( 2025:JHHC:10432 ) IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No. 147 of 2019 1.Mani Nath Swansi, aged about 37 years son of Late Etwa Swansi 2. Sukra Swansi aged about 65 years 3. Banke Swansi aged about 55 years both sons of late Jagdeo Swansi all are resident of village-Guni, P.O. and P.S. Karra, District- Khunti … … Plaintiffs/Appellants/Appellants Versus 1. Budhwa Mahto 2. Jehlu Mahto 3. Bhima Mahto 4. Sawana Mahto 5. Ghina Mahto, all sons of Late Turku Mahto, resident of village- Ghasibari, P.O.+ P.S. Karra, District-Khunti … Defendants/Respondents/Respondents --- CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY --- For the Appellants : Mr. Anil Kumar Sinha, Advocate --- 11/28.01.2025 Heard the learned counsel appearing on behalf of the appellants. 2. This appeal has been filed against the judgment dated 17.01.2019 and decree (sealed and signed on 25.01.2019) passed in Civil Appeal (Title Appeal) no. 18 of 2013 passed by the District and Additional Sessions Judge-I, Khunti whereby the appeal filed by the plaintiff has been dismissed. Title Suit was dismissed vide judgment dated 31.01.2013 passed in Title Suit No. 14 of 2011 decree (sealed and signed on 06.02.2013) passed by the learned Munsif, Khunti. 3. The learned counsel for appellants while assailing the impugned judgments has submitted that there was no specific mention with respect to the deed of conditional mortgage dated 19.04.1981 (Exhibit-B) in the written statement of the defendants. Accordingly, no specific issue was framed in connection with the same. He has submitted that the suit was partly decreed in favour of the plaintiffs and the relief in connection with property covered by Exhibit-B was not granted. The learned counsel has submitted that at the appellate stage, a specific plea was raised that the plaintiffs belong to schedule tribe category and mortgage deed by conditional sale is barred under the provision of Section 46 of the Chhotanagpur Tenancy Act and ( 2025:JHHC:10432 ) 2 therefore the property covered by Exhibit-B was also required to be decreed in favour of the plaintiffs/appellants. The learned counsel has submitted that mortgage by conditional sale is popularly known as “Bai-bil-wafa.” 4. After hearing the learned counsel appearing on behalf of the appellants this court finds that as recorded in the judgment of the learned Trial Court, the suit was filed seeking declaration of Right, Title , Interest and also confirmation of possession of the plaintiffs over the suit land which the plaintiffs claimed to have been recorded in the name of their ancestors. The genealogy of the plaintiffs was given and it was their case that Etwa Swasi, father of the plaintiffs, had given the suit land to Turku Mahto, father of the defendants by registered deed of conditional mortgage dated 24.04.1981 and 03.06.1983 for a fix period and all the said mortgage were discharged after the entire payment was made by the mortgagor to Turku Mahto (father of the defendants) within the stipulated time given in the deed which was apparent from the endorsement on the back side of the deed and after that handed over the original deed and since then the plaintiffs were in possession of the suit land and paying rent to the State. It was their further case that the cause of action for the suit arose when a proceeding u/s 107 of Cr. P.C. was dropped and the defendants remained interested in denying the plaintiffs’ title and possession over the suit land on several successive dates and lastly on 28.11.2011. 5. The written statement was filed by the defendants mentioning that the father of Etwa Swansi had transferred portion of the suit land vide registered conditional mortgage to Turku Mahto, father of the defendants and since the defendants were in active physical possession of the land and such deed was executed more than 20 years ago, they also claimed adverse possession over the suit property. 6. The Trial Court framed as many as six issues as under:- . 7. The core issue was issue no. 4 and the findings have been recorded by the learned trial court in paragraph no. 16 to the following effect- “16. After hearing the arguments of both the sides and after perusal of oral and documentary evidence and the exhibits I ( 2025:JHHC:10432 ) 3 find that the suit land of khata no.13 stands recorded in the name of one Dhirju Swansi s/o Chamu Swansi one share and Sahdeo Swansi, Jagdeo Swansi and Tejua @ Teju Swansi all Sons of Ram Swansi one equal share to each of three and the suit land of khata No. 24 stands recorded in the name of Sahdeo Swansi. Jagdeo Swansi and Tejua @ Teju Swansi all sons of Ram Swansi and the father of the plaintiffs Etwa Swansi is the son of said Sahdeo Swansi. I further find that the father of the plaintiffs Etwa Swansi had given the suit land to one. Turku Swansi, the father of the defendants vide registered deed of conditional mortgage dated 24.04.1981 (Ext.6) and 03.06.1983 (Ext.5) for a fixed period and all the said mortgage were discharged after the entire payment made by the said mortgagor to the said Turku Mahto, the father of the defendants within the stipulated time given in the deeds which is evident from the endorsement of the said turku Mahto on the back page of the deeds and after that the original deeds were handed over by the mortgagee Turku Mahto to the mortgagor Etwa Swansi and this fact has also been supported by the oral evidence of Plaintiffs' witnesses as well as from Ext.1, Ext.3, Ext.5 