TMI Blog2003 (8) TMI 556X X X X Extracts X X X X X X X X Extracts X X X X ..... dag Khurd, P.S. Nagar Utari, District Palamau fully detailed in the Schedule of the plaint of both the title suits is the occupancy raiyati land of the plaintiff respondents. 4. The case of the plaintiff respondents in both the title suits aforesaid is similar in material particulars. The case of the plaintiff respondents, in brief, is that the land of Khata No. 14 of village Hardag Khurd P,S. Nagar Utari, District Palamanu stands recorded in the name of Jattu Mahto in the Survey Record of Rights (Ext. D/1) and Jattu Mahto was in possession thereof as owner in respect thereof and the said Jattu Mahto died five years after the survey leaving behind his only son Maharaj Mahto as his heir. It is alleged that the wife of Jattu Mahto had predeceased him. After the death of Jattu Mahto, Maharaj Mahto inherited the suit property and continued in peaceful possession thereof and the ex-landlord of village Harda Khurd filed Return under the provisions of BLR Act on the vesting of the estate showing the name of Maharaj Mahto as raiyat of Khata No. 14 and the said Maharaj Mahto died after the vesting of the estate leaving behind his only son Vishwanath Mahto as his heir who has inherited th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd his son Vishwanath Mahto had no right, title and interest in respect of the suit land and they were never in possession in respect thereof and they had no right to transfer the suit land in favour of Khakhanu Mahto and others. It is also alleged that the name of Maharaj Mahto does not appear in the return filed by the ex-landlord and any return disclosing his name therein is a fraudulent document. The further case of the defendants appellant is that the land of Khata No. 14 came in possession of Bhaiya Saheb', the landlord of Nagar Utari, after the death of Jattu Mahto who remained in possession thereof and, thereafter, he settled the entire land of Khata No. 14 with the defendants appellant about 40 years ago and since then the defendants appellant are coming in possession thereon to the knowledge of the plaintiff respondents and his father and the defendants appellant had paid the rent of Khata No. 14 to the ex-landlord and, thereafter, to the State of Bihar and they get the rent receipts in respect thereof. It is also alleged that defendants appellant has constructed a house on the portion of the suit land which fell down and there is only now a hut in which they keep the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intiff respondent or their vendor Khakhanu Mahto and others did not acquire any right title or interest in the suit land and they were never in possession over the same and the defendants appellant have perfected their right, title and interest regarding the suit land by adverse possession and in view of the findings above the learned trial Court dismissed both the suits. 8. Aggrieved by the judgment and decree of the trial Court the plaintiffs respondent preferred Title Appeal No. 44 of 1976 and 45 of 1976. The lower appellate Court on reappraisal and re-appreciation of the evidence, oral and documentary, on the record reversed the judgment and decree of the trial Court and allowed the appeal as per the judgment dated 3.10.1978 and decreed the suit. The defendants appellant preferred S.A. No. 215 of 1978 and S.A. No. 216 of 1978 before this Court and while admitting both the appeals this Court formulated the substantial question of law which runs thus :-- Whether the lower appellate Court erred in holding that Maharaj Mahto was the son of Jattu Mahto. Both the appeals were remanded to the learned Court below after setting aside the impugned judgment dated 3.10.1978 for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration the aforementioned exhibits. It is pertinent to mention here that this Court while formulating the substantial question of law appears to have overlooked its order dated 16.3.1988 passed in S.A. No. 215 of 1978 (R) with S.A. No. 215 (R) of 1978 (R) whereby the observation made in the judgment dated 16.8.1985 by this Court with regard to Exts. 4 and 5 was ordered to be ignored by the lower appellate Court and the Court below was directed to take into consideration these two exhibits. 12. In course of hearing of these appeals another undernoted substantial question of law was also formulated. Whether the suit of the plaintiff for declaration of his title simplicitor is maintainable in the absence of confirmation of possession or in the alternative recovery of possession. 13. Assailing the impugned judgment it has been submitted by the learned counsel for the defendants appellant that the appellate Court below has committed a manifest error in coming to the finding of the fact that Jattu Mahto had a son Maharaj Mahto who had a son Vishwanath Mahto and he has wrongly and improperly considered Exts. 4 and 5 inspite of the direction of this Court to ignore t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow were not found favour with and also the basis or the foundation or reasoning on which the conclusion of appellate Court is grounded and where the judgment of the appellate Court below does not give any reason nor discusses the evidence and the law applicable to the facts of the case then in that case the impugned judgment of the appellate Court below is definitely improper and requires to be set aside. 