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CASE NO.: Appeal (civil)  7350 of 2000

PETITIONER: Bandhu Mahto (dead) by L.Rs. & Anr

RESPONDENT: Bhukhli Mahatain & Ors

DATE OF JUDGMENT: 14/02/2007

BENCH: C. K. Thakker & Lokeshwar Singh Panta

JUDGMENT: J U D G M E N T

Lokeshwar Singh Panta, J.  

       This appeal has been filed by the appellants against the  final judgment dated 06.01.1999 of the learned Single Judge  of the High Court of Judicature at Patna, Ranchi Bench,  Ranchi, whereby the Regular Second Appeal No. 59 of 1983  filed by the appellants challenging the judgment and decree  dated 03.03.1983/11.03.1983 of the Additional District Judge,  3rd Court, Dhanbad, in Title Appeal No.20 of 1980 was  dismissed.           The appellants are the plaintiffs and the respondents are  the defendants in Title Suit No.206/74 and 1968/76 and for  the convenience, they are referred to as such in this judgment.         Briefly stated the facts giving rise to the filing of this  appeal are that one Sriram Mahto had two sons, namely, Kinu  Mahto and Richu Mahto and one daughter Chandwa  Mahatain.  Sriram Mahto owned and possessed raiyati lands  in Mouza Garga.  Chandwa Mahatain (defendant No.7) was  married to Churu Mahto, the father of defendant Nos.1 and 2  and grandfather of defendant Nos.3 to 6.  As the Defendant  No. 7 was married in a poor family, Sriram Mahto, finding his  daughter (defendant No.7) in financial stringency, gave some  lands to his daughter Chandwa and her husband Churu  Mahto with clear understanding that they would not acquire  any permanent right therein.  Sriram Mahto died much before  the publication of the record of rights.  During the last  cadastral survey operation, the lands belonging to Sriram  Mahto had been recorded in raiyati Khatiyan No.2 of Mouza  Garga.  Chandwa Mahatain and Churu Mahto both died before  the survey operation leaving behind four sons, namely, Mani  Mahto (defendant No.1), Fadu Mahto (defendant No.2), Chhutu  Mahto (defendant No.3) and Bandhu Mahto (defendant No.4).   Kinu and Richu, two sons of deceased Sriram Mahto, allowed  the sons of their sister to occupy the lands bearing Plot  Nos.139, 140, 142, 208, 209 and 243.  During the survey  operation, the said plots were shown in the names of the  defendants in the remark column as "Bhagina Raiyat".  After  the survey operation, the defendants became solvent and gave  up the possession of the plots described in Schedule ’A’ of the  Plaint and since then Kinu and Richu came in khas (actual)  possession of the same and enjoyed the usufruct without any  hindrance from any quarter.  Kinu and Richu constructed a  tank on Plot Nos.110, 128, 131, 132, 207, 208 and 213.  For  the construction of tank, they took the lands from Magan  Mahto, Churu Mahto, Manga Ram and Chhotu Dobi through

