This second appeal challenged a judgment dismissing an appeal regarding land title. The High Court held that the allegation of fraud was not substantiated because specific details were missing and new grounds were not raised earlier. It found no mechanical error and dismissed the appeal.
Appeal dismissed without any costs. Judgment copy sent to concerned court.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Second Appeal No. 161 of 2018
IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No.161 of 2018
(Against the Judgment and decree dated 20.01.2018 passed by the learned District Judge-II, Hazaribag in Civil Appeal No. 45 of 2008)
------
.... .... …. Appellants
Versus
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... .... …. Respondents
------ For the Appellants : Mr. Awnish Shankar, Advocate
PRESENT HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
By the Court:- Heard the parties.
2 This second appeal has been preferred under Section 100 of Code of Civil Procedure against the judgment and decree dated 20.01.2018 passed by the learned District Judge-II, Hazaribagh in Civil Appeal No. 45 of 2008 whereby and where under, by the said judgment of concurrence, the learned first appellate court dismissed the appeal and affirmed the judgment and decree passed by the learned trial court being the court of Additional Munsif, Hazaribagh in Title Suit No.78 of 1996 dated 30.09.2008.
3 The case of the plaintiffs in brief is that father of the plaintiffs approached the ex-landlord for permission to reclaim the land of khata no.1 which was orally allowed by the ex-landlord and accordingly the father of the plaintiffs reclaimed the land and thereafter approached the ex-landlord for settlement of the land. After measurement of the land by Amin, a raiyati parcha in respect of the
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suit land was prepared in the name of Tikan Gope on 15.03.1931 and rent was fixed. Tikan Gope continued in possession of the suit land and thereafter approached the landlord for confirmation of settlement for grant of hukumnama which was granted to Tikan Gope on 02.7.1931. Tikan Gope was given parcha and hukumnama . After vesting, rent was paid to the State. After death of Tikan Gope, the land of khata no.1 of area 3.80 acres devolved upon the plaintiffs. The plaintiffs continued in possession of the suit land, grew crops and apportioned the produce from the land without any let or hindrance from any person. The defendants without having any title or possession of the land initiated a proceeding under Section 144 Cr.P.C. The said proceeding was converted into proceeding under Section 145 Cr.P.C. In that case, the defendants made out a false case that the parcha and hukumnama granted in favour of Tikan Gope is not genuine as though it is of the year 1931, Hemlal Mahto has been shown towards the south of plot no.2/283 but the settlement of land in favour of Hemlal Mahto was made in the year 1935. The Executive Magistrate declared the possession of the defendants over the suit land though they did not have either title or possession.
4 The defendants on the other hand pleaded that in the proceeding under Section 145 Cr.P.C. an order passed by the Executive Magistrate declaring the possession of the defendants over the suit land have not been set aside. Therefore, the plaintiffs are debarred from claiming possession over the suit land. The defendants claimed that the hukumnama, parcha and rent receipts of the plaintiffs
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are forged, fabricated and antedated document and these documents were prepared by one and same person though the same have been signed by different persons at different times. The defendants further pleaded that the land of the plaintiffs have been acquired by the irrigation department but that land being the gairmajarua khas land, compensation has not been given to the plaintiffs. The defendants further pleaded that Nunu Gope and sons of Nunu Gope reclaimed 5.25 acres of land as per the prevailing custom to reclaim gairmajarua khas land without permission of ex-landlord and 5 or 6 years after reclamation, they approached the ex-landlord for confirmation of oral settlement and the land was settled by taking salami and rent receipt was granted on 21.02.1935 and the disputed land is part and parcel of the said 5.25 acres of land which has been settled in favour of Hemlal Mahto and others son of Nunu Mahto. Nunu Gope paid rent to the ex-landlord after vesting of the land in the State.
5 On the basis of the rival pleadings of the parties, the following ten issues were framed by the trial court which are as under:-
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title & interest upon the plaintiffs over the suit land?
6 Learned trial court considered the evidence in the record i.e.
the oral testimonies of the thirteen witnesses examined by the plaintiffs and the documents which have been marked as Ext. 1 to 5 as well as the oral testimony of seven witnesses examined by the defendants out of which the deposition of D.W.6- Talo Yadav has been expunged vide order dated 21.08.2006 and the documents which have been marked Ext. A to K.
