1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Second Appeal No. 116 of 2024 Chandru Mahto @ Chandradeo Mahto, aged about 77 years, son of late Sukhlal Mahto, resident of village-Harli, P.O. Harli, P.S. Barkagaon, District-Hazaribagh ………………….Appellant … Versus…. 1. Deepchand Mahto, son of late Sohba Mahto, resident of village Shibadih, P.O. Sandh, P.S. Barkagaon, District-Hazaribagh 2. . Jugeshwar Mahto, S/O Late Sobha Mahto, R/O Village - Shibadih, P. O. Sandh, P. S. Barkagaon, District - Hazaribagh. 3. Pachali Devi, W/O Late Sohba Mahto, R/O Village - Shibadih, P. O. Sandh, P. S. Barkagaon, District - Hazaribagh. 4. Anghani Devi, W/O Late Dhupendra Mahto Kushwaha, R/O Village - Shibadih, P. O. Sandh, P. S. Barkagaon, District - Hazaribagh. 5. Pancham Kumar, S/O Late Dhupendra Prasad Kushwaha, R/O Village - Shibadih, P. O. Sandh, P. S. Barkagaon, District - Hazaribagh. 6. Shila Devi, W/O Jagi Mahto, D/O Late Sobha Mahto, R/O Village - Harli, P. O. Harli, P. S. Barkagaon, District - Hazaribagh. 7. Dulari Devi, W/O Jainandan Mahto, D/O Late Sobha Mahto, R/O Village - Guruchatti, P. O. Barkagaon, P. S. Barkagaon, District - Hazaribagh. 8. . Puniya Devi, W/O Bhuneshwar Mahto, D/O Late Sobha Mahto,R/O Village - Saner, P. O. Nagri, P. S. Nagri, District - Ranchi. 9. Bimla Devi, W/O Tufani Mahto, D/O Late Sobha Mahto, R/O Village Gondalpura, P. O. Barkagaon, P. S. Barkagaon, District - Hazaribagh. 10. . Bilasho Devi, W/O Late Surendra Mahto, R/O Village Harli, P. O. Harli,P. S. Barkagaon, District - Hazaribagh. 11. . Ravi Kumar, S/O Late Surendra Mahto, R/O Village - Harli, P. O. Harli,P. S. Barkagaon, District - Hazaribagh. 12. Kaushalya Devi, D/O Late Surendra Mahto, R/O Village - Harli, P. O. Harli, P. S. Barkagaon, District - Hazaribagh. 13. Geeta Devi, D/O Late Surendra Mahto, R/O Village - Harli, P. O. Harli, P. S. Barkagaon, District - Hazaribagh. 14. Mahendra Mahto, S/O Late Surendra Mahto, R/O Village - Harli, P. O. Harli, P. S. Barkagaon, District - Hazaribagh. 15. Surji Devi, D/O Late Sukhlal Mahto, W/O Rudan Mahto R/O Village - Harli, P. O. Harli, P. S. Barkagaon, District - Hazaribagh. 16. Basanti Devi, wife of Manoj Prabhakar, resident of village Sandh, P.O. Sandh, P.S. Barkagaon, District-Hazaribagh…… Respondents CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI For the Appellant : Mr. Ajay Kumar Singh, Advocate Mr. Krishna Prajapati, Advocate For the Respondents : ………. 05/Dated: 30/01/2025 Heard learned counsel for the appellants. 2. This second appeal has been preferred against the judgment and 2 decree dated 12.04.2024 (decree sealed and signed on 22.04.2024) passed by learned District Judge-VI, Hazaribagh, dismissing the Civil Appeal No.11/2019 and affirming the judgment and decree dated 07.01.2019 (decree sealed and signed on 19.01.2019) passed by the learned Civil Judge (Senior Division)-II, Hazaribagh in Title Suit No. 02/2005 and also prayer has been made to set aside the judgment and decree dated 07.01.2019 (decree sealed and signed on 19.01.2019) passed by the learned Civil Judge (Senior Division)-II, Hazaribagh in Title Suit No. 02/2005. 3. The case of the plaintiff in brief is that the plaintiff is the occupancy aayat of Bela Beltol under P.S.- Barkagaon, Dist.- Hazaribag having a khatiyani land recorded under khata no. 114 in the name plaintifff's father Sheo Nath Koeri and uncle Lalu Mahto both sons of Churam Koeri. It is further case of the plaintiff that lands appertaining to khata no. 111, of vill.-Bela Beltol, Dist.- Hazaribag was recorded in the name of Raman Dusadh during the cadestral survey operation but after the cadestral survey, recorded tenant Raman Dusadh died leaving behind his only son Bandhu Dusadh, who became orphan and helpless and was not in a position to arrange any agricultural equipments and cattle to cultivate the land of plot no. 665 under khata no. 111 and as such was also not in a position to pay rent to the ex-landlord. That having no alternative, Bandhu Dusadh, not in a position to look after the lands, surrendered the said land to the ex-landlord in the year 1930 and left the village in search of job to earn for livelihood. It is averred that consequent upon the surrender of the lands, ex-landlord came in possession of the land in the year 1930 and on being approached, the ex-landlord gave entire 2.47 acres land appertaining to plot no. 665, khata no. 111 of vill.- Bela Beltol, P.S. Barkagaon, Dist.