Jagdish Kumhar Vs Kishori Devi

Rambha Devi, aged 45 years, daughter of late Sitaram Kumhar and Wife of Daya Kumhar, Resident of village Banhara, P.O. & P.S. Robartsganj, District – Sonebhadra (U.P)

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Lakshminiya Devi, aged 40 years, Daughter of late Sitaram Kumhar, and wife of Nakchhedi Kumhar., Resident of village – Banhara, P.O. & P.S. Robartsganj, District – Sonebhadra (U.P)

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Vidyawanti Devi aged 35 years, daughter of late Sitaram Kumhar and wife of Chhathan Kumhar, resident of villageJhumri, P.O. Arsali, P.S. Bhawanahpur, District – Garhwa

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10.Dewanti Devi aged 32 years, daughter of late Sitaram Kumhar and wife of Surendra Kumhar, resident of village – Rajbanda, P.O. Bishrampur, P.S. Meral, District – Garhwa

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11.Rajwanti Devi aged 30 years daughter of late Sitaram Kumhar and wife of Jitan Kumhar, Resident of village – Narhi, P.O. Narhi, P.S. Nagar Utari, District – Garhwa

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… … Defendants/Appellants/Appellants Versus

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Kishori Devi wife of late Basant Kumar Singh

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Deepak Singh

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Pradeep Singh

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Sandeep Singh All sons of Late Basant Kumar Singh

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Anita Devi daughter of late Basant Kumar Singh All residents of village Ranjana, P.O. & P.S. Ramna, District - Garhwa

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Ram Prasad Singh son of late Rameshwar Singh

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Digvijay Singh

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Atma Prasad Singh, both sons of late Ram Narayan Singh

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Raj Kumar Sao son of Jhubal Sao Nos.7 to 9 resident of village Bagaundha, P.O. Ramna, P.S. Nagar Untari, District - Garhwa

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… … Plaintiffs/Respondents/Respondents

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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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--For the Appellants : Mr. K.K. Ambastha, Advocate For the Respondents :

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08 /06.01.2025 Heard the learned counsel appearing on behalf of the appellants. 2. This second appeal has been filed against the Judgment and decree dated 29.3.2019 (decree signed on 18.4.2019) passed by District Judge, VI, Garhwa dismissing Civil Appeal no. 04/2005 and affirmed the and decree Judgment dated 28.1.2005 (decree signed on 10.02.2005) passed by Munsif, Garhwa in Title Suit no. 52/1998.

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3. The learned counsel for the appellants has submitted that the appellants were the defendants before the learned trial court. The suit was decreed in favour of the plaintiffs and the appeal has been dismissed. He submits that though there are concurrent findings recorded by both the courts but the finding of the learned appellate court is vitiated due to misconstruing Exhibit 2 i.e. auction sale certificate while deciding the issue of title against the defendants. The learned counsel has submitted that in fact there has been no auction of the property in favour of the ancestor of the plaintiffs, who were the then land lord.

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4. After hearing the learned counsel for the appellants, this Court finds that the title suit was filed being Title Suit No.52 of 1998 seeking declaration of right, title and possession of the plaintiffs over the suit property and also permanent injunction against the defendants not to interfere with the right, title and possession of the plaintiffs.

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5. The learned trial court framed the following issues for consideration:

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“1. Whether the suit is maintainable as framed?

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2. Whether the plaintiff has cause of action for the suit?

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3. Whether the suit is barred by law of limitation and adverse possession?

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4. Whether the suit is barred by estoppel, waiver and acquiescence?

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5. Whether the suit is barred u/s 34 of Specific Relief Act?

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6. Whether the suit is bad for non-joinder of necessary party?

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7. Whether the suit is undervalued?

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8. Has the plaintiff indefeasible right, title and possession over the suit land?

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9. Whether the plaintiff is entitled to put in possession of land if found out of possession?

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10. Whether the plaintiff is entitled to the relief claimed and decree in the suit?”

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2

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6. The main issue for consideration before the learned trial court was primarily issue nos.8 and 9. The aforesaid issues were decided vide paragraph 10 onwards of the trial court’s judgment. Upon consideration of the materials on record and the evidences produced by the parties, the learned trial court recorded a finding in paragraph no.13 that the ancestors of the plaintiffs got the property through sale in rent suit and they have been paying rent in connection with the property to the State.

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7. The learned trial court considered the materials on record and held that the plaintiffs have been able to prove right, title, interest and also possession with regard to the suit property. The learned trial court also referred to the rent suit No.399 of 1917 in connection with the property involved in the present case was auction sold.

