Nil Kamal Mahato And Ors vs Haspatali Gope And Ors

Heard Mr. Swapan Manjhi, learned counsel appearing for the petitioners and Mr. Asit Baran Mahato, learned counsel appearing for the

respondents.

The appellants has preferred this second appeal against the judgment dated 21.02.2017 and decree signed on 25.02.2017 passed and signed by the

District Judge-II, Dhanbad in Title Appeal No.70 of 2013 whereby he has pleased to dismiss the appeal and uphold the judgment dated 31.05.2013 and

decree signed on 06.06.2013 passed and signed by the Additional Civil Judge, Dhanbad in Title Suit No.39 of 2005, has been affirmed.

Mr. Swapan Manjhi, learned counsel appearing for the appellants submits that the suit was instituted for decree of declaration of their right, title,

interest and confirmation of possession over 54 decimals land of plot no.937 (old) and plot no.936 (old) more so fully described in the Schedule

‘C’ of the plaint.

It was the case of the appellants/plaintiffs that the lands situated in Mouza No.89 Bhelatand under Khata No.48 bearing S.S. Plot Nos.936, 937 &

938, originally recorded in the name of Padu Mahto more-fully described in schedule A of the plaint and recorded owner Padu Mahto remained in

exclusive possession. It was further pleaded that Padu Mahto, while being absolute owner and in exclusive possession of schedule A property died in

the year 1960 leaving behind his widow Dulali Mahataine and daughter Gita Mahataine and the entire property left by Padu Mahto have been inherited

by his legal heirs Dulali Mahataine (widow) & Gita Mahataine (daughter) and thereafter Dulali Mahataine, while being the absolute owner of 2.20

acres land of Schedule A, sold and transferred 1.66 acres of land in favour of Barju Gope more so fully described in schedule ‘B’ of the plaint

through registered Sale Deed No.23496 dated 30.08.1972 and after the transfer, Barju Gope had been given possession in respect of 1.66 acres of

land on the southern side of schedule A property and remaining 54 decimals of land more fully described in Schedule ‘C’ of the plaint remained

in exclusive ownership and khas possession of Dulali Mahataine.

It was further case of the appellants/plaintiffs that after the death of Dulali Mahataine the plaintiffs/appellants, who are grandsons and daughter of

Dulali Mahataine owned and possessed schedule C land by growing paddy. It was further case of the appellants/plaintiffs that defendant nos.1 to 4

are sons of Barju Gope, original purchaser in respect of 1.66 acres of land and after the death of Barju Gope, the legal heirs of Barju Gope came in

possession of that 1.66 acres of land, which was purchased by their father. It was further case of the appellants/plaintiffs that the defendants have no

concern with any part of Schedule C property but by false representation before the Revisional Survey Authority got recorded their names and on the

basis of wrong entry with respect to the lands mentioned in the revisional record being R.S. Plot Nos.1096, 1098, 1107 and 1099 corresponding to C.S.

plot being Plot No.937 under C.S. Khata No.48, the defendants are claiming their ownership over the land and wanted to take forcible possession over

the suit property. It was further stated that on 15.02.2005 the defendants went upon the suit land and wanted to plough the land of the

appellants/plaintiffs but on the protest of the plaintiffs they could not succeed. It was stated that the cause of action of the present suit arose on

12.08.2004, 31.08.2004 and 15.02.2005, when the defendants wanted to take forcible possession over the part of Schedule ‘C’ property and

their possession over that suit property be confirmed.

Further pleaded that the appellants/plaintiffs had filed the suit only against the seven defendants but thereafter the appellants/plaintiffs have impleaded

defendant nos.8 to 12 daughter of plaintiff no.4. But the plaintiffs have not claimed any relief against this added defendants and this added defendants

have supported the case of the appellants/plaintiffs by filing the separate written statement. In the trial court defendant nos.1, 2, 4 and 6 were not filed

any written statement, hence they were debarred from filing the written statement. The respondent no.3/defendant no.3 has contested the case by

filing the written statement and also defendant nos.5 to 7 have filed a joint written statement. Later on the appellants/plaintiffs and defendant nos.5 to

7 have compromise this case and this decree has been drawn on the basis of joint compromise petition, but in the written statement defendant nos.5 to

7 have stated that they are in the possession of schedule C land for more than 40 years without any interruption and in the joint compromise petition

plaintiffs have admitted it. The defendant no.3 has contested the case by filing the written statement wherein the defence was taken that the suit is not

maintainable in the present form and is hopelessly barred by limitation. The defendant has further pleaded that the suit is barred in view of Section 34

of the Specific Relief Act because the appellants/plaintiffs and their predecessor in interest has not been in possession in portion of schedule-A land

including the land of Schedule C and thereafter, they cannot get relief of declaration of their right, title and interest unless they seek further relief for

recovery of possession. It has been admitted by the defendant that Dulali Mahataine sold and transferred 1.66 acres of land out of Schedule A land to

