LAWS(JHAR)-2005-6-81

JAI KISHUN CHOUDHARY Vs. RAMDEO CHOUDHARY

Decided On June 24, 2005
Jai Kishun Choudhary Appellant
V/S
RAMDEO CHOUDHARY Respondents

JUDGEMENT

(1.) THIS second appeal, at the instant of the appellants, is directed against the judgment dated 13.6.1990 and decree dated 25.6.1990 passed in Title Appeal No. 35/89, whereby and whereunder the learned 6th Additional District Judge, Palamau at Daltonganj set -aside the judgment and decree dated 25.5.1989 passed by Sub -Judge 1st, Palamau at Daltonganj decreeing Title Suit No. 60/82.

(2.) APPELLANTS were plaintiffs in the lower Court and the case of the plaintiffs -appellants is that they filed Title Suit No. 60/82 in the Court of Sub -Judge, Palamau at Daltonganj against defendant -respondent praying therein for declaration of title and confirmation of possession over the suit lands measuring 2.79 acres of land appertaining to Khata No. 82, plot Nos. 308 and 310 of village Purnadih, P.S. Daltonganj, fully described in Schedules A to C of the plaint. Further case of the plaintiffs -appellants is that the plaintiff Nos. 1 and 2 are the recorded raiyat of village Purnadih and Rajderwa having 1/6th share in the lands of Khata No. 55 and entire in Khata Nos. 75 of village Purnadih. The plaintiff Nos. 4 and 6 had Dar Raiyati interest in village Rajderwa and the plaintiff No. 4 purchased raiyati interest in the year, 1949 of khata No. 8 of village Rajderwa. Further case of the plaintiffs -appellants is that during the cadastral survey gairmazarua Malik lands measuring 0.89 acres of Khata No. 81 of village Purnadih was recorded under Khewat Nos. 6 as Samilat Malikan and the lands measuring 2.90 acres of plot No. 310 was recorded as parti Garha and parti Kadin respectively. Further case of the plaintiffs -appellants is that the plaintiff Nos. 1 and 2, with the help of plaintiff No. 3, reclaimed 10 decimals of land of plot Nos. 308 and 58 decimals of land in plot No. 301 and the plaintiff No. 3 reclaimed 1.11 acres in plot No. 310 and the plaintiff No. 4 reclaimed 1 acre of land in both the plots and as such the plaintiffs claimed their title on the basis of reclamation. It is further alleged that the plaintiffs, filed a petition for settlement of land reclaimed by them being Case No. 44/62 -63 and recommendation was made for settlement but the defendant - respondent taking advantage of the situation got a proceeding initiated under Section 145, Cr PC with respect to the portion of lands of plot Nos. 308 and 310 being Misc. Case No. 1062/78, which was decided against the plaintiffs declaring them out of possession "over the lands.

