Dismissed

Enamul Haque Md. Enamul AndORS. v. Nemi Chand Jain And Others

Jharkhand HC2 Mar 2023SA/70/1998

Case brief

AI extract

What is this about?

This second appeal was dismissed. The High Court found that lower courts correctly interpreted documents and evidence, affirming the plaintiffs' title and possession via Jamabandi records. The appeal raised substantial questions regarding the date of settlement and witness non-examination, which were answered in favor of the respondents.

What did the court decide?

The Second Appeal was dismissed; the L.C.R. was sent back to the court concerned.

Enamul Haque Md. Enamul AndORS. Vs Nemi Chand Jain And… — Property and Title | Jharkhand HC (2023)

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Second Appeal No. 70 of 1998 (R)

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IN THE HIGH COURT OF JHARKHAND, RANCHI

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Second Appeal No. 70 of 1998 (R)

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Enamul Haque @ Md. Enamul and Others .... Appellants

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Pradeep Jain and Others .... Respondents

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CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Appellants :- Mr. Nagendra Tiwari, Advocate For the Respondents :- Mr. Yashwardhan, Advocate ----

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40 /02.03.2023 Heard Mr. Nagendra Tiwari, the learned counsel appearing on behalf of the appellants and Mr. Yashwardhan along with Mr. Ritesh Singh, the learned counsels appearing on behalf of the respondents.

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The present Second Appeal has been preferred being dissatisfied with the judgment dated 27.03.1998 and decree dated 21.4.1998 passed by 5^th Additional District Judge, Giridih in Title Appeal No.130 of 1988 dismissing the appeal confirming the judgment dated 29.7.1988 and decree dated 9.8.1988 passed by 2^nd Additional Munsif, Giridih, in Title Suit No.106 of 51/ 1984 of 87. The title suit was instituted by the respondent/plaintiff for adjudicating that the suit land belong to the plaintiff permanent indefeasible Basto right and the said title is subsisting and the defendants have not a vestage of title to the suit lands and the sale deed dated 29.7.1983 executed in favour of the defendant nos.2 to 4 and Ram Chandra Rajwar by Bako Khan (defendant no.1) died during the pendency of the suit and his name has been expunged and the appellant nos.1 to 6 have been substituted in his place be delivered up and cancelled. Plaintiffs have further prayed that the

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possession of the plaintiffs over the suit lands be confirmed and in the event of dispossession during the pendency of the suit, khas possession be recovered to the plaintiffs and also prayed for temporary and permanent injunction. The cost of the suit was also demanded. The said suit was decreed by judgment dated 29.07.1988 by learned 2^nd Additional Munsif, Giridih in Title Suit No.106 of 85/ 51 of 87 and on contest that goes against the defendant nos.2 to 4 and 7, 10 and 11 and ex-parte against the rest and cancelled the sale deed executed by Bako Khan in favour of the defendant nos.2 to 4 and Ram Chandar Rajwar dated 29.07.1983 was also cancelled. Aggrieved with that, the defendant/ appellants filed Title Appeal No.130/ 88 which was dismissed by the judgment dated 27.03.1998 affirming the judgment of the learned trial court and then the appeal was dismissed. Aggrieved with that, the defendant /appellants have filed the present second appeal.

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The case of the plaintiff is that upto 1943-44 Bengal Coal Company was the land lord of village Koldiha and other villages within the district of Giridih and the company settled the land of plot no. 489 measuring an area of 1-22 acres and plot no.490 measuring an area of 0.04 decimals under khata no. 312 of village Koldiha P.S. Giridih within the limits of Giridih municipality by opening a Zamabandi by oral settlement dated 4th Shrawan 1331 BS with the plaintiffs at an annual rent of Rs 15/- and the plaintiffs were put in possession of the same and settlement was in permanent Basto right. The settlement was further confirmed by acceptance of rent from the plaintiffs and they continued in possession of the same and continued to pay rent till the vesting of the zamindari and rent was realized through Thoka no. 423 and after the Bengal Coal Company was taken over by the State of Bihar, the plaintiffs were recognized as tenants by the State of Bihar and the plaintiffs name was entered in the Register-II under Thoka no.423 with a new bata

