Rajendra Prasad Jaiswal And Ors. Vs Samir Kundu And Ors.

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2025: JHHC: 10192

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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S.A. No. 159 of 2017

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Rajendra Prasad Jaiswal, son of Late Ram Neyadi Bhagat

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Hira Lal Jaiswal, son of Late Ram Niyadi Bhagat

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Anup Kumar Jaiswal, son of Sri Hira Lal Jaiswal All above resident of village- Bundu, P.O. & P.S.- Bundu, District Ranchi … … Plaintiffs/Appellants/Appellants

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-Versus-

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Samir Kundu, son of Sri Madan Mohan Kundu

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Hemant Prajapati, son of Late Dukhan Prajapati

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Santosh Jaiswal, son of Late Bhuneshwar Prasad Jaiswal

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Ashok Jaiswal, son of Late Bhuneshwar Prasad Jaiswal All residents of Village- Bundu, P.O. & P.S.- Bundu, District- Ranchi

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… … Defendants/Respondents/Respondents

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CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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--For the Appellants : Mr. Rahul Kumar Gupta, Advocate For the Respondents : Mr. Dilip Kr. Chakraverty, Advocate ---

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17/22^nd January 2025

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1. Heard the learned counsel appearing on behalf of the parties.

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2. This second appeal has been filed challenging the judgment and decree dated 20.01.2017 (decree sealed and signed on 25.01.2017) passed by the learned AJC XIII-cum-PO Commercial Court, Ranchi in Title Appeal No. 124 of 2009, whereby the learned appellate court has dismissed the appeal and has affirmed the judgment and decree dated 28.07.2009 (decree sealed and signed on 10.08.2009) passed by the learned Sub-Judge-I, Khunti in Title Suit No. 21 of 2005.

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3. This appeal has been admitted vide order dated 08.12.2022 on the following substantial question of law: -

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“I) Whether the learned Courts below were right in dismissing the suit on the ground of limitation?

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II) Whether the learned lower Trial Court could have dismissed the suit on the ground that the co-sharers were not impleaded and therefore, the suit was not maintainable due to non-joinder of necessary parties?

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Arguments of the appellants

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4. While referring to the first substantial question of law, the learned counsel for the appellants has submitted that though there are concurrent findings recorded by both the courts, but the point of limitation has been wrongly considered. He has referred to Issue Nos. III and IV as decided by the learned appellate court and has submitted that the learned appellate court has found that the suit was filed in the year 2005 and the record of rights was finally published in the years 1930 and the suit was filed after 75 years of publication of RS record of rights and consequently the suit was barred by limitation. The learned counsel submits that the entry in record of rights was not subject matter of challenge. He has also submitted that the cause of action for filing the suit was not the entry in record of rights.

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5. He has relied upon the judgment passed by the Hon’ble Supreme Court reported in (2010) 2 SCC 194 (Daya Singh & Anr. vs. Gurdev Singh (dead) By Lrs. & Others and has referred to Paragraph- 14 and 15 to submit that it has been held that mere existence of an adverse entry in the revenue records cannot give rise to cause of action. The learned counsel submits that the limitation is governed by Article 58 of the Limitation Act and the cause of action accrues only when the right of the plaintiffs is threatened. The learned counsel submits that the cause of action was disclosed in the plaint i.e. when the defendants started questioning the right of the plaintiffs, but the materials placed on record has not been discussed while dealing the issue of limitation.

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6. So far as the other substantial question of law is concerned, the learned counsel has submitted that since the main relief was sought for against the Defendant Nos.1 and 2 who were rank outsiders and therefore non-joinder of the other descendants of the common ancestor of plaintiffs and Defendant Nos. 3 and 4 was not fatal to the litigation.

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Arguments of the respondents

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2025: JHHC: 10192

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7. The learned counsel appearing on behalf of the respondents has opposed the prayer and has submitted that the plaintiffs were claiming exclusive right with respect to the property and the claim was in exclusion of co-sharers or the other descendants of the recorded tenant and therefore non-joinder of party was fatal to the litigation and the learned courts have rightly decided this issue against the appellants.

