Gaurhari Paul And Ors. Vs Jay Chandra Banerjee And Ors.

15.Kalpana Paul, D/o Late Nimai Paul 16.Dipak Kumar Paul, S/o Late Nimai Paul 17.Tapas Kumar Paul, S/o Late Nimai Paul 18.Manash Kumar Paul, S/o Late Nimai Paul

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19.Shankar Das D/o Late Nimai Paul

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20.Chaitan Paul son of Gokul Paul, All Resident of village- Bara Gamharia, P.s. Adityapur, P.O. – Adityapur, District- West Singhbhum … … Plaintiffs/Appellants/Appellants Versus

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Jay Chandra Banerjee

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Tapan Banerjee

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Malay Banerjee

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Ashok Banerjee

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Shayampada Banarjee All sons of Late Gopal Banerjee

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Mangalani Banerjee D/o Gopal Banerjee

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Masomat Lalita Banerjee W/o late Gopal Banerjee All Resident of Bara Gamharia, P.s. Adityapur, P.O.- Adityapur, District- East Singhbhum.

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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. Lukesh Kumar, Advocate For the Respondents : Mr. Abhishek Kumar Dubey, Advocate ---

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22 /10.03.2025 Heard the learned counsels appearing on behalf of the parties.

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2. This second appeal has been filed against the judgment and decree dated 30.09.2015 (decree sealed and signed on 08.10.2015) in Title Appeal No. 40 of 1998 passed by learned District Judge-I, Seraikella Kharsawan whereby the appeal has been dismissed. The plaintiffs were the appellants before the learned 1^st appellate Court. The learned trial Court had decided the suit vide judgment and decree dated 29.08.1998 (decree sealed and signed on 10.09.1998) passed in Title Suit No. 40 of 1994 whereby the suit was decreed partially and the defendants were permanently injuncted and restrained from interfering with the plaintiffs’ right to use the suit land as Gali and

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Rasta .

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3. The suit was filed for the following reliefs: -

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“a) a decree declaring the plaintiffs subsisting title on the suit land holding that recording of the suit land in the name of Defendant is wrong and erroneous.

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b) for confirmation of the possession of the suit land. In the alternative recovery of possession if the plaintiffs are dispossessed in the meantime.

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c) for permanent injunction restraining the defendant from interfering in the possession of the plaintiffs on the suit land.

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d) for the cost of the suit.

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e) for any other relief or reliefs the plaintiffs may be found entitled to under law.”

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4. The schedule ‘A’ to the plaint is as under:

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“Scheduled ‘A’

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Suit land at village Bada Gamharia P.S. Adityapur, village Bada Gamharia, P.S. Adityapur, District Singhbhum West recorded in the survey of 1964 under Khata No. 515 plot No. 460/A Southern side area 01 ¼ decimals bounded on N: Portion of 460 old, South- 458 old corresponding to 1983 Survey Khata No. 165, Plot No. 346(a) of Ward No. 11 area 0.00.50 hectors equal to 01 ¼ decimals bounded on North342 of plaintiff, S: 346(b) of Deft., E: 345(a) Sribas Kumar Paul plaintiff, W: Rasta.”

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5. This second appeal has been admitted for hearing vide order dated 13.05.2024 after framing following substantial question of law:

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“Whether both the learned Courts below have committed an error in not declaring the right, title and interest over the suit property despite the admission in pleading and in evidence that the suit land was the ancestral property of the plaintiff(s)/ defendant(s)?”

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6. Learned counsel for the appellants has submitted that the suit property which was a Gali was in new plot no. 346(a) and the same was declared to be partly carved out from old plot no. 460 (area 0.00.30-hectare equivalent to ¾ decimal) and partly carved out from old plot no. 461 (area 0.00.20-hectare equivalent to ½ decimal).

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7. He submits that the plaintiffs had purchased the plot no. 461 and plot no. 460 and therefore, the right, title, interest and possession of the plaintiffs ought to have been declared with respect to the Gali . 8. The learned counsel for the appellants has referred to Exhibit- 3 which is a registered sale-deed and has submitted that by virtue of the sale-deed (Exhibit-3), the properties in plot no. 345(a) area 0.00.80hectare, plot no.345(b) area 0.00.20 hectare and plot no. 345(c) area 0.01.20 hectare were purchased by the plaintiffs. He submits that the old plot no. 460 was equivalent to new plot no. 346(a) and old plot no. 461 was equivalent to new plot nos. 345(a)(b) and (c). The learned counsel submits that on the strength of Exhibit- 3 it was clear that old plot nos. 460 and 461 belonged to the plaintiffs and therefore, the Gali being spread in plot no. 346(a) and also in plot no. 345(a), has no relevance in view of the fact that entire old plot no. 460 and old plot no. 461 belonged to the plaintiffs.

