The State of Jharkhand through Deputy Commissioner Vs Smt Mohini Devi

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Second Appeal No. 503 of 2018

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The State of Jharkhand through Deputy Commissioner, Chatra, P.O., P.S. and District- Chatra.

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Divisional Forest Officer, South Forest Division, Government of Jharkhand, Chatra, P.O., P.S. and District- Chatra

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……… Defendants/ Appellants/Appellants -Versus-

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Smt. Mohini Devi, W/o Sri Pankaj Kumar Dubey, resident of Village Deoria and Nagwan, P.O., P.S. and District- Chatra

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Sri Pankaj Kumar Dubey, S/o Tapeshwar Dubey, resident of Village Deoria and Nagwan, P.O., P.S. and District- Chatra

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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. Ratnesh Kumar, SC (L&C) For the Respondents : Mr. Kundan Kr. Ambastha, Advocate Mr. Sabyasanchi, Advocate Mr. Anurag Chandra, Advocate Mr. Rakesh Kumar, Advocate

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11/ 05.02.2025 Heard learned counsel appearing for the parties.

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2. This second appeal has been filed against the judgment and decree dated 13.06.2018 (Decree signed on 26.06.2018) passed by the learned District Judge-III, Chatra in Civil Appeal No.08 of 2012 whereby the appeal has been dismissed and the judgment and decree passed by the learned Trial Court has been set aside. The judgment and decree dated 29.02.2012 (Decree signed on 14.03.2012) was passed by the learned Civil Judge, Senior Division-II, Chatra in Title Suit No.03 of 2001 whereby the suit was allowed and decreed on contest.

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3. This appeal was admitted for hearing vide order dated 23.07.2024 and the following substantial questions of law were framed:

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(i) Whether both the courts below have committed perversity in declaring the title of the plaintiffs by way of adverse possession against the State of Jharkhand, even though the essential ingredients to establish their title by way of adverse possession, was neither pleaded nor proved, by the plaintiffs? (ii) Whether both the courts below have committed perversity by failing to consider that in the year 1942, no ward of Encumbered Estate was in existence as the same ended in the year 1937 and Padma Estate was under direct control of Raja Bahadur Kamakhya Narayan Singh therefore, the case of the plaintiffs of settlement by sada hukumnama dated 07.11.1942 was a concocted one?

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4. With respect to the substantial question no. (i) , it has been submitted by the learned counsel appearing on behalf appellants that there was no foundational pleading with respect to adverse possession and it was only in the relief portion of the plaint, the plaintiffs had claimed adverse possession. He placed the entire plaint before this Court and has submitted that in absence of any plea regarding foundational fact of adverse possession, neither any prayer could have been made in the plaint, nor any issue could have been framed and accordingly, there is no occasion for the Court to go into the point of adverse possession.

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5. Learned counsel appearing on behalf of the respondents, on the other hand, has submitted that although issues were framed in connection with the adverse possession, but none of the Courts gave any finding relating to adverse possession. Learned counsel for the respondents has also placed the plaint, but he has not been able to show any foundational pleading on behalf of the plaintiffs with regard to their claim, if any, of adverse possession. However, it is not in dispute that in the prayer portion, a relief was made seeking the decree inter alia on account of adverse possession.

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6. Learned counsel for the respondents has submitted that the plaintiffs were claiming the property on the basis of Hukumnama duly executed which was followed by issuance of rent receipts and their claim was essentially based on title. Learned counsel has submitted that the case of the plaintiffs was based on factum of issuance of Hukumnama coupled with delivery of possession and grant of rent receipts and it is not in dispute that the plaintiffs were in possession of the suit land. He submitted that it is further not in dispute that the plaintiffs are still in possession of the suit land. Learned counsel has also submitted that both the Courts have not recorded any finding in connection with adverse possession, much less any finding on the aforesaid issue in favour of the plaintiffs.

