Dismissed

Janmajay Mandal And Ors. v. Badal Mandal

Jharkhand HC7 Aug 2023SA/125/2016

Case brief

AI extract

What is this about?

In this second appeal challenging a title suit decree, the High Court of Jharkhand dismissed the appeal. The court held that while the appellants argued non-framing of an issue regarding ancestors' death dates and ouster of civil court jurisdiction, these contentions lacked merit as they were not seriously pleaded below or supported by evidence. No substantial question of law existed.

What did the court decide?

The appeal is dismissed with no costs. Interlocutory applications are disposed of as infructuous.

Janmajay Mandal And Ors. Vs Badal Mandal — Property and Title | Jharkhand HC (2023)

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Second Appeal No. 125 of 2016

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IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No.125 of 2016

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(Against the Judgment and decree dated 28.01.2016 passed by the learned District Judge-I, Pakur in Civil Appeal No. 04 of 2014)

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------

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Janmajay Mandal, son of late Lodo Mandal

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Pabitra Devi, daughter of late Lodo Mandal

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Tula Devi, wife of late Lodo Mandal

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Sabitri Devi, daughter of late Lodo Mandal

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Lakhindra Mandal, son of late Lodo Mandal All by religion Hindu Indian, by caste Surhi, by occupation Agriculturists, No.1, 2, 3 and 5 are resident of Village- Dha Pahari No. 23, P.O.- Dangalpara, P.S. and Anchal- Hiranpur, Subdivision and Dist.-Pakur, No. 4, resident of Patrapara, P.S. & AnchalLittipara, P.O. Bachamahal, Subdivision & Dist. Pakur

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.... .... …. Appellants

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Versus

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1 (a) Vikash Mandal 1 (b) Om Prakash Mandal both sons of late Badal Mandal, both by religion Hindu Indian, by caste Surhi, by occupation Agriculturists, resident of Village- Dha Pahari No. 23, P.O.- Dangalpara, P.S. and Anchal- Hiranpur, Subdivision and Dist.-Pakur

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... .... …. Respondent

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------ For the Appellants : Mr. Jay Prakash Jha, Sr. Advocate : Mr. Aishwarya Prakash, Advocate For the Respondents : Mr. Rajeeva Sharma, Sr. Advocate : Mr. Om Prakash, Advocate : Mrs. Neetu Singh, 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 dated 28.01.2016 passed by the learned District Judge-I, Pakur in Civil Appeal No. 04 of 2014 whereby and where under, by the said judgment of concurrence, the learned first appellate court has affirmed the judgment and decree passed by the learned trial court

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Second Appeal No. 125 of 2016

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being the court of learned Subordinate Judge-I, Pakur in Title Suit No. 19 of 2004 whereby and where under, the learned trial court decreed the suit of the plaintiff on contest and held that the plaintiff has right, title, interest over the suit property and also entitled for delivery of possession of the suit property and directed the defendants to deliver the possession of the suit land to the plaintiff.

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3 The case of the plaintiff in brief is that the parties are Hindu and are governed by Dayabhaga School of Hindu Law and Hindu Succession Act. During the last settlement, the suit land was jointly recorded in the name of Sam Mandal and Chimant Mandal; though before the settlement, their land stood partitioned and they were residing separately and coming in separate cultivating possession of their respective shares of lands. The said Sam Mandal had no son and his only issue being his daughter Bhadu Bala Devi married Babulal Mandal and the original plaintiff is the son of Bhadu Bala Devi and Babulal Mandal. Sam Mandal died in or about 1959 leaving his wife and mother of the plaintiff who is his daughter. Till his death, Kirani Bala Devi- wife of Sam Mandal remained in exclusive possession of schedule ‘A’ land of the plaint with the assistance of her son-in-lawBabulal Mandal and separately paid rent of the land in question and obtained rent receipts. The mother of the plaintiff- Bhadu Bala Devi died in or about 1960. The maternal grandmother of the plaintiff namely Kirani Bala Devi died in or about 1963-64 leaving behind the plaintiff as her sole legal heir; who inherited the suit land and continued in possession thereof and like his predecessor separately

