Dismissed

Prabhakar Jha And Ors. v. Smt. Sushila Devi And Ors.

Jharkhand HC19 Jul 2023SA/9900022/1989

Case brief

AI extract

What is this about?

This second appeal arose from a title suit over immovable property in Deoghar. The High Court dismissed the appeal, upholding concurrent findings of the Trial Court and District Court that the property belonged to the plaintiff based on sale deeds and tenancy agreements, rejecting the defendant's claim that it was a Shivalaya.

What did the court decide?

Second appeal dismissed; lower court judgments affirmed.

Prabhakar Jha And Ors. Vs Smt. Sushila Devi And Ors. — Property and Title | Jharkhand HC (2023)

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-1- S.A. No. 22 of 1989 (P)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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S.A. No. 22 of 1989 (P)

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1(a) Prabhakar Jha 1(b) Vibhakar Jha 1(c) Smt. Shyama Devi ..... … Appellants Versus 1(A) Smt. Shushila Devi 1(B) Rabi Raut 1(C) Shashi Raut 1(D) Babita Raut 1(E) Ganesh Raut 1(F) Mohan Raut 1(G) Rajendra Raut 1(H) Maharani Devi (Died) 1(I) Janki Devi 1(J) Devki Devi 1(K) Madhru Devi 2(i) Nishi Kant Raut 2(ii) Suren Raut 2(iii) Pramode Raut 2(iv) Anand Raut 2(v) Geeta Devi 2(vi) Sona Devi 3(a) Nirupama Devi 3(b) Narendra Nath Rao 3(c) Dwijendra Kumar Jaiswal 3(d) Meera Devi 3(e) Anjali Sinha 3(f) Renu Sinha 4(i) Birendra Kr. Jaiswal 4(ii) Sudhir Kumar Jaiswal 4(iii) Malti Devi 4(iv) Bindia Devi 4(v) Mina Devi 4(vi) Lalita Devi (Died) 4(vi)(a) Ram Prakash Rout 4(vi)(b) Arti Kumari (M) 4(vi)(c) Rasic Rout (M) 5. Chandi Prasad Raut 6. Hema Rautain 7. Nandrani Rautain 8. Subhadra Rautain 9. Sema Rautain 10. Aklu Rautain 11. Kedar Prasad Raut 12. Chutar Raut 13. Baijani Rautain 14. Bijay Raut

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-2- S.A. No. 22 of 1989 (P)

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15. Jai Raut

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Sanjay Raut ..... … Respondents

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CORAM : HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Appellants : Mr. Arvind Kumar Choudhary, Advocate. For the Resp. Nos. 1(A) to 1(K) : Mrs. Bakshi Bibha, Advocate. For the rest of the Respondents : Mr. Kundan Kumar Ambastha, Advocate.

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-----Heard Mr. Arvind Kumar Choudhary, learned counsel appearing for the appellants and Mrs. Bakshi Bibha and Mr. Kundan Kumar Ambastha, learned counsel appearing for the contesting respondents.

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38/ 19.07.2023

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This second appeal has been filed being aggrieved and dissatisfied with the judgment dated 13.10.1988, passed in Title Appeal No. 48 of 1973 / 33 of 1980, by the 2^nd Additional District Judge, Deoghar, dismissing the said appeal and thereby confirming the judgment dated 13.06.1973, passed in Title Suit No. 107 of 1964 / 20 of 1970, by the learned 3^rd Additional Sub-ordinate Judge, Deoghar.

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The suit was instituted by the plaintiffs-respondents, being Title Suit No. 107 of 1964 / 20 of 1970 for declaration of title and recovery of possession. The said suit was decreed on contest by the learned 3^rd Additional Sub-Ordinate Judge, Deoghar, holding that the Holding No. 20, Ward No. V of Deoghar Municipality belonged to Kumar Bimla Nand Sinha and others of Baneily Raj. The suit was decreed on contest.

