Babulal Mahto And Ors. Vs Jagdeo Mahto And Ors.

IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No.368 of 2017

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(Against the judgment dated 29.04.2017 passed by learned Principal District Judge, Ramgarh in Title Appeal No.19 of 2014)

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(a) Suresh Mahto s/o Late Babulal Mahto- Son. R/O Village- Lari Kalan, P.O. Barki Lari, P.S.- Rajrappa, Dist.- Ramgarh

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(b) Soni Devi w/o Bhawani Mahto d/o Late Rohan Mahto- Grand Daughter. R/o Village- Macha Tand, P.O.- Bariatu, P.S.- Gola, District, Ramgarh.

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(c) Ashok Kumar s/o Late Rohan Mahto- Grand son.

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(d) Ranjeet Kumar s/o Late Rohan Mahto- Grand son.

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(e) Tikeshwar Kumar s/o Late Rohan Mahto- Grand son.

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Sl. No.1(c) to 1(e) are resident of Village- Lari Kalan, P.O. Barki Lari, P.S.- Rajrappa, District- Ramgarh.

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(f) Fulo Devi w/o Radha Mahto and d/o late Babulal Mahto. R/o Village- Kusumdih, P.O. & P.S.- Gola, District- Ramgarh.

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(g) Sulo Devi w/o Ranjan Mahtha and d/o Late Babulal Mahto. R/o Village & P.O.- Kumhardaga, P.S.- Gola, District- Ramgarh.

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(h) Sulochna Devi w/o Tapeshwar Mahto and d/o Late Babulal Mahto. R/o Village- Patratu, P.O. & P.S.- Gola, DistrictRamgarh.

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Raju Mahto S/o Late Deoki Mahto

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Chhotelal Mahto S/o Late Deoki Mahto

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Kajo Devi D/o Late Deoki Mahto

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Sl. No.1 to 4 R/o Village- Lari Kalan, Naya Bandh, P.O.- Barki – Lari, P.S.- Ramgarh, Dist.- Ramgarh.

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Most. Dakhe Devi W/o Late Bishulal Mahto

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Sarita Kumari D/o Late Bishulal Mahto

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Lalita Kumari D/o Late Bishulal Mahto

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S.A. No.368 of 2017

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Dhirendra Mahto S/o Late Bishulal Mahto

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Jogesh Mahto S/o Late Bishulal Mahto

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Sunil Mahto S/o Late Bishulal Mahto

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Sl. No.5 to 10 R/o Village- Barki – Lari, P.O.- Lari, P.S.- Ramgarh (Now- Rajrappa), Dist.- Ramgarh.

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Jaleshwar Mahto S/o Late Newalal Mahto

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Baleshwar Mahto S/o Late Newalal Mahto

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Sl. No.11 & 12 R/o Village- Lari Kalan, Nayabandh, P.O.- Lari Kalan, P.S.- Ramgarh (Now – Rajrappa), Dist.- Ramgarh

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Shanti Devi W/o Babulal Mahto & D/o Late Newalal Mahto R/o Village- Ushra, P.O.- Soso, P.S.- Rajrappa, Dist.- Ramgarh.

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.... .... …. Plaintiffs/Appellants/ Appellants

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Versus

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Jagdeo Mahto S/o Late Lakhan Mahto

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Raghu Nath Mahto S/o Late Lakhan Mahto

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Lochan Mahto S/o Late Lakhan Mahto

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Pako Devi D/o Late Lakhan Mahto

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Sl. No. 1 to 3 R/o Village- Lari Kalan, Naya Bandh, P.O. Barki Lari, P.S.- Ramgarh (now- Rajrappa), Dist.- Ramgarh and Sl.No.4 resident of village- Kumhardaga, P.O.- Kumhardaga, P.S.- Gola, Dist.Ramgarh.

