-1- S.A. No. 22 of 2024 IN THE HIGH COURT OF JHARKHAND, RANCHI ---- S.A. No. 22 of 2024 ---- 1.Uttam Ram, aged about 45 years son of late Samar Ram 2.Kartik Ram, aged about 52 years son of late Mangru Ram 3.Jyotin Verma, aged about 40 years 4.Keshav Verma, aged about 30 years, both sons of late Sudama Ram All residents of Village Purandaha, Police Station Deoghar, P.O. B.Deoghar, District Deoghar … … Appellant(s) -- Versus -- 1.Paltan Ram aged not known son of late Bhagalu Ram, resident of Village Purani Lohmadwa PO and PS Saraiya, Sub-Division and District Dumka, presently residing at Village Purandaha, P.O.-B. Deoghar, P.S. Sub-Division and District Deoghar -814 112. 2.Sudhir Ram aged not known, s/o Paltan Ram, resident of Village Purani Lohmadwa PO and PS Saraiya Subdivision and District Dumka, presently residing at village Purandaha Po-B. Deoghar Ps, Subdivision and District Deoghar 814112 3. Prakash Ram @ Paro Ram, aged not known, Paltan Ram Resident of village purani lohmadwa PO+PS Saraiya, subdivision and District Dumka presently residing at village Purandaha Po -B. Deoghar Ps, Subdivision and District Deoghar 814112 4. Smt. Pinki Devi ,W/O Late Karu ram aged not known Resident of village purani lohmadwa PO+PS Saraiya, subdivision and District Dumka presently residing at village Purandaha PO B. Deoghar Ps, Subdivision and District Deoghar 814112 -2- S.A. No. 22 of 2024 5. Munna (minor) age not known S/o Late Karu Ram, represented through his mother and natural guardian Pinki Devi Resident of village Purani Lohmadwa PO+PS Saraiya, subdivision and District Dumka, presently residing at village Purandaha PO B. Deoghar Ps, Subdivision and District Deoghar 814112. … Respondent 1st Party /Defendents Respondent 1st Party/ Defendant 1st Party 6. Bishun Ram aged not known S/o Late Thakur Ram, R/o village- Purandaha, P.O.-B.Deoghar P.S.Subdivison and District-Deoghar. 7. Sudama Ram aged not known S/o Late Rameshwar Ram R/o village - Purandaha, P.O.-B. Deoghar P.S., subdivison and District-Deoghar. 8. Kedar Verma aged not known S/o Sudama Ram R/o village -Purandaha, P.O.-B. Deoghar, P.S., Subdivison and District-Deoghar. 9. Punchanand Verma aged not known s/o Late Sri Prasad Ram R/o village -Purandaha, P.O.-B. Deoghar, P.S., Subdivison and District-Deoghar. 10. Parmanand Verma aged not known s/o Late Sri Prasad Ram R/o village Purandaha, P.O.-B. Deoghar, Subdivison and District-Deoghar ………Respondents/Respondents/ Defendant 2nd Party 11.Jhupar Ram aged not known s/o Late Bistu ram, R/o village Purandaha, P.O.-B. Deoghar, P.S.sub-divison and District-Deoghar.814112 12.Bhubneshwar Ram aged not known s/o Late bisturam R/o village- Purandaha, P.O.-B. Deoghar. PS.sub-divison and District-Deoghar.814112 13.Tiru ram aged not known s/o Late Bistu Ram R/o village -Purandaha, P.O.-B. Deoghar P.S.sub-divison and District-Deoghar.814112 14.Susma Devi w/o Dineshwar Ram aged not known R/o village - Purandaha, P.O.-B. Deoghar, P.S.-sub-divison and District-Deoghar.814112 15.Gopal Ram s/o Late Sammar Ram age not known R/o village Purandaha, P.O.-B. Deoghar, P.S.-subdivison and District-Deoghar.814112 16. Sulekha Devi aged not known w/o Late Shibu ram @shiv kumar verma R/o village-Purandaha, P.O.-B. Deoghar, P.s., subdivison and -3- S.A. No. 22 of 2024 District-Deoghar.814112 17. Daya Rani aged not known d/o Late Shibu Ram @ Shiv Kumar Verma R/o village Purandaha, P.O.-B.Deoghar, P.S., sub-divison and District- Deoghar.814112 18. Nilam Kumari aged not known d/o Late Shibu ram @shiv Kumar Verma R/o village -Purandaha, P.O.-B.Deoghar. P.S.,sub-divison and District-Deoghar.814112 19. Menka Kumari aged not known d/o Late Shibu ram @Shiv Kumar Verma R/o village-Purandaha P.O.-B.Deoghar, P.S., subdivison and District- Deoghar.814112 20. Manish Kumar aged not known s/o late Shibu Ram @ Shiv Kumar Verma R/o village -Purandaha, P.O.-B.Deoghar, P.S., sub-divison and District-Deoghar.814112 21. Neeraj Kumar aged not known s/o Late Shibu Ram @Shiv Kumar Verma R/o village Purandaha, P.O.-B.Deoghar, P.S., sub-divison and District-Deoghar.814112 ........Respondent/RESPONDENT/DEFENDENTS ---- CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI --- For the Appellants(s) :- Mr. Onkar Nath Tiwary, Advocate Mr. Shamaiel Raza, Advocate For the Respondent(s) :- ---- 6/27.02.2025 Heard Mr. Onkar Nath Tiwary, the learned counsel appearing on behalf of the appellants. 