Suresh Yadav And Anr. Vs Bhagwan Yadav

2025:JHHC:19826

IN THE HIGH COURT OF JHARKHAND, RANCHI

Second Appeal No. 111 of 2004

[Against the Judgment and decree dated 12.02.2004 (decree signed on 27.02.2004), passed by learned District Judge, Jamtara in Title (Eviction) Appeal No.2 of 2002]

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1. Suresh Yadav,

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2. Soshan Yadav, both sons of Lakhan Yadav, residents of villageMihijam, Tola- Kurmipara, PO: Mihijam, PS: Jamtara (Mihijam), District- Jamtara. …. Appellants/Defendants

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Versus

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Bhagwan Yadav, son of Girdhari Yadav, resident of Village- Mihijam, Tola-Kurmipara, P.O: Mihijam, PS: Jamtara (Mihijam), DistrictJamtara.

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…. Respondent / Plaintiff.

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PRESENT

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HON’BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA

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For the Appellants : Mr. A.K. Sahani, Adv. For the Respondent : Mr. Kaushal Kishore Mishra, Adv.

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JUDGMENT

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C.A.V. on: 03/07/2025 Pronounced on 17 /07/2025

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Heard learned counsel for appellants Mr. A.K. Sahani as well as learned counsel for the respondent appearing for the State Mr. Kaushal

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Kishore Mishra.

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2. Instant second appeal has been preferred against judgment and decree dated 12.02.2004 (decree signed on 27.02.2004), passed by learned District Judge, Jamtara in Title (Eviction) Appeal No.2 of 2002 reversing the judgment and decree dated 09.10.2002 (decree signed on 18.11.2002), passed by learned Sub-Judge III, Jamtara in Eviction Suit No. 01 of 1994, 182 of 2002, whereby and whereunder, the suit filed by the plaintiff /

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respondent has been decreed by the first appellate court vide judgment and decree dated 12.02.2004 by setting aside the judgment of dismissal of suit passed by the trial court in title suit no. 01 of 1994/ 182 of 2002 dated 09.10.2002.

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3. This appeal admitted for hearing vide order dated 24.11.2004 on following substantial question of law:-

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(i) Whether the lower appellate court has misconstrued and misinterpreted the provisions of law in setting aside and reversing the findings of the trial court?”

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4 . Factual matrix giving rise to this appeal in a narrow campus is that the plaintiff (respondent herein) has instituted the suit against the defendants/appellants vide Eviction suit no.01 of 1994/182 of 2002 for following reliefs:-

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(i) Ejectment of defendants (appellants herein) from the suit premises and house, and delivery of possession to the plaintiff,

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(ii) Perpetual injunction restraining the defendants/appellants from using and occupying the suit premises;

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(iii) Costs of the suit and,

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(iv) Such other relief or reliefs the plaintiff is entitled to inequality and justice,

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5 . The case of the plaintiff is that he obtained “Basouri Settlement” of land over which the suit house was situated, constructed by the previous owner (Panchu Seikh). The plaintiff shortly after last survey settlement and constructed a hut thereon and established cattle shed (Khatal) there and started his business. Thereafter around 1978, the plaintiff constructed a partly pucca house and a pucca well over the vacant land

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by obtaining permission from the Member of Notified Area Committee and in this manner it was registered in the record of Notified Area Committee in the name of plaintiff. He was paying taxes regularly. It is further alleged that the defendants are the sons of plaintiff’s brother who previously used to live at their village Gogri and the plaintiff brought them to Mihijam on their request, some 10 years ago of filing of this suit and also engaged them in the business of dairy. The plaintiff also constructed another partly pucca house towards the eastern side of the suit house and started living there. Since the suit house was lying vacant, hence, upon request by his nephews/defendants, the plaintiff graciously allowed them and granted license to occupy the suit house for their temporary accommodation who in turn agreed to quit and vacate the premises whenever called upon by the plaintiff. It is further alleged that when the children of the plaintiff grown up, he asked the defendants to vacate the suit premises, but they refused on one pretext or another and ultimately on or about 15.10.1992, the plaintiff revoked the license granted in favour of the defendants and demanded possession of the land on 01.03.1993 and upon refusal to vacate the suit premises, this suit was instituted.