- Hazaribag in settlement to Lalu Mahto and Sheonath Mahto by the grant of Hukumnama on Baisakh Badi, Saat Roje Samvat, 1996 Saal upon receiving a salami of Rs. 175/- and put the settlees in khas possession of the settled land. That after the said settlement, plaintiff's father Sheonath Mahto and uncle Lalu Mahto came in khas possession of the land and through their hard 3 labour and by spending huge money, they converted the land into dhankhet and continued in peaceful possession by growing various crops and appropriating the usufructs thereof peacefully and regularly to the knowledge of the whole world. That said Lalu Mahto and Sheonath Mahto also paid rents to the ex-landlord and obtained the rent receipt till the vesting of Jamindari and after the vesting, the aforesaid Lalu Mahto and Sheonath Mahto started paying rent to the State Government and obtaining rent receipts. That subsequently in the year 1970, two brothers Lalu Mahto and Sheonath Mahto amicably partitioned the lands and after such partition, each got 1.23½ acres in his share and the area of land 1.23½ acres, which fell in the share of Sheonath Mahto was inherited by his son Shobha Mahto (original plaintiff). It has been stated that the land of area 1.23½ acres actually measures an area 1.20 acres and has been described and detailed in Schedule 'A' of the plaint, over which the plaintiff has got valid right, title, interest and possession and are also exercising all acts of possession by growing various crops. It is further case of the plaintiff that Lalu Mahto had fallen in urgent need of funds and as such had to borrow a sum of Rs. 7,000/- from Teja Mahto and Horil Mahto by mortgaging his 0.30 acres land in favour of Teja Mahto and 0.31 acres in favour of Horil Mahto and the rest land remained in possession of Lalu Mahto and after his death, in possession of his sons Bandhu Mahto and Latan Mahto. Plaintiff has pleaded that since the date of settlement in the year 1939, plaintiff's father Sheonath Mahto and uncle Lalu Mahto and after their death, their descendants have remained in peaceful possession over their share of settled lands, however, in the month of May, 2004, suddenly def. no. 1 and descendant of Lalu Mahto threatened the plaintiff and tried to disturb the peaceful possession of the plaintiff over the suit land, which resulted in the filing of a petition with Miscellaneous 73/2004-19 Case no. 78/04 before Sub Divisional Magistrate, Hazaribag and thereafter, a proceeding u/s 144 Cr.P.C. was drawn and report was 4 called for from the Anchal Adhikari, Barkagaon. During the said proceeding, it transpired that there had been several transactions in respect of the land including transaction of sale by Most. Soniya, Rameshwar Dusadh and Bhukhlal Dusadh, widow and sons of Late Bandhu Dusadh in favour of Faguni Devi (now deceased), mother of def. no. 1 to 3. Plaintiff has averred that the sale deed no. 1 to 8 dt. 19/12/78 executed by the descendants of recorded tenant in favour of Faguni Devi is apparently illegal, collusive without consideration and has been intentionally created with ulterior motive to grab the land of plaintiff and this illegal act has necessitated the filing of this suit. It has been pleaded that Bandhu Dusadh, son of recorded tenant Raman Dusadh had already surrendered the land to the ex- landlord and the ex-landlord thereafter resumed the land and made Raiyati settlement to Lalu Mahto and Sheonath Mahto, who continued in possession and paid rents to the government but much after i.e. in the year 1971, Bandhu Dusadh filed an application before the Anchal Adhikari for the issuance of rent receipts in his favour but the Anchal Adhikari on inquiry found the lands to have been settled in favour of Lalu Mahto and Sheonath Mahto and hence, rejected the application filed by Bandhu Dusadh for issuance of rent receipts and in such circumstances, widow and sons of Bandhu Dusadh had no right to execute any sale deed with respect to the lands of 2.47 acres of plot no. 665, khata no. 111 in favour of any person including Faguni Devi, mother of defendant no. 1 to 3. The plaintiff's further case is that since Lalu Mahto had borrowed money from Teja Mahto and Horil Mahto, father of Jagdish Mahto and Budhan Mahto respectively and in lieu of borrowed money had relinquished the area 0.61 acres in their favour, rest land out of 1.23 ½ acres remained in possession of Lalu Mahto and after his death, in