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no.485 of its own and after realization of rent from the plaintiffs, the first rent receipts was granted on 22.01.1955 and since then the plaintiffs are paying rent to the State of Bihar and paid rent upto date and the plaintiff were continued to be in possession of the same and when the lands in the boundary of the suit lands began to be sold they put boundary pillars all round the suit lands and continued in possession but the suit lands remained fallow, although right from the date of settlement upto middle of 1983 and is still so and the then defendant no. 1 and whose house and land were near the suit never raised any dispute and also never claimed any right over the suit lands adverse to that of the plaintiffs but when the lands of vicinity began to be sold, he became greedy and manufactured a forged and fabricated Hukumnama showing settlement of suit lands in his name on 3rd Chait 1333 Fasli and on the basis of the same manufactured false sale deed on 29.7.83 in respect of the suit lands in the name of his own son defendant no.2 and also in the name of defendant nos. 3 and 4 and Ram Chandra Rajwar noted for land grabbing. Further case of the plaintiffs is that they came to know of this fraudulent sale deed on 25.9.84 when defendant no. 1 to 4 and Ramchandra Rajwar wanted to demolish the pillars given by the plaintiffs and to put his pillars. It is also the case of the plaintiffs that police was informed and a proceeding u/s 144 CrPC was initiated. It is further stated that the plaintiff also came to know about an order of mutation in favour of defendant nos. 2 to 4 and Ramchandra Rajwar passed collusively on false and collussive report of Karamchari and circle Inspector and also in collusion of Anchal Peon and the plaintiffs applied for certified copy of the sale deeds and application for mutation with report and order dated 30.3.84 and of Zamabandi opened in the name of defendant nos. 2 to 4 and Ramchandra Rajwar and obtained the same on 10.10.84 and 14.11.84. It is also the case of the plaintiffs that the Bengal

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Coal Company was using Bangla Sambat and not Fasli and rate of rent is not ordinarily less than 12/- per acre and plaintiff also stated that Hukumnama, if any, is forged, fabricated and manufactured and same will appear from the fact that the name of defendant no. 1 in Zamabandi records of the State of Bihar and falsity will also appear from the amount of rent mentioning Re. 1/- only for such valuable rent. It is also the case of the plaintiff that sale deed executed by defendant no.1 in favour of defendant nos. 2 to 4 and Ramchandra Rajwar is false and without title and the same is illegal, invalid and without title and inoperative. It is also stated that is gather more muscle man, defendant no.2 executed two more sale deeds in the name of defendant no.10 and another in the name of defendant no.11 on 29.8.84 and they are only name lenders of their husbands in respect of small portion of suit lands and this sale deed is also false, inoperative and void ab-initio. Further case of the plaintiff is that since 4th Shrwan 1331 BS the plaintiffs apart from their valid right and title, have been coming in peaceful possession of the suit lands without interpretation to the knowledge of defendants and whole world and they have perfected their title by adverse possession as well and cause of action arose on 29.7.83 and also on 30.3.84 and on 29.8.84.

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The case of the defendants is that the defendants no 1 to 4,7,10,11 have filed their written statement, defendant no.1 died during the pendency of the suit and he has been substituted by his heirs appellant no.1 to 6.

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The case of the defendant nos. 1 to 4,7,10,11 as per written statement is that the suit is vexatious and is not maintainable and suffers from vagueness and the suit is also barred by law of limitation, adverse possession, estoppel and acquiescence. It is also the case of the aforesaid defendants that the Bengal Coal Company remained Zamindar till enforcement of Bihar Land Reforms Act. The further case of the

