Smt Sushila Sinha Vs Ramashish Choudhary

IN THE HIGH COURT OF JHARKHAND AT RANCHI

S.A. No. 296 of 2019

Smt. Sushila Sinha, aged about 65 years, wife of Shri Chandradeo Prasad Sinha, resident of Barmasia, P.O.- Dhanbad, P.S.- Dhansar, District- Dhanbad … … Plaintiff/Appellant/Appellant -Versus-

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Ramashish Choudhary

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Binoy Choudhary Both Nos.1 and 2, sons of Parmanand Choudhary

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Binod Singh

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Manoj Singh

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Nos.3 and 4, both sons of J.N. Singh

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Manoj Thakur son of Late Narayan Thakur All are residents of Barmasia, P.O.- Dhanbad, P.S.- Dhansar, District- Dhanbad

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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 Appellant : Mr. A.K. Sahani, Advocate For the Respondents :

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09 /06.01.2025 Heard Mr. A.K. Sahani, the learned counsel appearing on

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behalf of the appellant.

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2. This second appeal has been filed against the judgment and decree dated 01.06.2019 (Decree signed on 10.06.2019) passed by the learned District Judge-XII, Dhanbad in Civil Appeal No.1 of 2014 confirming the judgment and decree dated 10.12.2013 (Decree signed on 19.12.2013) passed by the learned Civil Judge, (Junior Division-I), Dhanbad in Title Suit No. 93 of 2007.

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3. The present appellant was the plaintiff in the suit.

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4. The learned counsel for the appellant submitted that though the plaintiff has lost in both the courts, but the courts have miserably failed to consider that the specific averments made in Paragraph-6 of the plaint to the effect that while constructing her house, the plaintiff left a strip of land in eastern side for ingress and egress and for other purposes and this fact remained unrebutted and uncontroverted, rather admitted by the defendants in Paragraph-11 of their written statement. He submitted that the admitted fact need not be proved and therefore,

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the second appeal is to be admitted on the aforesaid substantial question of law framed in Paragraphs- D and E as under:

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“(D) Whether the impugned judgments and decrees of both the learned courts below are vitiated on account of non-consideration of the settled principle of law that admission is the best evidence.

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(E) Whether having not appreciated the specific averments made by the plaintiff in para-6 of the plaint to the effect that while constructing her house, she left a strip of lands in eastern side for egress and ingress and for other purposes remained un-rebutted and uncontroverted, rather admitted by the defendants in Para-11 of their Written Statement, both the learned court below are justified in dismissing the suit of the plaintiff/appellant?”

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5. During the course of argument, the learned counsel submitted that in the substantial question of law, framed in the memo of appeal on Paragraph-E, the concerned paragraph has been wrongly mentioned as Paragraph-12 and instead it should be read as Paragraph-11. The learned counsel for the appellant sought permission to make necessary corrections in the Memorandum of Appeal, which is permitted to be corrected and 'Para-12 of the Written Statement' referred to in Paragraph-E of the Substantial Questions of Law be read as 'Para-11 of the Written Statement' .

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6. This Court finds that the plaintiff had filed the suit for recovery of possession and declaration of title and injunction, etc. on the suit plot bearing Plot No.314, Khata No.8 situated within Mauza Barmasia, Mouza No.49, District- Dhanbad measuring an area of 75 feet length X 2 ½ feet wide as detailed in Schedule B of the plaint. The case of the plaintiff was that 4 ½ decimals of land was purchased by the plaintiff by registered Sale Deed No.1122 dated 27.01.1989 from Rameshwar Mahto and further an area of 4 ½ decimals was purchased from Rama Nandan Sharma under registered Sale Deed No.7843 dated 20.08.2007. Both these plots were shown as Schedule A as Items No. I and II of the plaint. The plaintiff got her name mutated. The plaintiff constructed a house on the said land and in the eastern side, she left some land purely for personal use of ingress and egress and also for repairing and white washing of the outer wall of the house as shown in Schedule B of the plaint. It was their further

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case that in the year 2000, the defendants started disturbing the possession of the plaintiff over Schedule B land which resulted in a proceeding under Section 144 of Cr.P.C. During the pendency of the proceeding, the defendants violated the orders of the Sub-Divisional Magistrate, Dhanbad on 20.05.2000 and 21.05.2000 by constructing a permanent drain encroaching upon the said land resulting in MP Case No.453 of 2000.

