanctity, the same having been done behind the back of the defendants. The defendants contended that the defendant no.3 being the rightful owner has transferred Schedule ‘A’ and ‘B’ land of the plaint in favour of the defendant nos.1 and 2 vide registered sale deed dated 24.03.1992 and since then they are in possession of the suit land.

On the basis of the rival pleadings of the parties, the learned trial court settled the following six issues, which are as under:-

I. Is there is any cause of action for this suit?

II. Is the suit maintainable?

III. Is the suit barred by law of limitation, adverse possession, waiver acquiescence and estoppel?

IV. Is the suit undervalued and Court fee insufficient?

V. Was Schedule A lands acquired by Kishun Mahto, Janki Mahto, Pachu Mahto, Chetani and Khiordhar Mahto on 11/5/1945?

VI. Is the sale deed dated 30/9/1970 executed by Tekait Khagendra Narayan Singh in favour of Kishun Mahto, Janki Mahto, Pachu Mahto and Khirodhar Mahto, legal, valid, operative and genuine?

The learned trial court decided the issue nos. V, VI and VII in favour of the plaintiffs and also held that the sale deed executed by the landlord in favour of the plaintiffs is valid, legal, operative and genuine. The learned trial court further held that the Schedule ‘A’ of the land of the plaint has been acquired by the plaintiffs on 11.05.1945.

The learned first appellate court after considering the submissions before it framed the following points for determination:-

I.  Whether plaintiffs have acquired valid right, title and interest over the suit property mentioned in Schedule ‘A’ of the plaint?

II. Whether the plaintiffs have acquired right, title and interest over the Schedule ‘B’ land by virtue of Sale Deed dt. 30/9/1970 executed by Tekait Khagendra Narayan Singh in favour of the plaintiffs/respondents?

III. Whether the suit is barred by Section 34 of Specific Relief Act?

The learned first appellate court took up the point for determination no. I first and considering the settled principle of law that the plaintiffs have to prove their own case and it is the case of the plaintiffs that the plaintiffs acquired the suit land from ex-landlord Tikait Khagendra Narayan Singh, so the burden was obviously upon the plaintiffs to prove and establish that Tikait Khagendra Narayan Singh was ex-landlord of the suit Schedule ‘A’ land; yet the plaintiffs in this respect, brought into evidence only two rent receipts which have been marked as Ext. 1 and 1/ A respectively by the ex-landlord but the same does not bear any plot number and khata number; so the documents which have been marked Ext. 1 and 1/A, in the considered opinion of the learned first appellate court was of no help to establish the contention of the plaintiffs. The learned first appellate court also took note of the contradictions which has come in paragraph no. 22 in the cross-examination of P.W.1 wherein P.W.1 deposed that the settlement was made during the ancestor of the plaintiffs though the case of the plaintiffs is that the settlement was made to him and others. The learned first appellate court casted doubt upon the hukumnama on the ground that though it is the case of the plaintiffs that the rate was enhanced to Rs.5/- but the rent receipt relied upon by the plaintiffs claiming to have been issued by the ex-landlord does bear any mention of Rs.5/- as rent. Hence, in the considered opinion of the learned first appellate court the plaintiffs have failed to establish the existence of a valid hukumnama. The learned first appellate court found fault with the trial court as the trial court held that the plaintiffs acquired right and title over the suit Schedule ‘A’ land on the basis of unregistered hukumnama by failing to follow the guiding principle holding right, title and interest over the suit property on the basis of sada hukumnama as has been held in the case of Ugani Devi. The learned first appellate court then considered that the plaintiff in his examination-in-chief has stated that at the time of settlement, possession was handed over to the plaintiffs. The learned first appellate court then considered that in paragraph no.19 of the cross-examination the plaintiff himself deposed that the defendant resides where the disputed land situates and came to the conclusion that the plaintiffs have failed to establish the continuous possession over the suit Schedule ‘A’ land; as the plaintiffs failed to establish that Tikait Khagendra Narayan Singh was the ex-landlord of the said village and he acquired valid right and title over the suit land mentioned in suit schedule. The learned first appellate court also considered that on the other hand the defendants have brought on record patta issued by the ex-landlord – Tekait Brijmohan Singh which were marked Ext. G, G/1 and G/2 and went on to hold that the plaintiffs have failed to establish their right, title and interest over the suit schedule property; therefore, the finding of the learned trial court in respect of issue no. V is wrong and erroneous. The learned first appellate court thereafter took up the point for determination no. II and found fault with the trial court, as the trial court did not consider Ext. D by which the plaintiffs purchased the land from Aklu Mahto and Shobha Mahto. The learned first appellate court then considered that the plaintiffs have not produced any documents regarding, Tikait Khagendra Narayan Singh being the owner of suit Schedule ‘B’ land. The learned first appellate court also considered that the plaintiffs did not bring on record any correction slip or order of mutation to establish the land mentioned in Schedule ‘B’ having been mutated in their favour. On the other hand the defendants brought on record Ext. B which is sale deed dated 27.05.1970 according to which the father and mother of the defendant namely Aklu Mahto and Shobha Mahto has executed a deed of sale in favour of the plaintiffs namely Kishun Mahto, Janki Mahto and Pachu Mahto with respect to khata no. 118, plot no. 4/3 area 15 decimals, plot no.4/4 area 16 ½ decimals, plot no. 6/1 of area 72 decimals, plot no. 8/1 of area 49 ½ decimals, plot no. 8/2 of area 1 acre 17 decimals. The learned first appellate court further considered that the sale deeds executed by the father of the defendants in favour of Kishun Mahto, Janki Mhato and Pachu Mahto as well as the sale deeds executed by Tikait Khagendra Narayan Singh in favour of Kishun Manto, Janki Mahto, Pachu Mahto and Sukari Devi, and found that the land mentioned in these two sale deeds falls under khata no. 118 but plot numbers are different and therefore, it cannot be held that the plaintiffs purchased the suit land mentioned in Schedule ‘B’ of the plaint and went on to hold that the plaintiffs have failed to establish that the suit Schedule ‘B’ land was ever owned by Tikait Khagendra Narayan Singh and thus, failed to establish acquisition of right, title and interest of the suit Schedule ‘B’ land. The learned first appellate court lastly took up point for determination no. III and considered that the plaintiffs have sought relief of declaration and cost of the suit and other reliefs and has paid court fees on declaratory suit but the plaintiffs in paragraph no. 19 of his cross-examination has deposed that the defendants resides where the suit property is situated and they are also in possession of the suit land. Thus, in view of the admission of the possession of the defendants over the suit land, it was incumbent upon the plaintiffs under Section 34 of Specific Relief Act to seek the consequential relief, it being the settled principle of law that a suit for mere declaration is not maintainable, when consequential relief is available. The learned first appellate court also considered the cross-examination of P.W.2 and P.W.3 wherein, they deposed that they are ignorant about how much land and where suit land is situated which is possessed by the plaintiffs Kishun Mahto and held that the suit is barred under Section 34 of Specific Relief Act and allowed the appeal and set aside the judgment and decree passed by the learned trial court.