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The plaintiff-respondent instituted the suit alleging therein that Holding No. 20, Ward No. V of Deoghar Municipality formerly belonged to Kumar Bimlanand Sinha and others of Baneily Raj. The holding was in three blocks. Block No. 1 was tenanted to the plaintiff, block no. 3 was tenanted to Bhata Poddar and Maharab Poddar formerly. Block no. 3 subsequently came in the hands of Ishwari Poddar as tenant. The plaintiff purchased Block no. 1 in and 3 on 14.8.1952 and came in possession of the same. Black No. 3 consisted of two rooms and a closed verandah facing northern towards Baidyanath Lane. The holding was subsequently numbered 23 of Ward No. V and then again as 24 Ward No. V. It is stated that Ishwari Poddar fell into the arrears of rent for which Money Suit No. 95 of 1953 was filed by the plaintiff. A compromise was

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-3- S.A. No. 22 of 1989 (P)

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entered, according to which Ishwari Poddar agreed to vacate a portion of block no. 3. One room and portion of verandah lying towards western side remained with Ishwari Poddar and he vacated the eastern half verandah and one room which came in possession of plaintiff on 29.12.1954. The plaintiff extended his shop running in Block no. 1 by connecting Block no. 1 with the portion of Block no. 3. He also opened its case towards north and also obtained a licence from Municipality for wooden platform towards the north facing shop on Baidyanath lane. The plaintiff was carrying a shop along with his sons. The western portion of block no. 3, which was in possession of Ishwari Poddar was sold by the plaintiff to Subdha Prasad Khaware on 30.12.1959. The plaintiff thereafter locked the northern facing door of the eastern portion of Block no. 3 which was connected with the inner side of Block no. 1 and used the same portion for keeping his shop articles.

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It is stated that the defendant is a turbulent man of the locality. He came to the shop of the plaintiff, abused and threatened the son of the plaintiff Kishun Rout and Laxal Narayan Rout on 04.01.1960 asserting that the defendant would enter into the northern facing shop (of the plaintiff) in Block No. 3. Laxmi Narayan Rout lodged a station diary on the same day. On 9.1.1960 the defendant forcibly entered into the said north facing shop of plaintiff in Block no. 3 and also removed articles such as bags, chattis, weighing seals valued at Rs. 15/- in spite of the protest of plaintiff's son Kisun Rout. When the eldest son of the plaintiff namely Laxmi Narayan Rout returned on 13.1.1960 from Calcutta, he filed the criminal case. On 16.1.1960 defendant broke the western wall of the said north facing shop and amalgamated the room with the portion owned by Sudha Prasad Khaware and closed the connecting door. The said north-facing room is the property in suit.

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The original case ended in acquittal of the defendant on 04.06.1963 with the direction that the plaintiff’s redressal was in civil courts, hence the necessity of the suit. On the above bases, the plaintiff prayed for declaration of title and recovery of possession and mesne profit with cost.

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The case of the defendant is that the suit is not maintainable.

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-4- S.A. No. 22 of 1989 (P)

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The plaintiff has got no cause of action. The suit is barred by law of limitation. It was stated that the suit was bad for non-joinder of deities Lord Shivji and Mata Parvati. The suit property is part and parcel of Shivalaya. Entire Block no. 3 is a public trust property and the defendant is only Sebait and Pujari. The suit cannot proceed unless the same is properly framed under Order 1, Rule – 8 of C.P.C. Kumar Bimalanand Sinha and others are necessary parties.

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It is stated that holding No. 20 belonged to all the properties of Baneily Raj and not only to Kumar Bimalanand Singh and others as named in the plaint. Block No. 3 never formed part and parcel of holding No. 20 of Ward No. V and never belonged to Baneily Raj. Therefore, Block no. 3 was never tenanted by Baneily Raj to Bhatu Poddar and then Ishwari Poddar.

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The defendant denied his knowledge of Money Suit between Plaintiff and Ishwari Poddar and compromised entered into the same. Ishwari Poddar never came in possession of the Block no. 3 nor any portion of it. It was also denied that Block no. 3 was divided into two parts and a partition wall was built on verandah facing north and Ishwari Poddar occupied one room and a portion of verandah lying towards the western side and vacated half of the verandah and one room in favour of the plaintiff. It was also denied that the plaintiff extended his shop with portion of Block no. 3 with Black no. 1 and opened its face towards north. It was also denied that the plaintiff obtained a licence from the municipality for wooden platform towards the north facing shop in Baidyanath Lane. It is stated that at the instance of the plaintiff, Ishwari Poddar gave a false information alleging that defendant committed highhandedness by closing the door of Black no. 3. A proceeding under section 144 was started and the same was dropped as there was no apprehension of breach of peace. As plaintiff failed to take possession of Block no. 3, through Ishwari Poddar. Plaintiff executed nominal and sham sale deed in respect of western room in which the deities of Shiv and Goddess Parvati are installed and western portion of verandah in favour of Shukdeo Prasad Khaware on 30. 12. 1959 without consideration. The sale deed was executed with the view that the