(3.) THE learned trial Court framed issued, recorded evidence of both the sides both oral and documentary and after hearing the parties decreed the suit filed by the plaintiffs -appellants, vide judgment and decree dated 25.5.1989 and being aggrieved by the aforesaid judgment and decree, the defendant -respondent preferred Title Appeal No. 35/89, which was allowed by the learned 6th Additional District Judge, Palamau, vide its judgment and decree dated 13.6.1990, against which the plaintiffs -appellants filed this appeal. 2005 (1) SCC 598. It is also submitted that suit filed by the plaintiffs -appellants is barred under Section 42 of the Specific Relief Act in view of the fact that in a proceeding under Section 145, Cr PC possession of the defendant over the suit lands was declared and the plaintiffs -appellants were not found in possession and as such, prayer for recovery of possession was very much essential for the maintainability of the suit. It is stated that since the plaintiffs have not claimed any relief for recovery of possession with respect to the suit lands, the suit filed by the plaintiffs was not maintainable and the learned appellate Court, after properly considering the materials on the record and the relevant provisions of law, rightly allowed the appeal filed by the respondent. It was also submitted that plaintiffs -appellants have not produced any document to show that they reclaimed the lands after obtaining permission of the then landlord, as required under Section 73 of the CNT Act nor they produced any report to show the area of land reclaimed and they also did not produce any valid document of settlement and payment of rent to the landlord and the plaintiffs have failed to prove their title and possession over the suit lands by cogent evidence. It is a settled principle of law that the plaintiffs have to prove their own case and the plaintiffs cannot take benefit of any laches on the part of the defendant and the same cannot be a valid ground for declaring the plaintiffs title over the suit lands. It is further stated that in Settlement Case No. 44/62 -63 filed by the plaintiffs, the plaintiffs were not found in possession during enquiry by the DCLR, Daltonganj and the plaintiffs have failed to prove by cogent evidence that they got settlement of the suit lands from the ex -landlord and are continuing in possession on the basis of the alleged settlement of the suit lands and the so -called reclamation about 30 -35 years before vesting of Zamindari is falsely alleged and as such, the plaintiffs are not entitled for the reliefs claimed in the suit. It is also stated that plaintiffs have not proved their possession over the suit lands within 12 years prior to the filing of the suit and as such, the suit itself is barred by limitation under Article 65 of the Limitation Act and further that no substantial question of law, as formulated, is involved in this appeal. 6. On the other hand, learned counsel appearing for the appellants submitted that no prayer for recovery of possession has been made but to show that a prayer in the relief for confirmation of possession includes a prayer for recovery of possession. In this connection reliance was placed upon AIR 1952 Pat 143 wherein it has been held that to show that a prayer in the relief for confirmation of possession includes a prayer for recovery of possession, so relief for recovery of possession may be granted even though relief for confirmation of possession has been asked for. In this connection, reliance was also placed upon AIR 1985 Ori 126 (B), which also holds the same view as taken in AIR 1952 Pat 143 and, therefore, the claim of the defendant - respondent that since no prayer for recovery of possession has been made, the suit itself is not maintainable, is not proper. It was further pointed out that finding of possession declared by a Magistrate in a proceeding under Section 145, Cr PC is not binding upon the Civil Court. The Civil Court, on the basis of oral and documentary evidence can arrive at a decision on the point of possession in favour of the plaintiffs, even though the Executive Magistrate has declared possession of defendant in the proceeding under Section 145, Cr PC and, therefore, the finding of the learned Court below, on the point of possession, cannot be assailed on the ground that since the learned Executive Magistrate has declared possession in a proceeding under Section 145, Cr PC in favour of the defendant -respondent, hence, Civil Court cannot go beyond the finding of the learned Executive Magistrate and that is a wrong notion of law and in this connection reliance was placed upon AIR 1959 Pat 406. 7. It was further pointed out that a person, who makes Korkar and cultivates the land is raiyat and it is not required at the time of making Korkar that he must be a raiyat of the landlord of such land or of the village wherein the land is situated. It is also submitted that if no application for eviction is filed before the Deputy Commissioner by the landlord within two years, the raiyat shall be deemed to be occupancy raiyat and the plaintiffs have converted most of the land into paddy field and filed petition in 1962 for settlement, which was registered as Case No. VIII/44 of 1962 -63 and after enquiry the Revenue Officer found possession of plaintiffs and rejected the objection of the defendant, vide Ext 4/a which amounts to tacit permission of the landlord and accordingly the plaintiffs acquired occupancy right under Section 67 of the Chotanagpur Tenancy Act. 8. From the discussions made above and after going through the respective claims of the parties together with references cited on their behalf, it is clear that all the argument raised in course of submission by the learned counsel for the defendant -respondent have been answered by the leaned counsel for the plaintiffs -appellants and from the fact that the defendant -respondent claimed that no relief for recovery of possession has been made, has been answered by the case law reported in AIR 1952 Pat 143 (supra) cited on behalf of the plaintiffs -appellants, which shows that prayer for relief of confirmation of possession includes prayer for recovery of possession and that has been followed by Orissa High Court in AIR 1985 Ori 126 (supra). 9. It is well -settled principle of law that findings in a proceeding under Section 145, Cr PC are not binding on the Civil Court and the submission of the learned counsel for the defendant -respondent that since possession has been declared by the learned Executive Magistrate in favour of the defendant, Civil Court cannot go beyond that finding, is not proper appreciation of the settled principle of law and in this connection reliance was placed upon AIR 1959 Pat 406 (supra), wherein it has been held that findings in a proceeding under Section 145, Cr PC are not binding on Civil Court and Civil Court is free to decide the matter in its own way according to evidence and materials. Learned appellate Court was not proper in setting -aside the judgment and decree on the ground which have been discussed in forgoing paragraphs and I am of the view that those grounds are in favour of the plaintiffs and not in favour of the defendants. In that view of the matter, plaintiffs case stand clearly proved and the learned Court of Munsif was justified in decreeing the suit. 10. In that view of the matter, this appeal is allowed and the judgment of the learned appellate Court dated 13.6.1990 and decree dated 25.6.1990 are hereby set -aside and the judgment of the learned Court of Munsif dated 25.5.1989 is hereby confirmed.