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7. It was the case of the plaintiff that the drain was constructed joining with the public drain in spite of the fact that Defendant Nos.1 and 2 have their own drain towards north. Further, the Defendant No.5 opened two gates towards eastern side of the outer wall opening on the land of the plaintiff in Schedule B without any right and closed down the usual road pre-existing in the southern side. A proceeding under Section 188 of IPC was also initiated. According to the plaint, the cause of action arose on 20.05.2000 and 21.05.2000 when drain was constructed and the defendants wrongfully encroached the valuable portion of the purchased land of the plaintiff's brother Ram Nandan Sharma on the extreme northern portion. The plaintiff sought a decree directing the Respondent Nos.1 to 5 to remove the constructed drain over Schedule B land and a direction was sought upon Defendant No.5 to close down the gate / door opening on the Schedule B land.

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8. Upon notice, a written statement was filed by the defendants. The factum of encroachment of land was totally denied. It was admitted that Ram Nandan Sharma and the plaintiff were in occupation of Schedule A, Item Nos. 1 and 2 land and it also stood admitted that the plaintiff purchased the said land at Item No. 1 of Schedule A and also purchased Item No. 2 of Schedule A from Ram Nandan Sharma. It was stated that the land of Ram Nandan Sharma was purchased only to fight litigation. It was further stated that the pleadings of possession since 1989 was wrong and total 9 decimals of land were not occupied and possessed by the plaintiff. It was also stated that the land of the plaintiff and Ram Nandan Sharma was vacant and without any boundary wall. The plaintiff and Ram Nandan

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Sharma gave boundary wall sometimes in the year 1998-1999, but before construction of boundary wall by the plaintiff and Ram Nandan Sharma, there was a dispute in between the land owner at the one end and the owners of the residential houses on the other end regarding their ingress and egress in the northern side and on intervention of local people, matter was resolved and plaintiff as well as Ram Nandan Sharma erected their boundary wall leaving 2 ½ feet wide land for passage along with their eastern boundary wall for common use of the public at large including the defendants. Father of the Defendant No.5 also left 1 ½ feet wide land towards western side of his house from before and both of the land i.e. 2 ½ feet and 1 ½ feet of the said passage under Schedule B of the plaint became 4 feet wide and 75 feet long. It was also asserted that it was resolved that mohalla people including defendants shall erect pucca drain through the said passage and link it with the main drain existing by the side of the main road and only thereafter, the plaintiff and Ram Nandan Sharma raised construction of boundary wall and the wall at its north-east corner was curved to facilitate easy movement of vehicle etc.. It was denied that the plaintiff was in possession of entire 9 decimals of land since 1989. Paragraph- 5 and 6 of the plaint was not admitted, rather the same was denied. It was further stated that admittedly the sale deed for the land of Ram Nandan Sharma was said to be executed in favour of the plaintiff in the year 2007, but the drainage was constructed in the year 2000, and therefore, Ram Nandan Sharma was competent person to lodge the case, but he did not take any action against the construction.

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9. Altogether 9 issues were framed by the learned trial courty, which are as under:

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“I. Is the suit maintainable in its present form?

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II. Has the plaintiff got valid cause of action for the present suit?

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III. Is the suit barred under the provision of law of limitation?

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IV. Has the plaintiff got valid right, title, interest and possession of the suit land by virtue of her rightful purchase from rightful owners?

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V. Whether the plaintiff has left strip of land described in Schedule B of the plaint on the eastern side for purely personal use for ingress and egress and for other purpose?

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VI. Whether the defendants have lawfully constructed a pucca drain over the said strip of land of the plaintiff, during the pendency of sec. 144 of the Cr. P. C proceeding?

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VII. Whether the defendants have got their drain on the north side leading to railway quarters' drain?

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VIII. Whether the plaintiffs are entitled for recovery of possession of the strip of the land described in the Schedule B of the plaint with a direction to remove the constructed drain?

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IX. Whether the plaintiffs are entitled for any other relief/s as prayed in the plaint?”

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10. Out of the above issues, Issue Nos.VI and VII were not decided by the learned trial court by observing that it did not appear to be subject matter of the suit in connection with which the appellant has no grievance.

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11. Issue Nos. V and VIII were taken altogether vide Paragraph No. 10. The learned trial recorded that according to the plaint, the cause of action arose on 20/21.05.2000, when the drainage was illegally constructed and further recorded that when the land of Ram Nandan Sharma was purchased by the plaintiff on 20.08.2007 and it was apparent from record that when the cause of action arose in the year 2000, the land of Ram Nandan Sharma was not in possession of the plaintiff. The witnesses of the plaintiff themselves have stated that the drainage was outside the boundary wall of the plaintiff and in the evidence, the witness of the plaintiff has stated that there is a gate of the plaintiff’s house towards the drainage. The learned trial court also recorded that admittedly the defendants’ house was situated prior to purchase of the land by the plaintiff and no prayer was made by the plaintiff to appoint a pleader commissioner to give physical feature and also assess the period of construction of the drainage. The learned trial court further referred to the site plan, sale deed, etc. and held that it could not be determined only by oral witness as to whether the plaintiff had left her land towards the east side out from the boundary wall or not and ultimately, held that it could not be determined as to

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whether the plaintiff had left the strip of land described in Schedule B of the plaint on the eastern side for purely personal use of ingress and egress or for other purpose as because described description of the passage shows its public use and accordingly, it was held that the plaintiff was not entitled for recovery of possession of the strip of land in Schedule B of the plaint and was also not entitled for a direction to remove the constructed drain. Accordingly, the aforesaid two issues were decided against the plaintiff.

