Panchanan Singh Vs Sudha Rani Sinha

( 2025:JHHC:17696

IN THE HIGH COURT OF JHARKHAND AT RANCHI

S.A. No. 161 of 2022

Panchanan Singh aged about 69 years son of Late Daroga Singh resident of village Sijhat, P.O. and P.S. Dhoraiya, Sub-Division and District Banka at present residing at Deoghar, B.N. Jha Path Pokhnatilha in front of S.B.I. ATM, P.O., P.S. and District Deoghar

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… … Plaintiff/Appellant/ Appellant Versus

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Sudha Rani Sinha wife of Late Rabindra Kumar Sinha resident of village Rikhiya, P.O. and P.S. Mohanpur, District Deoghar

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Mukesh Kumar son of Rabindra Kumar, resident of village Rikhiya, P.O. Mohanpur Sub Division, District Deoghar

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Rita Sinha wife of Rajesh Kumar resident of Isri Bazar, P.O. and P.S. and District Giridih

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Minu Sinha wife of Mukesh Kumar Sinha resident of Santar Mohalla, Lakhisarai, P.O. P.S. and District Lakhisarai

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Sweta Sinha wife of Rajan Kumar Sahay resident of Shastri Nagar, P.O. P.S. and District Giridih

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Raju Sinha

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Mithilesh Kumar Sinha alias Mukesh Kumar Sinha

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Jay Prakash Narayan Nos. 6 to 8 sons of Rabindra Kumar Sinha, resident of village Rikhiya, P.O. and P.S. Mohanpur, District Deoghar

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… … Defendants/Respondents

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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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--For the Appellant : Mr. Sandeep Verma, Advocate : Mr. Anurag Chandra, Advocate : Mr. Sachin Verma, Advocate For the Respondents : Mr. Prashant Pallav, Advocate : Ms. Shivani Jaluka, Advocate ---

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20 /03.07.2025 Heard the learned counsel appearing on behalf of the parties.

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2. This appeal has been filed by the plaintiff against the judgment dated 17.08.2022 (decree signed on 30.08.2022) passed by the learned District Judge II, Deoghar, whereby the Civil Appeal No. 25 of 2020 has been dismissed and the judgment dated 12.02.2020(decree signed on 15.02.2020) passed by the learned Civil Judge, (Senior Division)IV, Deoghar, in Title (D)Suit No. 111 of 2012 has been dismissed.

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3. This Appeal was admitted for final hearing vide order dated 13.02.2025 on the following substantial question of law:-

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“Whether the findings of the learned court of appeal below are vitiated due to misconstruing Ext. 1 i.e. sale deed dated 31.12.1991 executed and registered in favour of the defendant No. 1 with respect to 2000 Sq. feet of land measuring 20 feet from North to South and 100 feet from East to West?”

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4. Learned counsel for the appellant has submitted that both the courts have dismissed the suit filed by the plaintiff primarily on the ground that in the sale deed of the plaintiff Benu Choudhary was not shown as sharing boundary with the plaintiff. He has submitted that that sale deed in favour of Benu Choudhary as well as the plaintiff was executed on the same day and considering the number of the sale deed, the sale deed of the plaintiff was executed prior to the sale deed of Benu Choudhary. He submits that under such circumstances, there was no question of mentioning the name of Benu Choudhary in the boundary of the plaintiff. He has also submitted that the boundary of the sale deed cannot be decided on the basis of the boundary mentioned in another sale deed. The learned counsel has submitted that the learned appellate court has committed perversity while observing that it was impossible for Sudha Rani, defendant No. 1 to encroach upon the land of the plaintiff without bypassing the land belonging to Benu Choudhary.

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5. Learned counsel for the appellant while referring to the plaint has stated that the plaintiff had purchased the property vide Registered Deed No. 2842 dated 17.11.1992 from the owner namely Krishna Kant Pandit and on the same day Krishna Kant Pandit had also sold an area of 2531 Sq. ft. of land to Benu Choudhary. He has submitted that vendor of the Krishna Kant Pandit was Badri Narayan Parihast and Krishna Kant Pandit had purchased the property through registered sale deed No. 1060 dated 20.01.1992.

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6. The learned counsel has further submitted that the case of the plaintiff was that the defendant No. 1 had encroached 2000 Sq. Ft of land of the plaintiff by illegally constructing a brick-built boundary wall and the plaintiff had claimed for declaration of right, title and

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interest over the suit land and for recovery of possession of the suit land through the process of court. He has in particular referred to paragraph No. 8 of the plaint which is quoted as under: -

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“8. That the plaintiff being a service holder has not been able to construct house on his purchased land and on account of the engagement of the plaintiff in service the defendant stealthily about one month ago illegally and maliciously encroached upon the suit land belonging to the plaintiff by enclosing the same by brick-built compound wall and has been falsely claiming the same to have been purchased in the name of defendant no. 1 from the vendor namely Shri Badri Narayan Parihast son of late Sudarsan Parihast who was the vendor of Sri Krishna Kant Pandit from whom the said Krishna Kant Pandit purchased the area of 10155 sq.ft. of land. ”