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6. The defendants/appellants had appeared and filed their written statement stating inter-alia by denying the right title interest and possession of the plaintiff and also challenging the settlement of Jamabandi land from one of the owner Panchu Sheikh contrary to the provision of Santhal Parganas Tenancy Act, 1949. The specific case of the defendants was that about 04 decimals of lands in plot no. 2779 of Mouza-Mihijam was obtained in the name of the plaintiff who was ‘Karta’ of the family from

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the owner of the aforesaid plot from the joint fund of the parties and a house was jointly constructed on the aforesaid portion and other plot also. It is further alleged that the plaintiff was the ‘Karta’, hence, the property was acquired in his name and taxes were also paid by him for the benefit of the joint family. It is further stated that pursuant to some dispute, a few years ago between the parties, the residential house, the cows, buffaloes and utensils, etc. were divided through panchayati so as to create good feelings and faith amongst the parties. The suit property along with the houses wherein the defendants are residing and the cattle fell in the share of defendants and the house situated in the area of about 02 decimals in plot no. 2782 and 3.5 decimals in plot no. 2780 at Mihijam beyond the suit properties fell in the share of the plaintiffs where he use to reside with his family members with some cattle. The parties were satisfied with respect to allotment of shares in both residential houses and cattle as per the settlement by Panchayati and the plaintiff relinquished his so called interest in the suit properties. The defendants were never inducted on the basis of leave and license as pleaded by the plaintiff. Both the parties simultaneously came to Mihijam and engaged themselves in the business of dairy as against the pleading of plaintiff which is beyond truth. The defendants are residing over the suit premises as a matter of their own rights on the basis of amicable partition. Now, the plaintiff is laying false claim in order to grab the whole property as such plaintiff has no cause of action and suit is also bad for non-joinder of the necessary party and fit to be dismissed. 7 . The learned trial court on the basis of pleadings of the parties has settled following issues for adjudication:-

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(i) Is the suit as framed maintainable?

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(ii) Has the plaintiff cause of action and right to sue?

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(iii)Is the suit bad for mis-joinder and non-joinder of the parties?

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(iv) Is there any relation of landlord and tenant between the plaintiff and defendants?

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(v) Is the plaintiff entitled for the decree of ejectment of the defendants from the suit premises?

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10 witnesses were examined by plaintiff including himself and defendants have also examined 10 witnesses including the defendants.

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8 . The plaintiff has relied upon following documentary evidences:Exhibits-1, 2 and 3- House Tax receipts , signature of Bhagwan Yadav upon map issued from Notified Area Committee, respectively.

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9 . Defendants have also filed following documentary evidences:-

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Exhibit-A- Application for initiating the proceedings under Section 107 of the Cr.P.C. filed by Bhagwan Yadav against Suresh Yadav and Others in Criminal Case No. 206 of 1992.

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Exhibit-B is the Vakalatnama filed on behalf of Bhagwan Yadav in that criminal case.

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Exhibit-C- is the certified copy of the Parcha which was recorded in the name of Sheikh Sabu.

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Exhibit-D is the certified copy of order sheet in criminal Case No. 206 of 1992.

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Exhibit-E- is the certified copy of order passed in P.C.R. Case No. 62 of 1993.

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10 . The learned trial court considering the legal aspects of the case has decided the issue no.1 at first and recorded finding that the suit is not maintainable and on that basis all other issues were also decided against the plaintiff without recording any findings. The learned trial court while dealing with the issue no.1 posed a question as to under what provisions the suit is instituted and the argument of plaintiff was that relief is sought under Indian Ejectment Act, which was adjudicated to be not applicable in the case of plaintiff, then he affirm the applicability of Section 9 of the Civil Procedure Code: wherein “ Every suit of civil nature may be instituted before the civil court unless it is barred by any law ” and also relied upon some judgments of the Hon’ble Apex Court. It was also argued that the possessory right is the condition for filing a suit for recovery of possession or possessory right is sufficient for filing a suit for possession.

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11 . As against the above argument, it is contended on behalf of the defendant that Section 20 of the Santhal Parganas Tenancy Act, 1949 specifically bars transfer of Raiyati Land which states that “ No transfer by a raiyat of his right in his holding or any portion thereof by sale, gift, mortgage, will, lease or any other contract or agreement express or implied shall be valid unless, the right to transfer has been recorded in the record of rights, then only to extent to which such right is so recorded”.