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First substantial question of law

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7. After hearing the learned counsel for the parties on the first substantial question of law, this Court finds that there was no

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foundational pleading in connection with the adverse possession in the plaint rather, only in the relief portion of the plaint, it was prayed that the plaintiffs had also perfected by adverse possession. The relief as prayed for in the plaint is quoted as under:

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a) That after adjudication, a decree may be passed in favour of the plaintiffs declaring that the suit land in plot no. 1144 as described in Schedule ‘A’ below is not a public land, both under law and on facts

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b) That a decree may also be passed in favour of the plaintiffs declaring the title of the plaintiffs over the suit lands of Schedule ‘A’ below and is held as raiyat and is also perfected by adverse possession.

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c) That a decree for permanent injunction be passed against the defendants restraining them not to interfere in possession of the plaintiffs in any manner or with men and staffs or evict the plaintiffs from the suit lands of Schedule ‘A’ below in plat No. 1144.

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d) That a decree for costs of the suit present and future be passed against the defendants.

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e) That any other relief or reliefs to which the plaintiffs may be found entitled to.

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8. The perusal of the plaint itself reveal that the plaintiffs were claiming title over the suit land and were also seeking a declaration of title in their favour over the suit land by claiming themselves to be a raiyats and in absence of any foundational pleading with regard to adverse possession, framing of issue on such point is of no consequence. This Court also finds that the learned courts have decided the case on the title of the plaintiffs and not on account of adverse possession. The substantial question of law no. (i) is accordingly answered. However, the answer to the second substantial question of law will reveal that the plaintiffs have proved their right, title, interest and possession with regard to the suit property.

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Second substantial question of law

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9. So far as the substantial question of law no. (ii) is concerned, the learned counsel appearing for the appellants has submitted that the story of settlement by its Landlord through Manager, Wards and Encumbered Estate (Sada Hukumnama dated 07.11.1942) was totally false and concocted as Kamakhya Narayan Singh attained the majority in the year 1937 and the Estate came in his hands and therefore, Manager, Wards and Encumbered Estate ceased to exist. The Manager, Wards and Encumbered Estate was incompetent to execute any valid Hukumnama in the year 1942. The ground that Hukumnama was forged and fabricated one was taken in the written statement of the defendants, but specific plea with regard to the reason was not pleaded. However, the same was taken at the time of argument before the Appellate Court. Learned counsel for appellants has submitted that law is well settled that fraud vitiates everything and a decree or judgment by fraud is void ab initio . Learned counsel has further relied upon judgment passed by the Hon’ble Supreme Court in the case of Mallavva & Anr. Vs. Kalsammanavara Kalamma (since dead) by legal heirs & Ors., Civil Appeal No. 14803 of 2024 decided on 20.12.2024 to submits that the rules of procedure are intended to be a handmade to the administration of justice and the appellants cannot be refused relief merely on account of some mistakes, negligence or inadvertence inasmuch as no specific plea with regard to the competence of the Manager, Wards and Encumbered Estate was taken in the written statement.

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10. Learned counsel has submitted that the First Appellate Court ought to have exercised power under Order 41 Rule 25 of the CPC and ought to have framed issue on the point of competence of Manager, Wards and Encumbered Estate and ought to have referred the same before the Trial Court for determination on the basis of additional evidence as may be required to prove whether Hukumnama of the year 1942, having been executed by Manager, Wards and Encumbered Estate, was valid . Learned counsel has submitted that even at this stage, the issue may be framed and be referred to the Trial Court to return a finding on the aforesaid fact.

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11. Learned counsel appearing on behalf of the respondents has opposed the prayer and has referred to the written statement filed by the defendants and has specifically referred to para-9 of the written र statement to submit that it was specifically mentioned खाताहाजाकेअ्቎ जजसकदरकाजिलअवादजमीनहैवेलाइजाजतमाजलककेरैयतलोगअवादकर सकताहै and submitted that it means that ‘in the land of Khata No.1, the villagers are entitled to reclaim land of Khata No.1 which are fit for reclamation for cultivation purpose’ . Learned counsel has submitted that the fact that the property was made available for the purpose of reclamation as entered in the records of rights is not in dispute. He has submitted that this fact has also been admitted by the defendants in the written statement.