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7. The learned counsel has then referred to the written statement and has submitted that paragraph 8 has been answered vide paragraph 20 and has further submitted that the entitlement of 2000 Sq. ft of purchased land of the plaintiff was not disputed but it was stated that the plaintiff was in possession of less area of 1800 Sq. Ft. only and was entitled to recover an area of more than 200 Sq. Ft. of land which was under the illegal occupation of other vendees of vendor Krishna Kant Pandit. Paragraph 20 of the written statement is quoted as under:-

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“20 . That the allegation contained in para-8 of the plaint is again absolutely false and baseless. The defendant never made any encroachment also over any portion of property purchased by the plaintiff rather out of the purchased area of about 2000 square foot, the plaintiff possess a lessor area of about only 1800 square feet and thus is entitled to recover the balance area of about more than 200 square feet of land which is under the illegal occupation of either the plaintiff or the other vendees of Krishna Kant Pandit. However from the allegations made in para 8 or other paras stands denied by the answering defendant. ”

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8. However, nothing has been disclosed as to who are the other vendees who are in illegal occupation of the admitted encroachment of 200 Sq. Ft. The learned counsel while giving further fact of the case has referred to the sale deed No. 2934 dated 31.12.1991 (Ext. 1) which

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is sale deed executed by Badri Narayan Parihast in favour of Sudha Rani Sinha (defendant No. 1). This sale deed is for the total area of 2000 Sq. Ft. and a map has been attached thereto. On the northern side is the vendor and on the East there is proposed road of 15 ft. and on the west there is mouza Bhurbhura . He has then referred to the sale deed executed by Badri Narayan Parihast in favour of Krishna Kant Pandit which is sale deed dated 20.01.1992 (Ext. 1/a) and it is for an area of land 10155 Sq. Ft. and in the sale deed itself it has been mentioned that an area of 2000 Sq. Ft. has been sold to Sudha Rani Sinha and the boundary was shown as vendor to the North , 15 ft. Road to East , Bhurbhura to west and Circular Road to South . The learned counsel then has referred to Ext. 1/b, which is sale deed executed in favour of Badri Narayan Parihast vide Sale deed No. 2843 dated 17.11.1992 sold by Krishna Kant Pandit. The sale deed is for total area of 2551 Sq. Ft. and the sale deed also has a map showing 15 ft. wide road to the East , Bhurbhura to west , one proposed road to the North and the vendor (to be sold to Panchanan Singh-plaintiff) to the south .

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9. The learned counsel then referred to the sale deed of the plaintiff which is No. 2842 dated 17.11.1992 (Ext. 1/d) and has submitted that the sale deed is for total area of 5062 Sq. Ft. which is south of the sale deed executed by the same vendor namely Krishna Kant Pandit in favour of Panchanan Singh (plaintiff-appellant). 10. The learned counsel has also submitted that there was a deed of rectification which was carried out by the vendor of Sudha Rani Sinha (defendant no.1) which has the effect of altering the map and restricting her right by reducing the Sq. Ft. of the land by 275 Sq. Ft. and consequently the total area of Sudha Rani Sinha remained 1719 Sq. ft. and it has been submitted that the area stood reduced to 1719 Sq. ft. as per the deed of rectification.

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11. The learned counsel submits that so far as the learned 1^st appellate Court is concerned, the details of the deed has been mentioned in internal page 7 but with respect to Sudha Rani Sinha the area is still shown as 2000 Sq. Ft. There is no mention of deed of

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rectification. He has submitted that Ext. 1 was subject to deed of rectification reducing the total area from 2000 to 1719 Sq.Ft.

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12. The learned counsel has further submitted that the learned 1^st appellate Court considered the location by considering the various sale deeds and found that in order to encroach upon the land of the plaintiff the concerned person has to necessarily encroach upon the land of Benu Choudhary as Benu Choudhary and plaintiff had common boundary. The learned counsel has further submitted that the learned 1^st appellate Court assumed that even if encroachment is done on the north side of the land of the plaintiff then it can be done by the Benu Choudhary and not by the defendant no. 1 Sudha Rani Sinha by observing that in order to come to the land of the plaintiff from north side someone has to first encroach the land of Benu Choudhary and then come to the land of the plaintiff. The learned counsel has further submitted that after assuming impossibility of encroachment by Sudha Rani Sinha, the finding has been recorded.

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13. The learned counsel has further submitted that it was also held that there was nothing in the plaint to show the actual dimension of size of plaintiff’s plot and how much area on the north side dimension wise is encroached and consequently the pleading was held to be vague.