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12. Similarly, Section 69 of the Santhal Parganas Tenancy Act, 1949 provides:- No right shall accrue to any person in land held or acquired in contravention of the Provision of Section 20 of Santhal Parganas Tenancy Act, 1949. In view of above specific provisions, the plaintiff has

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never got any possessory right over the suit property because he has acquired the land in contravention of Section 20 of Santhal Parganas Tenancy Act, 1949. It was further submitted by the defendant that Section 72 of Santhal Parganas Tenancy Act, 1949 lays down “When the provisions of any other land are repugnant to or inconsistent with the Provisions of this Act, the Provisions of this Act shall prevail.” Therefore, after enactment of Santhal Parganas Tenancy Act, 1949, there is no right of adverse possession in view of complete bar, against acquisition of right over the land held or acquired in contravention of provision of Section 20 of Santhal Parganas Tenancy Act, 1949.

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13 . Learned trial court while appreciating the oral evidence of both the parties recorded the findings that the suit land was acquired by the plaintiff after enactment of Santhal Parganas Tenancy Act, 1949 in contravention of Section 20 of the Santhal Parganas Tenancy Act, 1949 and in view of provision of Section 69 of Santhal Parganas Tenancy Act, 1949, no right or title was acquired by him in the suit property. Therefore, suit is not maintainable under Section 9 of C.P.C. Accordingly, dismissed the suit.

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14. The plaintiff has preferred the appeal bearing Title Eviction Appeal No. 02 of 2002 mainly on the ground that the trial court misdirects itself in appreciating the law regarding ‘possessory right’ and ‘civil right’. The declaration of title of the parties is beyond the scope of possessory suit and the trial court has failed to appreciate the law that a person without any legal right can possess a property and inspite of his wrongful occupation, he is entitled to eject an outsider or a trespasser or a licensee who has no better right than him. As such, appellant never asked for

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declaration of his title to the suit property, but the learned trial court entered into the question of wrong probe into the title of the plaintiff and decided the suit only on the basis of preliminary issue without entering into the claim of respective parties. The defendants contested claim to be joint right holding with the appellant and subsequently, exclusive right over the suit property on the basis of amicable partition through Panchayat. At the same time, they have taken inconsistent plea of acquisition of the suit land illegally and against the provision of Santhal Parganas Tenency Act, 1949 during argument.

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15. The learned first Appellate Court going through the judgment passed by the learned trial court and the points of argument raised before him settled following points for determination:-

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(i) Whether the appellant has valid prior possession over the suit property and that whether the respondents have caused his dispossession in any manner?

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(ii) Whether the appellant has right to recover possession from the defendants and that whether the legality or illegality of possession can be considered in a possessory suit?

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16 . Learned appellate court while deciding the issue no.1 observed that trial court has dismissed the suit only on the ground of maintainability accepting the plea that Section 69 of the Santhal Parganas Tenancy Act bars accrual of right to any person in the land held or acquired in contravention of the provision of Section 20 of the Santhal Parganas Tenancy Act. In the instant case the plaintiff has specifically pleaded and proved that he obtained the suit land along with some constructed area prior to the enactment of S.P.T. Act, 1949 and later on constructed a hut

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and thereafter half pucca house and cattle shed and in possession continuously since long.

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17. The acquisition and possession of the land by the plaintiff has not been disputed by the defendant and the learned appellate court placed reliance upon reported judgment of this High Court (Hon’ble Jharkhand High Court) in Dhena Hansda versus State of Jharkhand & Ors. reported in 2003 (3), J.C.R., 230 wherein it was held that “ It is not in dispute that once the nature of land has changed from agriculture to Basauri land, thereby, it become transferrable and such transfer do not fall within the mischief of Section 20 of the Santhal Parganas Tenancy Act, 1949.”

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18. The learned trial court on the basis of oral evidence of the plaintiff ‘P.W.8’ arrived at conclusion that he arrived at Mihijam for the first time in the year 1943 and at that time also by virtue of Section 27 of Santhal Pargana Regulation (iii) of 1872, before the enactment of S.P.T. Act 1949. No one can acquire any right over raiyati, non-transferrable land unless he has completed 12 years of possession before 1st November, 1949 i.e. when Santhal Parganas Tenancy, Act, 1949 came into force” with the absolute bar under Section 69. In this manner by that time also the possession of the appellant was for only 06 years prior to the enactment of Santhal Parganas Tenancy Act, 1949, he cannot perfect his title of suit land and therefore, after enactment of Santhal Parganas Tenancy Act, 1949, he was precluded from acquiring title over the suit land under Section 69 of the Santhal Parganas Tenancy Act, 1949.