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12. Learned counsel has further relied upon the judgment of Hon’ble Supreme Court delivered in the case of Bachhaj Nahar Vs. Nilima Mandal & Anr., reported in (2008) 17 SCC 491 para-11 to submit that it is well settled that in absence of foundational pleading, evidence produced by the parties cannot be considered and it is equally well settled that no party can be permitted to travel beyond their pleadings and that all the necessary facts and material should be pleaded by the parties in support of their respective cases. Learned counsel has also submitted that the appellants have not taken any steps for amendment of the written statement and the foundational pleadings in connection with the fact that no Wards of Encumbered Estate was in existence at the end of year 1937, is totally missing in the written statement and therefore, there was no question of framing an issue on this aspect of the matter by the learned 1^st Appellate Court under Order 41 Rule 25 of CPC. Learned counsel has submitted that aforesaid aspect of the matter has been taken care of by the learned 1^st Appellate Court and the learned 1^st Appellate Court has refused to entertain such plea which was raised for the first time before the 1^st Appellate Court.

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13. This Court finds that the 2^nd substantial question of law essentially relates to the point as to whether the Courts have committed any perversity by taking into consideration that in the year 1942, no Wards of Encumbered Estate was in existence as the same ended in the

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year 1937 and that Padam Estate was under direct control of Raja Bahadur Kamakhya Narayan Singh and consequently, the case of plaintiffs of settlement by Sada Hukumnama dated 07.11.1942 could not be considered.

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14. Upon perusal of the plaint and the written statement, this Court finds that it was the specific case of the plaintiffs in Para-5 that the landlord of the village Naga, which was administered by Manager, Wards and Encumbered Estate, being satisfied with the reclamation and possession of the land, got the land measured and classified by the Amin and rent was also fixed and also granted Hukumnama on 07.11.1942 which was duly issued by ex-landlord under the signature dated 16.11.1942 in the name of the settlee, who continued in possession of the property and paid rent to the ex-landlord and was coming into possession since the date of settlement by her own right.

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15. So far as the defendants are concerned, they had asserted in Para10 of the written statement that the Manager of Wards and Encumbered Estate had not settled any portion of land and that there was no occasion to measure the alleged reclaimed land by the Amin and no Purcha dated 14.04.1942 and Hukumnama dated 07.11.1942 and also rent receipts were issued in the name of Smt. Bindwasni Devi and it was also asserted that the plot was recorded as Jungle and not fit for reclamation and therefore, ex-landlord had no right to settle the same. It was asserted that if any settlement paper was made that must be forged and fabricated papers.

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16. Upon perusal of the entire written statement, this Court finds that defendants never raised any plea that the Manager of Wards and Encumbered Estate was not competent to settle the land. Rather, the specific case was that the Manager of Wards and Encumbered Estate had not settled any portion of land and that the document of settlement was forged and fabricated. It was never the case of the defendants in the written statement that Manager, Wards and Encumbered Estate lost the competence to settle the land as Raja Bahadur Kamakhya Narayan Singh had become major in the year 1937 itself.

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17. In such circumstance, there was no occasion for the learned Trial Court to framed any issue on the point as to whether the Wards and Encumbered Estate was in existence or as to whether the same ended in the year 1937 upon attainment of majority by Raja Bahadur Kamakhya Narayan Singh and pursuant thereto, Padam Estate came under direct control of Raja Bahadur Kamakhya Narayan Singh.