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-5- S.A. No. 22 of 1989 (P)

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purchaser will take possession of the property and his elder brother Mahadanand Khaware alias Daku Babu will help the plaintiff in taking possession of eastern portion of Block no. 3. It is stated that Subidha Khaware and Daku Babu never came in possession of the purchased property. It was stated that it is false to say that the plaintiff locked the northern facing door of eastern portion of Block no. 3 and plaintiff was keeping shop articles in that portion. The plaintiff after executing sale deed attempted to take possession of eastern portion of Block no. 3 by filing false criminal ease on 22.1.1960 alleging that the defendant broke open the lock of the eastern portion and committed theft of bags, chatties and demolished the wall of north facing room on 16.1.1960.

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The deities of Lord Shiva, Godess Parvati and Nandi Ji (bullock) were installed by a Brahmin of Orissa more than two hundred years ago and the entire Block no.3 was dedicated to Lord Shiva. The time and origin of installation of the deities and the dedication of the property are lost in antiquity and the building in question have been upkept partly through the income of the deity and partly through public seription. The defendant is Sabait and Pujari for the last twenty years after the death of his Guru Maniram Mishra, Baneily Raj never came in possession of Block no. 3 and has got no title for the same. If Baneily Raj helped in the upkeep of the temple it did so as the member of public interested in the dedication. The plaintiff also did not get any title or possession over Block No. 3 on the basis of sale deed dated 14.08.1952. Block No. 1 and 2 is one separate building which stands on brick poles quite distinct and separate from Block No. 3. Building of Block No. 3 stands on wall having iron guarders and khilan. On the above pleadings the defendant prayed for dismissal of the suit.

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The present second appeal was admitted by order dated

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06.03.1990 on the following substantial question of law:-

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“(1) Whether the court of appeal below was right in relying on Exhibits-5 and 6 in arriving at the conclusion it did ?”

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Mr. Arvind Kumar Choudhary, learned counsel appearing for

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the appellants submits that the learned trial court as well as the learned

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-6- S.A. No. 22 of 1989 (P)

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appellate court relied on the compromise petition arising out a Money Suit, in which, the appellants were not the party and has wrongly decreed the suit in favour of the plaintiffs-respondents. He submits that two kabuliyats are also in dispute and interpretation of those Exhibits are wrongly made and that’s why the law point framed by this court for consideration of Exhibits-5 and 6. He further submits that the depositions as well as the Exhibits are not rightly appreciated by the learned trial court as well as by the learned appellate court. On these grounds, he submits that the law point framed by this court may kindly be answered in favour of the appellants.

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On the other hand, Mr. K.K. Ambastha, learned counsel appearing for the plaintiffs-respondents submits that the plaintiffdefendant has come in possession of the land in question, pursuant to a deed of sale dated 14.08.1952. He submits that the arrear of rent was there and money suit was filed and the said money suit was compromised on 19.9.1960 between the plaintiffs-respondents and Ishwari Poddar. He further submits that both the learned courts have concurrently held the story of Shivalaya is not true and in view thereof there is no perversity in both the judgments and accordingly, the law point may kindly be answered in favour of the respondents.

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The learned 3^rd Additional Sub-Ordinate Judge, Deoghar framed six issued for deciding the title suit and issue Nos. 4 and 5 were with regard to subsistence of the suit land and whether the Shivalaya, as asserted by the defendant was existing or not. While decided the said two issues together, the learned Sub-Ordinate Court considered the two kabuliyats, which are Exhibits-5 and 6 of the record and found that the Exhibit-5 was the kabuliyat executed by Mahatab Poddar in favour of Raja Kritya Nand Sinha in respect of the house taken by him on rent. The boundary given therein would disclose that this house situated adjacent north of Baidyanath Mandir, two shops of Raj Bandali to its east and the court found that the boundary given therein tallies with the boundary with Block No. 3 and the document was executed as back as on 08.02.1922. Exhibit-6 was the certified copy of the Kabuliyat, which was executed by Ishwari Poddar in favour of Ramanad Sinha, Shyamanad Sinha, Kumar Taranand Sinha and others on 19.09.1939 in respect of the tenancy of

