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2022 Supreme(Jhk) 137
IN THE HIGH COURT OF JHARKHAND AT RANCHI
GAUTAM KUMAR CHOUDHARY, J.
Prayag Sahu – Appellant
Versus
Tekman Sahu S/o Late Hulash Sahu – Respondent
S.A. No. 35 of 2012
Decided On : 06-01-2022
For the Appellants : Mr. Afaque Rashidi, Mr. Nawin Kumar Singh, Mrs. Usha Srivastava, Mr. Rajendra Ram Ravi Das, Mr. Sachidanand Das, Mr. Abdul Kalam Rashidi.
For the Respondents: Mr. Sudhir Kumar Sharma, Mr. Partha Pratim Chaterjee, Mr. Srijit Choudhary, Mr. Rajesh Bhushan, Mr. Arjun N. Deo, Mr. Awnish Shankar.
Headnote:
Specific Relief Act, 1963 - Section 34 - Land Acquisition Act, 1894 - Bengal Tenancy Act, 1885 - Land - Suit For Declaration Of Right - Title Over Suit Land - Recovery Of Possession - Plaintiffs/respondents filed suit for declaration of right, title over suit land and for mandatory injunction and recovery of possession of suit land fully detailed in schedule-A of plaint and attached map in red colour - Suit land was acquired by one Budhan Sahu who died leaving two sons – Held, Ext.A/1 also refers to allotment of share and specific possession of plaintiff on Northern side - Defendant Witness no. 1 has stated in Para-2 of cross-examination that Nemdhari had three sons who were separate in food, living and cultivation - It has also been stated by this witness that after death of Budhan Sahu 82.05 decimal each came in share of Hulash and Nemdhari - DW-1 who is none other but Appellant No. 1 (DW-1) himself stated in Paras 18, 19 that out of 82.5 decimals, Hulash father and grandfather of plaintiffs got share in two portions and defendant appellants got their share in middle portion of plot - DW-2 has also deposed to same effect in Para 12 – Court find that learned Courts below have recorded a definite finding of fact that there had been oral partition and severance of status in their mess, food and were living separately - Property was being dealt with separately by parties and lands were disposed of claiming them to have been acquired by partition - Severance of status, by separate possession, living and dealing with property continued without any demur or objection from side of defendants, till filing of this case by plaintiffs – Appeal dismissed.
JUDGMENT :
GAUTAM KUMAR CHOUDHARY, J.
1. Defendants are the appellants who have preferred the instant appeal against the judgment and decree passed in Title Appeal No. 11/2011 whereby and whereunder the judgment and decree passed by the trial court has been affirmed.
2. Plaintiffs/respondents filed suit for declaration of the right, title over the suit land and for mandatory injunction and recovery of possession of suit land fully detailed in schedule-A of the plaint and attached map in red colour. The suit land was acquired by one Budhan Sahu who died leaving two sons namely, Hulash Sahu and Nemdhari Sahu. The genealogical table is given below:
|
| Budhan Sahu |
|
|
| Hulash Sahu | Nemdhari Sahu |
| |
| Tekman Sahu (P1) | |||
| Ramchandra | Prayag Tulsi |
| |
| Gouri Prasad (P2) | Sahu (D2) |
|
|
| Sahu (D1) |
| ||
| Sahu (D3) |
|
Nemdhari Sahu died leaving Ramchandra Sahu (defendant No. 2), Prayag Sahu (Defendant No. 1), Tulsi Sahu (defendant No. 3) and Hulash Sahu. Hulash Sahu died leaving Tekman Sahu (Plaintiff No. 1), Gauri Prasad son of Tekman Sahu (Plaintiff No. 2).
3. As per the plaintiff’s case after the death of Budhan Sahu the entire property was partitioned including the suit land. During his life time, Budhan Sahu sold 26 decimals of land out of 1.91 acres to different persons. After partition Hulash Sahu and Nemdhari Sahu the defendants have acquired the land of area 82½ decimals at one lot and remaining 82½ decimals have been allotted by two lots having an area of 41¼ decimals each to plaintiff No. 1. It is alleged that the defendants by using criminal force started to dig foundation over the suit land and started construction of room (40’ North to South and 30’ East to West) which gave rise to the cause of action to file the present suit.
4. The defendant contested the suit by filing the joint written statement. It is inter-alia pleaded that there has been no partition between the parties. The suit is bad for non-joinder of the necessary parties and is also under valued. It is contended that by sale deed No. 323 dated 30.03.1943, total area of 1.40 acres of land where acquired by Budhan Sahu, whereas only 41¼ decimals have been included in the suit land and rest area have not been accounted for by plaintiff no. 1. Tekman Sahu himself sold 4 decimals of land to one Shankar Kumar on 13.05.2000 and area of 32.1 acres of land under khata No. 27 recorded in the name of Damri Teli father of Dudhan Sahu has also not been included. In the absence of final partition the claim of exclusive possession over the suit land is not tenable. On the basis of the pleadings of the parties of the following main issues were framed:
(i) Is the suit barred by law and limitation, waiver, estoppel, rest-judicata and section 34 of Specific Relief Act?
(ii) Is suit bad for non-joinder and misjoinder of the necessary parties?
(iii) Has the plaintiff undervalued the suit properties?
(iv) Whether the plaintiffs have right, title interest and possession over the suit land?
(v) Is the plaintiffs entitled to the relief sought for?
5. Learned Trial court recorded a finding that after death of Budhan Sahu, oral partition was made and as per convenience, parties took possession of their share and thereafter the defendants and plaintiff also sold their shares. It finally recorded a finding of fact the plaintiff had title over and 49¼ decimal of plot no. 139 appertaining to khata no. 49.
6. The learned Appellate Court concurred with the finding of fact recorded by the trial court, declaring right of plaintiff on suit land that came in possession of plaintiff respondent by their family Khangi Angul Batwara in which plainti