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paid rent and obtained rent receipts of the suit land. About 30 years prior to filing of the suit, the plaintiff constructed his new residential house on the southern portion of the schedule ‘A’ land of the plaint where the plaintiff has been residing with his family members. The plaintiff next pleaded that the defendants are the descendants of Chimant Mandal the other recorded raiyat of the said Jamabandi No. 32 and the defendants and their predecessors Lodo Mandal and Chimant Mandal had never any manner of right or concern with the suit land but in the month of June, 2002 in view of the new settlement operation in a State, the defendant nos. 1, 5 and husband of the defendant no.4 began to advance threats to the plaintiff of dire consequences if he tries to cultivate the suit land and on 28.06.2002, the defendants along with some of their muscle men made preparation for forcibly ploughing some of the suit lands. After coming to know about the same, the plaintiff lodged information with Hiranpur police station on 28.06.2002. Consequently, a proceeding under Section 144 Cr.P.C. was initiated on 02.07.2002 vide Crl. Misc. Case No. 237 of 2002 in the court of S.D.M., Pakur which was dropped after statutory period of two months and taking advantage of the same, the defendant nos.1 and 5 along with their muscle men began to advance threat of dire consequences to the plaintiff and his mother, if she goes to cultivate the suit lands. The plaintiff then filed an application under Section 144 Cr.P.C. before S.D.M., Pakur for initiating a proceeding under Section 144 Cr.P.C. in respect of the suit land vide Crl. Misc. Case No. 369 of 2002. The S.D.M., Pakur called for

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Second Appeal No. 125 of 2016

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a show cause from the defendant nos. 1 and 5 and others as to why Section 144 Cr.P.C. will not be initiated and also called for a report from Hiranpur police station. After receipt of the report of the A.S.I. of police Hiranpur police station, the S.D.M., Pakur initiated a proceeding under Section 144 Cr.P.C. with plaintiff as the first party and defendant nos. 1 and 5 as the second party and restrained the parties from going upon the suit land. The S.D.M., Pakur rescinded the Rule under Section 144 Cr.P.C. in favour of the defendant nos.1 and 5 second party to the said proceeding and made the same absolute against the plaintiff. As the said order casted cloud on the title of the plaintiff, the defendants did not allow the plaintiff to cultivate the suit land and started forcible and illegal cultivation of the same. Hence, the plaintiff filed the suit praying for the relief :-

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(a) Decree confirming the right and title of the plaintiff over the suit property;

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(b) Decree be passed that the plaintiff is entitled to delivery of possession of the suit property and delivery of possession be also given to the plaintiff through the process of the court;

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(c) Cost of the suit,

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(d) And other relief or reliefs.

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4 In their joint written statement, the defendant nos. 1 and 5 challenged the maintainability of the suit on various technical grounds and pleaded that both the recorded tenant; to avoid future litigation; got their possession recorded in the remarks column of the parcha of the said jamanbandi no. 32 separately but they were joint in all respect and they cultivated the entire land appertaining to said Jamabandi no. 32 jointly. They further pleaded that the marriage of Bhadu Bala Devi with Babulal Mandal was solemnized from the joint

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fund of the two recorded tenants. According to these defendants, Kirani Bala Devi predeceased her husband- recorded tenant Sam Mandal in the year 1940 and Sam Mandal died in the same year leaving behind his cousin brother recorded tenant Chimant Mandal as his heir and legal representatives and Chimant Mandal performed last rites i.e. Mukhagni, Sradh, Pind dan etc. of his cousin brother Sam Mandal. After the death of recorded tenant, Sam Mandal became the exclusive and absolute owner in possession of the entire lands appertaining to the said Jamabandi No. 32 and Chimant Mandal died sometime in the year 1945 leaving behind his only son Leda Mandal who inherited all the properties of Chimant Mandal including the suit land. Bhadu Bala Devi died in the year 1950 in her matrimonial house. Leda Mandal died sometime in the year 1951 leaving behind the defendants who inherited all his properties including the entire lands appertaining to Jamabandi No. 32 and they have been possessing the same by virtue of inheritance and paying rent for the same. These defendants then pleaded that a house on the southern portion of plot no. 272 has been constructed by her husband and father namely Leda Mandal long back for his servants and in the rainy season of 1990, the paternal house of the plaintiff collapsed so he came to the said Leda Mandal for his shelter and the said Leda Mandal considering the relationship with him allowed him to reside in his said house and plaintiff reside in the same. After the death of Leda Mandal, the defendants allowed the plaintiff to remain in the said house and thus, possession of the plaintiff in the said house is permissive which does