7 The learned trial court first took up issue nos. (vii) and after considering the evidence in the record, the learned trial court observed that as the defendants pleaded that the hukumnama , zamindari rent receipt and other documents filed by the plaintiffs are forged and fabricated document hence, the burden is upon the defendants to prove the said documents to be forged and fabricated. The learned trial court brushed aside the discrepancy in the deposition of the witness Ramjivan Lal who has proved the hukumnama in Misc. Case No.191 of 1990 and hukumnama in Title Suit No.78 of 1990 which was marked Ext. 3 by considering that the defendants have not filed the copy of the hukumnama in respect of which Ramjivan Lal deposed in Misc. Case No.191 of 1990-which was
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stated to be in the handwriting of the settlement clerk Chhatradhari Mahto, in the suit to show that the said hukumnama in respect of which Ramjivan Lal deposed in Misc. Case number 191 of 1990, is the said hukumnama in respect of which Ramjivan Lal deposed in this Title Suit No.78 of 1996 and which has been marked Ext. 3 and hence, the discrepancy in the evidence of Ramjivan Lal in respect of 2 Hukumnama in 2 different cases is not significant unless it is established that the deposition of Ramjivan Lal was in respect of one and the same Hukumnama in both the 2 different cases . Thus, the trial court, accordingly, observed that only on this account, it cannot be declared that Ext. 3 is a forged and fabricated document when the evidence appears to be in respect of a more than 30 years old document and which has been filed by the plaintiffs from their custody and after considering evidence in the record, the learned trial court came to the conclusion that the defendants have failed to prove that the document filed by the plaintiffs in Title Suit No.78 of 1996 are forged and fabricated document. The learned trial court thereafter took up issue no. (viii) and after considering the materials in the record came to the conclusion that the defendants have failed to prove that the suit land is part and parcel of 5.25 acres of land settled in favour of their ancestor. In respect of issue no. (ix), the learned trial court after considering the evidence in the record came to the conclusion that as it did not find any reason to disbelieve the genuineness of the documents of the plaintiffs marked Ext. 3 followed by Ext. 2 and 2/a which were zamindari rent receipts, followed by
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government rent receipts which were marked Ext. 4 series and came to the conclusion that the documents filed by the plaintiffs confer valid right, title, interest and possession of the plaintiffs in respect of the suit land. In view of the answers given to the other issues, the learned trial court did not answer issue no. (v). The learned trial court answered issue no. (iii) by holding that the suit is within the territorial jurisdiction of the learned trial court. The learned trial court disposed of the issue nos. (iv) and (vi) as not pressed. The learned trial court next took up issue no. (i) and (ii) together and found that the plaintiffs have got valid cause of action for the suit and the suit filed is maintainable. Lastly, the learned trial court took up issue no. (x) and held that the plaintiffs are entitled for a decree of declaration of their title and confirmation of possession over the schedule ‘A’ land of the suit hence, they are entitled to decree for permanent injunction against the defendants and decreed the suit and declared the title of the plaintiffs over the suit land and confirmed their possession. The learned trial court further restrained the defendants by way of permanent injunction, from interfering with the possession of the plaintiffs over the schedule ‘A’ land of the suit.
8 Being aggrieved by the judgment and decree passed by the learned trial court, the appellants filed Civil Appeal No.45 of 2008 in the court of Principal District Judge, Hazaribagh which was ultimately heard and disposed of by the learned first appellate court by the impugned judgment and decree.
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materials and submissions made before it formulated the following
three points for determination:-
10 The learned first appellate court made independent appreciation of the evidence in the record. The learned first appellate court took up both the points for determination nos. (I) and (II) together and after considering the evidence in the record both oral and documentary came to the conclusion that the plaintiff’s ancestors have got settlement of the suit land on the basis of fard amin report marked Ext. 5, Hukumnama dated 02.07.1931 marked Ext. 3 and the plot of land clearly mentioned in the fard amin report and after such settlement, the plaintiffs filed rent receipt issued by the zamindar and got rent receipts marked Ext. 2 to 2/A for 3.80 acres of land and after vesting of the said land in the State paid rent and obtained rent receipts for 3.80 acres of land from the State and got rent receipts marked Ext. 4 to 4/i and the land in respect of which the defendants got settlement, was a different land from that of the plaintiffs, as this fact was admitted by D.W.1 who is one of the defendants of the case, by stating that the land of the plaintiffs is situated outside 5.25 acres of land. The learned first appellate court also considered the oral
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testimony of D.W.3 wherein he admitted that the plaintiffs are in possession over the land in dispute from very consciousness of him. The learned first appellate court further observed that Ext. D which is the order passed by the Executive Magistrate in a proceeding under Section 145 Cr.P.C. is not binding upon the civil court and went on to hold that the learned trial court has rightly held that the plaintiffs have right, title, interest and possession over the suit land and the defendants have failed to prove that the suit is part and parcel of 5.25 acres of land settled in favour of their ancestors and concurred with the finding of facts of the learned trial court in respect of issue no. (viii) and (ix) and accordingly decided the point for determination no. (i) and (ii) in favour of the plaintiffs. The learned first appellate court thereafter took up point for determination no. (iii) and came to the conclusion that the judgment and decree passed by the learned trial court does not require any interference by the learned appellate court and dismissed the appeal and affirmed the judgment and decree of the learned trial court as already indicated above.
