Feedback   New User   Login      
Tax Management India. Com TMI - Tax Management India. Com
Acts / Rules Notifications Circulars Tariff/ ITC HSN Forms Case Laws Manuals Short Notes Articles SMS News Highlights
        Home        
Extracts
Home List
← Previous Next →

Chhabi Dushadh and Anr. Versus Bhuneshwar Pandey and Srikant Pandey

2003 (8) TMI 556 - JHARKHAND HIGH COURT

AFAD Nos. 144 and 145 of 1988(R) - Dated:- 13-8-2003 - Vishnudeo Narayan, J. For the Appellant/Petitioner/Plaintiff: N.K. Prasad, Sr. Adv., P.K. Prasad and Pratyush Kumar, Advs. For the Respondents/Defendant: Munjal Prasad, Adv. JUDGMENT Vishnudeo Narayan, J. 1. Both the appeals arise out of a common judgment and, therefore, they are being disposed of by this judgment. 2. These appeals at the instance of the defendants appellant are directed against the judgment and decree dated 27.7.1988 and 8. .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Khata No. 14 situate in village Haradag 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 Jatt .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

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 the suit property and came in possession. The said Vishwanath Mahto sold the entire land of Khata No. 14 to Khakhnu Mahto, Budhan Mahto, Jahri Mahto and Kailash Mahto by virtue of the sale deed (Ext. 1/B) dated 28.9.1957 and the aforesaid vendees came in possession th .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

of Khata No. 14 aforesaid and both the plaintiff respondents came in possession over the suit land and continued in possession thereof peacefully without any interference and interruption. Both the plaintiff respondents, thereafter, applied for mutation of their names in respect of the lands purchased by them by virtue of the sale deeds aforesaid and Mutation Case No. 10 of 1968-69 was registered and the defendants appellant put an objection thereto which is to the effect that they stand entered .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

and but a cloud has been cast over the title of the plaintiff respondents and, hence, these suits. 5. The case of the defendants appellant, inter alia, is that Jattu Mahto had died issueless and he had no son, namely, Maharaj Mahto. It is alleged that there was one Maharaj Mahto son of Jado Mahto in village Haradag and the name of the said Maharaj Mahto was recorded in the Survey Record of Rights and there was no other person named Maharaj Mahto and Maharaj Mahto son of Jado Mahto had abandoned .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ct of the suit land and the defendants appellant filed their objection petition in the said mutation proceeding and the mutation case filed by Khakhanu Mahto and others were dismissed and thereafter, Khakhanu Mahto executed the sale deeds in favour of the plaintiffs respondent and, thereafter, the plaintiffs respondent have also filed mutation case which was also rejected by the Circle Officer on enquiry finding the defendants appellant in possession over the suit land. Lastly it has been conten .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the plaintiff of both the title suits i.e., T.S. No. 79 of 1973 and 80 of 1973 have a valid case of action in both the suits? (ii) Whether both the above mentioned suits are maintainable in their present form? (iii) Whether the plaintiff of T.S. No. 79 of 1973 has a subsisting title to the suit lands of the said suit, described within the schedule of the plaint of Suit No. 79 of 1973, and it can be declared that he was the occupancy raiyat of the suit lands of the said suit? (iv) Whether the pla .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

issue Nos. 3 and 4 aforesaid had held that Jattu Mahto died issueless and he had no son, named, Maharaj Mahto and Vishwanath Mahto is not the son's son of Jattu Mahto. It has also been held that the plaintiff 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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

d 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 a fresh decision after hearing the parties with the observation directing the learned appellat .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the witnesses. That being the position, the observation made in the judgment by this Court on 16th August, 1985 with regard to those two exhibits shall be ignored by the lower appellate Court and the Court below shall take into consideration those two exhibits." 9. The learned Court below on remand and keeping in view of the observation of this Court referred to above again allowed the appeal as per the impugned judgment dated 27.7.1988 and decreed the suit. The appellate Court below came .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ts. 3/C and 3/D and 6 and 6/A standing in the name of Mahara Mahto are genuine and Maharaj Mahto had right title and interest in the suit land and he was in possession thereof and, thereafter, his vendees had right title and interest in the suit land and possession over the same. 10. Again aggrieved by the impugned judgment and decree passed on remand the defendants appellant preferred this appeal before this Court. 11. This Court while admitting the appeal for hearing formulated substantial que .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

