The High Court dismissed the second appeal where the first and trial courts correctly held a suit for mere declaration of title un-maintainable because the plaintiffs failed to establish possession, citing the Specific Relief Act.
Second appeal dismissed without costs; copy of judgment sent to court concerned.
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. 191 of 2019
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No.191 of 2019
(Against the Judgment and decree dated 19.03.2019 passed by the learned District Judge-VI, Gumla in Title Appeal No. 22 of 2010)
------
.... .... …. Appellants
Versus
Both sons of late Etwa Oraon, resident of village- Anjan, P.O. & P.S. Gumla, Dist. Gumla
All r/o village- Anjan, P.O. & P.S. Gumla, Dist. Gumla
------ For the Appellants : Mr. Anil Kumar, Advocate
PRESENT HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
By the Court:- Heard the parties.
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judgment of concurrence, the learned first appellate court upheld the judgment and decree passed by the learned trial court being the court of learned Munsif, Gumla in Title Suit No.37 of 2007 dated 26.10.2010 by which the learned trial court dismissed the suit of the plaintiffs, filed with a prayer for declaration of their right, title and interest over the suit land, on contest.
3 The case of the plaintiffs in brief is that the suit land was recorded in the name of Khedan Baiga, Madhwa Baiga both sons of Chhandu Baiga and Surju Baiga in the R.S. record of right as kaimi and the recorded tenant have also other raiyat and Bhuinhari land in the village- Anjan and Bhuinhari Pahanai land recorded in hereditary. It is the further case of the plaintiffs that Khedan Baiga died leaving behind his only son Harku Baiga who died leaving behind his two sons Bhikhu Baiga- the plaintiff and Ram Sundar Baiga. Ram Sundar Baiga died leaving behind his two sons Bandhan Baiga and Chandan Baiga who are pro-forma defendant nos.3 and 4. The second recorded tenant Madhaba Baiga died leaving behind his two sons Nandu Baiga and Lohra Baiga. Lohra Baiga died issueless. Nandu Baiga died leaving behind his two sons Aghnu Baiga and Ropa Baiga. Ropa Baiga died leaving behind his only son Budheswar Baiga and the recorded tenant Surju Baiga died without any male issue. The plaintiffs further pleaded that after death of Surju Baiga, the share of his property devolved upon and inherited by the plaintiffs and proforma defendants according to Munda custom and according to which, the unmarried daughter and widows has only right of
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maintenance from the property of father and husband. The plaintiffs further pleaded that in the record of right, caste of the recorded tenant has been wrongly recorded as Oraon instead of Khewats. It is further the case of the plaintiffs that the recorded tenant kept Situ Oraon- the grandfather of the defendant no.1 and father of Etwa Oraon along with their family as Dhangar for cultivation work. After revisional survey record of right, Situ Oraon continued to live with the family of the recorded tenant even after the death of recorded tenant. Etwa Oraon- the son of Situ Oraon also helped in cultivation work like his father. Etwa Oraon along with two sons being defendant nos.1 and 2 were allowed to continue to live along with his family of recorded tenant by the plaintiffs and the pro-forma defendants. In the survey settlement before filing of the suit, Banda parcha was prepared in the name of original plaintiff- Bhikhu Baiga and Ram Sundar Baiga but the survey authorities have wrongly entered the name of Etwa Baiga son of Situ Baiga in connivance with Etwa Baiga without the knowledge of the heirs of the recorded tenant. It is further the case of the plaintiffs that Etwa Baiga who is the father of the defendant no.1 and 2 like his father Situ Baiga were stranger to the family of the plaintiffs. Hence, plaintiffs asserted that the entry made in the Banda Parcha to the extent of mentioning the name of Etwa Oraon is erroneous and right, title and interest do not accrue to the defendant nos. 1 and 2. As the defendant nos.1 and 2 claimed the suit land to be their own, the plaintiffs filed the said suit.
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Chhandan Baiga did not file the written statement and the suit proceeded ex-parte against them.
5 The defendant nos.5 and 6 were debarred from filing the written statement.
6 The defendant no.2-Chamru Baiga and defendant no.3Bandhan Baiga contested the suit by filing joint written statement. They in their joint written statement challenged the maintainability of the suit on various technical grounds and pleaded that since survey settlement operation is going on; the filing of the civil suit in between
is not permissible. These contesting defendants pleaded that the grandfather of the defendant nos.1 and 2 Situ Baiga is the son of Khedan Baiga.