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8. The learned first appellate court also considered the materials on record and considered all the issues as framed by the learned trial court including the issue No.8 and 9. The learned first appellate court has recorded that the case of the plaintiffs was that the land was acquired by the ancestors of the plaintiffs through Rent Suit No.399 of 1917 and Execution Case No.248 of 1920-1921 and since then they were continuously having right, title and possession over the land. In order to establish this fact, the plaintiffs filed Exhibit 2 the certified copy of the certificate of auction sale passed by Munsif/Deputy Collector, District Palamau in Execution Case No.399 of 1917. In the auction sale, many lands were included including the suit land. The plaintiffs also filed Exhibit 4 which was the certified copy of Form M prepared under Section 5, 6 and 7 of Bihar Land Reforms Act, 1950 which showed their possession. Other documents were also filed to substantiate their possession over the property. Oral evidences which were adduced by the plaintiffs were also discussed.

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9. The learned appellate court also recorded the case of the defendants, who were appellants, who claimed that they were the descendants of Dilbodh Kumhar and also claimed that they were in continuous possession of the land and also asserted that the property was never auction sold and the plaintiffs were never in possession of

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the suit land. The learned appellate court recorded that the defendants did not produce any documents in their favour before the learned court. However, subsequently in the course of hearing of final arguments of the khatiyan of Cadestral Survey was marked Ext.A. The learned appellate court also recorded that there was no dispute that the defendants were the descendants of Dilbodh Kumhar.

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10. The learned appellate court also considered the documents produced in connection with the proceedings under Section 145 Cr.P.C and other documents and also considered the oral evidences of the defendants and recorded the findings in favour of the plaintiffs with respect to issue no.8 and 9 and also discussed the judgment passed by the learned trial court in paragraph 17 of the learned appellate court judgment, which is quoted as under:

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17. The learned lower court held that in view of the documentary and oral evidence and after hearing both sides it came to conclusion that the ancestor of the plaintiff/respondent got the land in rent suit in auction sale and the descendant of recorded raiyat Dilbodh Kumhar left village Bagaundha and shifted to village Saro. The landlords took the disputed land in their possession and the government fixed the rent and demand was opened in the name of father of the plaintiff Babu Randhir Kumar Singh and he came in possession of the land and after the death of Babu Randhir Kumar Singh the plaintiff came in possession of land and since the year 1920-21 till date plaintiff are in right, title and possession over the land and plaintiff/respondent was able to prove his case. Defendant no.2 forcibly constructed a hut in the suit land which is illegal because defendant has no right to construct a hut over the land and the plaintiff is entitled to get possession over the land. Hence, learned lower court rightly held that plaintiff are able to establish its right, title and possession over the suit land and accordingly this issue no.8 and 9 was decided in favour of the plaintiff/respondent and against the defendant.

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The Cadestral survey marked Ext. A on behalf of defendant does not change the outcome of the case. It is admitted case of both sides that defendants/appellants are the descendants of recorded survey raiyat Dilbodh Kumhar, a fact not dispute by the Page-22 C.A No. 04/05 plaintiff/respondent himself. The prosecution u/s 145 of the Cr.P.C. between the defendant and the plaintiff also does not improve the case and the defendant. The order passed u/s 145 of Cr.P.C. in favour of someone shows that the party was in possession before 60 days from the date of initiation of proceeding.

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It does not confer any title. The appellant/ defendant has not filed order of any such proceeding. Further, in a proceeding u/s 144 of Cr.P.C. and u/s 145 of Cr.P.C. filed on behalf of plaintiff/respondent marked Ext.4 and Ext.5 go to show that in those cases the ancestor of the plaintiff were shown to be in possession of the disputed land. That order was never challenged and no proceeding was started for getting the right, title and possession declared through competent court. Subsequently, because of this proceeding the plaintiff filed a title suit and learned lower court finding the evidence cogent and reliable declared the right, title and possession of plaintiff/respondent over the suit land. Thus, these two document Ext. A admitted in evidence at this stage of appeal does not change outcome of the case.

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11. This Court finds that the learned first appellate court after considering and discussing the materials on record and ultimately dismissed the appeal and confirmed the findings and judgment passed by the learned trial court.

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12. During the course of hearing, the learned counsel for the appellants has not been able to satisfy this Court as to how the auction sale certificate Exhibit 2 is alleged to have been misconstrued and how the defendants claimed that the property was never auction sold in execution case arising out of rent suit No.399 of 1917.

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13. Upon going through both the judgments and in the light of the submissions made by the learned counsel for the appellants, this Court finds that the learned counsel for the appellants could not point out any perversity in the matter of appreciation of evidences by both the court and this court is of the considered view that , no question of law much less any substantial question of law arises for consideration by this Court in this Second Appeal, which is hereby dismissed.

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14. Pending interlocutory application, if any, is closed.

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(Anubha Rawat Choudhary, J.)

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Saurav/

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Jagdish Kumhar v. Kishori Devi

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Jagdish Kumhar v. Kishori Devi

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