It is submitted by the learned counsel for the appellants that the impugned judgment passed by the learned first appellate court is illegal, perfunctory, perverse and absurd. It is next submitted by the learned counsel for the appellants that the learned first appellate court failed to exercise its jurisdiction provided under Order XLI Rule 25 of Code of Civil Procedure. It is further submitted by the learned counsel for the appellants that the learned first appellate court failed to appreciate the evidence in the record in its proper perspective. It is then submitted by the learned counsel for the appellants that the learned first appellate court ought to have held that a mere suit for declaration without any consequential relief for recovery of possession is not maintainable and barred under Section 34 of Specific Relief Act. It is next submitted by the learned counsel for the appellants that the finding of fact arrived at by the learned first appellate court are perverse. Hence, it is submitted that the impugned judgment and decree being not sustainable in law be set aside by framing appropriate substantial question of law and the judgment and decree passed by the learned trial court be restored.

Having heard the learned counsel for the appellants and after going through the materials in the record, so far as the contention of the appellants in respect of the third point for determination, regarding the suit being hit by Section 34 of Specific Relief Act as no consequential relief was prayed for by the plaintiffs, even though the plaintiffs admitted that the defendants was in possession of the suit land in paragraph no. 19 of his cross-examination is concerned, it is pertinent to refer to Section 34 of Specific Relief Act, 1963 which reads as under:-

“34. Discretion of Court as to declaration of status or right.- Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit as for any further relief:

Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.

Explanation.- A trustee of property is a “person interested to deny” a title adverse to the title of some one who is not in existence, and for whom, if in existence, he would be a trustee.”

The bare perusal of Proviso of Section 34 of Specific Relief Act, 1963 reveals that it mandates that no court shall make any declaration under Section 34 of the Specific Relief Act, 1963 where plaintiff being able to seek further relief than a mere declaration of title, omits to do so. Here, in this case, as rightly being held by the learned first appellate court that though the plaintiffs admitted in his cross-examination that the defendants was in possession of the suit land, the plaintiffs merely filing the suit for declaration knowing pretty well that the plaintiffs are not in possession of the suit land; such suit is hit by section 34 of the Specific Relief Act, 1963. Hence, the learned first appellate court has not committed any illegality by holding that the suit is hit by Section 34 of Specific Relief Act. The Hon’ble Supreme Court of India in the case of Executive Officer, Arulmigu  Chokkanatha  Swamy  Koil  Trust,  Virudhunagar  vs. Chandran reported in AIR 2017 SC 1034 observed that if a plaintiff only seeks declaratory reliefs without seeking the relief of confirmation of possession or recovery of possession, wherever there is scope for seeking such relief, such suit is not maintainable. Para-35 and 36 of which judgment reads as under:-

“35. In the present case, the plaintiff having been found not to be in possession and having only sought for declaratory reliefs, the suit was clearly not maintainable and has rightly been dismissed by the trial court. In this context the reference is made to the judgment of this Court reported in Ram Saran and Anr. v. Smt. Ganga Devi, AIR 1972 SC 2685, wherein paras 1 and 4 following was stated:

" 1. This is a plaintiffs' appeal by special leave. Ram Saran and Raghubir Saran, the plaintiffs are brothers. They jointly owned suit property with Chhabili Kuer widow of Lalita Prasad. After the death of Chhabili Kuer on February 8, 1971, Ganga Devi the defendant in the suit came forward as the legal representative of Chhabili Kuer and got the mutation effected in her name in the place of the deceased Chhabili Kuer.

