Dismissed

Bernard Ekka And Ors. v. Benjamin Oraon And Ors.

Jharkhand HC10 Apr 2023SA/115/2016

Case brief

AI extract

What is this about?

In a second appeal regarding title and possession disputes, the High Court of Jharkhand held that the appeal is without merit. The court ruled that the suit is barred by limitation due to unreasonable delay in challenging the defendants' title. The technical objection regarding the failure of the first appellate court to frame specific points under Order XLI Rule 31 CPC was dismissed as non-vitiat

What did the court decide?

The second appeal was dismissed without any costs, upholding the judgment barring the suit by limitation.

Bernard Ekka And Ors. Vs Benjamin Oraon And Ors. — Property and Title | Jharkhand HC (2023)

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Second Appeal No. 115 of 2016

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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S.A. No.115 of 2016

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(Against the Judgment and decree dated 21.12.2015 passed by the learned District Judge-III, Gumla in Title Appeal No. 12 of 2014)

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------

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Bernard Ekka

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Sanjay Ekka

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Both sons of Tarsius Ekka

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Norbert Ekka, S/o late Johan Ekka All residents of Vill-Konchora, P.O. & P.S. –Raidih, District – Gumla.

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.... .... …. Appellants/Plaintiffs

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Versus

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Benjamin Oraon, S/o late Pitrus Oraon

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Albert Minz, S/o Benjamin Minz

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Sukri Minj, W/o Benjamin Minz

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All residents of Vill –Konchora, P.O. & P.S. –Raidih, District –Gumla

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Circle Officer, Raidih anchal, Gumla, P.O. & P.S. –Raidih, District – Gumla

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Deputy Commissioner, Gumla, P.O., P.S. & District –Gumla

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... .... …. Respondents/Defendants

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------ For the Appellants : Mr. Manjul Prasad, Sr. Advocate : Mr. Praveen Kumar Varma, Advocate : Mr. Akhouri Prakhar Sinha, Advocate : Mr. Baban Prasad, Advocate

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For the Resp. Nos. 1 to 3 : Mr. Atanu Banerjee, Advocate

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: Mr. Satish Kumar, Advocate

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PRESENT

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HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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By the Court:- Heard the parties.

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2 This second appeal has been preferred under Section 100 of

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Code of Civil Procedure against the judgment and decree of concurrence dated 21.12.2015 passed by the learned District Judge-III, Gumla in Title Appeal No. 12 of 2014 whereby and where under, the learned first appellate court dismissed Title Appeal No. 12 of 2014

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Second Appeal No. 115 of 2016

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preferred against the judgment and decree passed by the Civil Judge (Sr. Division) –II, Gumla in Title Suit No. 40 of 2006 dated 24.02.2014 whereby and where under the learned trial court dismissed the suit of the plaintiffs filed with a prayer for declaration of title and confirmation of possession of the plaintiffs over the suit property, permanent injunction, declaration that the sale deed no. 638/37 dated 28.09.1937 is bogus, sham and null and void and the same is not binding upon the plaintiffs and shall not affect the title of the plaintiffs and any other relief or reliefs.

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3 The case of the plaintiffs in brief is that the suit land was earlier recorded in the name of Raylo Orain and she had no male issue. She adopted Johan Oraon as Ghar Damad. The daughter of Raylo Orain namely Monika Orain with her husband Johan Oraon came in exclusive possession of the suit property. The land was mutated in their name and they used to pay rent regularly in the Serista of landlord and after vesting of Zamindari, continuous Khatiyan was prepared and the name of Monika Orain was entered in Register –II. After death of Monika Orain and Johan Oraon, the property was inherited by their sons namely Tarsius Ekka, Norbet Ekka and Konstantius Ekka. Konstantius Ekka died issueless. Tarsius Ekka died leaving behind his two sons namely Bernard Ekka and Sanjay Ekka who are the plaintiff nos. 1 & 2 and Norbert Ekka is plaintiff no.3. In the year 2006 when the plaintiffs went to deposit land revenue, the same was refused by the Halka Karmachari and the plaintiffs requested the Circle Officer for acceptance of rent but the

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Circle Officer did not pay any heed. The plaintiffs served a notice on 08.08.2006 under Section 80 of the Code of Civil Procedure but even the same was not replied by the Circle Officer nor did he take any action. The defendants are threatening to dispossess the plaintiffs from the suit land on the ground that they have purchased the suit land from Raylo Orain in the name of Lenda Oraon by the sale deed no. 638 of 1937 dated 28.09.1937. The plaintiffs pleaded that the said sale deed is a fabricated one. Hence, the plaintiffs filed the suit for the said reliefs.