possession of his two sons Bucchu Mahto and Latan Mahto but it has been learned from the report of 73/2004 Anchal Adhikari submitted in Miscellaneous Case no. 78/04 that Budhan A Mahto son of Lalu Mahto and Kamal Mahto and Netal Mahto, grandsons of Lalan Mahto have got two sale deeds total 5 for 0.61 acres executed in their names by the descendants of recorded tenant Raman Dusadh and also got two sale deeds executed in the names of Jagdish Mahto, S/o Teja Mahto and Budhan Mahto S/o Horil Mahto with respect to their 0.30 and 0.31 acres land respectively, which Lalu Mahto had relinquished in favour of their ancestors in lieu of the borrowed money. It has been stated that in spite of the execution of the sale deed in respect of the suit land in favour of Faguni Devi, the name of plaintiff is still continuing in the revenue record and the plaintiff has been continuously paying rent and obtaining rent receipts up to date. That the plaintiff is coming in peaceful possession and has been growing different crops every years but on the strength of illegal sale deed in favour of Faguni Devi, her son Chandru Mahto (def. no. 1) with the help of descendants of Lalu Mahto and others are creating trouble and are bent upon to take forcible possession of the suit property and as such, the plaintiff has been constrained to file this present suit for the declaration of plaintiff's right, title, interest over the suit land and for the relief of permanent injunction against the defendants restraining them from interfering from the peaceful possession of the plaintiff over the suit land. 4. The case of the main contesting defendant nos. 1 to 3 is that suit is not maintainable in the present form, suit being barred by the law of limitation, law of acquiescence, law of specific performance and suit being not maintainable in view of non-joinder of necessary parties for non-impleading Meghan Mahto, Tulsi Mahto, Basudeo Mahto all sons of Bacchu Mahto, Kamal Mahto, Ramchandar Mahto and Shamla Mahto, the descendants of Lalu Mahto. 5. Learned counsel for the appellant submits that the learned trial court as well as appellate court has not considered this aspect of the matter that settlement of the land in favour of Faguni Devi was taken place through the Hukumnama (Exhibit-D) on 30.03.1938. He submits that on this law point, this second appeal may kindly be admitted. 6. The Title Suit No. No. 02/2005 was instituted by the plaintiff for 6 decree of declaration of plaintiff’s right, title and interest over the suit land more specifically described and detailed Schedule ‘A’ of the plaint and for further relief of declaration that the sale deed no. 12858 dated 19.12.1978 executed in favour of Faguni Devi in respect of the suit property is illegal, collusive and null and void. Further prayer was made for relief of permanent injunction against defendant nos. 1 to 3 restraining them from interfering the possession over the suit property. 7. On the basis of pleadings of the parties, the learned trial court has framed nine issues to decide the suit vide judgment dated 07.01.2019. 8. Issue No. VII was with regard to sale deed no. 12858 dated 19.12.1978 measuring an area of 1.20 acres of lands in plot no. 665 of khata no. 111 of village Bela Beltol, P.S. Barkagaon, District- Hazaribagh. 9. Since Issue Nos. VII and VIII were interlinked, the learned trial court has taken up those issues simultaneously and has found that there is no dispute with regard to land of area 2.47 acres appertaining to plot no. 665, khata no. 111, village Bela Beltol was recorded in the name of Raman Dusadh during the cadastral survey operation and this Raman Dusadh had died leaving behind his only son Bandhu Dusadh, who could not pay the rent of the land to the Ex- landlord and as, such Ex-landlord had resumed the land in the year 1930 and took the same in his khas possession. The learned court has considered that main issue is with regard to entire land of 2.47 acres and resumed to Lalu Mahto, uncle of plaintiff and Sheonath Mahto, father of the plaintiff by virtue of Hukumnama (Ext. 5) on Baisakh Badi 7 Roj Samvat,, 1996 Saal and put them in possession of the same or else whether the ex-landlord settled the resumed land to different persons by granting, separate Hukumnamas to them including the settlement of 1.23 acres to Fagunii Devil by virtue of Hukumnama (Ext. D) granted on Baisakh Badi 10 Roj Samvat 1995, which correspond to 