Barju Gope, who is father of defendant nos.1 to 4 by registered Sale Deed No.3490 dated 30.08.1972 but Burju Gope, after the purchase of 1.66

acres of Schedule A land, found the entire land of Schedule A was vacant and brought it under his cultivation. It was further case of the defendant

that the defendant nos.1 to 4 and their predecessor despite having purchased 1.66 decimals of land of Schedule A, by virtue of their continuous

uninterrupted, open possession over entire schedule A land since 30.08.1972 to the knowledge of the appellants/plaintiffs they have acquired

indefeasible right over entire Schedule A land i.e. over 1.66 acres on the strength of title derived by total remaining 54 decimals by adverse

possession. They have also claimed that Schedule C land is imaginary one and also they have stated that the cause of action is imaginary and there is

no cause of action for the appellants/plaintiffs.

On the basis of above pleadings, the trial court has entered into the lis and formulated nine issues to decide the case, the appellants/plaintiffs have

examined four witnesses as PW 1 to PW 4, and the documents filed on behalf of the appellants/plaintiffs which were marked as Ext.1 to Ext.8, and on

behalf of the defendant nos.1 to 4 three witnesses have been examined. The trial court while discussing the issue no.4 with regard to Section 34 of the

Specific Relief Act and after discussing the evidences came to the finding that as the appellants/plaintiffs have not been in possession any portion of

the Schedule A land, cannot get the relief of the declaration unless they seek relief of recovery of possession. The trial court while deciding the issue

no.3, as to whether the suit is barred by law of limitation or not after discussing the evidences, the trial court has came to the finding that actual cause

of action for filing the suit arose 40 years back but the appellants/plaintiffs has brought the suit by creating imaginary cause of action and accordingly,

it was held that the appellants/plaintiffs claim is barred by law of limitation. The judgment was delivered on 31.05.2013 and decree was prepared on

03.06.2013 wherein the claim of the appellants/plaintiffs has been dismissed.

Aggrieved with the same, the appellants have preferred the title appeal being Title Appeal No.70 of 2013 which was decided by the learned District

Judge-II, Dhanbad on 21.02.2017 wherein the appeal was dismissed and the judgment of the trial court was affirmed. The appellate court re-casted

the issues on the basis of argument advanced on behalf of the parties and reformulated the issues at paragraph 19 of the judgment under appeal. The

appellate court has also came to the finding that the plaintiffs have not seek relief for recovery of possession thus the trial court was rightly held that

the suit was hit by provision of Section 34 of the Specific Relief Act. The appellate court has also held that under Section 87 of the C.N.T. Act, order

was passed in favour of the defendants on the basis of possession and the appellants/plaintiffs have not filed any documents to show that he has

challenged the order in the higher court. The appellants/plaintiffs have claimed 54 decimals of land mentioned in Schedule C and initially they have

filed the case also against the defendant nos.5 to 7 that they are not in the possession and they are trying to cultivate the land, so the cause of action

arose. But in the joint compromise petition with the defendant nos.5 to 7 appellants/plaintiffs admitted that the defendant nos.5 to 7 are in possession

since 40 years which shows clearly that the plaintiffs are not in the possession of entire 54 decimals and so the appellants/plaintiffs have cause of

action in this case 40 years back i.e. in the year 2005. So the learned court has rightly held that the suit is barred by law of limitation.

Aggrieved with the same, appellants have filed this second appeal.

Mr. Manjhi, learned counsel appearing for the appellants assailed the judgment under appeal on the ground that during the pendency of the suit, the

amendment was sought for with regard to the alternative prayer but the trial court as well as the appellate court has not considered about the

amendment, which was allowed. During the course of argument Mr. Manjhi, learned counsel for the appellants produced the certified copy of the

order wherein the amendment was allowed on perusal it transpires it was with regard to confirmation of possession, thus, it cannot be said that the

alternative prayer with regard to the recovery of possession was allowed by the trial court, the recovery of possession and confirmation of possession

are two different things, thus there is no force in the argument of Mr. Manjhi, learned counsel for the appellants with regard to amendment.

This Court finds that the trial court as well as the appellate court have considered the evidences adduced by the parties and rightly interpreted the

exhibits, therefore, this is no error and it transpires that it has been decided in accordance with the Order XLI Rule 31 of C.P.C. and there is no

substantial question involved in this second appeal, accordingly, the second appeal stands dismissed.