Shiv Chand Murmu And Ors. Vs Mati Kisku And Ors.

2. This second appeal has been filed against the Judgment and decree dated 16.09.2017 (Decree sealed and signed on 23.09.2017) passed by the learned District Judge-II, Dhanbad in Civil Appeal No. 13 of 2010 whereby and whereunder the appeal filed by the plaintiffsappellants has been dismissed, affirming the Judgment and decree dated 20.11.2009 passed by the learned Subordinate Judge-VI, Dhanbad in Title Suit No. 83 of 1990 (Decree sealed and signed on 03.12.2009) whereby and whereunder the title suit was dismissed on contest.

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3. The suit was filed seeking a declaration of right, title, interest and confirmation of possession over Schedule-C land in favour of the plaintiffs and for recovery of khas possession, if plaintiffs are found dispossessed and a prayer was also made seeking permanent injunction restraining the defendants from interfering with the peaceful possession of the plaintiffs.

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4. Learned Senior counsel for the appellants submitted that though there are concurrent findings recorded by both the Courts, yet substantial questions of law arise for consideration by this Court.

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5. Learned Senior counsel further submitted that the defendants had claimed that they were in possession of the property by virtue of a registered sale deed dated 08.11.1985 executed by one Mangli Manjhian W/o Ruplal Hembram after taking permission from the Land Reforms Deputy Collector, Dhanbad under Section 46 of the Chotanagpur Tenancy Act, 1908 vide order dated 05.11.1985 in M.R. Case No. 127/85-86. He referred to the provisions of Section 46 of the Chotanagpur Tenancy Act, 1908 and submitted that the Land Reforms Deputy Collector has no jurisdiction to grant permission and therefore, the very basis of execution of the sale deed on the basis of such permission was bad and consequently, the permission being void, the sale deed was also void.

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6. He further submitted that Mangli Manjhian, being the widow, had no right to sell the property of her husband after his death. Learned Senior counsel also submitted that since widow has no jurisdiction to sell the property as per the Tribal Law, the sale deed was void ab initio . 7. Learned Senior counsel also submitted that although these points have not been raised before the learned Courts, but they being pure questions of law can be raised even in the Second Appeal. 8. He relied upon the judgment passed by this Court in LPA No. 242 of 2022 (The Jharkhand Bijli Vitran Nigam Ltd. Vs. Vexcel Upkram Pvt. Ltd.) decided on 17.11.2022 and submitted that in Para11 of the judgement, it has been clearly observed that there is no dispute about the settled position of law that the issue of jurisdiction can be raised at any stage of the proceeding as the issue goes to the root of the lis. He also relied upon the judgment passed by this Court in Tax Appeal No. 11 of 2023 (Assistant Commissioner of Income Tax, Circle-1, Ranchi Vs. Mecon Ltd.) decided under Section 260-A of the Income Tax Act, 1961 and referred to Para-14 thereof and submitted that it has been observed that it is settled position of law that if any statute has been enacted, there cannot be insertion of any word beyond the contents of the statute and the statute is to be followed as it is and

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there cannot be any deviation from the statutory command. He also relied upon the judgment passed by this Court in W.P.(S). No. 205 of 2023 (Rubi Singh Vs. the Secretary, Ministry of Jal Shakti, Government of India & Ors.) and referred to Para-41 of the judgement to submit that it is settled position of law that even right decision by a wrong forum is no decision and submitted that in the said judgment a reference has been made to a judgment passed by the Hon’ble Supreme Court in the case of Pandurang & Ors. Vs. State of Maharashtra (1986) 4 SCC 436 . Learned counsel also relied upon the judgment passed by this Court in the case of Matius Tirkey & Anr. Vs. Jusuphin Lakra & Anr. 2008 (2) JCR 208 (Jhr) and referred to Para-11 thereof to submit that the widow of a tribal may have life interest in the property of her husband in lieu of her maintenance, but she cannot transfer the property by way of sale, exchange, gift, etc. and submitted that in that case, the permission granted by the Deputy Commissioner to gift the property was held to be bad and unsustainable in law. Learned Senior counsel submitted that substantial questions of law be framed and the case be admitted on the aforesaid two points.