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19. It was further held that present suit has been instituted by the plaintiff is in the nature of possessory suit. The defendants have also admitted the possession of the plaintiff by the construction of the house and cattle

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shed, but claimed all the suit land was acquired through joint fund and the plaintiff was ‘Karta’ of the family therefore, it was joint family property and later on partition was effected and they have got exclusive right over the portion allotted to them. Therefore, none of the parties have claimed title over the suit properties except their possession. Therefore, suit is maintainable under Section 9 of the Code of Civil Procedure, 1908.

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20. Points for determination No.(ii) decided by learned appellate court on the basis of oral and documentary evidences adduced by the parties in respect of their pleadings recorded findings that it is undisputed and proved that the plaintiff acquired the suit property and was in possession and also constructed house and cattle shed and started dairy business. The defendants were inducted on the basis of leave and license after considerable period on their request and accommodated for starting dairy business for their livelihood.

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21. The plea of defendants about acquisition of property by plainttiff through joint fund and he was ‘Karta’ of the family and the partition of the suit property and exclusive possession have not been proved through any reliable oral or documentary evidence. Therefore, respondents are held to be in permissive possession of the suit property as granted by the plaintiff. The nature of the suit land has been changed and become Basauri land thereby it become transferrable and does not fall within the ambit of Section 20 of Santhal Parganas Tenancy Act, 1949. The appellate court relied upon the decision of Hon’ble Patna High Court reported in Akal Ahir & Ors versus Baijnath Das & Ors AIR 1924 Pat. 709 wherein it was held that if a person was in possession of the land

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even without title thereto, he cannot successfully turnout by any other person who also had no title or any better right than the plaintiff and if such thing happens, the person first in possession will be entitled to put in possession even if he fail to prove his title to the suit land. On the basis of discussion at length of the respective cases of the parties, the appellate court arrived at conclusion that the plaintiff/appellant acquired prior possession over the suit property and inducted the defendants granting permissible possession for some period who are liable to be evicted from the suit land. Accordingly, decreed the suit on contest without cost.

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22. The learned counsel for the appellant pressing the substantial question of law framed in this appeal regarding mis-construction and mis-interpretation of provisions involved in the suit by the first appellate court while reversing the findings of the trial court has mainly argued that since the plaintiff/respondent has not acquired any right title interest due to specific legal bar created by Santhal Parganas Tenancy Act, 1949 in respect of Raiyati land, therefore, the suit of the plaintiff was not maintainable at all and there was no illegality in the judgment of trial court in dismissing the suit of the plaintiff/respondent. The learned appellate court itself has arrived at conclusion that the plaintiff has not perfected the title over the suit land as per prevailing law at the time of acquiring the suit property. It has wrongly held that the plaintiff has acquired possession prior in time to the defendants/appellants and fail to properly appreciate the case of the defendant that the property was acquired by joint fund in the name of the plaintiff as ‘Karta’ of the family, therefore, he had no right to get the ejectment of the appellants

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from the said suit land. Hence, the judgment and decree passed by the first appellate court is absolutely beyond the legal provisions of law and the facts pleaded and proved by the parties, which is fit to be set aside and this appeal may be allowed.

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23. Per contra, learned counsel for the respondent has vehemently argued that the suit of the plaintiff/respondent was dismissed by learned trial court only on account of issue of maintainability without going into deciding the contested legal and factual aspects involved in the case. Whole suit was dismissed merely on the ground of maintainability that it was found that the plaintiff has no title over the suit property as per the provisions of Santhal Parganas Tenancy Act, 1949, therefore, he cannot claim ejectment of the defendants. The plaintiff preferred an appeal against the dismissal of his suit, the learned appellate court apprised and evaluated all the materials, oral as well as documentary evidences adduced by the parties weighed the evidences properly and rightly held on the basis of relevant judicial pronouncements and the legal provisions that the plaintiff acquired Basauri land for which there is no restriction on transfer in the Santhal Parganas Tenancy Act. It was also held that the plaintiff has acquired the suit land prior to the enactment of Santhal Parganas Tenancy Act, 1949. Therefore, applicability of its provision does not arise. The appellate court also found the suit was maintainable under Section 9 of the Code of Civil Procedure. The plaintiff had exclusive possessory right over the suit property. He inducted the defendants over the some portion of the suit property on leave and license for temporary period. It was also held that the defendants have failed to prove their own pleadings and adduced no documentary

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evidence either in respect of purchase of the suit property through joint fund of the family, joint possession as well as partition of the suit property as alleged through Panchayat. Therefore, the impugned judgment and decree passed by the first appellate court suffers from no illegality or infirmity calling for any interference in this second appeal. The substantial question of law formulated at behest of the defendants is absolutely does not arise and serve any purpose of the defendants. Therefore, this appeal is fit to be dismissed.