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9. The learned counsel appearing on behalf of the respondents has opposed the prayer and has submitted that the plaint of the plaintiffs revealed that plaintiffs claimed that the suit property i.e. Gali, was situated only in plot no. 460 and it was never the case of the plaintiffs that it was also spread over to plot no. 461. He submits that however, upon appreciation of facts, the learned Courts have held that Gali was located in old plot no. 460 and new plot no. 346(a) and also in old plot no. 461 and new plot no. 345(a) and old plot no. 461 consisted of new plot nos. 345(b) and 345(c) also. The learned counsel submits that the Courts cannot go beyond the pleadings and in view of the specific pleading that the suit property i.e. Gali was located in old

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plot no. 460 and corresponding new plot no. 346(a), there was no scope for the learned trial Court to declare the right, title and interest of the plaintiffs with respect to the Gali which was used jointly by the plaintiffs as well as the defendants and also by other persons, particularly the inmates of one complex which was used for the employees of the bank.

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10. The learned counsel for the respondents has relied upon the following judgments passed by the Hon'ble Supreme Court:

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(i) (2015) 9 SCC 755 (Nandkishore Lal Bhai Mehta Vs. New Era Fabrics Private Limited and others) (paragraph 39)

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(ii) (2018) 11 SCC 652 (Shivaji Balaram Haibatti Vs. Avinash Maruthi Pawar) (paragraph 26)

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(iii) (2014) 5 SCC 312 (Arikala Narasa Reddy Vs. Venkata Ram Reddy Reddygari and Another) (paragraph 15),

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to submit that the principle of law, that the parties cannot go beyond the pleadings, is based on sound principles, inasmuch as, if such a plea is taken, the other party would have an opportunity to rebut the same and lead evidence. The learned counsel has submitted that the evidence of the respective parties has to be seen within the pleadings exchanged and issue raised in the suit. He has also submitted that in view of the specific plea of the plaintiffs with regard to old plot no. 460, a specific issue was also framed, being issue no. 7 i.e., whether the present suit land is not part and parcel of old plot no. 460? He has also submitted that in absence of any pleading by referring to old plot no. 461, neither any issue was framed nor any such finding could have been recorded. He has submitted that the substantial question of law be answered in favour of the respondents and against the appellants.

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Findings of this court.

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11. After hearing the learned counsels appearing on behalf of the parties and considering the nature of substantial question of law as framed, this Court has gone through the plaint and the written statement filed on behalf of the parties. During the course of arguments, the learned counsel for the appellants has not been able to point out any pleading so as to show any admission on the part of the

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parties that the old plot no. 461 was involved in the suit property or it belonged to the plaintiffs.

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12. As per the plaint , the plaintiffs are the descendants of Hiru Paul. It was the case of the plaintiffs that the record-of-rights was finally published in September, 1964 and the landed properties of the plaintiffs and their predecessors under Khata No. 515 consisting of plot nos. 162, 202, 217, 460, 486, 1353, 1354, 1753, 1143, 1146 and 1147 were recorded in the joint name of family members of the common ancestor and there has been no partition by metes and bounds.

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It was the specific case of the plaintiffs that the present suit is concerned with plot no. 460 containing an area of 0.57 decimal recorded as Sanjukta Dakhal (joint possession) of the recorded owners and the plaintiffs. It was further case of the plaintiffs that a portion of plot no. 460 was acquired to the extent of 18 decimals; an area of 07 decimals in plot no. 460 was transferred vide sale-deed no. 4680 dated 14.05.1974 followed by execution of two sale-deeds bearing nos. 7066 and 7067 dated 09.07.1974 in favour of Narayan Das Agrawal who got his name mutated and constructed a building over the said land and the plaintiffs continued to remain in possession of the remaining portion of plot no. 460. The land which was transferred to Narayan Das Agrawal from portion of old plot no. 460 was re-plotted as Plot no. 341 and the remaining of old Plot No. 460 was renumbered as Plot No. 342 measuring 0.11.00 Hectare and a small portion measuring 1 ¼ decimal equivalent to 0.00.50 hectare which was a portion of plot no. 460 was kept as Gali (suit property) which was wrongly recorded in the record of rights in the name of original defendant as Plot No. 346(a). It was the case of the plaintiffs that the suit land was part and parcel of old plot no. 460 and was wrongly recorded as plot no. 346(a) in the name of the original defendant and as per the case of the plaintiffs, plot no. 341 and 342 were carved out from old plot no. 460 and the remaining of plot no. 460 was left as Gali .