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8. The learned counsel has referred to the judgment passed by the Hon’ble Supreme Court reported in (2017) 3 SCC 702 (Executive Officer, Arulmigu Chokkanatha Swamy Koil Trust, Virudhunagar vs. Chandran & Others) Paragraph-29, and has submitted that in the said case the issue of non-joinder of parties was framed and it was answered against the plaintiff, but without adverting of the said finding of the trial court and the appellate court, the High Court had decreed the suit in favour of the plaintiff. He submits that so far the rights of other co-shares are involved, it is an admitted position from the record that the other descendants of the recorded tenant were not made party.

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Findings of this Court

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9. After hearing the learned counsel for the parties, this Court finds that so far as Point of limitation under 1^st substantial question of law is concerned, the point of limitation has been answered by the learned appellate court vide Paragraph 32 which is quoted as under: -

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“32. Issue No. III and IV: - The plaintiff have file this suit for exclusively declaration of their right, title, interest over the suit property which is not recorded in R.S. record of right exclusively in the name of plaintiff or their ancestors, rather, it is recorded in the name of plaintiff ancestors and defendant ancestors as well as some other persons to whom the plaintiffs not made party and this suit is filed in the year 2005 whereas the R.S. record of right of the suit property finally published in the year 1930. Thus, this suit is filed after 75 year final publication of R.S record of right of the suit property. Therefore, I find that this suit is barred by law of limitation. It is well settled that the plaintiffs cannot succeed on weakness of defendants.

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33. Therefore, I also find and hold that this suit is barred by law of limitation and section 34 of Specific Relief Act, accordingly these

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2025: JHHC: 10192

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two issues are also decided in favour of defendants and against the plaintiff”

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10. This Court finds that the learned appellate court has referred to the entry made in the RS record of rights published in the year 1930 and held that the suit was barred by limitation without considering the cause of action as mentioned in the plaint and the evidences placed on record with regard to the cause of action while deciding the point of limitation and simply recorded that the suit was filed after 75 years of publication of RS record of rights.

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11. In view of the judgment passed by the Hon’ble Supreme Court reported in (2010) 2 SCC 194 (supra) , this Court is of the considered view that mere existence of an adverse entry in the revenue records cannot give rise to cause of action and right to sue accrues when there is a clear and unequivocal threat to infringe a right. This court is of the considered view that unless there is a cause of action right to sue does not accrue and the limitation period does not commence from date of entry in the record of rights as mere existence of an adverse entry in the revenue records does not give rise to a cause of action. Moreover, in the instant case, entry in the record of rights was not under challenge. This Court is also of the view that the cause of action is to be seen in the light of the Article 58 of the Limitation Act and the findings recorded by the learned 1^st appellate that the suit was barred by limitation of 75 years by referring to the entry made in the RS record of rights way back in the year 1930 cannot be sustained in the eyes of law. The cause of action as disclosed was that when the defendant in the name of “Sanchalan Samittee” of the Mandir falsely posing defendant no. 1 as president, illegally filed an application before the Circle Officer, Bundu for the measurement of the land vide Case No. 11/2005-06 in which objection was filed by the plaintiff and it has been alleged that without consideration of the claim of plaintiff , the circle officer erroneously and illegally passed order on 30.09.2005 for measurement and demarcation of the suit property. It was asserted that the defendants have no right to represent the temple Mahadev Jee and

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Mahavir Jee as the same is private temple of the plaintiff and their family member. It was also alleged that the defendants were bent upon to capture the temple and its property for which they have made a committee which was alleged to be unauthorized and illegal which necessitated filing of the suit on 05.11.2005. This court is of the considered view that the point of limitation was wrongly decided by merely referring to the entry in the record of rights The order of demarcation case no. 11 of 2005-06 was exhibit-5. Considering the cause of action supported by evidence, the suit cannot be said to be barred by limitation. Accordingly, 1^st substantial question of law is answered in favour of the appellants and against the respondents.