and Ext.6 but at the same time I also find that after the aforesaid deeds (Ext.5 and Ext.6) the said Etwa Swansi, the father of the plaintiffs further executed several deeds which is evident from the oral evidence of the Defendants' witnesses as also from Ext.A and Ext.B. From perusal of the Ext.B I find that this deed was executed by the said father of the plaintiffs (Etwa Swansi) on 19.04.91 to Turku Mahto, father of the defendants with regard to the land of village Guni appertains to Khata No. 13, Plot No.48, area 22½ decimals out of 45 decimals (one of the suit land) as also Plot No.50, area 13 decimals out of 26 decimals of the same Khata for the period seven years at the amount of Rs.5000/-but the said sum of the deed(Ext.B) was never returned either by the mortgagor, Etwa Swansi or any of the plaintiffs and as such since then Turku Mahto and after him the defendants are in actual physical possession over the aforesaid land which is more than twenty years and this fact has also been corroborated with the ( 2025:JHHC:10432 ) 4 evidence of defendants witnesses and the plaintiffs counsel has failed to falsify the evidence of the defendants witnesses in this regard. I further find that the plaintiffs has also failed to prove that the said registered deed of conditional mor mortgage (Ext.B) is false and at the said time of execution of the sale deed (Ext.B) i.e.on19.04.91, the mortgagor Etwa Swansi was not alive. I further find that the defendants have not claimed any right, title and interest with regard to rest of the suit property i.e. Khata No. 24, Plot No. 51 area 0.13 acre out of 0.26 acre towards south and the right, title and interest with regard to this suit land of Khata No. 24, Plot No. 51 area 0.13 acre out of 0.26 acre towards south and the possession there on has been proved by the plaintiffs by producing the oral and the documentary evidence afore--said. Hence in the result this issue no.4 is partly decided in favour of the plaintiffs with regard to part of the suit land appertains to Khata No. 24, Plot No. 51 area 0:13 acre out of 0.26 acre towards south and partly decided in favour of the defendants with regard to part of the suit land appertains to Khata No. 13, Plot No. 48 area 0.22 ½ acre towards south.” 8. The learned trial court partly decreed the suit as follows:- “19. ISSUE NO.1,5 AND 6 - As the issue no.4 and issue no.2 have been decided partly in favour of the plaintiffs and partly in favour of the defendants and issue no.3 has been decided in favour of the plaintiffs, I find that the suit is maintainable in its present form but the plaintiffs are entitled to the reliefs sought for in plaint partly only with regard to Khata No. 24. Plot No. 51 area 0.13 acre out of 0.26 acre towards south (part of the suit land). Hence in the result this issue is also decided partly in favour of the plaintiffs and partly in favour of the defendants and it is therefore, ordered that the suit be decreed-partly in favour of the plaintiffs. In the result the right title and the interest of the plaintiffs over part of the suit land described in schedule 'A' i.e. only with regard to the land of Khata No. 24, Plot No. 51 area 0.13 ( 2025:JHHC:10432 ) 5 acre out of 0.26 acre towards south is declared in their favour and also the possession of the plaintiffs over part of the suit land i.e. the land of Khata No. 24, Plot No. 51 area 0.13 acre out of 0.26 acre towards south is confirmed. There is no order as to cost. The parties will bear their own cost.” 9. Before the learned 1st Appellate Court, the plaintiffs took a plea that the learned Trial Court misinterpreted and misconstrued the deed of mortgage (exhibit-B) and failed to consider that the plaintiffs were members of schedule caste and that the land in dispute could not have been given in mortgage by conditional sale vide exhibit-B and the same was in contravention of the provisions of section 46 of the Choto Nagpur Tenancy Act,1908 and was void -ab-initio in the eyes of law and the defendants did not acquire any right on the basis of the alleged deed. It was also asserted that the mortgagor Etwa Swashi had died prior to 1991. The learned 1st appellate court considered the arguments has recorded a finding of fact that death of Etwa Swashi prior to 1991 could not be established by the plaintiffs appellants and the title of the defendants was not challenged by the plaintiffs in the plaint by referring to any bar under section 46 of the Chotanagpur Tenancy Act,1908 or by way of redemption of mortgage with respect to registered deed of ‘Bai -bil-wafa’ and the plea was not maintainable. The findings of the learned 1st appellate court is quoted as under:- “Again admittedly Ext-B is a registered document, which was duly registered by competent authority in the year 1991(19.04.91), so as per established principle of law laid down in Catina of decisions a registered document carries with it a presumption that it was validly executed. It is for the party questioning the genuineness of the transaction to show that in law the transaction was invalid. Here it was burden on the plaintiffs-appellants to establish that the said registered deed of conditional mortgage("Bai-bil-Wafa") vide Ext-B is a false document and the same was not executed by Etwa Swansi. Since the genuinity of Ext-B has not been rebutted by the plaintiff-appellants by any cogent evidence, as their only plea of death of Etwa Swansi, ( 2025:JHHC:10432 ) 6 mortgagor of Ext-B, prior