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18. The foundational fact in connection with substantial question no. (ii) was completely missing in the written statement filed by the defendants and accordingly, the learned Trial Court has committed no perversity by not framing any issue or not considering any such point. This Court finds that learned Trial Court has recorded in Para-23 of the judgment that an argument was raised by the learned counsel appearing on behalf of defendants that in the year 1937, Raja of Padma Estate namely, Raja Bahadur Kamakhya Narayan Singh had become major and therefore, there was no occasion in the year 1942 for existence of Manager of Wards and Encumbered Estate. The learned Trial Court has also recorded that the defendants had not produced any evidence to substantiate the aforesaid facts.

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19. This Court finds that there was no foundational plea to the extent that Raja Bahadur Kamakhya Narayan Singh had attained majority in the year 1937, much less any evidence to that effect. Accordingly, the learned Trial Court has not committed any perversity in not considering the point that in the year 1942, no Wards and Encumbered Estate was in existence and the same had ended in the year 1937 and consequently, Padma Estate was under direct control of Raja Bahadur Kamakhya Narayan Singh, who attained the majority way back in the year 1937. 20. So far as the first Appellate Court is concerned, the first Appellate Court has considered this plea in Para-15 of the judgment and has recorded that the defendants had taken a ground in the memo of appeal that Kamakhya Narayan Singh had become major in the year 1937 and the Estate has come in direct control of his hand and the Encumbered Estate came to an end in the year 1937 and this plea was followed by the submission that Hukumnama granted by the Manager of Wards and Encumbered Estate in the year 1942 itself was not valid.

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The learned first Appellate Court while referring to the aforesaid ground taken by the defendants, has observed that the said assertion of the appellants/defendants amounts to an admission to the extent that the Estate was under the administration of Manager of Wards and Encumbered Estate till 1937 and only plea of the defendants was that the Manager of Wards and Encumbered Estate was not entitled to measure or grant settlement as the landlord Raja Bahadur Kamakhya Narayan Singh had come to power in the year 1937 upon attaining majority. The learned first Appellate Court has taken into consideration that there was no such foundational pleading in support of such plea in the written statement and has referred to the principle of law that decision of Court would not be based on the ground outside the pleadings and rejected the aforesaid plea. This Court finds that the findings recorded by the learned first Appellate Court with regard to the substantial question of law no. (ii) is based on sound principles of law. There was no foundational pleading from the side of the defendants with respect to the plea that the Wards and Encumbered Estate came to an end the year 1937 upon Raja Bahadur Kamakhya Narayan Singh attained majority and accordingly, such a plea was rightly not entertained by the learned trial court and also the learned first appellate court. The date of attainment of majority by Raja Bahadur Kamakhya Narayan Singh and consequent discontinuance of Manager, Wards and Encumbered Estate was essentially a material fact which was required to be pleaded and also proved.

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21. It is held that both the courts have not committed any perversity by failing to consider the argument of the defendant that in the year 1942, no ward of Encumbered Estate was in existence as the same ended in the year 1937 and Padma Estate was under direct control of Raja Bahadur Kamakhya Narayan Singh and therefore, the case of the plaintiffs of settlement by Sada Hukumnama dated 07.11.1942 was a concocted one. This is because there was no foundational pleading with regard to the aforesaid plea, much less, any evidence to support such a plea. It is important to observe that at no stage, the appellants took any steps to amend the written statement or to pray for seeking additional

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evidence and plea regarding the year of majority of Raja Bahadur Kamakhya Narayan Singh, which is alleged to be in the year 1937, is neither based on any pleadings nor based on any evidence. Consequently, the 2^nd substantial question is answered against the appellants and in favour of the respondents.

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22. In view of the aforesaid findings with regards to both the substantial questions of law, this appeal is dismissed.

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(Anubha Rawat Choudhary, J.)

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Kunal/ AFR

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The State of Jharkhand through Deputy Commissioner v. Smt Mohini Devi

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The State of Jharkhand through Deputy Commissioner v. Smt Mohini Devi

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