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9. After hearing the learned counsel for the appellants, this Court finds that it was the case of plaintiff that recorded tenant of the property was Mandal Hembram and he had one son namely, Hedma Hembram and two daughters namely, Sukurmani and Poki Manjhian and Hedma Hembram died issueless about 25 years ago and his wife had predeceased him and consequently, the suit property devolved into his two survived sisters. Poki Manjhian died leaving behind three sons namely, Sitaram, Piru and Chand who were the Plaintiff Nos. 1 to 3 and inherited her half share and remained in joint possession with their other co-sharers. Sukurmuni died 8 years ago leaving behind three sons namely, Lakhiram, Ruplal and Hopna who were the Plaintiff Nos.4 & 5 who inherited their mother’s interest and are jointly possessing the same. Further case of the plaintiffs was that the defendants set-up a lady namely, Mangli Manjhian purported to be widow of Ruplal Hembram

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and got Sale Deed No. 10859 dated 08.01.1985 executed in respect of the Schedule C property and the cause of action arose when the defendants threatened the plaintiffs to forcibly dispossess them.

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10. The contesting Defendant Nos. 1 & 2 appeared and contested the suit by filing written statement wherein they stated that there was no cause of action and the suit was not maintainable. They further stated that Hedma Hembram son of Mandal Hembram was also known as Rupu Hembram and sometime as Hedma Hembram and in the genealogical table filed by the plaintiffs, the name of Mangli Manjhian widow of Hedma Hembram was not shown. Mangli Manjhian inherited the entire property fell in the share of her husband Ruplal Hembram. They denied that wife of Hedma Hembram had predeceased him and the sisters had inherited the entire property mentioned in Schedule-B. They further denied that the defendants had set-up any women namely, Mangli Manjhian purported to be wife and widow of Ruplal Hembram for execution of Sale Deed No. 10859 dated 08.11.1985 with respect to Schedule-C’ property.

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11. The Proforma Defendant Nos.3 to 5 also appeared and filed their written statement separately in which they supported the claim of the plaintiffs.

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12. On the basis of the pleadings of the parties, the learned trial court framed the following issues:

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1. Whether the suit as framed is maintainable in its present form?

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2. Whether there is valid cause of action for the suit?

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3. Whether the plaintiffs are entitled to get a decree for declaration of right, title, interest and confirmation of possession and if, they are found dispossessed, its recovery of possession, permanent injunction restraining the defendants from interfering the peaceful possession of the plaintiffs from the suit land i.e. Schedule-C land?

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4. Whether Mangli Manjhian is the wife of Rupu Hembram @ Hedma Hembram?

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5. Whether the plaintiffs are entitled to get any other relief or reliefs?

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13. The learned Trial Court took up the Issue Nos. 3 and 4 together and considered the evidence on record including the death certificate of Mangli Manjhian (Exhibit-B), which shows that she was the wife of Rupu Hembram and died on 13.12.1988. The learned Trial Court in Para-52 of the judgement ultimately held that Rupu Hembram is the @ name of Hedma Hembram and Mangli Manjhian is his wife and after the death of Rupu @ Hedma Hembram, his entire property was inherited by his widow Mangli Manjhian, through which the defendants have purchased the land i.e. Schedule-C land and so, the plaintiffs are not at all entitled to get a decree for declaration of right, title, interest and confirmation of possession with respect to Schedule-C land. Accordingly, the learned trial court decided Issue Nos. 3 & 4 against the plaintiffs and in favour of the plaintiffs.

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14. The learned trial court also decided the Issue No. 2 with regard to cause of action against the plaintiffs. The learned trial court decided the Issue No.1 against the plaintiffs holding that the suit as framed is maintainable. The learned trial court also decided the Issue No.5 against the plaintiffs. Accordingly, the learned trial court decided all the issues against the plaintiffs.

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15. The learned first appellate Court also considered the materials on record and gave concurrent findings. The first appellate Court also relied upon the permission granted by L.R.D.C. which was exhibited as Exhibit-E, which was the certified copy of order passed in M.R. Case No. 127 of 1985, dated 05.11.1985, by which the LRDC has granted permission to Mangli Manjhian under Section 46 of the Chotanagpur Tenancy Act, 1908 and other documents to show that the deed was executed and possession was handed over to the defendants after completing due procedure of law .

