Dismissed

Mariam Bibi and Ors. v. Guljhan Bibi and Ors.

Jharkhand HC16 Jul 2019SA/276/2015

Case brief

AI extract

What is this about?

In this second appeal under Section 100 CPC, the High Court of Jharkhand dismissed the appellants challenge against concurrent findings by lower courts. The courts held that the Kurfa settlement was invalid under local tenancy laws and the family settlement was flawed as minors were involved and other common properties were excluded.

What did the court decide?

The second appeal is dismissed with no modification to the lower court decree.

Mariam Bibi and Ors. Vs Guljhan Bibi and Ors. — Property and Title | Jharkhand HC (2019)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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S.A. No. 276 of 2015

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Mariam Bibi wife of late Asgar Choudhary

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M. Samser Choudhary son of late Asgar Choudhary

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Md. Tabrej Alam son of late Asgar Choudhary

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Md. Parbej Alam son of late Asgar Choudhary

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Md. Sarfraj Alam son of late Asgar Choudhary

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Md. Ibran Alam son of late Asgar Choudhary

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Md. Irfan Alam son of late Asgar Choudhary

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Sabnam Khatoon daughter of late Asgar Choudhary, wife of Tabrej Alam

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Salma Khatoon daughter of late Asgar Choudhary wife of Rajan Ali

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Asma Khatoon daughter of late Asgar Choudhary wife of Noushad Ali No.1 to 7 and 10 are residents of Village Dahuwa, P.O. Lakhoria, P.S. Sarwan, District Deoghar

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No.8 is resident of Village Islampur, P.O. Makdumpur, P.S. Balidih, District Bokaro.

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No.9 resident of village Gundu Churi Mohalla, P.O. + P.S. Petarwar, District Bokaro.

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… Appellants

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-versus-

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Guljahan Bibi wife of Khuddus daughter of late Md. Yunus Choudhary, resident of village Dahuwa, P.O. Lakhoria, P.S. Sarwan, District Deoghar at present residing at village Bazardih, P.O. + P.S. Sono, District Jamui (Bihar).

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Saduran Bibi widow of late Yunus Choudhary

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Md. Hassim Choudhary son of late Md. Yunus Choudhary

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Nazrul Bibi widow of Md. Salim Choudhary

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Tipu Choudhary son of Md. Salim Choudhary

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Babli Khatoon daughter of Md. Salim Choudhary wife of Sonu Choudhary

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Afsana Khatoon minor daughter of Md. Salim Choudhary

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Sakina Khatoon minor daughter of Md. Salim Choudhary

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Aurenjeb Choudhary minor son of Md. Salim Choudhary

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7 to 9 are represented through their mother and natural guardian Nazrul Bibi (respondent No.4).

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No.2 to 9 are residents of village Dahuwa, P.O. Lakhoria, P.S. Sarwan, District Deoghar.

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Saira Banu wife of Md. Jameer daughter of late Md. Yunus Choudhary, resident of Village Dahuwa, P.O. Lakhoria, P.S. Sarwan, District Deoghar.

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… Respondents

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CORAM : HON’BLE MR. JUSTICE ANANDA SEN

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For the Appellants : Mr. Arvind Kumar Choudhary, Advocate

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For the Respondents:

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6/ 16.07.2019 This second appeal under Section 100 of the Code of Civil Procedure has been filed by the appellants challenging the judgment dated 12.02.2015 (decree signed on 19.02.2015) passed by the District Judge V, Deoghar in Title Appeal No.10 of 2011, whereby Title Appeal filed by the appellant was dismissed affirming the judgment dated 08.03.2011 (Decree signed on 17.03.2011) passed by the learned Subordinate Judge II,

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Deoghar in Title (D) Suit No.40 of 2004.

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2. Appellants herein were the defendant-appellants before the Courts below. Case of the plaintiff is that Md. Huro Choudhary was a Jamabandi Raiyat of Jamabandi No.40, Mouza Dahuwa, Talluka Jhikti, P.S. Sarwan, Deoghar. Said Md. Huro Choudhary died leaving behind his son Md. Yunus Choudhary, who died leaving behind his widow Saduran Bibi, two sons and two daughters, who inherited the property and possessed the raiyati land peacefully. According to the plaintiff, Asgar Choudhary is a stranger to the family of the plaintiff and the defendants Nos.2 and 3. The plaintiff, who is the granddaughter of Huro Choudhary admitted partition of the ancestral property from her brothers to which the defendants-second party agreed. While measuring these lands in Jamabandi No.40, Mauza Dahuwa, it was found that the defendants-first party had illegally encroached upon the land of 9 decimal of plot No.216 and has illegally constructed boundary wall and building. On enquiry, the said defendant told the plaintiff that in the year 1953, Md. Yunus Choudhary, father of the plaintiff had executed a Kurfa settlement in his favour with respect to 9 decimals of land. It is the case of the plaintiff that in the year 2000, the defendant-first party constructed a building and a boundary wall over 9 decimals of land in plot No.216, but, during the said period, the plaintiff had no idea regarding the identity of the said plot. It is stated that after the death of Md. Yunus Choudhary, the defendantssecond party required some money, as such Saduran Bibi approached Md. Asgar Choudhary for obtaining a loan of Rs.3,000/-. Md. Asgar Choudhary agreed to advance the money on a condition that a Bhugatbandha Deed (mortgage) with respect to Plot No.216 should be executed. Saduran Bibi agreed to execute the deed and thus, on approach made by the defendant-first party, Saduran Bibi, Hassim Choudhary and Salim Choudhary, who were minor at that time, got the deed executed, which, in fact, is a family settlement. The plaintiff challenges the said deed on the ground that the signatories being minor, could not have executed the said deed and also since the plaintiff had not joined the said settlement, the deed has got no value. The plaintiff also claims that the recital about the Kurfa Deed has got no legal sanctity because as per the Santhal Pargana Tenancy Act, there is no provision for Kurfa settlement. Thus, Md. Asgar Choudhary is liable to be evicted from the suit property. It is the contention that the said Kurfa settlement was allegedly made in the year 1953 when the original tenant Md. Huro Choudhary, who was the recorded tenant was