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defendants is that Bako Khan settled raiyat of village Koldiba brought suit land under his cultivation and then the Bengal Coal Company recognised Bako Khan as the occupancy raiyat of those lands and accepted rent from him and in token of that granted rent receipts and allotted Thoka no. 612 to Bako Khan for the suit land after vesting of zamindari to the State of Bihar and verification opened ledger for the suit plots in the name of Bako Khan and Bako Khan came in possession twelve years ago adversely and continuously and the transferors can't be dislodged or displaced from the suit lands. The aforesaid defendants have also stated that neither the zamabandi was opened in the name of plaintiff or plaintiffs have come in possession or exercised any act of possession over the suit plots and Thoka number of the suit plots is 612 and the plaintiff has falsely stated about the Thoka no.423. It is also stated that none of the registers of the state Government can show that the plaintiffs have been recognised as tenants for plot no. 489 and 490 and plaintiffs have manufactured rent receipt and the same cannot clothe themselves with title relating to the plot no.489 and 490 which all along coming possession of Bako Khan and the same is running in the name of Bako Khan and Tenant ledger of State of Bihar. It is also stated in written statement that the boundary pillars have not been put up by the plaintiffs but the same has been put up by Bako Khan within the knowledge of the whole world. It is also case of the defendants that the plaintiffs managed to file false report and the police recommended for prevention action against the defendants. The report of the police also believes the false assertion of the plaintiffs that the defendants were demolishing the pillars mischievously. It has also been stated that the report of Karmachari and Circle Inspector based on realities and after the Istehar mutation has rightly and legally been allowed in the name of transferors. The further case of the defendants is that the Zamindari system of locality always

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adhered to by the company and so fasli was mentioned and it was never the rate as falsely given by the plaintiffs and ordinarily Thana rate was prevalent in the locality. The sale deeds executed by defendant no.1 in favour of defendant nos. 2 to 4 and Ramchandra Rajwar is valid, genuine and for consideration and the defendants no. 2 has transferred the same land to defendant nos.10 and 11 for legal necessities and it is wrong to say that the defendant nos.10 and 4 are only name lenders and there defendants are in possession of their lands on the basis of the sale deed and those sale deeds are legal and genuine and conferred valid right, title and possession to the transferors defendants. Further case of the defendants is that defendant no.1 Bako Khan exercised his legal title and uninterrupted possession over the suit land and also given 0.02 acre of land of plot no.489 to Ranjit Lal Rajgarhia to be used as Rasta, to enter upon his land in plot no.483 hence, the defendants are getting rent receipts with respect of 1.24 acres i.e. 1.20 acre of plot no. 489 and 0.04 acre of plot no.490 of khata no.312. Earlier the plots were outside municipal area and now it is within Municipal area and holding no.441 ward no.III has been allotted in the name of transferors of defendant no.1 which also shows long standing right, title and possession of Bako Khan and thereafter to his transferors. It is also the case of the defendants that the market value of suit land is Rs.5,000/- and the plaintiff had not paid the proper court fee and the plaintiff has no cause of action for the suit. On the aforesaid pleadings the aforesaid defendants prayed for dismissal of the suit.

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By order dated 15.12.1998 this appeal was admitted on the following substantial question of law:

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“1. Whether the courts below have erred in decreeing the suit by mis-interpreting Ext.2, the Zamabandi receipt, which shows that the same was issued and signed on 19.07.1944 whereas the case of the plaintiffs/ respondents

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was that the Zamabandi was opened in the year 1331, Bengali Sambat corresponding to the year, 1925”?;

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2.Whether the courts below failed to appreciate the case of the parties by completely ignoring the fact that if Zamabandi would have been opened in the year, 1925 the receipt could not have been issued in 1944?; and

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3.Whether non-examination of Chiranjilal, one of the settles, the courts below should have drawn an adverse inference against the appellants?”

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Mr. Nagendra Tiwari, the learned counsel appearing on behalf of the plaintiff/ appellant/ appellant submits that the learned courts have committed error by decreeing the plaintiff’s suit however no document of settlement has been filed by the plaintiff nor the plaintiff has examined himself in support of his case although it is well settled law that the plaintiff’s case has to stand on its own legs. He further advanced his argument by way of submitting that the learned courts have committed error of law by not drawing adverse inference against the plaintiff for non-examination of the plaintiff Chiranji Lal Saraogi without any discussion as to what is the reason of non-examination as it has been evident from the paragraph no.27 of the judgment and in that view of the matter this Second Appeal is required to be answered in favour of the appellant/ defendant. He further submits that the learned courts have further committed error of law by disbelieving the defence case although in paragraph no.46 it came to the conclusion that the defendant’s witnesses have supported the defendant’s case without any reason for not accepting the defendant’s version thereafter the judgment has been delivered which is perverse and the law points framed by this Court may kindly be answered in favour of the appellants.