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.... .... …. Defendants/Respondents/Respondents

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: For the Appellants Mr. Rahul Kr. Gupta, Advocate

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P R E S E N T

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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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S.A. No.368 of 2017

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This Second Appeal, under Section 100 of the Code of Civil Procedure, has been preferred by the appellants against the judgment and decree dated 29.04.2017 passed by the learned Principal District Judge, Ramgarh in Title Appeal No.19 of 2014 whereby and where under by a concurrent finding of facts the learned Principal District Judge, Ramgarh has dismissed the said Appeal.

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The brief fact of the case is that the plaintiffs who are the appellants herein, filed Title Suit No.96 of 1998 for declaration of title over the Schedule- B and B/1 land of the plaint and further declaration that the sale-deed obtained by Banu Mahto and his sons with respect to the said lands, are forged, fabricated and not binding upon the plaintiffs and consequential reliefs.

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It is contended by the plaintiffs that Sabur Kurmi was the common ancestor of the parties to the Suit. Sabur Mahto has five sons namely Bhukhal Mahto, Jhukhar Mahto, Aklu Mahto, Banu Mahto and Ghanu Mahto. After death of Sabur Kurmi @ Sabur Mahto, his five sons retained the said property. Out of the said five sons, Bhukhal Mahto died issueless in the year 1945, his widow remarried and left all connection with the lands of Bhukhal Mahto. Jhukhar Mahto died leaving behind three sons being plaintiff Nos.1 and 2 and Bigu Mahto whose son namely Deoki Mahto is the plaintiff No.3. The daughters of Bigu Mahto were married. The third son of Sabur Mahto i.e. Aklu Mahto died in the year 1925 leaving behind his two sons namely Sewalal and Newalal, out of them Sewalal died issueless and Newalal died leaving behind his widow- Most. Subaso, who is the plaintiff No.7. Newalal has also three sons namely Bisulal, Jaleshwar and Baleshwar who are the plaintiff Nos.4, 5 and 6

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respectively. Daughter of Newalal is married. Banu Mahto died leaving behind his only son namely Lakhan Mahto in the year 1975. Lakhan Mahto was the original defendant. The plaintiffs further pleaded that Ghanu Mahto- the fifth son of Sabur Kurmi left village in April, 1943 and settled in a village in West Bengal, where he died issueless and his widow also died. It is the case of the plaintiffs that Bhukhal Mahto handed over his part of land orally to Jhukhar Mahto, and Jhukhar Mahto and Ghanu Mahto with the consent of other cosharers sold 40 decimals of lands to Rudra Mohan Devi on 18.04.1943 through registered sale-deed. Ghanu Mahto also handed over his rest part of land to Jhukhar Mahto. The father of the defendant Banu Mahto in absence of Ghanu Mahto got a sale deed executed in his favour for an area of 2.43 1/3 acres by arranging an imposter to pose as Banu Mahto and being false recitals in the sale-deed. The sale-deed was executed on 14.07.1947 though by that date, Ghanu Mahto was not alive. Banu Mahto has executed sale-deed No.2438 dated 14.07.1948 in respect of an area of 3.48 acres and also executed one saledeed being sale-deed No.2172 dated 15.04.1943/16.04.1943. The said saledeeds were challenged on the ground that on 15.04.1943, Sewalal and Newalal were not minor and Most. Lalo being widow of Aklu Mahto never executed any sale-deed.

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The defendant- Lakhan Mahto besides challenging the maintainability of the Suit on various technical grounds pleaded that the genealogy furnished by the plaintiffs is incomplete. After death of Bhukhal Mahto, his share has been devolved upon the other four sons of Sabur Mahto. The defendant denied that Sewalal Mahto died in the year 1950 rather he died in the year 1958 and

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Newalal Mahto died in the year 1960 and his daughter Shanti Devi has every right being one of the legal hairs of Sabur Mahto. This defendant denied that the Ghanu Mahto left village in April, 1943 but pleaded that he left village in the year 1946 and used to come in the village frequently till 1960. After that there is no trace of Ghanu Mahto. The defendant denied that Bhukhal Mahto orally gave the land to Jhukhar Mahto. The defendant pleaded that Aklu Mahto died in the year 1942 and not in 1925. The defendant denied the sale of land on 18.03.1943 by Jhukhar Mahto and Dhanu Mahto in favour of Rudra Mohan Devi, being forged and fabricated documents.