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 simplici .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

gnore them in arriving at a finding of the issue involved in the suit as to whether Jattu Mahto died issueless or not. It has further been contended that the finding of fact of the learned appellate Court below stands vitiated due to the consideration of inadmissible and irrelevant evidence i.e., Exts. 4 and 5 and an erroneous approach regarding the matter in controversy has been adopted by the Court and this Court is not precluded from interfering in the exercise of its jurisdiction in this Sec .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

orded without any legal evidence on the record, or on misreading of evidence or suffers from any legal infirmity, Which materially prejudices the case of one of the parties or the finding is perverse, it would be open for the High Court to set aside such a finding and to take a different view." It has also been submitted that the finding of the learned appellate Court below based on Ext. 4 and 5 is bad in law as he has misread the evidence and there was equally misapplication of law and vie .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

possession and in this view of the matter the suit of the plaintiffs respondent is not at all maintainable under Section 34 of the Specific Relief Act. Lastly it has been contended that the appellate Court below while reversing the judgment of the trial Court has not given any strong, cogent and convincing reasons and under the law it is bound to give reasons as to why the findings of the trial Court below were not found favour with and also the basis or the foundation or reasoning on which the .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

al 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 conside .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

am v. Savitribai Sopan Gujar and Ors., it has been submitted that the right of appeal under Section 100 of the CPC is neither a natural nor an inherent right attached to the litigation. Being a substantial statutory right it has to be recorded in accordance with law in force at the relevant time and the conditions mentioned under Section 100 of the CPC must be strictly fulfilled before a Second Appeal is maintained and no Court has the power to add to or enlarge those grounds and the Second Appe .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

being the first appellate Court. It is true that the lower appellate Court should not ordinarily reject witnesses accepted by the trial Court in respect of credibility but even where it has rejected the witnesses accepted by the trial Court, the same is no ground for interference in Second Appeal when it Is found that the appellate Court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate Cou .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

o been 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 sc .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

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 evidence of exclusion from property and for that reliance upon the ratio of the case of (Thakur) Nirmal Singh and Ors. v. Thakur Lal Rudra Pratap Narain Singh and Ors AIR 1926 PC 100, was placed. It has also been contended that there was no issue framed by the trial Court in respect of Section 34 o .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

te of the suit it was not open for him to sue for mere declaration of title without also seeking the further relief of the recovery of possession which he has definitely omitted to pray and pay for. The position may, however, possibly have been different if it had been found in accordance with law that the plaintiff was in actual possession of the disputed land as well. Viewed thus the impugned judgment cannot be said to be unsustainable. 15. It is an admitted case of the parties to the suit tha .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

anath Mahto is the son of Maharaj Mahto aforesaid. The case of the defendants appellant that Jattu Mahto had died issueless and there was one Maharaj Mahto recorded tenant of Khata No. 33 of village Haradag and said Maharaj Mahto is the son of Jado Mahto and as per case of defendants appellant said Maharaj Mahto son of Jado Mahto had left village Haradag about 50 years ago and settled somewhere else which means that Maharaj Mahto son of Jado Mahto had left village Haradag in the year 1925. There .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

oresaid and re-appraisal of the evidence in proper perspective has rightly held that Jattu Mahto did not die issueless and he has a son Maharaj Mahto. The entry in the Survey Record of Rights in respect of Khata No. 14 in favour of Jattu Mahto has the effect to show the continuity of his possession over the land of Khata No. 14 and, thereafter, his descendants and the presumption in respect thereof is not neutralized by payment of rent by someone in respect thereof. It is equally pertinent to me .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

principle of law that the mutation proceeding is not a judicial proceeding and it does not decide title and is equally of no evidence of exclusion from property. In the case of (Thakur) Nirmal Singh (supra) it has been observed that :- "It is an error to suppose that the proceedings for the mutation of names are judicial proceedings in which the title to and the proprietary rights in Immovable property are determined. They are nothing of the kind, as has been pointed out time innumerable by .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

a proprietary sense to the exclusion of all claims of rightful title holder in respect thereof. Therefore, the order of mutation in favour of defendants appellant in pursuance of which rent receipt 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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

not 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 respondent and no consequential relief has been sought in this case by them. The trial Court has not accorded any .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

t;Section 34. Discretion of Court as to declaration of status or right.-Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person, denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not, in such suit, ask for any further relief; Provided that no Court shall make any such declaration where the plaintiff, bein .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e the plaintiff is able to seek further relief than a mere declaration of title, he must seek such relief. If any of the first three conditions is not fulfilled the suit should be dismissed. If those three conditions are fulfilled but fourth is not the Court shall not make the declaration sued for. The proviso to Section 34 aforesaid is Imperative and makes it obligatory on every Court not to make any declaration in cases where the plaintiff being able to seek further relief omits to do so but o .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

consequential relief for possession is not at all necessary in the facts and circumstances of this case. It is also relevant to mention here that the suit of the plaintiff respondents is equally maintainable before the civil Court in view of the ratio of the case of Shiva Prasad Singh and Ors. v. Bubhan Mahto and Ors. read with the ratio of the case of Gobinda Bouri and Ors. v. Kristo Sardar. The plaintiffs respondent have acquired perfect right, title and interest in the suit properties and the .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e or it suffers from any legal infirmity which has materially prejudiced the case of the defendants appellant. It can also not be said that the finding recorded by the lower appellate Court below is perverse. Therefore, it is not open for this Court to set aside such a finding and to take a different view in the matter. Therefore the ratio of the case of Neelkantan and others, (supra) is of no help to the defendants appellant in this case. In the case of Kondiba Dagadu Kadam, (supra) Apex Court .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 

Discussion Forum
what is new what is new
 


Share:            

|| Home || About us || Feedback || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version