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On the other hand, Mr. Harshvardhan, the learned counsel assisted by Mr. Ritesh Singh, the learned vice-counsel appearing on behalf of the plaintiff/ respondents submits that the learned trial court as

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well as the learned appellate court have given due consideration to the documents as well as the oral evidences and thereafter have passed the judgment which is in accordance of law and there is no illegality in the judgment and there are concurrent findings of both the learned courts and only the facts are involved and in that view of the matter, this Second Appeal is fit to be dismissed.

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In view of the above submission of the learned counsel appearing for the parties, the Court has gone through the judgment of the learned trial court as well as the learned appellate court and the L.C.R including the deposition. The learned trial court has framed 8 issues to decide the suit and after discussing the documents as well as the oral evidences has decreed the suit. The learned appellate court has again re-appreciated the documents as well as the oral evidence and thereafter has passed the judgment. The learned appellate court has framed the points for deciding the appeal as to whether or not the conclusion arrived at by the learned courts is correct or it requires interference by that court or not? and issue no.5 was with regard to right, title and possession of the suit land on the basis of settlement of Bengal Coal Company on 4 Swarn 1331 Bengal Sambat or whether it was settled in the name of Baku Khan or not? While considering this issue, the learned appellate court has considered that the plaintiff started paying rent to the State of Bihar under the same Khata No.423 with a new Patta 485 and the plaintiff’s name was entered in the Register-II and the first rent receipt was granted to the plaintiff on 22.1.1955 and since then, the plaintiff is paying the rent to the State of Bihar up to date and continuing to remain in possession of the suit land. The learned appellate court has considered the P.Ws, who are 10 in number and has taken note of the statement of P.W.10-Nemi Chand Jain who was son of original plaintiff- Chiranji Lal Jain and after death of Chiranji Lal Jain he has been

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substituted in place of Chiranji Lal Jain and he has stated that his father is bed-ridden and on behalf of his father he is making pairvi in this case Girinari Lal was his eldest uncle. He has also stated that the land in dispute is 1.26 acres of land in plot no.489 area 1.22 acres and plot no.490 measuring an area of 0.04 decimals under Khata No.312 under Thoka No.423 /485 and he has also submitted that the case of the plaintiff for settlement of the land by the Company to his father and uncle Girinari Lal on 4^th Shrawan 1331 Bengal Sambat. In paragraph no.3 he has stated that his uncle and father put pillars around the land and since then it is in their possession and it is running in their name in the Register II of State of Bihar. He has also stated that Bako Khan has manufactured Hukumnama for the land in dispute and also demolished the pillars and he informed the police. He also came to know that Baku Khan has executed kewala in the name of son of Ram Chandra Rajwar and others who further executed kewala in the name of Jahan Ara and Saleha Khatoon on 29.08.1980. In paragraph no.16 he has stated that his father used to visit the land and constructed the pillars and in 1984 he saw the pillars. P.W.1 has also supported the case of the plaintiff. P.W.2 Mahavir Prasad has also supported the case of the plaintiff and he has also given boundary of the land and not found and office of the company south-east north-west . He has also supported the case of the plaintiff and possession and from his evidence the learned court has come to the conclusion that the land in dispute is fallow and it is the case of the plaintiff /appellant furthermore his house is at a distance of 200215 yards from the land in dispute and he was a local person. P.W.4 was a local witness resident of that area and he has also supported the case of the plaintiff. He has also described the boundary and P.W.6, 7, 8 and 9 have also supported the case of the respondent/ plaintiff. The learned appellate court further considered the statement of DWs. Considering the