14. Refuting the contention aforesaid the learned counsel for the plaintiffs respondent has submitted that in this case the appellate Court below on proper appreciation and re-appraisal of the evidence as well as the directions contained in the order dated 16.8.1985 read with 16.3.1988 passed in S.A. No. 215 of 1978 and S.A. No. 216 of 1978 came to the finding that Jattu Mahto had a son Maharaj Mahto. It has also been submitted that the observation contained in the order dated 16.8.1985 was modified as per order dated 16.3.1988 whereby the observation in respect of Exis. 4 and 5 were ordered to be ignored by the lower appellate Courts and it was directed to take into consideration these two documents and the learned appellate Court below had re-appraised the evidence on the rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een submitted that the appellate Court below has properly scrutinized and considered the evidence on the record and has exercised its discretion in the judicial manner and it cannot be termed to be an error either of law or of procedure requiring any interference in the Second Appeal. It has also been submitted that this Court in Second Appeal can not interfere with the judgment of the first appellate Court merely on the ground that the first appellate Court failed to advert to the reasons scribed by the trial Court and the first appellate Court can consider the evidence adduced by the parties and give its own reasons for accepting or rejecting the evidence of one party or the other party. In support of his contention reliance has been placed on the ratio of the case of Arumugham and Ors. v. Sun-darambal and Anr . It has further been submitted that there is no application of Section 34 of the Specific Relief Act in this case as the plaintiff respondents were in possession of the suit land and the grant of rent receipt in pursuance of the order of the Circle Officer passed in the year 1970 in a mutation proceeding which is not a judicial proceeding, does not decide title and is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecord of Rights clearly indicates that Maharaj Mahto son of Jado Mahto is a distinct identity. The finding of the learned appellate Court below regarding the fact that Maharaj Mahto is the son of the recorded tenant Jattu Mahto of Khata No. 14 stands corroborated by the return Ext: 5 and the Raiyatbari Register Ext. 4 coupled with the existence of written receipts 3/B and 3/D as well as Ext. 6 and 6/A. The original of Ext. 5 and Ext. 6 were brought on the record in course of evidence and admitted into evidence in which the name of Maharaj Mahto son of Jattu Mahto stands recorded therein in respect of the land of Kahta No. 14. Had he not been the son of Jattu Mahto there was no reason of his name appearing in Ext. 4 and Ext. 5 referred to above as well as grant of the rent receipts by the ex-landlords. The Hon'ble Court vide order dated 16.3.1988 passed in Second Appeal No. 215 of 1978 and 216 of 1978 had modified the direction contained in the judgment dated 16.8.1985 passed in both the Second Appeals and directed the learned Court below that the observation made in the judgment dated 16.8.1985 with regard to those two exhibits i.e., Exts 4 and 5 shall be ignored by the lower a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been granted to them in respect of the suit land cannot be taken as document of their title and possession in respect thereof. The learned appellate Court below has rightly considered Exts. 4 and 5 in coming to the finding of the fact that Maharaj Mahto is the son of Jattu Mahto recorded tenant of Kahta No. 14 and he had right title and interest as well as possession over the suit land and the learned appellate Court below cannot be said to have misdirected himself in passing the impugned judgment considering Exts. 4 and 5 as this Court vide order dated 16.3.1988 referred to above had directed the learned appellate Court to consider Exts. 4 and 5 modifying its earlier direction contained in the judgment dated 16.8.1985. Thus the substantial question framed vide order dated 23.10.1990 cannot be viewed as a substantial question of law rather in pith and substance the substantial question as formulated, is pure and simple a question of fact which can never be entertained by exercising the jurisdiction under Section 100 of the CPC. 16. The plaintiffs respondent has filed a simple suit for declaration that the suit property is the occupancy ratyati land of the plaintiffs respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if the plaintiff is out of possession of the suit land and only seeks to have his title declared, his suit for mere declaration will not lie without the consequential relief of recovery of possession. Thus a plaintiff out of possession suing for a declaration of title to land ought to pray for possession if the defendant is in possession but he is not obliged to do so if the defendant is not in possession or the plaintiff is in lawful possession of the suit land. The plaintiff in possession of the property, when seeks a declaration of his title, the suit without a prayer for possession is maintainable, here in this case, the survey entry in respect of the suit land is in favour of Jattu Mahto, the father of Maharaj Mahto and the learned appellate Court below has held that Maharaj Mahto aforesaid was in possession of the suit land till he was alive and, thereafter, the possession of his vendees. In view of the finding regarding possession over the suit land of the plaintiffs respondent read with the ratio of the case of Bhup Narayan Singh (supra) relied upon by the learned counsel for the plaintiffs respondent their suit cannot be held barred under Section 34 of the Specific Relief ..... X X X X Extracts X X X X X X X X Extracts X X X X
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