2. This Second Appeal has been preferred being dissatisfied with the judgment dated 14.12.2023 and decree signed on 21.12.2023 by the learned District Judge, IX, Deoghar, Dismissing Civil Appeal No.4 of 2018 and affirming the judgment dated 16.12.2017 and decree signed on 21.12.2017 by learned Civil Judge-IV (Sr.Division) Deoghar dismissing the Title (D) Suit No.53 of 2007. -4- S.A. No. 22 of 2024 3. Mr. Onkar Nath Tiwary, the learned counsel for the appellants, at the outset, submits that Title (D) Suit No.53 of 2007 has been instituted for declaration of right, title and interest of plaintiff/appellants and other co-sharer in the suit property and also for declaration of compromise dated 01.07.1988 in Cr.M.P. No.41 of 1998 as void, inoperative and not binding to the plaintiffs and other defendants. Mr. Tiwari, learned counsel appearing for the appellant submits that respondent no.1-Paltan Ramani is the son of Bhaglu Ramani and the said Parcha of J.B. No.6 of Mouza -Purana Lohmadwa during the Gantzer’s Survey operation stood recorded in the name of Bhaglu Ram son of Shivlal Kahar, and that is the substantial question of law which has not been framed by the learned court. 4. The case of the plaintiffs /appellants as per the plaint is that the parties are Hindus and governed by Mitakshara School of Hindu Law. The suit property described in schedule of the plaint are recorded in the name of Kenu Kahar, Jhunu Kahar, Mostt. Satni Kaharin and Mostt. Jiriya Kaharin. Plaintiff has given genealogical table in para 3 of the plaint to show the relationship of the parties. According to plaintiff recorded tenant Satni Kaharin and Jiriya Kaharin both wife of Kheju Kahar died issue less and their interest to the suit property revert back to their husband and after that devolved upon his surviving brother R.T. Jhunu Kahar. Further case of the plaintiff is that Kheju Kahar died in jointness with Jhunu Kahar. The plots which are separately recorded in the name of Satni Kaharin and Jiriya Kaharin also succeeded by Jhunu Kahar and now in the possession of plaintiff and defendants 2nd party. Defendant 1st party Paltan Ram filed a case i.e. Cr. Case No. 41/1988 u/s 144, 145 Cr.P.C. against Shree Prasad Ram, Bishan Ram, Sudama Ram, Mangru Ram, Panchanand Verma and Shambhu Ram and later on entered into collusive compromise on 01.07.1988 and illegally transferred the raiyati non-transferable land described in the schedule to Paltan Ram against the provision of S.P.T. Act, which was accepted -5- S.A. No. 22 of 2024 by learned Executive Magistrate vide order dated 01.07.1988. The case of the plaintiff is that Paltan Ram or his father Bhaglu Ram are the strangers and no blood relationship with the family of recorded tenant including Mostt. Satni Kahrain or with Mostt. Jhiria Kaharin. Further case of the plaintiff is that Bhaglu Ram @ Kahar son of Shivlal Kahar was the recorded tenant of jamabandi no. 11 of mouza Purana Lohmarwa within district Dumka which is apparent from Gantzer’s record of rights. After death of Bhaglu Ram defendant no. 1 substituted in place of his father in the present survey settlement. In the alleged compromise petition, it has been mentioned that Paltan Ram is heir of Kheju Kahar which is only to substantiate his illegal claim, which is without knowledge and information to the plaintiff and as such there is cloud over right, title and interest of the plaintiff and other co-sharer. The case of the plaintiff is that said Paltan Ram illegally fabricated some rent receipt in his favour. Further, plaintiff asserted that he came to know about the alleged compromise when it was filed in Session Case No. 130/2004, which was disposed off on 30.11.2005. Since cause of action arose and hence this suit. 5. The case of the defendants is that the Defendant 2nd and 3rd party appeared and have filed their written statement on 07.03.2008 completely supporting the case of plaintiff. Defendant 1st set, the main contesting defendant no. 1 to 4 appeared and have filed their written statement on 06.02.2008 denying all the averments and claim of the plaintiff. These defendants has admitted the entry of record of rights. These defendants denied the genealogy given by plaintiff in para 3 of the