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4 In her written statement, the defendant no.2 challenged the maintainability of the suit on various technical grounds including the principle of adverse possession. This defendant further pleaded about the sale deed no. 638 of 1937 being duly executed and purchaser Lenda Oraon being put in possession of the same and the purchaser Lenda Oraon having perfected his right on 28.09.1949 also by way of adverse possession. The defendant denied the relation between Raylo Orain and Monika Oraon and pleaded that Monika Oraon is alien to the family. This defendant further pleaded that Kandra Oraon who was the husband of Raylo Orain has no issue so Lenda Oraon being an agnate lived with Kandra Oraon and after death of Kandra Oraon, Lenda Oraon was cultivating the entire land of Raylo Orain. It is then pleaded that after the death of Raylo Orain the landlord of the village in order to grab her land initiated a proceeding under Section 144 Cr.P.C. which was later on converted to a proceeding under Section 145 Cr.P.C. bearing no. 330 of 1942 in which the vendee Lenda was a

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Second Appeal No. 115 of 2016

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party. Lenda filed sale deed before the court of S.D.M. The case was decided in favour of Lenda Oraon in the year 1942 but since the landlord was inimical to Lenda Oraon, he might have issued receipt in favour of Monika Oraon. After the death of Raylo Orain, Lenda Oraon and his son Pitrus Oraon came in possession of the suit land and after death of Pitrus Oraon, his son Benjamin came in possession. This defendant also pleaded that all of the heirs of Lenda Oraon have not been made parties to the suit; hence the suit is bad on that ground also. After the preparation of Bunda Parcha in the name of Monika Orain, Monika Orian filed a case under Section 89 of the Chota Nagpur Tenancy Act vide case no. 164 of 1982 and 165 of 1982 which was dismissed by the Assistant Settlement Officer vide his order dated 20.09.1990. Several Criminal cases were filed against each other by Monika Orain and Benjamin Oraon which cases ended in favour of Benjamin and after losing all the cases, the suit has been filed by the plaintiffs suppressing the material facts.

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5 On the basis of the rival pleadings of the parties, the

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following nine issues were framed by the trial court:-

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1. Whether the suit as framed is not maintainable?

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2. Whether the plaintiffs have got no valid cause of action for the present suit?

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3. Whether the suit is under-valued and Court fee paid is insufficient and ad-valorem Court fee is chargeable in this suit?

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4. Whether the suit is barred by law of limitation and adverse possession?

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5. Whether the plaintiffs have got right, titles over the suit land mentioned in Schedule A of the plaint?

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6. Whether the plaintiffs are liable for a decree of confirmation of

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possession over the suit land?

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7. Whether the plaintiffs are entitled for a decree of permanent injunction against defendant Nos. 1 to 4 and not to interfere in possession of the plaintiffs over the suit land?

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8. Whether the sale deed no. 638 dated 28.09.1937 is bogus, sham and null and void document and the same is not binding upon the plaintiffs?

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9. To what relief, if any, the plaintiffs are entitled to?

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6 Learned trial court considered the oral testimony of the nine witnesses examined by the plaintiffs and the Exhibits marked as 1 to 7/a as well as five witnesses examined by the defence and the documents marked as Ext. A to Ext. J.

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7 The learned trial court first took up issue no. 8 and after considering the evidence in the record, came to the conclusion that the plaintiffs have failed to establish that the sale deed no. 638 of 1937 was forged, wrongly manufactured and is null and void whereas the defendants have succeeded in establishing the said sale deed to be genuine one. The learned trial court then took up issue no.5 and after considering the evidence in the record, came to the conclusion that the plaintiffs have no right, title, interest and possession over the Schedule –A property of the suit and answered the issue against the plaintiffs and in favour of the defendants. The learned trial court thereafter took up issue no.6 and came to the conclusion that the plaintiffs have failed to establish their possession over the suit land and decided the same against the plaintiffs. The learned trial court then took up issue no.7 and considering the fact that the plaintiffs have failed to establish right, title, interest and possession over the