In 1958, the plaintiffs brought this suit for a declaration that they are the sole owners of the suit properties. They did not claim possession either of the entire or even any portion of the suit properties.

We are in agreement with the High Court that the suit is hit by Section 42 of the Specific Relief Act. As found by the fact-finding Courts, Ganga Devi is in possession of some of the suit properties. The plaintiffs have not sought possession of those properties. They merely claimed a declaration that they are the owners of the suit properties. Hence the suit is not maintainable."

The plaintiff, who was not in possession, had in the suit claimed only declaratory relief along with mandatory injunction. Plaintiff being out of possession, the relief of recovery of possession was a further relief which ought to have been claimed by the plaintiff. The suit filed by the plaintiff for a mere declaration without relief of recovery of possession was clearly not maintainable and the trial court has rightly dismissed the suit. The High Court neither adverted to the above finding of the trial court nor has set aside the above reasoning given by the trial court for holding the suit as not maintainable. The High Court in exercise of its jurisdiction under Section 100 C.P.C. could not have reversed the decree of the courts below without holding that the above reasoning given by the courts below was legally unsustainable. We, thus, are of the view that the High Court committed error in decreeing the suit.”

(Emphasis supplied)

In the case of Mehar Chand Das vs. Lal Babu Siddique and Others reported in AIR 2007 SC 1499, the Hon’ble Supreme Court of India had the occasion to consider the maintainability of a suit in a case where the plaintiff could have sought further relief other than the decree for mere declaration of the title by observing thus in paragraphs-11 and 12 which read as under:-

“11. The defendant-appellant, therefore, had been in possession of the suit property. In that view of the matter the plaintiffsrespondents could seek for further relief other than for a decree of mere declaration of title.

The High Court, in our opinion, committed a manifest error in not relying upon the decision of this Court in Vinay Krishna (supra). The said decision categorically lays down the law that if the plaintiff had been in possession, then a suit for mere declaration would be maintainable: the logical corollary whereof would be that if the plaintiff is not in possession, a suit for mere declaration would not be maintainable.” (Emphasis supplied)

By relying upon its earlier judgment in the case of Vinay Krishna v. Keshav Chandra and Another reported in AIR 1993 SC 957 to the effect that if the plaintiff is in exclusive possession of the property, failure of the plaintiff to claim the relief for possession, the discretion of the court in granting the decree for declaration is not barred but if the possession of the plaintiff is disputed by the defendants then the plaintiff has to seek the prayer for confirmation of possession.

Now as already indicated above, the defendants not only disputed the possession of the plaintiffs but the plaintiffs themselves admit the possession of the defendants over the suit land. Under such circumstances, this Court does not finds any force in the contention of the appellants that the learned first appellate court has committed any illegality by holding that the suit is hit by Section 34 of Specific Relief Act.

So far as the contention of the appellants regarding the improper appreciation of the evidence in the record is concerned, this Court finds that the learned first appellate court for cogent reasons of the failure of the plaintiffs to bring on record any document of ownership of the land except the two rent receipts which were marked Ext.1 and 1/A that too without bearing any plot number or khata number and the testimony of P.W.1 in paragraph no.22 contradicting the granting of hukumnama as also the fact that the said hukumnama does not bear Rs.5/- as rent; moreover as the settled principle of law in the case of Mt. Ugni and another vs Chowa Mahto reported in AIR 1968 Pat. 302 and also the admission of the plaintiffs in paragraph no.19 of the cross-examination that the defendants reside where the disputed land is situated; in the considered opinion of this Court, the learned first appellate court has not committed any perversity in arriving at the finding of facts, warranting interference of this Court in exercise of its second appellate jurisdiction.

So far as the contention of the appellants regarding non-adherence of Order XLI Rule 25 of Code of Civil Procedure is concerned, the same is applicable when the appellate court frames any issue but in this case the learned first appellate court has not framed any issue and particularly in view of the fact that otherwise also on the basis of the independent appreciation of the evidence in the record; as the learned first appellate court has rightly held that the plaintiffs has failed to prove its case, so no fault can be found with the learned first appellate court for non-adherence of Order XLI Rule 25 of Code of Civil Procedure, particularly when no issue was framed by the learned first appellate court in the appeal.

Because of the discussions made above, this Court is of the considered view that there is no substantial question of law involved in this appeal.

Accordingly, this second appeal being without any merit is dismissed but in the circumstances without any costs.

Let the copy of the Judgment be sent to the learned court below forthwith.