7 On the basis of the rival pleadings of the parties, the following six issues were settled by the trial court which is as under:-
the oral testimonies of the four witnesses examined by the plaintiffs and the documents which have been marked as Ext. 1 to 5. The defendants did not adduce any evidence either oral or documentary and did not cross-examine the witness of the plaintiffs.
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together and considering the evidence in the record came to the conclusion that the plaintiffs are not in possession of the entire land hence, their suit is not maintainable in the present form because the plaintiffs are not seeking the relief of recovery of possession and the plaintiffs and pro-forma defendants have got no right, title and interest over the suit land and decided the issues in favour of the defendants and against the plaintiffs. Thereafter, the learned trial court took up issue nos. (III) and (IV) together and as neither of the parties pressed the said issues, it decided these issues in negative. Ultimately, the learned trial court took up issue nos. (II) and (VI) together and held that the plaintiffs have got no valid cause of action to file the suit and they are not entitled to the relief claimed hence, dismissed the suit.
10 Being aggrieved by the judgment and decree passed by the learned trial court, the plaintiffs filed Title Appeal No.22 of 2010 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.
11 The learned first appellate court made independent appreciation of the evidence in the record. The learned first appellate court first took up issue no. (V) and the first appellate court considered that no recovery of possession was sought by the plaintiffs and the suit is simpliciter for declaration under Section 34 of Specific Relief Act is bad in law; as the suit for mere declaration without possession is not maintainable and the plaintiffs have not been able to
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prove that they were/are in possession of the suit land. But to the contrary; Ext.3 which was exhibited by the plaintiffs himself shows that Situ Baiga- the predecessor of the defendant nos.1 and 2 was in possession of the suit land since before the preparation of R.S. Khatiyan. Therefore, the learned first appellate court held that the instant suit is barred under Section 34 of Specific Relief Act. The learned first appellate court also considered that Ext. 3 further reveals that Situ Baiga is the son of Khedan Baiga which fact also could not be rebutted by the plaintiffs by putting forth any positive evidence. Hence, the first appellate court decided the issue no. (V) against the plaintiffs and pro-forma defendants and in favour of the defendant nos.1 and 2. Thereafter the learned first appellate court took up issue nos. (III) and (IV) together. The learned first appellate court considered Section 89 of the Chota Nagpur Tenancy Act which provides for correction of entries in the record of right under Section 83 of Chota Nagpur Tenancy Act within twelve months from making any entry in the draft record of right. Upon upon conjoint reading of Section 83 (1) and section 87 (1) of Chota Nagpur Tenancy Act, the learned first appellate court came to the conclusion that limitation for any correction in the draft record of right is 12 months and not beyond. Relying upon the judgment of Hon’ble Patna High Court in the case of Paritosh Maity & Etc. vs. Ghasiram Maity & Anr. reported in (1987) AIR Patna 167 to the effect that the final publication of the record of right can be corrected within five years of final publication and also relying upon the judgment of this Court in
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the case of Dwarika Sonar & Ors. vs. Most. Bilguli & Ors. reported in 2003 (2) JLJR 708 (Jhr.) , the learned first appellate court considered that the period of limitation for correction of entry of the record of right cannot be extended beyond 12 years under any circumstances and went on to hold that the suit of the plaintiffs although not barred under Section 58 of Chota Nagpur Tenancy Act but the suit is barred by limitation and decided the issue nos. (III) and (IV) accordingly. Thereafter, the learned first appellate court took up issue nos. (I), (II) and (VI) together and after considering the evidence in the record decided that the suit in its present form is not maintainable and the plaintiffs are not entitled to any relief as claimed by them in the suit and decided the said issues in favour of the defendant nos.1 and 2 and against the plaintiffs and pro-forma defendants. The learned first appellate court also considered that the plaintiffs bringing the suit ultimately seek in effect; though indirectly, the correction of the final publication of the record of right marked Ext. 3 whereby and where under, two presumptions in favour of Situ Baiga has been created firstly, he was in possession of the suit plots and secondly, that he was son of recorded raiyat Khedan Baiga and concluded that the same is not permissible in law and upheld the judgment and decree passed by the learned trial court and dismissed the appeal.