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12. So far as the 2^nd substantial question of law is concerned, this Court finds that the suit was filed by the plaintiffs seeking a declaration of their right, title and interest over the land covered under R.S. Khata No. 457, Plot No. 2202 measuring an area 0.24 acres known as Thakurbari and R.S. Khata No.850, Plot No.2202/5977 measuring an area of 0.23 acres, Village- Bundu, District- Ranchi which was described in schedule of the plaint and that they alone have right to manage control and to perform all religious, ritual of the temple standing over the suit property known as Mahadev Jee and Mahavir Jee private temple belonging to the plaintiffs and also for a decree of permanent injunction restraining the defendants from causing any obstruction disturbance in managing the plaintiffs along with cost of the suit.

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13. This Court finds that amongst the defendants, Defendant Nos.3 and 4 were admittedly the descendants of the common ancestor. An objection was raised from the side of the defendants that all the descendants of the common ancestors were not made party to the suit and such issue was taken up by the learned appellate court and the learned appellate court recorded a finding in Paragraph-18 that the suit was bad for non-joinder of necessary parties. The findings recorded in Paragraph-18 of the appellate court’s judgment is quoted as under: -

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“ 18. The defendant took stand in W.S that the suit is barred for non-joinder of necessary parties and give the name of heirs of recorded tenant Mahadev Bhagat in para-14 of the W.S that the descendants of Saryu Bhagat uncle of Defendants 3 and 4 are in Katras district, Chas and the defendants of Mahadev Bhagat died leaving behind 3 sons namely Late Rajendra Bhagat Executive Engineer Mahadev Bhagat Dy. Secretary Government of Bihar, Dr. Surendra Bhagat retired Professor in Radiology, Patna. The plaintiff pleaded in plaint in para-3 that sooner or later the recorded raiyats namely the offspring of Triveni Bhagat and Kashi Bhagat and Muni Bhagat, Ramsunder Bhagat, Baijnath Prasad and Raj Kumar Bhagat, Mahadev Bhagat and Bhagwat Prasad Bhagat left the village after disposing of their share and their whereabouts is also not know to the plaintiffs. Since more than 40 to 50 years. Therefore, the plaintiff himself admitted in plaint that the recorded tenant holder for disposed their share then how the plaintiff claiming exclusive title without impleading other recorded tenant or the heirs of recorded tenant or purchasers of recorded tenant. Therefore, I find that this suit is bad for non-joinder of necessary party.”

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14. As recorded in Paragraph-18 in the appellate court’s judgment, the plaintiff had pleaded in Paragraph-3 of the plaint that sooner or later the recorded raiyats namely the offspring of Triveni Bhagat and Kashi Bhagat and Muni Bhagat, Ramsunder Bhagat, Baijnath Prasad and Raj Kumar Bhagat, Mahadev Bhagat and Bhagwat Prasad Bhagat left the village after disposing of their share and their whereabouts were not known to the plaintiffs. The appellate court considered that the plaintiffs stated that the shares was disposed of and admittedly they were not made party in the proceedings. This Court finds that the plaintiffs were seeking their exclusive title and also right to manage the property.

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15. In view of the findings recorded by the learned 1^st appellate court, this Court is of the considered view that the right of the other co-sharers would certainly be affected by any decree which might have been passed by the courts in favour of the plaintiffs and the learned courts have rightly held that the suit was bad for non-joinder of necessary parties.

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16. Accordingly, the substantial question of law No.2 is hereby answered against the appellants and in favour of the respondents.

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17. Since the suit has been held to be barred by non-joinder of necessary parties while answering the 2^nd substantial question of law no relief can be granted to the appellants and therefore this appeal is hereby dismissed.

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18. Pending I.A., if any, is closed.

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(Anubha Rawat Choudhary, J.)

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Mukul

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Rajendra Prasad Jaiswal And Ors. v. Samir Kundu And Ors.

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Rajendra Prasad Jaiswal And Ors. v. Samir Kundu And Ors.

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