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oral sale and all the said vendors put Kinu and Richu in  possession thereof.  One portion where the tank was excavated  has been described in Schedule ’C’ of the Plaint.  Jatali  Mahatain, widow of the son of Kinu Mahto, sold her 1/6th   share in favour of Babulal Mahto, father of plaintiff No.2.   Richu died about 39 years before the filing of the suit, leaving  plaintiff No.10 as his sole heir.  Defendant Nos.1, 2, 3, 5 and 6  purchased Plot No.139 and some portion of Plot Nos.140 and  142.  Defendant No. 3 also purchased a portion of Plot No.245  and those defendants constructed a residential house on Plot  No.139.  Except the aforesaid lands, other lands including the  tank remained in possession of the plaintiffs.  The land  described in Schedule C and C-1 of the Plaint had all along  been shown in possession of the plaintiffs and defendant No.7.   However, some time in 1968, the defendants dispossessed the  plaintiffs.  On these premises, the plaintiffs filed Suit No.  206/74 and 1968/76 on the file of the Court of Munsif,  Second Court at Dhanbad for a declaration of title over the  lands reflected in Schedule ’A’ and ’C-1’ of the Plaint and for  recovery of khas possession by eviction of the defendant Nos. 1  to 6 from the lands described in Schedule ’C’ and ’C-1’ of the  Plaint and further seeking a decree for permanent injunction  restraining the defendants from disturbing the possession of  the plaintiffs.           The defendants in their written statement pleaded that  late Sriram Mahto gave the land in dispute with a constructed  house to his daughter Chandwa and son-in-law Churu by way  of permanent tenancy and after the death of Chandwa and  Churu, their four sons inherited the said property.  Their  specific defence was that there was no question of giving up  possession of Schedule ’A’ land by the sons of Chandwa and  Churu to Kinu and Richu as claimed by them and the plea of  their being in possession of the land was false and fabricated.   The claim of Kinu and Richu showing sympathy to their  Bhaginas was categorically denied by the defendants.  The  defendants asserted that their predecessor excavated the tank  in question and had been in khas possession of the same.  The  defendants asserted that late Sriram Mahto had given the  lands to his daughter permanently and the sons of deceased  Chandwa had constructed their residential house on Plot No.  139 and their names were recorded in the record of rights in  respect of the said house.  Mani, Chhotu, Khedu, Tahlu and  the other defendants in the suit, constructed a residential  house on Plot No.140 and as such, all the defendants are in  possession of the plot in exercise of their heritable rights.  The  defendants pleaded that they were misled and duped by the  plaintiffs in getting formal sale deed executed in respect of Plot  Nos.139, 140 and 142 without paying any consideration by  the plaintiffs.         On the controversial pleadings of the parties, the trial  court framed as many as six issues, which need not be  reproduced herefor unnecessarily burdening the records.   Issue Nos. 3, 4 and 5 were decided jointly and findings thereon  were given in favour of the plaintiffs and against the  defendants.           Feeling aggrieved, the defendants filed Title Appeal  No.20/80 before the First Appellate Court challenging the  impugned judgment and decree of the trial court.  The learned  Additional District Judge, after hearing the parties and re- appreciating the entire evidence on record, reversed the  finding of the trial court and, accordingly, dismissed the suit  of the plaintiffs.  The plaintiffs, aggrieved, have filed Second  Appeal before the High Court.  The Second Appeal came to be  admitted by the learned Single Judge of the High Court on  31.10.1984 on the following substantial question of law:

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"Having held that the plaintiffs’  predecessors-in-rights was the owner of  the lands in dispute, was it open to the  court below to throw out the plaintiffs’  case on the grounds stated by it?"

       Finally, the learned Single Judge of the High Court came  to the conclusion that the reasoning recorded and the  conclusion arrived at by the First Appellate Court in  dismissing the suit of the plaintiffs do not call for interference  in the Second Appeal as the above-said substantial question of  law does not involve the facts and circumstances of the case.   Hence, the plaintiffs are in appeal before this Court.         We have heard the learned counsel for the parties in  detail and perused the judgments of the courts below and  other material placed on record.         Mr. Himanshu Munshi, learned counsel appearing on  behalf of the appellants, contended that the First Appellate  Court as well as the High Court both have failed to appreciate  the findings recorded by the trial court.  He submitted that the  learned trial court had rightly appreciated the entry made in  the main column and the entry made in the remark column in  the record of rights wherein predecessor-in-interest of the  defendants was shown as under-raiyats (sub-tenants) as their  interest in the land was not heritable and, therefore,  concluded that the tenancy ended with the death of the  predecessor-in-interest of the defendants.  He then contended  that the findings of the trial court based upon the appreciation  of the evidence holding that the settlement between deceased  Sriram Mahto on the one hand and his daughter and son-in- law on the other was in the nature of tenancy at will.   According to the learned counsel, it is proved on record by the  plaintiffs that predecessor-in-interest of the plaintiff sold the  plots in dispute to the predecessor-in-interest of the  defendants and the defendants after becoming solvent had  returned the property given by deceased Sriram Mahto to his  daughter to the plaintiffs.  Lastly, it was urged that the  learned trial court has rightly held that predecessor-in-interest  of the defendants were raiyats (sub-tenants) and as such, their  rights in the land in dispute was not heritable and, therefore,  the defendants ceased to have any rights over the said land  after the death of their predecessor-in-interest.                On the other hand, Mr. Manoj Saxena, learned counsel  appearing on behalf of the defendants, contended that there  was no substantial question of law involved in the Second  Appeal filed by the plaintiffs and therefore the High Court has  to rightly dismissed the appeal being devoid of any merit.  The  learned counsel submitted that this Court will not be obliged  to interfere in the well-reasoned judgment of the First  Appellate Court which has been affirmed by the High Court.         We have given our careful consideration to the respective  contentions of the learned counsel for the parties.         It is not in dispute that the deceased Sriram Mahto,  father of Kinu and Richu, had given some portion of the land  to his daughter Chandwa to extend some financial stability to  her and his son-in-law, over which subsequently a residential  house was constructed.  The claim of the plaintiffs before the  trial court was that deceased Sriram Mahto gave some  portions of land to Chandwa and her husband with a specific  understanding that they would not acquire any permanent  right therein, whereas the defendants asserted that no such  understanding was in existence and Chandwa and her  husband Churu acquired permanent tenancy over the land in  dispute.  From the evidence on record, it is clear that the plea  of conditional settlement of the lands between the deceased

