KRISHNA ORAON Vs. SUKHI CHAMAR

JUDGEMENT

(1.) This appeal has been preferred against the judgment and decree dated 10.1.1981 passed by the then 2nd Additional District Judge, Palamau in Title Appeal No. 32 of 1977 reversing the judgment and decree dated 11.8.1977 passed by the then Munsif, Jamshedpur in Title Suit No. 47 of 1963.

(2.) The plaintiffs in the original suit are the appellants in this Second Appeal. The suit property related to plot No. 1743 appertaining to Khewat Nos. 4/1 to 4/4 which were held by several khewatdars wherein Khewat No. 4/5 was the Samillat Khewat of the abovementioned Khewatdars of 4/1 to 4/4. The Khewatdars in those Khewats have been recorded as Dwarni Thikedars and Khewats were situated in village Chiyaki under Chainpur Estate. The suit plot No. 1743 was recorded as Gair Mazurwa land. According to the plaintiffs by amicable arrangement among the Khewetdars the suit land appertaining to part of plot No. 1743 number' being 1743 -A came in possession of the plaintiffs. As per the plaintiffs" case, their predecessors reclaimed the suit land and a Bandh was constructed over the same by the predecessors and after coming into force of Bihar Land Refroms Act, when the intermediary interest were vested in the estate the suit land which were under the cultivation of the plaintiffs were mentioned in the return in 'K' form by the plaintiffs. But the defendants in collusion with the Karamchari applied for settlement of the suit land before the Circle Officer, Daltonganj and their application was registered as Settlement Case No. V1II/14 of 1955 -56, but without, giving any notice to any of the parties as the processes were being suppressed, on the recommendation of Mr. S.N. Haider, Incharge of Jarnindary (Deputy Collector) recommended for the settlement of the suit land in favour of the defendants. In the proceedings of settlement, no notices were served on the plaintiffs and while making such recommendation by the then Deputy Collector did not at all consider 'K' form which was submitted by the plaintiffs during the time of vesting. But, afterwards when the defendants applied for loan on the basis of the lands settled in their names the Additional S.D.O., Daltonganj found that the land was practically in possession of the plaintiffs and as such the loan application filed by the defendants were rejected. The defendants preferred appeal against the order of the Additional S.D.O. before the Additional Collector who also dismissed their appeal by order dated 13.6.1960. The defendants also brought a case under Section 447 IPC against some of the plaintiffs for dispossession over the suit land but the same also ended in acquittal of the accused. Thereafter the defendants initiated a proceeding under Section 144 Cr.P.C. which was ultimately converted into a proceeding under Section 145 Cr.P.C. and the declaration of possession was made in favour of the defendants. Thus, the plaintiffs' title and possession over the suit land were clouded as such they filed the Title Suit No. 47 of 1963 for declaration of their raiyati title and also for recovery of possession. The plaintiffs also sought for mesne profits from the date of dispossession which was to be ascertained in the separate proceeding.

(3.) Amongst the defendants, the defendant Nos. 1 to 4 and 6 filed joint Written Statement. They stated, inter alia that the suit was not maintainable in its present form, that the plaintiffs had no cause of action, that the suit was barred by estoppel, waiver and acquiescence and that the suit was barred by limitation and adverse possession. According to the defendants, Udho Chamar, Dhanu Chamar, Dinu and Bhairo Chamar were Dehi raiyats of village Chiyaki and records of right was prepared in their names in the cadestral Survey. The Dehi raiyati of village Chiyaki were also entitled to reclaim Gair Mazurwa land without permission of the superior landlord or the proprietors and as such the predecessors of the defendants and some of the defendants started reclaiming the above plot No. 174 about 25 -30 years ago and after reclaiming the plot was divided into different blocks, namely, plot No. 1743 -A, 1743 -B and 1743 -C. Bhairo Chamar constructed two houses on plot No. 1743 -A and also some houses were constructed on the block of land 1743 -C. According to the defendants, defendant No. 1 was living in the house situated in the suit plot i.e., plot No. 1743 -A while defendant Nos. 2 and 3 were living in the house of plot No. 1743 -C and Sukan Chamar had no concern with plot No. 1743 -A and he has been made unnecessary party in the suit and as such the suit was barred for misjoinder of parties and according to the defendants neither the plaintiffs nor their predecessors -in -interest ever reclaimed any portion of plot No. 1743 and they had no right over the suit plot. The bandh over the suit plot was constructed by the predecessors of the defendants. It was the further case of the defendants that they used to pay Battai rent to one Panchu Mahto and also paid rent to Sahdeo Mahto and Maldeo Mahto, sons of Panchu Mahto. According to the practice and customs in the area, no rent receipts were ever granted. The defendants also used to supply hand made shoes made by themselves to the landlord besides the Battai rent. The suit lands never fell to the share of the plaintiffs by any amicable arrangement nor they were ever in cultivable possession of the same. The plaintiffs were tenure holders over the suit land and that the plaintiffs' tenures had vested into the Estate. The plaintiffs assertion that they were cultivating tenants over the lands were totally false and frivolous. According to the further case of the defendants after the vesting was made of the whole Estate, Bhujarat was done on the enquiry and during such Bhujarat enquiry Karamchari finding the possession of the defendants over the lands asked them to file application for settlement of the land and accordingly they applied for settlement and State of Bihar also granted them Hukumnama. They were assessed of rent on the basis of Hukumnama and they went on paying rent to the State of Bihar. According to the defendants, in collusion with the staff of Revenue Department, plaintiffs managed to insert the suit plot in 'K' form submitted by them after the defendants had been granted Hukumnama and assessed of rent. The plaintiffs were never assessed of rent regarding the suit plot. According to the defendants, the suit was barred under the provisions of Section 35 of the Bihar Land Reforms Act as the matter had already become final when the defendants were granted Hukumnama and were assessed of rents and the plaintiffs did not raise any objection whatsoever and now on the basis of wrongful and collusive insertion of suit plot in the 'K' form the plaintiffs were trying to set up their claims over the suit property. The plaintiffs somehow managed the Additional S.D.O. Daltonganj and as such the loan applied for by the defendants had been rejected. Possession of the defendants were found in the proceeding under Section 145 Cr.P.C. and as such the plaintiffs had got no cause of action for the suit and that the suit was hopelessly barred by limitation.