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not confer any right or title to the plaintiff over the said house and these defendants further pleaded that neither the plaintiff nor his parents ever possessed the suit land of recorded tenant Sam Mandal. The plaintiff has no right, title and interest to go over the suit land and the plaintiff has no manner of any right, title, interest or possession over the suit land.

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5 On the basis of the rival pleadings of the parties, the following five issues were settled by the trial court:-

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(i) Is the suit maintainable in its present form? (ii) Has the plaintiff valid cause of action for the suit? (iii) Has the plaintiff right and title over the suit properties? (iv) Is the plaintiff entitled to recovery of possession over the suit property?

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(v) Is the plaintiff entitled to get decree as claimed for?

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6 The learned trial court first took up issue no. (iii) and considering the evidence in the record i.e. the oral testimony of six witnesses examined on behalf of the plaintiff and the documents which have been marked Ext.1 and 2 as well as the testimony of five witnesses examined on behalf of the defendants and the documents which have been marked Ext. A series and B, came to the conclusion that the plaintiff has right over the suit land and decided the said issue in favour of the plaintiff. The learned trial court next took up issue no. (iv) and considering the materials in the record came to the conclusion that the plaintiff is entitled for recovery of possession with respect to the suit land and decided the said issue in the affirmative. Then the learned trial court took up issue nos. (i) and (ii) together and after considering the materials in the record came to the conclusion

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that the plaintiff has got valid cause of action and the suit is maintainable. Lastly, the learned trial court took up issue no. (v) and came to the conclusion that the plaintiff is entitled for the relief and decreed the suit.

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7 Being aggrieved by the judgment and decree passed by the learned trial court, the defendant preferred Civil Appeal No.04 of 2014 before the District Judge-I, Pakur which was ultimately heard and disposed of by the learned first appellate court by the impugned judgment and decree.

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8 Learned first appellate court formulated the following three

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points for determination :-

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(i) Whether this appeal is maintainable or not?

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(ii) Whether the plaintiffs have any title of the suit properties and whether plaintiffs were in possession of the suit land and dispossessed by appellants/defendants?

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(iii) Whether the respondent/plaintiffs are entitled to the relief as claimed for?

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9 The learned first appellate court made independent appreciation of the evidence in the record and considering the facts, it came to the conclusion that the learned Subordinate Judge-I (Sr. Div.), Pakur has rightly decreed the suit against the defendants and the plaintiffs are entitled to the relief and concurred with the findings of

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the learned trial court and affirmed the judgment and decree passed by the learned trial court.

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10 It is submitted by the learned Senior Advocate appearing for

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the appellants that both the courts below erred in not framing the issue regarding the date of death of maternal grandparents of the plaintiff as that is the crux of the issue between the parties. It is next submitted by the learned Senior Advocate appearing for the appellants that both the courts below failed to consider that since the settlement operation was going on under the Santhal Pargana Tenancy Act at the relevant time hence, the jurisdiction of the civil court was ousted and therefore, the courts below ought not have entertained the suit. It is next submitted by the learned Senior Advocate appearing for the appellants that the learned first appellate court failed to consider the materials available in the record in their correct perspective. It is then submitted by the learned Senior Advocate appearing for the appellants that both the courts below failed to consider the fact that how the plaintiff were dispossessed from the suit. Hence, it is submitted that the judgment and decree passed by both the courts below be set aside and the suit of the plaintiff be dismissed after formulating appropriate substantial question of law.

