DEODHARI SAO Vs. MOST. GHAMA

JUDGEMENT

(1.) Heard Mr. Manjul Prasad, the learned Senior counsel assisted by Mr. Rajesh Kumar Gupta, the learned counsel appearing on behalf of the appellants and Mr. Manindra Kumar Sinha, the learned counsel appearing on behalf of the respondents. This Second Appeal has been filed being aggrieved and dissatisfied by the judgment dtd. 23/6/2012, decree signed on 7/7/2012 passed by the learned District Judge, Koderma in Title Appeal No.1 of 2004 whereby the learned appellate court has been pleased to affirm the judgment dtd. 24/11/2003, decree signed on 8/12/2003 passed by the learned Munsif, Koderma in Title Suit No.53 of 1996. The Title Suit No. 53 of 1996 was instituted by the appellants/plaintiffs for a decree declaring their joint right, title, interest and possession upon the suit lands mentioned in Schedule-C" lands and their possession over the lands to that extent be confirmed and if found dispossessed then their possession may be restored. Further relief in the form of decree declaring that suit lands jointly belonged to the two settlees Jitani Devi and Most. Mohani Devi and they were in joint possession over the same at the time of revisional survey and as such the revisional survey entry in the name of Jitani Devi only is erroneous and not binding upon the plaintiffs has also been prayed in the suit. The plaintiffs had further prayed that by an order of permanent injunction the defendants may be permanently restrained from interfering with the peaceful possession of the plaintiffs over the suit land and they may be further restrained from making any construction thereupon and for changing the physical feature of the suit land. By the judgment dtd. 24/11/2003 of the learned Munsif, Koderma the said suit was dismissed and the appellants/plaintiffs have filed the Title Appeal No.1 of 2004 which was decided by the judgment dtd. 23/6/2012 and the title suit and the decree were affirmed by the learned appellant court. Aggrieved with that, the present second appeal has been filed.

(2.) The case of the defendants/respondents is that respondents/ defendants had appeared and they had filed their written statement. The defendants had taken plea that suit is not maintainable and is further barred by law of limitation, waiver, acquiescence and estoppel and is grossly under valued. It is further case of the defendants that there was no unity of title and possession amongst the sons of common ancestor Bedu Sao immediately after his death and lands of khata no. 48 area 55 decimals G.M khas land was never reclaimed and acquired by the said Bedu Sao and same was acquired by Tipan Sao out of his own fund and exclusively reclaimed by him under a hukumnama granted by the then land lord and Lekho Sao and Tipan Sao did not form joint Hindu Family and Tipan Sao was not karta and plaintiff no.1 has been managing her own affairs since her husband's death and it is false to say that Schedule 'B' lands was jointly acquired by Jitani and Most. Mohani out of joint family fund and same was acquired by Most. Jitani out of her own money by Hukumnama on 25th Bhado 1354 sal fasli on payment osalami Rs.181.00 and on fixation of yearly rent of 8 rupees and 4 anas and she was put in khas possession and she always paid rent first to zamindar and then to State and was granted rent receipts and it is false to say that after the revisional survey in 1967 Most. Mohani and Jitani began to cultivate the suit lands separately upon their respective 1/2 share and it is also false that defendant no.1 Dularchand Sao was working as Amin in the revisional survey and he dishonestly got suit lands entered in the khatiyan of revisional survey in the sole name of Jitani. The further case is that plaintiff's were never in possession on the suit lands and they had made similar claims over khata no. 81 of village Nawalsahi in case no. 28 of 1962-63 but plaintiff no.1 did not succeed and in 144 Cr.P.C proceeding also plaintiff's never asserted the date and year of the alleged settlement by a Hukumnama and rent receipts and they are false and forged and suit lands belonged exclusively to the defendants and they have been cultivating the same and plaintiff's have no right, title, interest, possession and concern over the suit land. Mr. Manjul Prasad, the learned Senior counsel appearing on behalf of the appellants submits that the learned courts have committed error in law as well on the facts in dismissing the suit as well as the appeal. He further elaborated his argument by way of submitting that the learned first appellate court's judgment was bad as he has failed to consider the oral and documentary evidence in its right perspective. On these grounds, he submits that there is substantial question of law involved in the present second appeal and this may kindly be admitted for hearing on the law point involved as argued by him. The learned counsel appearing on behalf of the respondents submits that the learned trial court as well as the learned appellate court has considered the entire aspect of the matter and after considering the evidences oral as well as documentary evidence has passed the order and there is no illegality in the judgments of both the learned courts. There are concurrent findings of both the learned courts and in that view of the matter, there is no substantial question involved in this second appeal.

(3.) In view of the above submission of the learned counsels appearing on behalf of the parties, the Court has gone through the judgment of the learned trial court as well as the learned appellate court and finds that the learned trial court has considered the entire aspect and after considering the oral as well as documentary evidences has passed the judgment and has been pleased to hold that the revisional record of right was recorded in the year 1967 and the suit was filed in the year 1996 after more than 28 years and considering the judgment passed in the case of "Dwarika Sonar and Ors. v. Most. Bilguli and Ors." reported in 2003 (2) JLJR 708 on the point of limitation, adverse possession, waiver, estoppel and acquiescence and has been pleased to dismiss the suit. The learned appellate court has also framed the point and thereafter has passed the said order and in the point nos.5 and 7 it has elaborately held by the learned appellate court in paragraph no.14 of the said judgment. The learned appellate court has considered that the plaintiffs failed to produce any Jamabandi rent receipt, hukumnama of defendants was affirmed by grant of rent receipt. The defendants have filed the receipt up to the year 2001 whereas the plaintiffs filed the rent receipt only year 1987. It is well settled that onus lies upon the person who is claiming the possession in title. The appellants /plaintiffs have filed the proof before the learned trial court as well as the learned appellate court and both the judgments have been passed considering the oral as well as documentary evidence. There is concurrent finding of both the learned courts. No illegality has been found in the judgment of the learned trial court as well as the learned appellate court. No relief can be extended to the appellants.