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24. I have gone through the impugned judgment passed by learned trial court as well as first appellate court. It appears that the learned trial court has dismissed the suit of the plaintiff only on technical ground without going into merits of the case. The first appellate court has considered all the aspects of the case as pleaded by the parties and instead of remanding back the case to the learned trial court for a fresh decision on merits delve into deciding all the questions involved in the suit on merits by giving full-fledged opportunity to the parties.

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The main point raised by the learned counsel for the appellant regarding maintainability of the suit under Section 9 of the C.P.C. can be decided by extracting the provision of Section 9 which runs as under:-

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Section 9:- Courts to try all Civil Suits unless barred.

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“ The courts shall (subject to the provisions herein

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contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred”

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Explanation (I) – A suit in which the right of property

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or to an office is contested is a suit of a civil nature,

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notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.

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Explanation (II) – For the purpose of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place."

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25. There is no dispute that plaintiff at first came to Mihijam from his native village Gogri in or about in the year 1943 and acquired the suit land through recorded Raiyat, Panchu Sheikh. At that time Santhal Pargana Regulation (iii) of 1872 was prevailing, later on Santhal Parganas Tenancy Act, 1949 was enacted.

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26. The learned first appellate court has placed reliance upon reported judgment of Hon’ble Patna High Court in Bhauri Lal Jain & Anr. versus Sub-Divisional Officer of Jamtara & Ors. reported in AIR 1973 Pat. 1 (F.B.) wherein it was held that no one can acquire any right over Rayati non-transferrable land in Santhal Parganas unless he complete 12 years before 1^st November, 1949 when Santhal Parganas Tenancy Act 1949 came into force with the absolute bar under Section 69. Therefore, the plaintiff although not acquired valid title to the suit property as per enactment of Santhal Parganas Tenancy Act, 1949 due to shortage of his period of possession over the suit property, but he got possession over the suit land and was never evicted by the rightful owner.

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I further find that after acquisition of the suit property, the plaintiff has constructed initially a hut and cattle shed, thereafter pucca constructions over some area and converted the Rayati land into Basauri

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land by further constructions also. He also paid taxes and tax receipt paid by his name in the Notified Area Committee. Since the nature of the land has been changed, hence, Section 20 of Santhal Parganas Tenancy Act, 1949 is not applicable to the suit property. The plaintiff has got a civil right to protect his possession as against the person having no better right than the plaintiff wants to possess forcibly as against the terms of leave and license. At this juncture, it is also to be observed that the appellants/defendants are own nephew of the plaintiff who were just 8-10 years prior to institution of suit were permitted to reside and carry on dairy business and have not only simply denied the claim of plaintiff but also pleaded that suit property was purchased through joint fund of the joint family and the plaintiff was ‘Karta’ as such Notified Area Committee receipts has been issued in the name of the plaintiff alone. Thereafter, they have pleaded their exclusive right on the basis of partition through Panchayat. No doubt above special pleas has been taken by the defendants hence, the burden of proof lies on their shoulder, but it is utter surprising that defendants have not adduced any cogent or reliable evidence to substantiate the aforesaid plea taken by them.

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27 . From the impugned judgment passed by first Appellate Court, it is also obvious that it has considered the oral evidence adduced by the parties at length and found the claim of the plaintiff on better standing and there is no leg to stand the defendant’s plea. Therefore, the substantial question of law formulated in this case does not affect the impugned judgment and decree which appears to be well considered on the grounds of law as well as facts calling for no interference.

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28 . In view of above discussion and reasons, I don’t find any merit in this second appeal and no substance in the substantial questions of law raised by the appellant/defendant, therefore this appeal is dismissed . Both the parties shall bear their own cost.

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29. Pending I.As, if any stand disposed of.

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30. Let the copy of this judgment along with record of trial court be sent back to concerned trial court for information and needful.

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(Pradeep Kumar Srivastava, J.)

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Jharkhand High Court, at Ranchi Date: 17 /07/2025 Amar/- A.F.R.

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Second Appeal No. 111 of 2004

Suresh Yadav And Anr. v. Bhagwan Yadav

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Suresh Yadav And Anr. v. Bhagwan Yadav

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