plaint and asserted that these defendants are successor in interest of Kheju Kahar. These defendants denied that both wife of Kheju Kahar namely Satni Kahrain and Jiria Kaharin died issue less. It is asserted that Kheju Kahar had a son namely Bhaglu Kahar from his second wife Satni Kahrain who is father of defendant no. 1 and grandfather of defendant no. 2 to 4. These defendants asserted that plaintiff want to deprive -6- S.A. No. 22 of 2024 these defendants from their legal share in the suit property. Further averments of these defendants is that interest of property of Satni Kaharin and Jiriya Kaharin devolve to their only son Bhaglu Kahar @ Bhaglu Ram. These defendants also denied the possession of the plaintiff and defendant 2nd set over the suit property and asserted that these defendants being the legal heir of Kheju Kahar succeeded the suit property and have been in possession over it. There was constant dispute between the parties led to series of criminal cases amongst them. Further these defendants asserted that they got mutated their name for the suit property in Deoghar Municipality. The name of Bhaglu Ram @ Bhaglu Kahar is in the record of Deoghar Municipality and the present defendants have been continuously paying rent/taxes to Deoghar Municipality. In Cr. Misc. Case No. 123/1995 before learned S.D.M., the present defendant Shambhu Ram & Ors. who were O.P. there, admitted that both the parties are members of one family, in their show cause. It is only in the present suit the plaintiff deviated from their earlier stand on the fact in issue. These defendants also denied that they have any land in Dumka district and it is simply a imaginary story. These defendants also denied that the alleged compromise was collusive rather it was result of good faith having restored between the parties. These defendants also denied that the plaintiff had no knowledge about the compromise and asserted that this case is hit by the law of limitation because parties of the suit or their predecessor in interest were parties in that compromise petition. 6. The learned counsel for the appellants submits that the learned trial court as well as the learned appellate court both have failed to appreciate that the legal heir/ successor Bhaglu Ram was alive at the time of Gantzer’s Survey and his name was not entered in the Khatian of last Survey. He submits that on this particular substantial question of law this second appeal can be admitted. He further submits that the Order LIX Rule 27 of the CPC has not been -7- S.A. No. 22 of 2024 considered in its right perspective by the learned first appellate court and in view of that this is the second substantial question of law to be decided so far as the second appeal is concerned and in view of that this second appeal may kindly be admitted. 7. The said suit was instituted for declaration of right, title and interest which was dismissed on contest by the learned trial court by the judgment dated 16.12.2017. Aggrieved with that, the appellants/plaintiffs preferred the Civil Appeal No.4 of 2018 and by the judgment dated 14.12.2023, the learned appellate court has been pleased to dismiss the appeal and affirmed the judgment. Aggrieved with that, the present second appeal has been preferred by the appellants/plaintiffs. 8. Issue no.4 was framed by the learned trial court to the effect that whether the plaintiffs and defendants 2nd and 3rd party are the descendants, legal heirs and successors of the recorded tenants Kinu Kahar, Jhunu Kahar, Mostt. Satni Kahrain and Mostt. Jiria Kahrain? and issue no.6 was with regard to whether the defendant 1st party are the descendants, legal heirs and successors of Bhaglu Ram or not? and these two issues being interlinked the learned trial court has taken these issues simultaneously. 