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12. With respect to Issue No. II with regard to cause of action, the learned trial court recorded that according to the plaint, the cause of action arose on 20/21.05.2000 when the drain was constructed, but the plaintiff having purchased the land from Ram Nandan Sharma on 20.08.2007 and even if the plaintiff was having four and a half decimals of her own land on 20/21.05.2000, she did not file any suit for restraining the construction of the drainage by that time and the learned trial court came to the conclusion that the plaintiff had no valid cause of action for the suit and decided Issue No. II against the plaintiff and ultimately, the suit was dismissed. Issue No. I, IV and IX were also decided against the plaintiff and while deciding the Issue No. III, it was held that the suit was not barred by limitation.

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13. So far as the first appellate court is concerned, the appellate court recorded that from the pleadings of both the parties and on the perusal of records, the main dispute between the parties is with respect to stretch of land measuring east to west 2 ½ feet and south to north 75 feet and that there was a dispute that the defendants have encroached on Schedule B land of Item No.2 and made pucca drain over the same. The learned first appellate court recorded that it appears from the evidence on record that the drain was constructed in the year 1998 with the consent of Ram Nandan Sharma (the vendor of the plaintiff), who transferred the portion of the property involved in the case in favour of the plaintiff in the year 2007 and Ram Nandan Sharma was the brother of the plaintiff. Ram Nandan Sharma had also purchased the vended property from his vendor Rameshwar Mahto on 27.01.1989 and the plaintiff had also purchased another portion of the

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property from Rameshwar Mahato vide another sale deed dated 27.01.1989. The learned appellate court recorded that on the date of cause of action in the year 2000, Rama Nandan Sharma was the owner of the land and he had a cause of action in the year 2000, but he sold the property to the plaintiff in the year 2007 and did not raise any grievance at the relevant point of time in the year 2000. The appellate court further recorded that the trial court's judgment also reveals that during the course of hearing of the appeal, on the prayer of the plaintiff-appellant, a survey knowing pleader commissioner was appointed, who submitted a report dated 09.08.2018, along with a case map, but the report and the case map have not been exhibited by the appellant and several photographs of the disputed site have also not been filed. However, the learned appellate court considered the report of the survey knowing pleader commissioner also and recorded that the report of the pleader commissioner is not in conformity with the case of the plaintiff.

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14. The learned first appellate court, upon consideration of the materials on record, held that the drain was constructed on the strip of land which was left by the vendor of the plaintiff and also the defendants with their consent much before the purchase by the plaintiff in the year 2007. The first appellate court ultimately dismissed the appeal.

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15. The only argument advanced on behalf of the appellant is that the admitted facts have not been taken into consideration by both the courts. A copy of the plaint and written statement has been produced by the learned counsel for the appellant for perusal during the course of arguments.

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16. The learned counsel for the appellant relied upon the judgment passed by the Hon'ble Supreme Court reported in (2008) 8 SCC 671 (Haryana Waqf Board Vs. Shanti Sarup and Others) . Paragraph- 5 to 8 of the said judgment are quoted as under:

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“ 5. The appellate court found that the trial court did not take into consideration the pleadings of the parties when there was no specific denial on the part of the respondents regarding the

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allegations of unauthorised possession in respect of the suit land by them as per Para 3 of the plaint. But the only controversy between the parties was regarding demarcation of the suit land because the land of the respondents was adjacent to the suit land and the application for demarcation filed before the trial court was wrongly rejected.

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6. It is also not in dispute that even before the appellate court, the appellant Board had filed an application for appointment of a Local Commissioner for demarcation of the suit land. In our view, this aspect of the matter was not at all gone into by the High Court while dismissing the second appeal summarily. The High Court ought to have considered whether in view of the nature of dispute and in the facts of the present case, whether the Local Commissioner should be appointed for the purpose of demarcation in respect of the suit land.

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7. For the reasons aforesaid, we are of the view that the High Court ought to have considered this aspect of the matter and then decided the second appeal on merits. Accordingly, we set aside the judgment and decree passed in the second appeal and the second appeal is restored to its original file.