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-7- S.A. No. 22 of 1989 (P)

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Holding No. 19 of Ward No. V, the boundaries given therein also tally with the boundary of Block No. 3. The learned court also found that in the evidence of Lachminarain Rout P.W.-39 it has come that previous Holding No. 19 is changed to 20 and again to 23 and lastly 24. The learned court further found that these documents have never been challenged and considering these two documents, the learned court found that the Block No. 3 belongs to Raj Bandali and was being possessed by them through the tenants Bhattu Poddar, Maharab Poddar and Ishwari Poddar. The documents were found to be created long before title of Block No. 3, which came later on to be litigated. The court found that it cannot be said that these documents were fraudulently created with a view to create evidence with regard to the title of Block No. 3 by the plaintiff’s vendors and as a matter of fact, it is not even the case of defendants. Considering the Exhibits-5 and 6, the learned trial court found that the Block-3 belongs to Raj Bandali and the relevancy of the documents are not doubted.

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In the evidence of plaintiffs-respondents, it has come before the knowledge of the learned court that the money suit against Ishwari Poddar for realizing rental dues in respect of Block No. 3 tenanted to him by vendors of the plaintiffs was filed and compromise petition, i.e. Exhibit-7 was filed in Money Suit No. 95 of 1953 and in pursuance of the compromise petition, verandah in question was divided into two halves. Western half of the verandah and one room remained in possession of Ishwari Poddar, while the eastern half and another room came in possession of the plaintiff respondents. P.W.-40 Kumar Taranand Sinha has also supported the plaintiffs’ case on the point of purchase of Block No. 3. Certified copy of the order sheet, which has been marked as Exhibit-11 series would also show that the suit was dismissed in terms of the compromise. So far as the contention of appellants with regard to Shivalaya is concerned that aspect of the matter has been considered by the learned trial court and the learned trial court has found that even the witnesses examined on behalf of the defendants have not disclosed the name of any pujari attached to 22 Mandir, situated in the premises of Baidyanath Mandir and the defendants evidence were not accepted in view of the documents discussed by the learned trial court and the court

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-8- S.A. No. 22 of 1989 (P)

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hold that the part and parcel of Holding No. 20 which belonged to Raja Bahadur Kirtyanand Sinha and his four brothers and a valid title to it has passed to the plaintiffs through the sale deed, i.e. Exhibit-4. The court further found that Block No. 3 was never a Shivalaya.

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In these background, the learned trial court has come to the conclusion that the contention of the plaintiff respondents is correct has been pleased to pass the decree passed in favour of the plaintiffsrespondents. Aggrieved with that, the appellants moved before the learned 2^nd Additional District Judge, Deoghar, in Title Appeal No. 48 of 1973 / 33 of 1980 and by the judgment dated 13.10.1988, the learned appellate court also found no perversity with the judgment of the learned trial court and dismissed the said title appeal and affirmed the order of learned trial court. For deciding the appeal, the learned appellate court has framed two points at para-10 of the judgment, which are as under:-

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“ (i) Have the plaintiffs (respondents) got subsisting title to the suit premises ?

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(ii) Whether the story of Shivalaya as set up by defendant (appellant) is correct?”

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The aforesaid two points were interlinked and that’s why both the issues have been taken together by the learned appellate court and appreciated the documents and as well as oral evidence on behalf of both the sides. The learned appellate court found that the sale deed executed by proprietor of Baneily Raj in favour of original plaintiff Jay Narayan Rout, which was marked Exhibit-4, which was executed on 14.08.1952 and one of the executants has come as P.W.-40. The said P.W.-40 admitted the execution of the sale deed. He has also stated in para-6 that Holding No. 20 was sold to the plaintiff. He has further stated that he sold two parts to the plaintiff. In para-7 he has stated that he was looking after the property of Baneily Raj at Deoghar. He further stated that Benoy Gopal Jha was Circle Manager Incharge of Deoghar property. In para-9, he has stated that the property of Deoghar fell to the share of his and his brother. The evidence of this P.W. was criticized by the defendant’s lawyer on the point that the owner had not gone into the suit house previously. The court questioned the existence of Lord Shiva and Parvati and he has emphatically denied this fact. He further stated that a proposal for sale was put up by his Circle Manager Benoy Gopal Jha. The Collecting Agent

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-9- S.A. No. 22 of 1989 (P)

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Indranath Jha has come as P.W.-21 and he has deposed about the execution of the sale deed. the sale deed was typed. The description of the property and name of the purchaser has been entered into in manuscript form by Indranath Jha P.W.-21. He has admitted that the writing is made by him.