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11 Learned Senior Advocate appearing for the respondents on the other hand defends the impugned judgment and decree passed by the learned first appellate court. It is next submitted by the Senior Advocate appearing for the respondents that the defendants never took the plea of any settlement proceeding in their written statement hence; it is not open for them to raise such facts for the first time in the second appeal. It is next submitted by the Senior Advocate appearing

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for the respondents that there is concurrent finding of facts returned by both the courts below and there is absolutely no perversity in the same. It is then submitted by the learned Senior Advocate appearing for the respondents that so far as the contention of the appellants regarding non-framing of the issue is concerned, the issue no.(iii) framed by the learned trial court was that whether the plaintiff has right and title over the suit property and that issue covers the date of death of grandparents as well as mother of the plaintiff and as parties went to the trial knowing fully well the rival case and led all evidences not only in support of their contention but in refutation of contention of other side; therefore this is a case, where it cannot be said that the absence of any issue was fatal to the case or that there was mistrial which vitiates the proceedings. More so, because this aspect was not agitated before the learned first appellate court being final court of facts as is evident from the appeal memo filed by them and the impugned judgment; wherein the submissions made by the rival parties were discussed at length, by the learned first appellate court. 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 going through the materials in the record, it is pertinent to mention here that when parties go to the trial and led evidence, not only in support of their contention, but in refutation of the contention of the other side; the non-framing of a particular issue or where the issue which could have been more elaborate; will not be fatal to the case; as

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has been held by the Hon’ble Supreme Court of India in the case of Nedunuri Kameshwaramma vs. Sampati Subba Rao reported in AIR 1963 SC 884 .

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13 Now coming to the facts of the case, from the nature of evidence led by the parties, this Court is satisfied that both the parties went to the trial court fully knowing the rival case regarding the date of death of maternal grandfather and grandmother of the plaintiff as well as date of death of his own mother but the defendants has taken the said plea more or less as an ornamental plea being not serious about the date of death of the grandparents of the plaintiff and his mother. The learned first appellate court noted the fact that since in view of the undisputed fact that the parties are governed by Hindu Dayabhaga School of Hindu Law and as per the law Badal Mandal is the successor of Sam Mandal. The S.D.O. has no right to decide the title. The learned first appellate court did not believe the testimony of the defendants that the plaintiff has been in possession of the suit land without having any title and hence, the defendants are entitled to get the properties of Chinmat Mandal only.

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14 Under such circumstances, this Court finds that this is not a case where the judgment and decree passed by both the courts below be set aside for not elaborating the issue no. (iii) specifically by not including therein as to what was the date of death of each of the ancestors of the plaintiff being Sam Mandal, his wife and daughter.

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15 So far as the contention of the appellants that since settlement operation is going on hence, the civil court has no

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jurisdiction is concerned, it is pertinent to mention here that in the written statement, no plea was taken nor such plea was taken before the first appellate court. There was no material in the record to suggest that any settlement operation was going on in the locality while the plaintiff filed the suit. Thus, this Court does not find any merit in this contention of the learned Senior Advocate appearing for the appellants.

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16 This Court after carefully going through the materials in the record; finds that the finding of fact arrived at by the learned first appellate court as well as the trial 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 so outrageously defies the logic as to suffer from the vice of irrationality incurring the blame of being perverse.

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17 In the absence of any perversity in the concurrent finding of facts arrived at by both the learned courts below, this Court is of the considered view that there is no justifiable reason to interfere with the concurrent finding of facts returned by both the courts below.

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18 After going through the materials in the record, this Court finds that there is no substantial question of law involved in the appeal.

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

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20 Let a copy of this Judgment be sent to the court concerned

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forthwith.

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21 In view of the dismissal of this appeal, Interlocutory Applications, if any, is disposed of being infructuous.

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(Anil Kumar Choudhary, J . )

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High Court of Jharkhand, Ranchi Dated the 7^th August, 2023 AFR/ Sonu-Gunjan/-

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Janmajay Mandal And Ors. v. Badal Mandal

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Janmajay Mandal And Ors. v. Badal Mandal

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