Dhanu Mahato Alias Mahto And Ors. Vs The State Of Jharkhand Through The Chief Secretary And Ors.

------ For the Appellants : Mr. Amar Kumar Sinha, Advocate : Mr. Kundan Kr. Ambastha, Advocate : Mr. Sandeep Verma, Advocate : Mr. Sumit Kumar, Advocate : Mr. Anurag Chandra, Advocate For the Respondents : Mr. Jayant Franklin Toppo, GA V : Ms. Moushmi Chatterjee, AC to GA V

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PRESENT

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HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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By the Court:- Heard the learned counsel for the appellants.

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This second appeal has been preferred under Section 100 of

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Code of Civil Procedure against the judgment and decree of concurrence dated 13.06.2016 passed by the Principal District

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Judge, Dhanbad in Title Appeal No.57 of 2006 by which the

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learned Principal District Judge, Dhanbad has dismissed the appeal on contest with costs.

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The brief fact of the case is that the appellants-plaintiffs filed Title Suit No. 45A/1986 in the court of Sub-Judge-II, Dhanbad with a prayer for deceleration of occupancy right, title, interest and confirmation of possession of plaintiffs over schedule-A land along with permanent injunction.

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The case of the plaintiffs in brief is that the suit land was settled in favour of the predecessor-in-interest namely Sahadeo Mahato who is the proforma defendant no.6 by Nawagarh Raj Estate on 03.11.1942 on receipt of Rs.45/- as salami for annual rent of Rs.1 and 8 annas . After settlement the proforma defendant no. 6 came into possession and got his name mutated in the revenue records and converted the land from Puratan Patit to Gore-III and also built his house over portion of the said land. After vesting of zamindari , Sahdeo Mahato started paying rent to the State of Bihar with regard to the said land. Vide registered sale deed dated 22.12.1978 Sahdeo Mahato sold the suit land to the plaintiffs who came in possession of suit land and become lawful owners thereof. The plaintiffs have also taken plea that they have perfected their title by way of adverse possession over the suit land. The plaintiffs further pleaded that the defendant no.5- Sanwar Lal Sharma manufactured a forged hukumnama and objected to the entry of the name of the plaintiffs in the record of rights and his objection was overruled. The defendant no. 5 filed an appeal before the Land Reforms Deputy Collector, Chas the same was dismissed.

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Subsequently, the defendant no.5 filed revision vide M.E.A. Case No. 19/1983 before the Additional Collector, Dhanbad who allowed the mutation of 32 decimals of land and ordered that rest 28 decimals of land be mutated in favour of the plaintiffs. Being aggrieved by the said order, the plaintiffs have filed the present suit.

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The defendant nos.1 to 4 are the officers of the State Government. The defendant no.5 in his written statement challenged the maintainability of the suit on various technical grounds and further pleaded that the hukumnama claimed to have been executed in favour of Sahadeo Mahato is a forged one and the sale deed executed by proforma defendant no.6 in favour of the plaintiffs is a collusive one. It is further pleaded that the proforma defendant no.6 is the father of the plaintiffs. The defendant no.6 next pleaded that no settlement has been made by Nawagarh Raj Estate by hukumnama in favour of the proforma defendant no.6.

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The defendant nos. 1 to 4 in their written statement pleaded that the hukumnama executed in favour of the defendant no.5 and proforma defendant no. 6 both are false and fabricated. The defendant nos. 1 to 4 denied zamabandi having been opened in favour of the plaintiffs.

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The defendant no.7-Satyendra Narain Sinha was impleaded subsequent to filing of the suit as he was not a party to the suit, when the suit was filed. The defendant no. 7 pleaded that the hukumnamas were false and fabricated. The State government by way of land acquisition, acquired 54 decimals of land for

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construction of Regional Hospital and road for which the defendant no.7 was properly compensated in the concerned land acquisition case. The defendant no.7 further pleaded that hukumnama on which both the parties are relying has not been executed by any authorized person and rent receipt has also not been executed by the authorized persons.

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

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trial court settled the following thirteen issues: -

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(I) Is the suit maintainable in its present form? (II) Is there any cause of action for the suit? (III) Is the suit barred by limitation?