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statement of DWs as well as the exhibits, the learned appellate court has come to the conclusion that although they have supported the possession of the defendant over the lands in dispute but they have also not stated any specific act of possession of the defendants. DW-1 has stated in his cross examination that Baku Khan was paying the rent for the land in dispute but again he has stated that he cannot say as to whether at last he was paying rent and how much rent was being paid which he was not able to say so. He has also stated that he was not seen about paying of the rent. The learned appellate court has further considered the D.W.3 who has proved the kewala executed in favour of the Idris Mian and others Exhibit-B and has stated that Baku Khan shown Hukumnana to him which was of the year 1333 Fasli whereas from the Jamabandi receipt produced by the defendant Exhibit-J it appears that the land was settled in the year 1328 Sal and as such there is clear contradiction between the evidence of this witness and the Hukumnama. D.W.4 also stated about the possession of the appellants but in his cross examination he has stated that pillars were put by Bako Khan and the land is still tanr and Bako Khan had put pillars after ten years and in that view the learned appellate court found that in his statement the land is still tanr and his statement that the land is still tanr does not corroborate the case of the appellant rather it supports the case of the respondent/ plaintiff. The plaintiffs have produced Government rent receipts Ext. 1 to Ext.1/C. Ext.-3 is Register-II and the learned court found that Holding No.423/ 485 is mentioned in the name of plaintiffs and from the rent receipts also it transpires that Jamabandi number is mentioned as 423/ 485. Jamindari rent receipt filed on Thoka no.423 is mentioned in the same. The learned court has examined Ext.-B and found receipt of Re.1/- and in Ext.-J rent is mentioned Rs.7/- per year and also found the genuineness of Ext.-J doubtful. The Jamabandi rent receipt produced on

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behalf of the appellant Ext.-A to A/2 was printed in 23.4.1912, 11.5.1915 and 5.6.1908 respectively whereas the rent receipts relates to 1359, 1360, 1350, 1349, 1351 to 1358 which are equivalent to 1942 to 1951 Christian Era and the learned court has held that it is unreliable that the receipts printed in the year 1908 to 1915 would be issued in the year 1942 to 1951. No document was produced to suggest that the land was recorded in the name of Bako Khan after vesting of the Jamabandi in Register-II. On considering of these, the learned appellate court has found that the suit land ploughed were settled with the plaintiff and Jamabandi was opened in their name and their names entered in Register-II and they were in possession till 1984 when they were dispossessed by the defendants illegally by the illegal act. The learned appellate court also held that the sale deed and other documents filed by the defendants are forged antedated and manufactured for the purpose of grabbing the land as the land was never settled in the name of Bako Khan nor he was in possession of the land till 1983 and the Jamabandi opened in the name of the defendants are also illegal and not binding on the plaintiff. The learned appellate court further held that Ext.B to Ext.B/2 are not binding on the plaintiffs as they have been executed by Bako Khan in favour of his son and other only to grab the land and has further held that the sale deed of defendant nos.10 and 11 are also collusive and void and created only for the purpose of grabbing the suit land and the defendants were never in possession prior to 1984 over the suit land and Bako Khan was never in possession over the suit land. Thus, the law points framed by this Court has been discussed elaborately by the learned trial court as well as by the learned appellate court and the Court comes to the conclusion that the Jamabandi as discussed hereinabove was taken care of and was rightly answered. The learned trial court as well as the learned appellate court have appreciated the case of the

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parties in its right perspective as it is discussed hereinabove. The nonexamination of Chiranjilal has been disclosed in the judgment and accordingly the law points are answered in favour of the respondent/ plaintiffs. There are concurrent findings of both the learned courts.

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Accordingly, Second Appeal No.70 of 1998 (R) is dismissed.

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Let the L.C.R be sent back to the learned court concerned forthwith.

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Since the I.A. being I.A. No.4730 of 2015 has been filed under Order XXIII Rule 27 C.P.C. and due diligence has not been shown and in light of Rule 27(1)(a)(aa) of the C.P.C. in that view the instant I.A stands dismissed.

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( Sanjay Kumar Dwivedi, J.)

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SI/,

Enamul Haque Md. Enamul AndORS. v. Nemi Chand Jain And Others

Case brief

What is this about?

What did the court decide?

Enamul Haque Md. Enamul AndORS. v. Nemi Chand Jain And Others

Case brief

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What the court decided

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