11 Mr. Awnish Shankar, learned counsel for the appellants submits that the learned first appellate court being the final court of fact as well as law has failed to examine the oral evidence vis-à-vis the documentary evidence available on the record. It is then submitted by Mr. Shankar that the learned court below have committed gross illegality in not considering the evidence of P.W.6- Ramjivan Lal given in a proceeding under Section 145 Cr.P.C. in Misc. Case No.191 of 1990 which has been marked Ext. J/1 which falsifies the entire case
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of settlement of the suit land in favour of the respondents by virtue of hukumnama dated 02.07.1931 marked Ext. 3 as though in this case, P.W.6 deposed that the said hukumnama was scribed by settlement clerk Sahadat Ali but in Misc. Case No.191 of 1990 as a witness the same Ramjivan Lal stated that the same hukumnama was scribed by the settlement clerk Chhatradhari Mahto. It is fairly submitted by Mr. Shankar that in the appeal memo filed before the learned first appellate court, there is no reference of this ground of nonconsideration of Ext. J/1 by the learned trial court nor in the grounds of appeal mentioned by the learned first appellate court in the impugned judgment shows that this plea of non-consideration of Ext. J/1 by the learned trial court was agitated before the learned first appellate court. It is lastly submitted by Mr. Shankar that the impugned judgment and decree passed by the learned first appellate court being not sustainable in law be set aside by formulating appropriate substantial question of law.
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 the learned trial court has categorically dealt with the aspect of the alleged discrepancy in the testimony of Ramjivan Lal as he deposed in Title Suit No.78 of 1996 and Misc. Case No.191 of 1990 in a proceeding under Section 145 Cr.P.C. vis-à-vis the scribe of the hukumnama being two different persons and such contention did not find favour with the learned trial court in the absence of any material that the hukumnama which he proves in Title Suit No.78 of 1996 was
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the same hukumnama which he proved in Misc. Case No.191 of 1990 as the defendants did not bring on record the hukumnama which the Ramjivan Lal proved in Misc. Case No.191 of 1990 and rightly so because a presumption cannot be drawn that the hukumanama which was marked Ext. 3 in Title Suit No.78 of 1996 was the same hukumnama which was proved by Ramjivan Lal in Misc. Case No.191 of 1990. As the said ground of non-consideration of Ext. J/1 was not agitated before the first appellate court, this Court did not find any fault with the learned first appellate court having not dealt with this specific ground which was never agitated before it. Otherwise also, it is a settled principle of law that a ground of fact which is never agitated before the first appellate court cannot be agitated for the first time before the second appellate court.
13 After going through the materials in the record, this Court finds that for reasons discussed in detail both the courts below have come to the conclusion that the defendants failed to prove that the documents filed by the plaintiffs are forged. The finding of fact arrived at by courts below were not by ignoring or excluding relevant material or by taking into consideration irrelevant material nor the finding so outrageously defies logic as to suffer from the vice of irrationality, incurring the blame of being perverse.
14 It is a settled principle of law that when a fraud is alleged, the particulars thereof are required to be pleaded as has been held by the Hon’ble Supreme Court of India in the case of the Ranganayakamma and another v. K.S. Prakash (Dead) By Lrs and
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others reported in (2008) 15 SCC 673 , paragraph no.40 and 41 of which reads as under:-
“40. When a fraud is alleged, the particulars thereof are required to be pleaded. No particular of the alleged fraud or misrepresentation has been disclosed.
41. We have been taken through the averments made in the plaint. The plea of fraud is general in nature. It is vague. It was alleged by the plaintiffs that signatures were obtained on several papers on one pretext or the other and they had signed in good faith believing the representations made by the respondents, which according to them appeared to be fraudulent representations. When such representations were made, what was the nature of representation, who made the representations and what type of representations were made, have not been stated. Allegedly, on some occasions, Respondents 1 and 2 used to secure the signatures of one or more of the plaintiffs and Defendants 3 to 8 on several papers but the details therein had not been disclosed.”
15 Now coming to the facts of the case except the alleged discrepancy in the testimony of P.W.6- Ramjivan Lal in his deposition regarding the scribe of the hukumnama produced in Title Suit No.78 of 1996 and the hukumnama which was produced in Misc. Case No.191 of 1990, there is no other specific ground as to on what manner the documents filed by the plaintiffs are forged or any fraud has been committed in respect of the same. But has already been indicated above, the discrepancy in the evidence is of no avail in the absence of the evidence in the record that the testimony of the witness Ramjivan Lal in the 2 different proceedings in respect of same document, which fact, the plaintiff could not establish.
16 Thus, under such circumstances, this Court does not find any substantial question of law involved in this appeal.
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dismissed but under the circumstances without any costs.
forthwith.
(Anil Kumar Choudhary, J . )
High Court of Jharkhand, Ranchi Dated the 1st March, 2023 AFR/ Sonu-Gunjan/-
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3 issues framed by the court
Whether the documents filed by the plaintiffs are forged and fraudulent?
Whether the lower courts erred in dismissing the appeal without agitating unraised grounds of law?
Does any substantial question of law survive for the second appellate court to decide?
Colour shows how this judgement treated each authority
Ranganayakamma and another v. K.S. Prakash (Dead) By Lrs and othersExplained¶14
(2008) 15 SCC 673 · Who else cites this
2 provisions across 2 enactments
Thanu Gope and others
Baleshwar Yadav and others
Anil Kumar Choudhary
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court