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Sriram Mahto and his daughter and son-in-law has not been  proved by the plaintiffs.  It stands proved from the record that  Chandwa Mahatain and Churu Mahto had been in possession  of the lands described in Schedule ’A’ of the Plaint in exercise  of their independent rights to the knowledge of all including  the plaintiffs.  On the death of Churu Mahto, his interest in  the said land was inherited by his four sons and his widow  Chandwa who surrendered her interest in favour of her four  sons.  The four sons of deceased Chandwa and Churu  remained in possession of the Schedule ’A’ property in exercise  of their independent rights having equal status as that of  original raiyats and as such they acquired permanent  indefeasible right over the land described in Schedule ’A’  of  the Plaint.          A close scrutiny of the survey and settlement record  would show that the Plots mentioned in Schedule ’A’ of the  Plaint had been recorded in possession of Bandhu Mahto,  Fadu Mahto, Mani Mahto and Chhotu Mahto as "Bhagina  Raiyat" in equal share.  The survey settlement operation,  admittedly, started in the year 1920 and had been finally  published in 1925.  All the four sons of Chandwa Mahatain  were adult and major during the settlement operation.  The  First Appellate Court, after going through the record of rights,  came to the conclusion that Bandhu Mahto, Fadu Mahto,  Mani Mahto and Chhotu Mahto had been occupying one  house and courtyard along with Gharbari lands in Plot Nos.  139, 140 and 142 and the remaining plots in Schedule ’A’ were  also in possession of the four sons of Chandwa Mahatain.          PW-3 Shashi Bhushan Chaudhary, who was examined by  the plaintiffs has admitted in his deposition that deceased  Sriram Mahto had got constructed a separate residential  house for his son-in-law, Churu Mahto.  The evidence of this  witness has corroborated the plea of the defendants that much  prior to the survey operation Chandwa Mahatain came in  possession of Schedule ’A’ plots and the family continued in  possession of the aforesaid house as well as lands described in  Schedule ’A’ of the plaint from one generation to other  generation without any hindrance from any one.  The  successors-in-interest of deceased Sriram Mahto have not  made any attempt to evict the defendants or their predecessor  from the lands in dispute.  As regards tenancy, the plaintiffs  have introduced three types of pleadings, namely, (i) that soon  after the survey settlement operation the ancestor of the  defendants became solvent and thereafter they surrendered  the land to Kinu Mahto and Richu Mahto, who came into  possession of the land; (ii) the plea of surrender by the  defendants of the land in dispute; and (iii) the dispossession of  the plaintiffs by the defendants from the tank in the year  1968.         The First Appellate Court, on scrutiny of the oral and  documentary evidence, recorded clear and positive finding that  none of the pleading has been proved by the plaintiffs in their  evidence.  It has come on record that Bandhu Mahto was the  most competent witness to depose in regard to the solvency of  the defendants’ ancestors or about the surrender of the lands  by the defendants, was not examined by the plaintiffs for the  reasons best known to them, despite the fact that the witness  was present in the trial court for recording the evidence.  The  defendants and prior to them their predecessor-in-interest  remained in possession of the lands, in question, for over a  period of 100 years and the house, which was situated on Plot  Nos.139 and 140, had been held by them from generation to  generation.  In view of this evidence on record, the First  Appellate Court came to the conclusion that the tenancy held  by the defendants will be deemed as permanent tenancy and

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not tenancy-at-will as alleged by the plaintiffs.  The First  Appellate Court has found that PW-11, Rijhu Mahto, had  failed to prove the dispossession of the plaintiffs from the  portion of the land over which tank was constructed.           On examination of the reasonings recorded by the First  Appellate Court, which are affirmed by the learned Single  Judge of the High Court in Second Appeal, we are of the view  that the judgments of the First Appellate Court as well as the  High Court are well-reasoned based upon proper appreciation  of the entire evidence on record.   No question of law much  less a substantial question of law was involved in this case  before the High Court.  We do not find any perversity or  infirmity in the concurrent findings of fact recorded by the  First Appellate Court and affirmed by the learned Single Judge  of the High Court to warrant interference in this appeal.  None  of the contentions of the learned counsel for the plaintiffs- appellants can be sustained.             For the above-said reasons, there is no merit in this  appeal and it is, accordingly, dismissed.  The parties are,  however, left to bear their own costs.