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It was also the case of the plaintiffs that defendants were owners of plot nos. 346(b), 346(c) and 346(d); plaintiffs were in possession of

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the suit land along with plot no. 342 on which the plaintiff namely, Sribas Kumar Paul (plaintiff no. 4) had constructed bank building and as some more land was required , the plaintiff no.4 acquired plot nos. 345(a), (b) and (c) from Sisumati, wife of Late Jagadish Chandra Mukherjee vide registered sale-deed; the plaintiff no. 4 had opened a door from the bank building on portion of plot no. 342 and on plot nos. 345(a), (b) and (c) leading to suit plot no. 346(a) which served as a passage for the plaintiffs through which they have laid the pipes for the water connection and the plaintiffs owned and possessed the suit plot as Gali for ingress to and egress from the road on West to the plot no. 342 and to the plot no. 345(a). It was claimed that the plaintiffs have been exercising their right, title and possession over the suit land ( Gali ) without any obstruction and they were not aware of wrong recording of the suit land in the survey record in the name of the defendant. Though the suit land ( Gali ) was part and parcel of the earlier plot no. 460, the defendants created obstruction in the use of the Gali by stating that they had purchased the property from Sisumati wife of late Jagadish Chandra and consequently, a cloud was created with respect to right, title, interest and possession of the suit property. The cause of action arose on 15.02.1983, the date on which the record was published under section 83(2) of the Chotanagpur Tenancy Act and then again in the month of January, 1994 when the defendants created obstruction. Thus, the plaintiffs claimed that the suit land was the ancestral property of the plaintiffs and the same was wrongly recorded in the name of the original defendant and consequently, they filed the suit for declaration of their title and also holding that the suit land has been wrongly recorded in the name of the original defendant. 13. Written statement was filed on behalf of the original defendant stating that the suit was filed after more than 10 years from the final publication of the record-of-rights and was barred by limitation and that the plaintiffs were not in possession of the suit property for more than 12 years and accordingly, the suit was barred by law of adverse possession, principle of waiver, estoppel and acquiescence. It was asserted that the description of the suit land was vague.

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14. This Court finds that the statements made in the plaint till paragraph 8 relating to joint family rights of the plaintiffs and other statements were either denied by the original defendant in his written statement or the plaintiffs were called upon to prove the same and therefore it cannot be said that there was any admission that the suit property was the joint family property of the plaintiffs. During the course of arguments also the learned counsel for the plaintiffs has not been able to point out any such pleading or evidence which could even suggest that there was any admission from the defendants that the suit property was joint family property of the plaintiffs.

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15. Further, from the perusal of the written statement it was categorically stated that the present suit land i.e. plot no. 346(a) was not a part and parcel of old plot no. 460. It was the case of the original defendant that plot no. 462 was recorded in the name of the original defendant which was finally published in the year 1964 and plot no. 462 was re-plotted as plot no. 346(a), (b), (c) and (d) and finally published in the year 1983. It was denied that the plaintiffs have been using the Gali , rather it was asserted that the Gali (suit property) is the exclusive property of the defendant(s) and is not a part and parcel of plot no. 460 but is a part and parcel of plot no. 462.

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16. The learned trial Court, after considering the materials on record, framed as many as 11 issues which are as under:

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“1. Whether the suit is maintainable in its present form and for the relief claimed.

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2. Whether the plaintiffs have got any cause of action to file the present suit against the defendant?

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3. Whether the suit is barred by provision of Specific relief Act?

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4. Whether the suit is barred by Article 113 and 65 of the Limitation Act?

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5. Whether the suit is barred by the principle of waiver, estoppel and acquiescence?

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6.Whether the suit property is grossly undervalued?

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7. Whether the present suit land is not part and parcel of old plot no. 460?

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8. Whether the suit land is exclusively belong to the plaintiff or it belong to the defendant?

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9. Whether the plaintiffs have got any manner of right, title, interest and possession over the suit land or the suit land is the raiyati property of the defendant?