30/03/38 as claimed by the defendant. On the basis of Hukumnana they obtained possession and continued in possession of the same. 7 10. So far as the Sada Hukumnama is concerned, the learned court considering the judgment of Full Bench of the Hon'ble Patna High court in the case of Most. Ugni Vrs. Chahwa Mahto reported in 1968 BLJR Patna (FB) 93 has come to the conclusion that valid agriculture lease may be created by a registered instrument and if such a registered document is created, delivery of possession is not necessary to prove the title and If, however, the lease is not registered and therefore, inadmissible as evidence of title, it will always be open to the tenant concern to show that he obtained Raiyati interest on the strength of actual possession and acceptance of rent by the landlord. The learned court found that Sada Hukumnamas were unregistered documents given by the Ex-landlord in favour of their ancestors. Plaintiff has claimed that after resuming the land, Ex- landlord settled entire 2.47 acres in favour of Lalu Mahto and Sheonath Mahto after receiving a salami of Rs. 175/- and putting them in khas possession of the settled land. The said Hukumnama is said to have been given to the settlees Lalu Mahto and Sheonath Mahto on Baisakh Badi Saat on 19/03/1939 which was marked as Exhibit-5. On seeing the Exhibit 1 to 1/C the learned court found that these are Jamindari rent receipts issued by the Sherista of Jamindar for the entire 2.47 acres land showing the yearly rent as 6 Rupees 3 Anna for the period starting from Samvat 1996 to Samvat 2009, which correspond to the English year 1939 to 1953 and it was claimed by the plaintiff that after the abolition of Jamindari, State Government also recognized Sheonath Mahto and Lalu Mahto as their tenants on the basis of settlement of 2.47 acres of land in their favour by the ex-landlord and opened Jamabandi in the name of two settlees and thereafter, the settlees started paying rent to the State and getting rent receipts issued in their favour for that two rent receipts were filed by the plaintiff which has been marked as Exhibit-2 and those receipts were for the period 2004 wherein in Exhibit-7 the rent was for the period 1961-62, 1962-63, 1963-64, 1964-65, 1965-66 and 1966-67 and there is also mention of issuance of Rent Receipt no. 3813713 (Ext. 2) in the year 2003- 8 04. Exhibit 3 and Exhibit-4 also suggest that payment of rent by the settlees to the State Government and to show the possession of the settlees over the entire 2.47 acres land settled to the settlees Lalu Mahto and Sheonath Mahto by the Ex- landlord. Exhibit - 3 was the order sheet drawn in connection with Misc. Case no. 16/70-71, which was registered on the application of Bandhu Dusadh, S/o Raman Dusadh. Bandhu Dusadh, through this application had made prayer to the Revenue Department of the State Government to issue rent receipts in his favour with respect to 2.47 acres land of plot no. 665, khata no. 111. The Circle Inspector (C.I.) had given his report stating therein that Bandhu Dusadh was not in possession of the land of plot no. 665, rather, the said 2.47 acres land of plot no. 665 was in possession of the Lalu Mahto and Shobha Mahto (plaintiff) S/o Sheonath Mahto. The notice issued by the Office of Anchal Adhikari (C.O.), Barkagaon has also been proved by the plaintiff as Ext. 4. Vide Exhibit. 3, Anchal Adhikari had mentioned in his order dated 08/01/71 that there was a report of C.l, stating therein that Lalu Mahto and Shobha Mahto had paid rent to the Jamindar after the settlement of the land by the Jamindar and they had also been paying rent to the State since the date of abolition of Jamindari. On the basis of above report of C.I., prayer of Bandhu Dusadh for issuing rent receipts in his favour was rejected by Anchal Adhikari. 11. In the light of the above documents, the learned court has found that the plaintiff proves the continuous payment of rent by Lalu Mahto and Sheonath Mahto to the Ex-landlord after the settlement of land in their favour by the Ex-landlord and further proves the case of the plaintiff based on the basis of abolition of Jamindari. The learned court has found that although the rent receipts are not the document of title but continuous issuance of rent receipt in favour of any person raises a strong presumption of his possession over the land for which he had been continuously paying rent to Jamindar and to the State Government. 