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suit land, held that they are not entitled for the same. The trial court next observed that, the plaintiffs are not entitled to a decree for permanent injunction as well. In respect of issue no.3, the learned trial court came to the conclusion that there is no material to establish that the suit was undervalued and that the court fees paid is sufficient and answered the issue no.3 against the defendant. In respect of issue no.4, the learned trial court came to the conclusion that the suit is barred by limitation and decided the issue in favour of the defendants. In respect of issue no.9, the learned trial court came to the conclusion that the plaintiffs are not entitled to any relief and decided the same against the plaintiffs. Lastly, the learned trial court took up issue nos. 1 & 2 together and came to the conclusion that there is no cause of action for filing of the suit and the suit is not maintainable in its present form and dismissed the suit.

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8 Being aggrieved by the judgment and decree passed by the learned trial court, the plaintiffs filed Title Appeal No.12 of 2014 in the court of Principal District Judge, Gumla which was ultimately heard and disposed of by the learned first appellate court by the impugned judgment and decree.

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9 The learned first appellate court made independent appreciation of the evidence in the record and observed that though the plaintiffs claimed that Monika Orain paid land revenue in the Serista of the Circle Officer from the year 1979 but the defendants/respondents filed appeal against the order vide Ext.C in the year 1980-81 which was contested by the plaintiffs but the DCLR

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passed the order in favor of defendant –Banjamin Minj vide Revenue Appeal No. 38/80-81 and after that Monika Orain, the ancestor of the plaintiffs-appellants before the first appellate court as well as herein kept mum and did not challenge the said order passed by the LRDC in Revenue Appeal No. 38/1980-81 and despite the order passed by the LRDC passed in the said appeal no. 38/1980-81, revenue receipts have been issued in the name of Monika Orain which goes to show that the plaintiffs have been in possession of the suit land. The learned first appellate court also considered that Lenda Oraon filed a case under Section 144/145 of the Cr.P.C. against Jay Prakash Singh, manager of landlord in the year 1942 for his possession on the basis of sale deed marked Ext.C and the landlord claimed it on the basis of surrender deed executed by Raylo Orain which was allowed in favour of Lenda Oraon. From Ext.D, the learned first appellate court observed that Raylo Orain died 2-3 years ago which goes to show that the Punchnama executed in the name of Monika Orain was executed after the death of Raylo Orain. The learned first appellate court also considered that Monika Orain filed S.A.R. Case in the year 1990 before the Assistant Settlement Officer to make entry in the Banda Parcha and Ext. H series with respect to the suit land which has been rejected, holding that the plaintiffs/appellants are not able to get entry into the Khatiyan because Raylo Orain has executed sale deed in favour of ancestor of defendants/respondents in the year 1937. From the Ext. I, the learned first appellate court observed that the Sarpanch of the Gram Kutchery has opined that Monika Orain was

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not daughter of Raylo Orain rather she was the daughter of Lohra Oraon and went on to observe that the plaintiffs have failed to establish Monika Orain was the daughter of Raylo Orain and she has got no occasion for getting execution of Punchnama in her name in the year 1940 and the plaintiffs-appellants have also failed to establish their possession over the suit land and went on to dismiss the appeal.

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10 Mr. Manjul Prasad, the learned senior counsel for the appellants submits that the learned first appellate court failed to exercise the jurisdiction vested upon it under Section 96 as well as Order XLI Rule 31 of the Code of Civil Procedure. It is next submitted by Mr. Prasad that the learned court below failed to weigh the evidence put forth by the rival parties correctly. Hence, it is submitted that the impugned judgment and decree passed by both the courts below be set aside and the suit of the plaintiffs be decreed.

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11 The learned counsel for the respondent nos. 1 to 3 on the other hand defended the impugned judgment and decree passed by the learned first appellate court and submits that both the courts below have not committed any error whatsoever, in appreciation of the evidence in the record. It is next submitted that the suit of the plaintiffs is hopelessly barred by limitation and both the courts below have rightly held so. It is next submitted that there is substantial compliance of the provisions of Order XLI Rule 31 of the Code of Civil Procedure by the learned court below. Hence, it is submitted that this appeal being without any merit be dismissed.