9. The learned trial court has considered the evidence of PW-1 Jagannath Bhandari is a formal witness who has proved the signature of Sri Rajkumar Singh, advocate in the advocate commissioner report. PW-2 Ishwari Ram has stated in para 7 of cross examination that he cannot disclose the Jamabandi number and Plot number of his land/ plot and PW-2 is said to be relative and in para-12 of cross examination he has stated that Bhaglu was his grand-father. The learned court found that meaning thereby father of Paltan Ram defendant no. 1 is grandfather of this witness and related to all the parties. However, he has denied in the next line that Bhaglu is not his agnets. In para-18 he has categorically admitted that Bhaglu is the son of Satni and Jiria but whose son -8- S.A. No. 22 of 2024 he is, he cannot say and considering the evidence of this PW itself, the learned trial court has completely brushed out the case of the plaintiffs/ appellants as on the point of successorship this statement is very important because this witness has admitted that father of defendant no.1 Bhaglu Ram was son of Satni or Jiria and meaning thereby Satni or Jiria had not died issueless and they had legal successor namely Bhaglu Ram and after that defendant no.1 first party. The said witness was said to be of 72 years and the learned court has considered that his evidence is very importand on the point of birth and death of both the parties. PW-3 Gobardhan Ram is said to be relative of plaintiff and he has admitted in para 8 of cross examination and stated that plaintiff Uttam Ram is his brother-in- law and the learned court has found that in view of that the said witness will say everything in favour of the brother-in-law. P.W.4- Jhupar Ram has stated that all plaintiffs and defendants are his agnets. The learned court in light of that has found that the building of the plaintiffs/appellants that the defendant first party is resident of village Purana Lohmarwa and this witness has stated in para-17 of cross examination that in Lohmarwa there is no his relative residing. At one time, the defendant first party has stated that he is a gotia of this witness and the plaintiffs and in view of that the learned court has found that the defendant first party is not resident of Village Lohmarwa. Looking to the Exhibit 3A that was the parcha of mouza Purana Lohmarwa, plaintiffs/ appellants has stated that Bhaglu Ram is resident of Village Purana Lohmarwa. The learned court has further found that in the plaint itself, everywhere in the statement of the plaintiffs and the witnesses, name as reveals as Bhaglu Ram or Bhaglu Kahar and nowhere it is clear that Bhaglu Ram was also known as Bhaglu Marha. Considering Exhibit-3(A), the learned court has found that the name of R.T. has been written as Bhaglu Marha and considering that the learned court has found not it contrary with the argument of the learned counsel for the appellant/plaintiffs that Bhaglu Marha -9- S.A. No. 22 of 2024 has written in Exhibit -3-A and Bhaglu Ram are the same person and not a single witness has stated that fact before the learned court. 10. On the point of issue with regard to whether Satni Kahrain and Jiria Kahrain were died issueless or not those were the evidence which has been considered by the learned trial court. Exhibit-C is said to be a document brought on behalf of the defendant first party which is a voter list of 1975 of Deoghar Municipality Ward No.19 Purandaha and in voter list at serial no.940 it was found that the name of Bhaglu Ram has been mentioned as son of Kheju Ram and the learned court has found that it is a public document and the plaintiff has not refuted that document. The defendants filed series of pradhani rent receipts marked as Exhibit-A to A/8 and that has been exhibited without any objection and the Court found that it is an admitted position of law that any document has been exhibited without any objection then the parties have not right to assail the same at the time of argument. Ext.B to B/15 which are the municipal receipt in favour of Bhaglu Ram and in Ext.B/9, B/11 and B/15 the name of father of Bhaglu Ram has been mentioned as Kheju Kahar and the Court found that it is a piece of corroborative evidence. On the point of resident of defendant first party, at mouza-Puranadaha which is the land in question which has also been admitted by the party himself. 11. In view of above, the learned trial court has come to the finding that defendant first party Paltan Ram others have blood relationship with Satni Kahrain and Jiria Kahrain and they are successor in interest of Satni Kahrain and Jiria Kahrain and also legal heir/successor of Bhaglu Ram and in view of that those issues have been decided against the plaintiff/appellant in favour of the defendant first party. The learned trial court has further decided other issues and has been pleased to dismiss the suit by the judgment dated 16.12.2017. Aggrieved with that, the appellants herein have preferred the Civil Appeal No.04 of 2018 which was decided by judgment dated 14.12.2023 and the appeal was -10- S.A. No. 22 of 2024 dismissed. 