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On the basis of the rival pleadings of the parties, the learned trial court

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settled the following 12 issues:-

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I. Is the suit maintainable in its present form?

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II. Whether any cause of action for the suit, ever arose to the plaintiffs?

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III. Is the suit barred by estoppel, waiver and acquiescence?

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IV. Is the suit barred by Law of Limitation, adverse possession and ouster?

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V. Is the suit barred by provisions of Specific Relief Act?

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VI. Is the suit bad for non-joinder or mis-joinder of necessary parties?

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VII. Is the suit properly valued and court fee paid thereon is sufficient?

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VIII. Whether Ghanu S/o Sabur left the native village in April, 1943 entrusting all his share to his brother Jhukhar and he was alive on 14.07.43?

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IX. Whether Bhukhlal handed over his land to his brother Jhukhar or after his death his share devolved upon all the surviving heirs of Sabur Mahto?

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X. Whether Aklu died in 1925 or in 1942 and in the year 1943 his two sons Sewalal and Mewalal were minor and had the widow of Aklu any right to sell portion of lands of Khata No.89 in favour of defendant No.1?

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XI. Whether the plaintiff has title over the suit land?

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XII. To what other relief or reliefs, the plaintiffs are entitled for?

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In support of their case, the plaintiffs besides examining eight witnesses also proved the documents which have been marked as Ext.-1 to 3/C. On the other hand, from the side of the defendants besides examining seven witnesses, the defendants proved the documents which were marked Ext.-A to B/2.

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The trial court decided issue Nos.I, II, III, IV, V, VIII, IX, X, XI and XII against the plaintiffs. The trial court decided issue No.VII in favour of the plaintiffs and dismissed the Suit.

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Being aggrieved by the judgment and decree passed by the Sr. Civil Judge-II [the correct designation is Civil Judge (Senior Division)-II], Hazaribagh in Title Suit No.96 of 1998, the plaintiffs filed Title Appeal No.19 of 2014 which was ultimately heard and disposed of by the learned Principal District Judge, Ramgarh, by the impugned judgment and decree dated 29.04.2017; as already indicated above.

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The learned first appellate court made independent appreciation of the evidence in the record and considered the issues in the light of the submission

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made before it. The first appellate court first took up the issue No. IX and held that after his death, the entire share of the land of Bhukhal Mahto has devolved upon the other four surviving sons of Sabur Mahto. The learned first appellate court next took up the issue No.VIII and considered the burden lies upon the plaintiffs to prove his case that Ghanu Mahto left native village in April, 1943; which he failed to establish and accepted that the exhibit-3/C has been duly executed. Though because of the apparent printing error at some places in paragraph-10 instead of sale-deed being mentioned as Exhibit-3/C, the same has been referred to as 3. The learned first appellate court next took up the issue No.X and came to the conclusion that the plaintiff has not been able to prove that Aklu Mahto died in the year 1925 or falsified the registered saledeed executed in the year 1943, and similarly decided the other issues against the plaintiffs; as was done by the learned trial court and dismissed the appeal. 11. Learned counsel for the appellants submits that both the courts below have failed to consider the pleading of the plaintiffs that in the sale-deed executed by Ghanu Mahto, it has falsely been mentioned that Ghanu Mahto has one third share over the land of Khata No.89 marked as Ext.-3/C. Learned counsel for the appellants next submits that the learned first appellate court has erroneously observed in paragraph-10 of the impugned judgment that the plaintiff has not adduced strong evidence to disbelieve the fact that there was any impersonation in executing Ext.-3 though, in fact, Ext.-3 is admitted documents of the plaintiff; therefore, there was no occasion for the plaintiff to show that the same has been executed by any person. It is next submitted that both the courts below have failed to appreciate the evidence in the record in

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their right perspective and have committed perversity in appreciation of the evidence.