12. The defendants have tried to make out their case on the basis of 9 Exhibit-D which is one of Hukumnama and it has been claimed by the defendant no. 1 to 3 that this Hukumnama was granted to Faguni Devi by the ex-landlord on Baisakh Badi 10 Roj Samvat 1995 Saal, which correspond to 30/03/1938. The learned court found this document as suspicious in view of the fact that the date mentioned in Vikram Samvat does not correspond with the date mentioned just below the revenue stamp portion of the top the said Hukumnama. The learned court has found that Baisakh Badi 10 Roj Vikram Samvat 1995 correspond with 22/03/1938 and not with 30/03/1938. The learned court has further found that in all that documents all the digits mentioned in the body of the deed have been written in Hindi (Nagri) Numerals; whereas date given on the top portion below the revenue stamp is written in English Digit and there is also overwriting in the written date. 13. The learned court has further appreciated the oral evidence adduced by the parties in paragraph no. 13 of the judgment and by appreciating all these facts has decided the Issue Nos. VII and VIII in favour of the plaintiffs. Further issues have also been discussed elaborately by the learned trial court and it was decreed in favour of the plaintiffs and against the defendants on contest. It was declared that sale deed no. 12858 dated 19.12.1978 executed in the name of Faguni Devi in respect of an area of 1.20 acres of plot no. 665 khata no. 111 of village Bela Beltol, P.S. Barkagaon, District is illegal and as such not affected the right, title and interest of the plaintiff over the suit land and the defendant nos. 1 to 3 were permanently restrained from interfering with the plaintiff’s right, title, interest and possession over the suit land and that was decided by judgment dated 07.01.2019 by the learned Civil Judge (Senior Division)-II, Hazaribagh. 14. Aggrieved with the said judgment, defendants-appellants have preferred Civil Appeal No. 11 of 2019 which was decided by the learned District Judge-VI, Hazaribag vide judgment dated 12.04.2024 whereby the said appeal was dismissed and judgment of the learned trial court was affirmed. 10 15. The learned appellate court after hearing both sides has framed further points to decide the appeal. The learned appellate court has found that the said property was surrendered by original khatiyani holder Raman Dusadh’s son Bandhan to the ex-landlord in the year, 1930 thereafter he settled the said disputed property in the name of father of the plaintiff Shivnath Mahto and plaintiff’s son Lalu Mahto thereafter the said Hukumnama hitting the ownership by way of Chota Nagpur Tenancy Act does not arises. The said Bandhan Dusad belongs to schedule caste and transfer of his property without permission of Deputy Commissioner was illegal because as per Chhotanagpur Tenancy Act, the property of Scheduled Caste or Schedule Tribe cannot be transferred to none tribal community unless permission has been granted by the Deputy Commissioner of the district. 16. Both the parties have admitted that the said land was surrendered to the ex-land lord in the year, 1930 and later on it was settled in the name of Shivnath Mahto and Lalu Mahto in the year, 1970. The plaintiff/respondent nos. 1 to 3, 6 and 8 being son and daughter respectively to Shivnath Mahto have come in possession and in view of that the learned appellate court has found that the Chota Nagpur Tenancy Act is not attracted. The learned appellate court has further appreciated the exhibits as well as oral evidence and has confirmed the judgment of the learned trial court and dismissed the appeal by judgment dated 12.04.2024. 17. There is concurrent finding of both the Courts. What is the perversity in the judgment of the learned trial court as well as learned appellate court has not been shown to the Court and only point was argued that Hukumnama was in favour of the appellant herein, that has not been appreciated correctly. 18. In view of the above facts, reasons and analysis there is no perversity in the judgment of both the courts and in absence of perversity, sitting under section 100 of the C.P.C., the High Court is not required to admit this second 11 appeal in absence of any substantial question of law and accordingly, this second appeal is dismissed. Pending, I.A., if any, stands disposed of. ( Sanjay Kumar Dwivedi, J.) Satyarthi/A.F.R