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The learned appellate court has also considered the argument of the defendant with regard to Block No. 3 and found that in the written statement, it has not been stated what was the holding number of Block No. 3, which the defendant claims to be a Shivalaya. There are papers to show that there are holding numbers also for the temple of Deoghar Municipality. Exhibit-10/A was the certified copy of the assessment register showing that Baiju Mandir of Deoghar Municipality has got the Holding No. 28 and 31 in Ward No. VI. Exhibit-10/g shows that Temple of Lord Shiva the famous temple of Deoghar has got Holding No. 21, Ward No. 5. Exhibit-10/h and 10/1 are also the copy of the assessment register of Deoghar Municipality showing the famous Shiva Temple, having Holding No. 21 and Ward No. V, wherein the defendant claims that Block No. 3 is Shivalaya and he has failed to give the holding number for the same. No paper has been filed to show that there was any holding number for the Shivalaya. In view of that it has been found that Block No. 3 was part of Holding No. 20 belonging to Raj Baneily. The learned appellate court also considered that Exhibit-10/E and 10/f, which were the certified copies of demand register standing in the name of one son of original plaintiff named Kishun Rout. In para-22, discussion with regard to one of the FIR has been made. The pleader commissioner was also appointed, which was considered at para-23 of the said appellate court judgment. The said pleader commissioner was examined as D.W.-28 and in para-8 of the deposition, he has deposed that there was no Kalash on the Shivalaya and also the Trishul was not there. Exhibit-A and A/1 were the field book of the pleader commissioner. He has stated in para-7 that a common wall between Block No. 1 and Block No. 3, which had got an opening of 17” x 33”. Admittedly the plaintiff was in possession of Block No. 1 and the common door also shows that the plaintiff was in possession of the suit premises, from which he was dispossessed by the defendant. The learned appellate court has found that the evidence of

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-10- S.A. No. 22 of 1989 (P)

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P.W.-38, who was the clerk of Registration office of Dumka, who has brought the register No. 1 of 1939 showing the due execution of certified copy of Kabuliyat of 1939 executed by Ishwari Poddar in favour of Baneilly Raj, which was marked Exhibit-6. P.W.-10 was the mason, who put a partition wall in Block No. 3 from north to south dividing the same in two parts. He also stated that one room and half verandah remained with Ishwari Poddar and another room and half verandah came in possession of plaintiff. In para-3 he has stated that at the time of partition, there was no Shivalaya or Idol of Shiva and Parvati.

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After considering the aforesaid discussion, the learned appellate court has come to the conclusion that there is no illegality and perversity in the finding of the learned trial court and thereafter he has been pleased to dismiss the appeal.

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In view of the above, the court finds that the learned trial court as well as learned appellate court has elaborately dealt with the arguments advanced by Mr. Choudhary, learned counsel appearing for the appellants with regard to substantial question of law, on which, this second appeal has been admitted.

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Accordingly, the law points, framed by this court is answered against the appellants, saying that the aforementioned Exhibits have been rightly considered by the learned trial court as well as by the learned appellate court and there is no perversity in both the judgments of the learned trial court as well as the learned appellate court respectively. The court further finds that there are concurrent findings of two fact findings courts and the said findings of both the courts are upon appreciation of the entire evidence available on record and therefore unless concurrent findings recorded by the courts were found to be perverse, same is not required to be interfered by the High Court in exercise of powers sitting under Section 100 of the CPC.

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In view of the above facts, reasons and analysis, this appeal is dismissed.

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Let the Lower Court Records be sent back to the concerned court forthwith.

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(Sanjay Kumar Dwivedi, J.)

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Amitesh/-

Prabhakar Jha And Ors. v. Smt. Sushila Devi And Ors.

Case brief

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Prabhakar Jha And Ors. v. Smt. Sushila Devi And Ors.

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