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12 Having heard the submissions made at the Bar and after

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going through the materials in the record, so far as the submission of the learned senior counsel for the appellants regarding noncompliance of the provisions under Order XLI Rule 31 of the Code of Civil Procedure is concerned, it is pertinent in this respect to refer to the judgment of Hon’ble Supreme Court of India in the case of G. Amalorpavam & Others v. R.C. Diocese of Madurai & Others reported in (2006) 3 SCC 224 paragraph-9 of which reads as under:-

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“9. The question whether in a particular case there has been substantial compliance with the provisions of Order 41 Rule 31 CPC has to be determined on the nature of the judgment delivered in each case. Non-compliance with the provisions may not vitiate the judgment and make it wholly void, and may be ignored if there has been substantial compliance with it and the second appellate court is in a position to ascertain the findings of the lower appellate court. It is no doubt desirable that the appellate court should comply with all the requirements of Order 41 Rule 31 CPC. But if it is possible to make out from the judgment that there is substantial compliance with the said requirements and that justice has not thereby suffered, that would be sufficient. Where the appellate court has considered the entire evidence on record and discussed the same in detail, come to any conclusion and its findings are supported by reasons even though the point has not been framed by the appellate court there is substantial compliance with the provisions of Order 41 Rule 31 CPC and the judgment is not in any manner vitiated by the absence of a point of determination. Where there is an honest endeavour on the part of the lower appellate court to consider the controversy between the parties and there is proper appraisement of the respective cases and weighing and balancing of the evidence, facts and the other considerations appearing on both sides is clearly manifest by the perusal of the judgment of the lower appellate court, it would be a valid judgment even though it does not contain the points for determination. The object of the rule in making it incumbent upon the appellate court to frame points for determination and to cite reasons for the decision is to focus attention of the court on the rival contentions which arise for determination and also to provide litigant parties opportunity in understanding the ground upon which the decision is founded with a view to enable them to know the basis of the decision and if so considered appropriate and so advised to avail the remedy of second appeal conferred by Section 100 CPC.” (Emphasis supplied)

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13 It is a settled principle of law that it is certainly not a mandate of law that a second appellate court will set aside the judgment passed by the First Appellate Court on a mere technical ground for non-compliance of the Order XLI Rule 31 of the Code of

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Civil Procedure by not enumerating the points for determination; and where there is substantial compliance of the Order XLI Rule 31 of the Code of Civil Procedure by the learned First Appellate Court by considering the entire evidence on record and discussing the same in detail, coming to conclusion and its findings are supported by reasons; such judgments are not to be set aside and remanded.

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14 Now coming to the facts of the case as already indicated above, the learned first appellate court has though not enumerated the points for determination but has elaborately discussed the submissions made by the rival parties, the case of the parties and has also assigned the reasoning, why it has held that the plaintiffs have failed to establish their right, title and interest and that the suit is barred by limitation. Hence, in the considered opinion of this Court, this is not a fit case where the impugned judgment and decree be set aside on the ground for non-compliance of Order XLI Rule 31 of the Code of Civil Procedure.

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15 It is pertinent to mention here that as already indicated above, there was a series of litigation between the ancestor of the plaintiffs Monika Orain and the defendant no.1 –Benjamin Oraon in which the sale deed was produced but the sale deed was not immediately challenged and the sale deed was challenged after a long delay for which there is no plausible explanation.

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16 Under such circumstances, this Court has no hesitation in holding that the suit of the plaintiffs is barred by limitation. Otherwise also, after going through the evidence in the record this

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Court finds that the concurrent finding of facts arrived at by the learned first appellate court was not done by ignoring or excluding the relevant materials or by taking into consideration the irrelevant material. Nor the finding of fact arrived at by the learned first appellate court being the final court of facts outrageously defies the logic so as to suffer from the vice of irrationality incurring the blame of being perverse and in the absence of any perversity, this Court is of the considered view that there is no justifiable reason to interfere with the same. This Court also finds that there is absolutely no substantial question of law involved in this appeal.

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17 Accordingly, this appeal being without any merit is dismissed but under the circumstances without any costs.

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18 Let a copy of this Judgment be sent to the court concerned forthwith.

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(Anil Kumar Choudhary, J . )

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High Court of Jharkhand, Ranchi Dated the 10^th April, 2023 AFR/ Sonu-Gunjan/-

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Bernard Ekka And Ors. v. Benjamin Oraon And Ors.

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Bernard Ekka And Ors. v. Benjamin Oraon And Ors.

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