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(IV) Is the suit barred by principle of estoppel, waiver and acquiescence?

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(V) Is the suit barred by the provision of Bihar Land Reforms Act and Rules framed thereunder?

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(VI) Is the suit barred under the provision of C.N.T. Act? (VII) Is the suit grossly undervalued as the present value of the suit land is more than Rs.5,00,000/-?

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(VIII) Have the plaintiffs any right, title, interest over suit land by virtue of Hukumnama dated 03.11.1942 and through the sale deed dated 22.12.1978?

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(IX) Is the suit land vested to the State of Bihar after coming into force of the Bihar Land Reforms Act, 1950?

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(X) Has the defendant no. 5 got right, title, interest over 0.32 acres of land towards southern portion of suit land through Hukumnama dated 21.09.1948?

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(XI) As to whether the plaintiff as well as the defendant no.5 have perfected their indefeasible title over the suit land by possessing the same for more than the statutory period of twelve years?

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(XII) Is the plaintiffs entitled for a decree of permanent injunction against the defendants as prayed for?

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(XIII) As to what relief or reliefs the plaintiffs are entitled to?

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In support of their case, the plaintiffs examined altogether thirteen witnesses and proved documents which have been marked Ext. 1 to Ext. 8. On the other hand, from the side of the defendant no.5, seven witnesses were examined as D.W.1 to

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D.W.7. From the side of defendant nos. 1 to 4 three witnesses were examined as D.W.8, D.W.9 and D.W.11 and from the side of the defendant no.7 one witness was examined as D.W.10. The defendants also proved the documents which have been marked Ext. A to Ext. O.

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The learned trial court first took up issue nos. VIII, IX and X together and considering the evidence in the record came to the conclusion that no land has been settled through hukumnama dated 03.11.1942 in favour of proforma defendant no.6 and no land has been settled through hukumnama dated 21.09.1948 to the defendant no. 5 by the ex-landlord of Nawagarh Raj Estate as the hukumnama does not bear the signature of the ex-landlord and the same having been issued by unauthorized persons, who have got no right to settle the lands through hukumnama , on behalf of the ex-landlord and no right, title and interest has passed to the proforma defendant no.6 or defendant no.5 through the hukumnama thus, proforma defendant no. 6 has got no right to execute the sale deed marked Ext. 3 in favour of the plaintiffs and thus no right, title and interest has accrued to the plaintiffs through the sale deed marked Ext. 3. Thus, neither the plaintiffs nor the defendant no.5 has got any right, title and interest over the suit land. The learned trial court further held that the suit land has not been vested to the State of Bihar after coming into force of the Bihar Land Reforms Act, 1950 in view of the compensation paid in terms of Compensation Case No. 5 of 1955-56 by which the suit plot has been acquired and ground rent has been fixed in favour of the ex-landlord and

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decided the issues against the plaintiffs, defendant no.5 and defendant nos. 1 to 4. The learned trial court next took up issue no. XI and considering the evidence in the record came to the conclusion that neither the plaintiffs nor the defendant no. 5 has perfected title by way of adverse possession over the suit land and the plaintiffs’ possession over the suit land is like a trespasser. The suit land in fact, belongs to the defendant no.7 which has been acquired by the State Government and answered the issue no. XI against the plaintiffs and defendant no.5. The learned trial court then took up issue no. XII and considering the materials in the record came to the conclusion that the plaintiffs are not entitled to any order of permanent injunction against the defendants and answered the said issue against the plaintiffs. The learned trial court further took up issue no. VII and considering the materials in the record held that there are insufficient and inadequate evidence on the point of valuation of suit property, at the time of filing of the suit and the defendants have failed to prove the fact that the suit land was valued at more than Rs.5,00,000/- at the time of filing the suit. Hence, decided the issue no. VII in favour of the plaintiffs. The learned trial court next took up the issue no. VI and came to the conclusion that the suit is not barred by the provision of Chotanagpur Tenancy Act and decided the said issue in favour of the plaintiffs. The learned trial court further took up the issue no. V and came to the conclusion that the suit is not barred by the Bihar Land Reforms Act and the Rules made thereunder and decided the