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16. The learned Appellate Court framed the following points for determination:

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(a) Whether the suit as framed is maintainable in its present form?

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(b) Whether there is valid cause of action for the suit?

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(c) Whether the plaintiffs are entitled to get a decree for declaration of right, title, interest and confirmation of possession and if they are found dispossessed, its recovery of possession, permanent injunction restraining the defendants from interfering the peaceful possession of the plaintiffs from the suit land i.e. Schedule-‘C’ land?

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(d) Whether Hedma Hembram was also known as Rupu Hembram?

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(e) Whether the Manjhli Manjhian was the W/o Rupu Hembram @ Hedma Hembram who has executed the sale deed to the defendants?

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17. The learned first appellate court decided all the points of determination against the plaintiffs-appellants.

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18. Thus, the case of the plaintiffs that wife of Hedma Hembram predeceased him 25 years ago was completely disbelieved by both the Courts by referring to both, documentary and oral evidences and even the death certificate of Mangli Manjhian was duly exhibited, who died in the year 1988 and the registered sale deed in the instant case was executed by Mangli Manjhian in the year 1984.

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19. Before this Court, learned counsel has essentially referred to the provisions of Section 46 of the Chotanagpur Tenancy Act to submit that the LRDC had no jurisdiction to grant permission to sell the property involved in this case and therefore, the sale itself was null and void. This Court finds that no such point was ever raised before the learned Courts. Otherwise also, the term Deputy Commissioner has been defined under Section 3(viii) of the Chotanagpur Tenancy Act, 1908 which reads as follows:

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“3(viii) "Deputy Commissioner" in any provision of this Act includes(a) any Revenue Officer or Deputy Collector, who is specially empowered by the [State] Government to discharge any of the functions of a Deputy Commissioner under that provision, and

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(b) any Deputy Collector to whom the Deputy Commissioner may by general or special order, transfer any of his functions under that provision;

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20. This Court is of the considered view that on the face of definition of Deputy Commissioner, it cannot be said that the permission having not been granted by the Deputy Commissioner himself and having been granted by the Land Reform Deputy Collector was null and void or void ab initio. It certainly requires adjudication as to whether the authority who had granted the permission has the delegated power to do so. Had such a point been raised before the learned Courts, evidences would have been led to come to a finding, but admittedly, no such point was raised before the learned courts for consideration. This Court is of the view that jurisdiction to grant permission to sell is not a pure question of law as argued, rather it is a mixed question of fact and law. In absence of any foundation for the said point, no such substantial question of law arises for consideration by this Court on the point of jurisdiction of Land Reform Deputy Collector to give permission to sell the property. 21. Learned Senior counsel has also raised a point that under Tribal Custom wife cannot have absolute right to sell the property of her husband. However, admittedly, such plea was also not taken before both the Courts and further custom is required to be pleaded and also proved before a Court of Law as different Tribes are governed by different Tribal customs and mere submission without any foundational facts or evidence on record cannot be the basis of framing a substantial question of law.

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22. So far as judgment which has been relied upon by the learned Senior counsel for the appellants reported in Matius Tirkey (supra) is concerned , this Court finds that in the said case, the suit was filed seeking declaration that the permission for sale was illegal, void and without jurisdiction and consequently, the sale deed was void ab initio. The legality and validity of the permission and also the sale deed was directly an issue before the Court. In the present case, neither the

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permission to sell, nor the sale deed has been specifically challenged by the plaintiffs.

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23. On the face of the facts of the case, it cannot be said that the permission to sell or the sale deed pursuant to such permission was wholly without jurisdiction. Such an issue would certainly require evidence, had the sale deed or the permission were subject matter of challenge before the Courts.

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24. In view of the aforesaid facts and circumstances, the aforesaid two questions which have been suggested by learned counsel for the appellants do not arise for consideration as substantial question of law in the present case.

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25. There being no substantial question of law involved in this case, this Second Appeal is hereby dismissed.

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26. Pending interlocutory application, if any, is dismissed as not pressed.

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(Anubha Rawat Choudhary, J.)

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Kunal/Mukul

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Shiv Chand Murmu And Ors. v. Mati Kisku And Ors.

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Shiv Chand Murmu And Ors. v. Mati Kisku And Ors.

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