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Learned counsel for the appellants further relies upon the judgment of the Hon’ble Supreme Court of India in the case of P. Chandrasekharan & Others vs. S. Kanakarajan reported in (2007) 5 SCC 669 paragraph-17 of which reads as under:-

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“17. When thus the courts below misread and misinterpreted a document of title read with other documents and the plan for the identification of the suit lands whereupon the plaintiffs themselves relied upon, a substantial question of law arose for determination of the High Court in between the parties to the suit.”

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and submits that both the courts below have misread and misinterpreted the sale-deed Ext.-3/C, so, a substantial question of law arises for determination by this court. Hence, it is submitted that the judgment and decree passed by both the courts below, be set aside after framing appropriate substantial questions of law and the suit of the plaintiffs be decreed. 13. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, true it is that because of apparent printing error at some places in paragraph-10, the learned first appellate court has erroneously mentioned Ext.-3/C to be Ext.-3 but from the reading of the entire paragraph, it is crystal clear that the same is an apparent printing error and what the learned first appellate court intended to mean was Ext.-3/C but this Court is of the considered view that apparent printing error which is crystal clear on the face of the record itself, cannot be a ground for framing of substantial questions of law. The fact remains that the plaintiffs contended that Ghanu Mahto was not alive on 14.07.1943 when Ext.-3/C was

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executed but the plaintiffs failed to put forth any cogent evidence in this respect and when the registered document which was more than 30 years old by the time, it was presented before the learned trial court to be marked as an exhibit and has been marked exhibit also, and the same has been accepted by the learned trial court as true; in this background, by no stretch of imagination it can be termed as an act of perversity or gross illegality warranting interference of this Court in exercise of its jurisdiction under Section 100 of the Code of Civil Procedure.

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So far as the contention of the appellants that both the courts below failed to take into consideration the erroneous recital in the sale-deed regarding Ghanu Mahto having one third share over the lands of Khata No.89 is concerned, it is not the case of the plaintiffs that Ghanu Mahto sold the land in excess of the property held by him. There is absolutely no averment in this respect in the plaint. In the absence of the same when the sale-deed was primarily challenged on the ground that an imposter has executed the saledeed and not Ghanu Mahto; as Ghanu Mahto was dead by that time, which pleadings, the plaintiffs could not establish by any cogent evidence nor could the plaintiffs establish that the recital of the sale-deed is erroneous. So, keeping in view of the settled principle of law that the plaintiff has to stand on his own legs and not to get the benefit from the weakness of the defendant; this court do not find any illegality having been committed by both the learned courts below or committed any act of perversity or gross illegality in appreciation of the evidence in record warranting interference of this Court under Section 100 of the Code of Civil Procedure.

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It is a settled principle of law that concurrent finding of facts by the learned courts below can be interfered by the High Court in a second appeal if there is any perversity in the finding of facts.

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So far as the judgment relied upon by the learned counsel for the appellants in the case of P. Chandrasekharan & Others vs. S. Kanakarajan (supra) is concerned, true, it is a settled principle of law that misreading or misinterpreting a document by the courts below is a substantial question of law but in this case no misreading or misinterpretation of the sale-deed is involved. The sale-deed was challenged on its genuineness. The sale-deed was claimed to be a forged and fabricated one as the executant of the sale-deed died and the same was executed by imposter; which contention and pleadings, the plaintiffs failed to establish. So, the question of interpretation of the sale-deed never arose nor is involved in this case, therefore, this Court is of the considered view that the judgment in the case of P. Chandrasekharan & Others vs. S. Kanakarajan (supra) is not applicable in the facts of this case.

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In view of the discussions made above, this Court is of the considered view that there is absolutely no substantial question of law involved in this appeal as neither of the courts below have committed any perversity in appreciation of the evidence in the record or for that matter, have not committed any gross illegality.

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Accordingly, this appeal, being without any merit, is dismissed.

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(Anil Kumar Choudhary, J . )

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High Court of Jharkhand, Ranchi Dated the 09^th of July, 2024 AFR/ Saroj

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S.A. No.368 of 2017

Babulal Mahto And Ors. v. Jagdeo Mahto And Ors.

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Babulal Mahto And Ors. v. Jagdeo Mahto And Ors.

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