to 1991 has been categorically falsify by Ext-A, so genuineness of Ext-B is found intact. Again it is admitted fact that the Ext-B is a registered deed of "Bai-bil-wala". The term "Bai-bil-wafa" is an Arabic term which may mean a mortgage or a conditional sale. In this type of transaction there be a contract between the parties to transfer certain property for a fixed period and unless the condition as such given in the deed has not been complied, the such transfer by way of "Bai-bil-wafa", which is an ostensible sale will turned into absolute sale. Here in the present case in hand so far as the lands mentioned in schedule-A of the plaint regarding the lands of khata no.13, since said land has been duly mortgage by Etwa Swansi, father of these plaintiffs on 19.04.91 by registered deed of "Bai-bil-wala" and such mortgage has not been redeemed and thereby defendants-respondents through their father Turku Mahto had got absolute title over the suit land and there such title has not been challenged by the plaintiff- appellant in their plaint either on the ground of any bar for transfer under section 46 CNT Act nor the same has been challenged in this suit by way of redemption of mortgage so in absence of any such prayer, the appellant's claim as such raised in their memo of appeal is worth not maintainable.” 10. This court finds that the learned Trial Court considered the legality , validity and consequence of exhibit-B produced by the defendants to claim their right over a portion of the suit property and decreed the suit partly except with respect to the portion of the suit land covered by exhibit-B. Exhibit B , which is a registered conditional mortgage deed said to have been executed by the father of the plaintiffs in favour of the father of the defendants was not under challenge in the suit. Before the learned 1st appellate court a plea sought to be raised for the first time with respect to bar regarding transfer of land , interalia, belonging to schedule caste community under Section 46 of Chotanagpur Tenancy Act,1908 but such plea was rejected in absence of any plea in the plaint and that the exhibit B ( 2025:JHHC:10432 ) 7 was not challenged by the plaintiffs. The learned 1st appellate court also recorded on the materials on record that the plaintiffs failed to prove that the registered deed of conditional mortgage exhibit-B is false and also failed to prove that on 19.04.1991 the mortgagor Etwa Swansi was not alive. 11. From perusal of the impugned judgements it is apparent that the plaintiffs never raised a plea in the plaint that they belong to schedule caste community and that the property of exhibit-B was covered under the provisions of Chhotanagpur Tenancy Act, 1908. Rather, it was their specific case of the plaintiffs that the liability under the earlier registered deed of conditional mortgage dated 24.04.1981 and 03.06.1983 was duly discharged. However, when the learned Trial Court refused to pass decree in their favour with respect to the property covered by exhibit-B, the plaintiffs for the first time at the 1st appellate stage claimed that they belong to schedule caste category and that the transaction in connection with registered deed of mortgage dated 19.04.1991 was hit by section 46 of Chhota Nagpur Tenancy Act,1908 without any foundation pleading to this effect. The learned 1st Appellate Court has recorded finding that exhibit-B being a registered document there is a presumptive value with regard to its valid execution and party questioning genuineness of transaction has to show that in law it was invalid. It was for the plaintiffs to establish that the said registered deed of conditional mortgage (Bai-bil-wafa) vide exhibit-B was forged document and same was never executed by Etwa Swansi, but the plaintiffs failed to do so. 12. With regard to the challenge by the plaintiffs on the ground of any bar from transfer under section 46 of the Chota Ngapur Tenancy Act, the learned 1st appellate court has held that the plaintiffs in their plaint had not taken any such plea of bar under section 46 of the Chhota Nagpur Tenancy Act nor the exhibit-B was challenged in the suit by way of redemption of mortgage. The learned 1st appellate court finally upheld the findings of the learned Trial Court and dismissed the appeal. 13. This court finds that both the learned Courts have considered the materials on record and the learned 1st Appellate Court has also considered the plea which has been raised by the appellants for the ( 2025:JHHC:10432 ) 8 first time in the Appellate Court with regard to bar under section 46 of the Chhota Nagpur Tenancy Act and that the appellants belong to the schedule caste category and has refused to entertain such a plea has also observed that there is a presumption in connection with execution of registered deed and the challenge of exhibit-B on other grounds like it was never executed by Etwa Swansi etc. was rejected. There are concurrent findings recorded by both the Courts with respect to execution of the exhibit-B and the learned 1st Appellate Court by a well-reasoned findings has rejected the plea regarding bar of transfer of land belonging to schedule caste under section 46 of Chota Nagpur Tenancy Act,1908. This court finds no question of law much less any substantial question of law involved in this case. Accordingly, this appeal is hereby dismissed. 14. Let this order be communicated to the court concerned through FAX. (Anubha Rawat Choudhary, J.) Binit