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said issue in favour of the plaintiffs. In respect of issue no. IV next

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taken up by the learned trial court, it was found and held that the suit is not barred by the principles of waiver, estoppel and acquiescence and the trial court decided the issue no. IV in favour of the plaintiffs. The learned trial court next took up issue no. III and considering the materials in the record came to the conclusion that the suit is not barred by limitation and decided the issue no. III in favour of the plaintiffs. The learned trial court next took up the issue nos. I and II together and held that the suit is maintainable in its present form and there is valid cause of action for the suit. Lastly, the learned trial court took up the issue no. XIII and held that the plaintiffs are not entitled to the relief prayed for and dismissed the suit on contest.

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Being aggrieved by the judgment and decree passed by the learned trial court, the plaintiffs filed Title Appeal No.57 of 2006 in the court of Principal District Judge, Dhanbad which was ultimately heard and disposed of by the learned first appellate court.

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The learned first appellate court made independent appreciation of the evidence in the record and took up the issue nos. XIII, XI, X and IX together and considered that the evidence in the record goes to show that at the time when the defendant no. 5 is claiming that the land was settled in his name, he was minor, aged about 8-9 years. The defendant no.5 could not show as to how he has acquired funds to procure the land. How the land in question was settled in his name; though it was incumbent upon the plaintiffs and the defendant no.5 to prove as to who executed

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hukumnama and whether the said executant was authorized person or not but the plaintiffs and the defendant no.5 failed to adduce any evidence on this point and went on to hold that the hukumnama through which the plaintiffs and the defendant no.5 are claiming their respective ownership and possession over the suit land is false and fabricated. The learned first appellate court also considered that the land in question was acquired by the state government and was transferred to B.C.C.L. where regional hospital is situated now and the plaintiffs have claimed that 60 decimals of land was settled to him but he is in possession of 28 decimal of land. The learned first appellate court also considered the settled principle of law that plea of title and adverse possession are mutually inconsistent and adverse possession does not begin to operate until the title is renounced by the party claiming adverse possession. The learned first appellate court also considered that there is no evidence put forth by the parties as to when Sanwarlal Sharma or Shahdeo Mahato have encroached upon the suit land and when they came to know that as to who was the real owner of the land nor they have pleaded or proved as to when their possession became adverse and in view of the lack of pleading or proof of the essential ingredients, the learned first appellate court came to the conclusion that the plaintiffs and the defendant no.5 have not acquired right, title and interest over the suit land, as the sale deed dated 22.12.1976 do not confer any right or title over the suit land to the plaintiffs, as the vendor of the plaintiffs was not having any right, title or interest over the same nor there is any

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perfection of title by adverse possession by any of the parties to the suit and decided the said issues against the plaintiffs and defendant no.5. The learned first appellate court next took up issue nos. III, IV, VI and VII and disposed of the same as not pressed. The learned first appellate court then took up the issue nos. I and II together and came to the conclusion that the plaintiffs have not been able to prove that they have validly acquired the suit land or perfected their title by adverse possession hence as such the plaintiffs has no cause of action for the suit and the suit is not maintainable. Lastly, the learned first appellate court took up the issues nos. XII and XIII and held that the plaintiffs are not entitled to any relief and dismissed the appeal.

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It is submitted by the learned counsel for the appellants that the courts below have committed a serious error of law and decided the issue no. IX against the plaintiffs, as even though the courts below came to the finding about the possession of the plaintiffs, in view of such the finding of possession of the plaintiff; the learned courts below committed perversity, by not declaring the right, title and interest of the plaintiffs over the same. It is then submitted by the learned counsel for the appellants that both the courts below have committed a gross error by not holding that the plaintiffs have perfected their title by way of adverse possession. It is then submitted by the learned counsel for the appellants that the learned trial court has failed to appreciate the hukumnama in their right perspective. Hence, it is submitted that the judgment and decree passed by both the courts below be set aside and the suit of

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the plaintiffs be decreed after formulating appropriate substantial question of law.