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10. Whether the plaintiffs used to possess any part of the suit land or gali Rasta?

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11. Whether the plaintiffs are entitled to get any relief or reliefs claimed in the suit?”

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17. This Court further finds that since the specific case of the plaintiffs was that the suit land is situated in old plot no. 460, a specific issue vide issue no. 7 was also framed. The issue no. 7 to 10 and 11 being connected were taken up together. The learned trial Court, after considering the materials on record, held that the Gali was situated in plot no. 346(a) and that the plot no. 346(a) was partly carved out from old plot no. 460 and partly carved out from old plot no. 461 and therefore, the learned trial Court held that the suit land was not part and parcel of old plot no. 460 alone and accordingly, held that the Gali (suit land) did not belong exclusively to the plaintiffs and therefore, the plaintiffs did not have exclusive right over the Gali and Rasta . The learned trial Court also recorded that no part of the new plot no. 346(a) was carved out from old plot no. 462.

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18. Accordingly, the suit was partially decreed and the defendants were permanently injuncted and restrained from interfering the plaintiffs from using the suit land as Gali and Rasta .

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19. This Court finds that the learned trial Court has decided the case within the frame of the suit and by detailed reasoned order the learned Court has rejected the plea of the plaintiffs that the suit land i.e. Gali and Rasta was carved out exclusively from old plot no. 460 and hence rejected the case of the plaintiffs that the suit land i.e. Gali and Rasta was the exclusive property of the plaintiffs. The learned trial Court also did not accept the plea of the defendants that the Gali and Rasta was part of old plot no. 462 as claimed by the defendants. Rather, the learned trial court held that the suit land i.e. Gali and Rasta was part of old plot no. 460 and also part of old plot no. 461 which together formed new plot no. 346(a) and no part of new plot no. 346(a) was carved out from old plot no. 462.

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20. This Court further finds that the learned 1^st appellate Court also discussed the materials on record and gave concurrent findings and dismissed the appeal. The learned 1^st appellate court after considering

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the materials on record held that the plaintiffs have failed to prove that the suit land i.e. Gali and Rasta is exclusively situated in the old plot no. 460 and thus failed to prove their exclusive right, title, interest and possession of the suit property; no portion of the suit property is situated in old plot not 462 and held that the suit property cannot be said to be belonging to the defendants and merely because the name of the original defendant finds place in the record of rights in connection with suit property [ new plot no. 346 (a)] the same does not confer title upon the defendants ; under such circumstances, the defendants cannot obstruct ingress and egress of the plaintiffs through the the suit land i.e. Gali and Rasta and upheld the findings of the learned trial court with respect to issue no. 7 to 10 and also with respect to issue no.11.

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21. This Court is of the view that there was no admission in the pleadings of the respective parties with respect to the right, title, interest and possession of the plaintiffs over the suit property and so far as the Exhibit- 3 is concerned, though the same revealed that certain portion of plot nos. 345(a), 345(b) and 345(c) was purchased by the plaintiffs, but as per the findings, old plot no. 461 was equivalent to plot no. 345(a), 345(b) and 345(c) and it is not clear as to whether the entire area of old plot no. 461 was purchased by the plaintiffs. Further, such plea which has been raised by the plaintiffs during the course of arguments for the purposes of consideration of substantial question of law as farmed, is beyond the pleadings of the respective parties as it was the specific case of the plaintiffs that the suit property was situated only in old plot no. 460 and it was never the case of the plaintiffs that it also fell in old plot no. 461. Learned counsel for the respondents has rightly relied upon the aforesaid judgments wherein it has been held that unless the pleadings are amended, it is not open to the Court to go beyond the frame of the suit. 22. Considering the aforesaid facts and circumstances and having gone through the respective pleadings of the parties and also the materials which have been placed by the learned counsel for the appellants, the aforesaid substantial question of law is answered

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against the appellants . This Court finds that the learned Courts have not committed any error in not declaring the exclusive right, title and interest of the plaintiffs over the suit property which was admittedly a Gali and there is no admission in the pleadings and also in evidence that the entire suit land was the ancestral property of the plaintiffs. 23. Accordingly, the substantial question of law as framed having been decided against the appellants, this Second Appeal is hereby dismissed.

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

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(Anubha Rawat Choudhary, J.)

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Pankaj

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Gaurhari Paul And Ors. v. Jay Chandra Banerjee And Ors.

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Gaurhari Paul And Ors. v. Jay Chandra Banerjee And Ors.

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