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14. The learned counsel has submitted that the plaintiff had prayed for right, title and interest over the property purchased through registered sale deed and the map attached thereto had clear boundaries and the suit land was identifiable. Therefore, there was no occasion for the court to refer to other sale deeds for identification of property. The learned courts have not taken this aspect of the matter into consideration. He has also referred to the judgement passed by the learned Trial Court and has submitted that the learned Trial Court referred to the sale deed of Krishna Kant Pandit and held that the boundary of the property purchased by Krishna Kant Pandit was vague due to absence of map attached with the sale deed and therefore the boundary of the plaintiff also could not be ascertained. He submits that in order to find out the boundary with respect to the sale deed of

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the plaintiff [even if the vendor was Krishna Kant Pandit], what was to be seen was the sale deed of the plaintiff. The learned counsel has submitted that the substantial question of law be answered in favour of the appellant.

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15. Learned counsel for the respondents has opposed the prayer of the appellant and has submitted that as per the impugned judgments, Smt. Benu Choudhary was to the north of the plaintiff and there was no question of encroachment by the defendant no. 1.

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16. However, during the course of argument it transpired from Ext. A, which is the rectification deed of Sudha Rani Sinha, defendant no. 1 and upon perusal of the map attached thereto, the land of the plaintiff has been shown to the south.

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17. Upon a query made to the learned counsel for the parties it is not in dispute that the deed of rectification- exhibit-A has not been considered by both the courts.

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18. Further it is also not in dispute that there has been no appointment of pleader Commissioner at any stage of the proceeding. Consequently, it is also not clear as to what is the exact area of the alleged encroachment, if any/ identification of the alleged encroached area.

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19. At this stage, the learned counsel for the respondents referred to the judgment passed by the Hon’ble Supreme Court reported in (2008) 8 SCC 671, paragraph 6 , and has submitted that pleader commissioner can be appointment at any stage for identification of the encroachment, if any, with respect to the property concerned.

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20. After hearing the learned counsel for the parties and considering the facts and circumstances of this case and the nature of substantial question of law, which is primarily relatable to construction of Exhibit-1 i.e. Sale deed dated 31.12.1991. Upon perusal of the materials on record it is not in dispute that exhibit-1 was subject matter of rectification in Subsequent deed as contained in Exhibit-A which was executed by the defendant no. 1. The Exhibit-A is a rectification deed confining the claim of defendant No. 1 to a total area of 1719 Sq. Ft. instead of 2000 Sq. Ft. in the Exhibit-1 and

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further the boundary of the property of the defendant no. 1 has also been mentioned in Exhibit-A along with the map. As per the boundary, land of the plaintiff has been shown adjoining to the south of defendant no. 1. This court finds that both the learned courts have ignored the exhibit-A particularly the boundary mentioned therein while giving a finding that it was impossible for the defendant no. 1 to encroach upon the land of the plaintiff as defendant no. 1 was not adjoining to the plaintiff. The exhibit- 1 was to be read with exhibitA. The exhibit-A has been ignored while coming to the findings. In such circumstances, this court is of the view that both the learned courts have committed perversity in ignoring Exhibit-A which construing exhibit-1. Consequently, the substantial question of law as framed by this court vide order dated 13.02.2025 is hereby answered by holding that judgments passed by both the courts suffers from perversity on account of non-consideration of the fact Exhibit-1 to be read with Exhibit-A (rectification deed) and thus exhibit-1 has been misconstrued. Thus, the findings of the learned 1^st appellate court are vitiated due to misconstruing Ext. 1 i.e. sale deed dated 31.12.1991 executed and registered in favour of the defendant No. 1 having ignored the deed of rectification- exhibit-A executed by the defendant no.1. The substantial question of law is accordingly answered in favour of the appellant and against the respondents.

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21. Consequently, the impugned judgments passed by the Trial Court and the 1^st Appellate Court are hereby set aside. 22. Having held as aforesaid, this court is of the further view that considering the nature of dispute involved between the parties and the admitted fact that at no point of time, the pleader commissioner was ever appointed by the learned Trial Court or even by the learned First Appellate Court and in view of the judgment passed by the Hon’ble Supreme Court reported in in (2008) 8 SCC 671, the matter is remanded to the Trial Court so that a pleader Commissioner be appointed to have local examination of the property so as to ascertain the identity of the land and encroachment, if any, as alleged in the plaint. Although the plaintiff has alleged that there was encroachment

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to the extent of 2000 Sq. Ft. but there is no clear evidence on record to that effect and hence this court is of the considered view that in view of the submission of the parties , a pleader commissioner was required to be appointed to identify the boundaries and area of the suit property and demarcate the property .

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23. Accordingly, parties are directed to appear before the learned Trial Court or its successor court on 04.11.2025 at 11.00 am . The trial court shall to do the needful in accordance with law as expeditiously as possible.

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24. Parties to cooperate.

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25. This appeal is disposed of in the aforesaid terms.

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(Anubha Rawat Choudhary, J.)

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Binit

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Panchanan Singh v. Sudha Rani Sinha

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Panchanan Singh v. Sudha Rani Sinha

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