12 Mr. Arun Kumar, learned counsel for the appellants submits that the learned first appellate court committed grave error of law by deciding the issue nos. (III) and (IV) by holding that the suit is barred by limitation. It is then submitted by Mr. Kumar that the learned first
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appellate court erred by holding that the suit is hit by Section 34 of Specific Relief Act. It is further submitted by Mr. Kumar that the judgment and decree passed by the learned first appellate court is not sustainable in law, as the first appellate court did not formulate any points for determination, as required under Order XLI Rule 31 of Code of Civil Procedure. Hence, it is submitted that the judgment and decree passed by both the courts below be set aside and the suit of the plaintiffs be decreed.
13 Having heard the submissions made at the Bar and after going through the materials in the record, it is pertinent to mention here that it is a settled principle of law that if the plaintiff is not in possession, a suit for mere declaration would not be maintainable as has been observed by the Hon’ble Supreme Court of India in the case of Mehar Chand Das vs. Lal Babu Siddique and Ors. reported in
AIR 2007 SC 1499 , paragraph no. 12 of which reads as under:-
“12.The High Court, in our opinion, committed a manifest error in not relying upon the decision of this Court in Vinay Krishna (supra). The said decision categorically lays down the law that if the plaintiff had been in possession, then a suit for mere declaration would be maintainable: the logical corollary whereof would be that if the plaintiff is not in possession, a suit for mere declaration would not be maintainable.” (Emphasis supplied)
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envisages that no court shall make any such declaration as mentioned in Section 34 where the plaintiffs being able to seek further relief then a mere declaration of title, omits to do so.
16 So far as the contention of the plaintiffs regarding the points for determination having not been formulated by the learned first appellate court is concerned, it is a settled principle of law that noncompliance with the provisions of Order XLI, Rule – 31 of the Code of Civil Procedure, 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 as has been held by the 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:-
“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
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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)
17 Now coming to the facts of the case, the perusal of the impugned judgment and decree passed by the learned first appellate court reveals that the learned first appellate court has taken note of the arguments advanced by the rival parties before it and finding of the learned first appellate court are supported by reasons hence, in the considered opinion of this Court even though the point of determination has not been framed by the learned first appellate court but there is substantial compliance with the provisions of Order XLI Rule 31 of Code of Civil Procedure and the judgment is not in any manner vitiated by the absence of point of determination.
18 Under such circumstances, this Court is of the considered view that there is no substantial question of law involved in this appeal.
19 Accordingly, this appeal being without any merit is dismissed but under the circumstances without any costs.
20 Let a copy of this Judgment be sent to the court concerned forthwith.
(Anil Kumar Choudhary, J . )
High Court of Jharkhand, Ranchi Dated the 17th April, 2023 AFR/ Sonu-Gunjan/-
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3 issues framed by the court
Whether a suit for mere declaration of title is maintainable when the plaintiff is not in possession of the suit land.
Whether the absence of framed points for determination by the first appellate court vitiates the judgment under Order XLI Rule 31 CPC.
Whether the present appeal involves any substantial question of law warranting interference under Section 100 CPC.
Colour shows how this judgement treated each authority
Paritosh Maity vs. Ghasiram MaityReferred¶59
Paritosh Maity & Etc. vs. Ghasiram Maity & Anr. (1987) AIR Patna 167 · Who else cites this
Dwarika Sonar vs. Most. BilguliReferred¶59
Dwarika Sonar & Ors. vs. Most. Bilguli & Ors. 2003 (2) JLJR 708 (Jhr.)
Mehar Chand Das vs. Lal Babu SiddiqueApplied¶67
Mehar Chand Das vs. Lal Babu Siddique and Ors. AIR 2007 SC 1499 · Who else cites this
G. Amalorpavam v. R.C. Diocese of MaduraiApplied¶77
G. Amalorpavam & Others v. R.C. Diocese of Madurai & Others (2006) 3 SCC 224 · Who else cites this
4 provisions across 3 enactments
Gangi Devi etc.
Chamra Oraon and Anr.
Anil Kumar Choudhary
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court