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alive and as per the Mohammedan Law, during the life time of the father, the son had no right to settle any land, which belongs to the father. The plaintiff, thus, claim that the family settlement dated 27.03.1987 be declared as null and void and decree be passed against the defendant.

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3. The defendant-first party appeared and filed their written statement wherein they denied that they were in illegal occupation of 9 decimals of land of plot No.216 of Mouza Dahuwa. They claim that after the death of Huro Choudhary, Yunus Choudhary, because of love and affection, settled 9 decimals of land with the father of the defendant and thus, they are in possession.

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4. On the basis of the pleadings of the parties and the evidence, the lower Court framed six issues, which are as follows: -

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(I) Whether the suit as framed is maintainable?

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(II) Whether the plaintiff has cause of action?

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(III) Whether Md. Yunus Choudhary settled 9 decimals of land of J.B. No.40, Plot No.216, Mouza Dahuwa in the year 1937 in favour of defendant first party?

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(IV) Whether the defendant first party and his father are in continuous possession of J.B. 40, plot No.216, Mouza Dahuwa over 9 decimals of land since 1937 and whether they have perfected their title through adverse possession?

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(V) Whether the family settlement deed No.918 dated 27.03.1987 is a valid document?

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(VI) Whether the plaintiff is entitled to any other relief or reliefs?

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5. Learned Trial Court decreed the suit and cancelled the family settlement declaring the same to be illegal and void document. The Court held that Md. Yunus Choudhary did not settle the land measuring 9 decimals in plot No.216 of Mauza Dahuwa in favour of defendant-first party. It has also been held that defendant-first party have not perfected their title through adverse possession. Aggrieved by the said judgment, the defendants-first party preferred an appeal under Section 96 of the Code of Civil Procedure. The Appellate Court framed three points for decision, which are as under: -

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(1) Whether the learned lower court wrongly framed the issues nos. 4 and 5 simultaneously?

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(2) Whether the learned lower court has erred in coming to the conclusion of that Md. Yunus Choudhary did not settle any land in favour of father of defendant first party in the year 1937?

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(3) Whether the impugned judgment and decree of the learned lower court are fit to be dismissed?

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6. Considering the evidence independently, the first appellate Court decided all the three points in favour of the respondents / plaintiff and dismissed the appeal.

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7. Counsel for the appellants submitted that the Courts below have wrongly held that the land was not settled by Md. Yunus Choudhary when the evidence is to the contrary. He submits that even if the land has not been settled, the defendants have perfected their title through adverse possession and the direction of the Courts to evict the defendants is absolutely bad. He submits that Kurfa settlement was for 9 decimals of land, which could not have been disbelieved by the Court.

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8. After going through the records and hearing the counsel for the appellants, I find that both the Courts below have given concurrent findings of facts that Md. Yunus Choudhary had not settled the land in favour of the ancestors of the defendants first party. The Courts found that the contention of the defendants cannot be accepted as the family settlement shows that Md. Yunus Choudhary executed Kurfa deed in the year 1953, but, as per the case of the appellants-defendants, the land was settled in the year 1937. The Court also gave a concurrent finding that under the Santhal Pargana Tenancy Act, raiyati land is not transferable and land settled after 01.01.1937 through Kurfa deed is null and void. Both the Courts below have found that plea of adverse possession does not hold good for any period after 01.11.1949 from when the Act came into force. So far as the family settlement is concerned, both the Courts below have found that Md. Muslim Choudhary was minor on the date of execution of the family settlement, i.e., 27.03.1987. Daughters were also not party to the family settlement. The Courts below have found that surprisingly, except the suit land no other common properties were subject matter of the family settlement. Thus, the genuineness of the said document was doubted by the Court. The case of the defendants-

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appellants is that the land was settled sometime in the year 1937. Best document to prove such settlement was the Kurfa settlement deed. The defendants had taken plea that the said deed was not produced as the same was destroyed by termites. The defendant witnesses also did not inspire confidence and thus, the Courts below have held that there is no evidence that the land was settled by Md. Yunus Choudhary in the year 1937 nor there is anything to show that they were in possession. This fact whether the land was settled in favour of the father of the defendant is an absolute question of fact and both the Courts have decided this fact against the defendants. Since questions of facts have been decided by the two Courts concurrently, I find no merit in this appeal as there is no substantial question of law involved in it. Thus, this second appeal stands dismissed.

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( Ananda Sen, J.)

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Kumar/Cp-02

Mariam Bibi and Ors. v. Guljhan Bibi and Ors.

Case brief

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What did the court decide?

Mariam Bibi and Ors. v. Guljhan Bibi and Ors.

Case brief

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