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Having heard the submissions made at the Bar and after carefully going through the materials in the record, it is pertinent to mention here that the plaintiffs filed the suit for declaration of right, title and interest and confirmation of possession. It is a settled principle of law that entry in the revenue record does not create or extinguishes title as has been reiterated by the Hon’ble Supreme Court of India in the case of Suraj Bhan v. Financial Commr., (2007) 6 SCC 186 , the relevant portion of which reads as under:

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“ 9. Xxxxxxxxxxxxxxx It is well settled that an entry in revenue records does not confer title on a person whose name appears in record-of rights. It is settled law that entries in the revenue records or jamabandi have only “fiscal purpose” i.e. payment of land revenue, and no ownership is conferred on the basis of such entries. So far as title to the property is concerned, it can only be decided by a competent civil court (vide Jattu Ram v. Hakam Singh).xxxxxxxxxX” (emphasis supplied)

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Now in order to establish title mere possession would not suffice. Though the plaintiffs claim title on the basis of hukumnama , the same for the cogent reasons as assigned by both the courts below was found to be forged and fabricated. It is needless to mention that forged and fabricated document cannot confer title on the party, who claims title on the basis of the same. So since the plaintiffs are claiming title on the basis of hukumnama executed in favour of their father- proforma defendant no.6, but as already held by both the courts below that purported hukumnama on the basis of which the plaintiffs are claiming title over the suit land is a

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forged one, this Court do not find any perversity in the finding of fact arrived at by both the courts below to the effect that the plaintiffs have failed to establish title over the suit land.

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So far as the contention of the appellants regarding error committed by the courts below in not declaring title of the plaintiffs by way of adverse possession is concerned, it is a settled principle of law that adverse possession requires all three classic requirements to co-exist at the same time, namely, adequate in continuity, adequate in publicity and adverse to a competitor, in denial of title and his knowledge moreover Animus possidendi under hostile colour of title is also required; as has been observed by the Hon’ble Supreme Court of India in the case of Ravinder

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Kaur Grewal & Others vs. Manjit Kaur & Others reported in (2019) 8 SCC 729 paragraph-60 of which reads as under:-

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“60. The adverse possession requires all the three classic requirements to co-exist at the same time, namely, nec vi i.e. adequate in continuity, nec clam i.e. adequate in publicity and nec precario i.e. adverse to a competitor, in denial of title and his knowledge. Visible, notorious and peaceful so that if the owner does not take care to know notorious facts, S.A.No.16 of 1998 (R) 9 knowledge is attributed to him on the basis that but for due diligence he would have known it. Adverse possession cannot be decreed on a title which is not pleaded. Animus possidendi under hostile colour of title is required. Trespasser's long possession is not synonymous with adverse possession. Trespasser's possession is construed to be on behalf of the owner, the casual user does not constitute adverse possession. The owner can take possession from a trespasser at any point in time. Possessor looks after the property, protects it and in case of agricultural property by and large the concept is that actual tiller should own the land who works by dint of his hard labour and makes the land cultivable. The legislature in various States confers rights based on possession.” (Emphasis supplied)

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It is also a settled principle of law that a person who claims

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adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession continued, and (e) his possession was open and undisturbed; as has been held by the Hon’ble Supreme Court of India in the case of Karnataka Board of Wakf v. Government. of India & Others (2004) 10 SCC 779 , paragraph no.11 of which

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reads as under:-

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“11. Xxxxx Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession.”

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Now coming to the facts of the case the plaintiffs could not

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plead or prove any date when their possession of the suit land become adverse to the real owner nor any description of the real owner has been mentioned. As rightly been observed by the learned first appellate court, the claim of title and adverse possession cannot be made simultaneously, because adverse possession will start only when the party gave up their title. Under such circumstances, this Court is of the considered view that both

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the courts below have not committed any illegality in deciding that

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the plaintiffs have failed to establish that they have perfected their

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title by way of adverse possession over the suit land.

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After carefully going through the evidence in the record, this Court finds that the concurrent finding of facts has been arrived at by both the courts below without taking into consideration any inadmissible evidence or ignoring any admissible evidence nor the findings can be termed as outrageously defying any logic so as to incur the blame of being perverse.

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