12. The learned appellate court has further framed the points to decide the appeal and has considered the Exhibits as well as the oral evidence of the PWs and DWs and these witnesses have testified that earlier a compromise has taken place to resolve the dispute relating to Satni Kahrain and Jiria Kahrain. In Deoghar Municipality the disputed land has been recorded in the name of Bhaglu Kahar and in several criminal cases, the plaintiffs/appellants and their ancestors have admitted the fact that the contesting defendants are the legal heirs of Bhaglu and Cr.Misc. Case No.123 of 1995 which was pending before the Sub Divisional Judicial Magistrate the brothers of plaintiffs/appellants had admitted that this defendants are the descendants of Bhaglu Kahar and they belongs to same family and the compromise reached has not been challenged before any authority or the court and the witnesses have stated that the plaintiffs have stated the wrong facts. DW-5 in his cross examination has stated that at the time of Gantzer’s Settlement his father Bhaglu Kahar was alive but his name was not entered in the parcha. He has filed compromise deed in the court and he has not remembered as to whether a counter claim with respect to the suit land has been filed in the present suit or not. He has stated that he has no knowledge as to the land of Jamabandi no.11 of mouza Lohmarwa was in favour of the name of his father or not. He has also denied the knowledge of a case which has been decided in the court of learned Sessions Judge wherein his statement was recorded. He has also denied that his paternal property is situated in the village Lohmarwa under Jamabandi No.11. He also denied that the name of his grand-father was Shiv Prasad Ram. He further denied that Bhaglu Ram was son of Shibu Kahar of Mouza Lohmarwa. The D.W.-6 is said to be a formal witness and doing work of Advocate clerk and has identified the municipal receipts. He has stated that in his presence no municipal receipt was prepared in his presence and he has got no knowledge about the disputed land. -11- S.A. No. 22 of 2024 The learned appellate court has further considered Exhibit-A pradhani rent receipt, Exhibit-B the holding rent receipt of Deoghar Municipality, Ext.-C certified copy of Voter list of the year 1975 as well as Ext. D- certified copy of the order dated 1.7.1988 passed in Cr.Misc.Case No.41 of 1988 by the Executive Magistrate and a copy of compromise petition which was accepted by the said order. In the said compromise it has been admitted that the possession of defendants first party on the lands of Mauza-Purandaha, Jamabandi-2, Plot no.186, 197, 203, 212, 215, 216, 242, 280, 281, 283, 332 and 99 admitting the fact that Paltan Ram is legal heir of Kheju Kahar. 13. The learned appellate court has further considered the submission of learned plaintiffs’ lawyer that when the class-1 heir Bhaglu Ram as per the defendants case was existing then, why his name was not entered in the parcha of last Survey Settlement and how the parcha and the ancestors’ name have come that has been discussed by the learned appellate court and the evidence as well as in the form of documentary evidences and thereafter the finding has been given and the appeal has been dismissed. The two learned courts have given concurrent finding on the issue in question. 14. It is well settled that for admission of the Second Appeal the facts cannot be re-appreciated and only on the substantial question of law the Second Appeal can be admitted. On the facts both the learned courts have remained constant and there is no perversity in the judgment of the learned trial court as well as the learned appellate court. In view of that, the Court finds that the law points tried to be made out by the learned counsel appearing on behalf of the appellants are not the substantial question of law, and as such, Second Appeal No.22 of 2024 is dismissed. 15. Pending petition, if any, also stands disposed of accordingly. ( Sanjay Kumar Dwivedi, J.) SI/,