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8. The High Court is requested to decide the second appeal in the light of the observations made hereinabove within six months from the date of supply of a copy of this order to it. The appeal is thus allowed. There will be no order as to costs.”

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17. Reliance has been placed to Paragraph Nos. 4, 5 and 6 of the plaint of the suit which are quoted as under:

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4. That, in fact the vendor of the plaintiff Ram Nandan Shama purchased the aforesaid land from the same vendor Rameshwar Mahato and others in the year 27.1.89 vide regd. sale deed no.1123. The vendor of the plaintiff Ram Nandan Sharma is none else then the brother of the plaintiff and therefore the plaintiff was and is in occupation of the said land alongwith her own purchased land. In fact the entire 9 dec. of land was in exclusive possession of the plaintiff since 1989.

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5. That, the plaintiff has also mutated her name in the serista of the state and has been regularly paying rent to t the state and regular rent receipts are being issued in the name of the plaintiff. 6 . That, the plaintiff while constructing her house left a strip of land on the eastern side for purely personal use for egress and ingress and for various other purpose including repairing, white washing etc., of the outer wall of the plaintiff's house.

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18. Paragraph Nos. 4, 5 and 6 of the plaint were responded by the Defendant No.1 to 5 in their written statement vide Paragraph Nos. 11 and 12 which are also quoted as under:

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“ 11. That the contents of para 4 of the plaint are not within the knowledge of the defendants and therefore the defendants are not admitting the same. However, the entire 9 decimals of land was not in exclusive possession of the plaintiff since 1989 as falsely alleged. Ram Nandan Sharma was having his separate land. The land belonging to the plaintiff and Ram Nandan Sharma was vacant/barren land and without any boundary walls. The boundary wall was given by the plaintiff and said Ram Nandan Sharma sometimes in the year 1998-99. The defendants submit that before construction of boundary wall by the plaintiff and said Ram Nandan Sharma there was a dispute in between the land owners at one end and the owners of residential houses on the Northern side regarding their egress and ingress on the other end and at the intervention of Mohalla people, the matter was resolved and the plaintiff as well as said Ram Nandan Sharma erected their boundary wall leaving 2 1/2 ft. (Two & Half feet) wide land for passage along their eastern boundary wall for common use of the public at large including the defendants. Narayan Thakur (father of defendant No.5) had left 1 1/2ft. (one & half feet) wide land towards Western side of his house from before and adding 2 1/2 ft. wide land of plaintiff and Ram Nandan Sharma, the said passage became 4ft. (four feet) wide and 75 ft. long. It was also resolved and settled that the mohalla people including the defendants would jointly construct an underground covered pucca drain through the said gali/passage and link it with the main drain existing by the side of the main road. After such settlement, the plaintiff and said Ram Nandan Sharma raised and constructed their boundary walls and the said wall at its North-East corner was curved to facilitate easy movement of Rickshaw. Tempo, two wheelers etc. in the said passage which still exists at the spot.

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In view of the above, it is totally incorrect to say that the plaintiff was in exclusive possession of entire 9 decimals of land since 1989.

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12. That contents of paras 5 & 6 of the plaint are not within the knowledge of the defendants and as such the defendants do not admit the same. However, the plaintiff is called upon to prove those averments by documents and legal evidence.”

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19. Upon perusal of the aforesaid paragraphs in the plaint and written statement, it cannot be said, even prima facie, that the case of the plaintiff stood admitted by the defendants. Accordingly, no occasion arises to frame any substantial question of law on the basis of the alleged admission of the defendants in their written statement as argued by the learned counsel for the appellant.

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20. In view of the aforesaid facts and circumstances, the judgment passed by the Hon’ble Supreme Court relied upon by the appellant in the case of Haryana Wakf Board (supra) does not apply to the facts and circumstances of this case as the pleadings relied upon by the appellant on the face of it does not help the appellant in any manner. It cannot be said that Paragraph-6 of the plaint was admitted by the defendants in Paragraph-11 of their written statement. On the contrary, in Paragraph-12 of the written statement, the defendants specifically stated that the statements made in Paragraphs- 5 and 6 of the plaint were not within their knowledge. As such, the defendants did not admit these claims and instead called upon the plaintiff to prove the averments through documentary and legal evidence.

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21. There are concurrent findings recorded by both the courts based on materials on record that the boundary wall was constructed leaving the space for drain much prior to purchase of the property by the plaintiff from Ram Nandan Sharma, vide registered deed dated 20.08.2007. Considering the arguments of the appellant and also the impugned judgements, there is no substantial question of law involved in this second appeal, which is hereby dismissed.

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(Anubha Rawat Choudhary, J.)

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Saurav

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Smt Sushila Sinha v. Ramashish Choudhary

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Smt Sushila Sinha v. Ramashish Choudhary

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