Jharkhand High Court
Mithu Mian vs Md. Yakub on 19 December, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No.190 of 2019
------
(Against the judgment dated 29.03.2019 passed by learned District
Judge-I, Jamtara in Civil Appeal No.06 of 2017)
——
1. Mithu Mian, aged about 65 years, son of late Bhinu Mian,
2. Aso Mian, aged about 61 years, son of late Chirri Mian,
Both residents of village Bhagabandh, P.O. & P.S. Narayanpur,
Sub-Division Jamtara, District- Jamtara
…. …. …. Defendants/Appellants/Appellants.
Versus
1. Md. Yakub,
2. Sayeed Ahmad,
3. Md. Rafique,
4. Md. Samsul Haque
5. Md. Jamaluddin
6. Md. Alimuddin,
All sons of late Fazalu Mian, all resident of village
Bhagabandh, P.O./P.S. Narayanpur, Sub-division & District-
Jamtara
7. Khadija Bibi
8. Amina Khatoon
9. Nasima Khatoon, all daughters of late Fazalu Mian
10. Deleted vide order dated 22.09.2017
…. …. …. Plaintiffs/Respondents 1st Party/Respondents
10. Titu Mian, Son of late Bhinu Mian,
11. Kuresha Bibi, widow of late Astul Mian,
12. Safaul Ansari,
13. Vakil Ansari,
14. Saddam Ansari,
15. Jamal Ansari, all sons of late Astul Mian,
All residents of village Bhagabandh, P.O. & P.S. Narayanpur,
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District- Jamtara
16. Saibun Bibi, daughter of late Astul Mian and wife of Jamiruddin
Mian, resident of village Badgunda, Tola Kurwaldaha, P.O. Taratar,
P.S. Taratanr, District- Giridih.
17. Taijun Khatun, daughter of late Astul Mian and wife of Subhan
Ansari resident of village Badgunda, Tola Durapahari, P.O. & P.S.
Taratanr, District- Giridih
18. Jaigun Bibi, daughter of late Astul Mian and wife of Faruk
Ansari, resident of village Nawadih, P.O. Sitalpur, P.S. Karmatar,
District- Jamtara.
19. Minor Sajeda Khatoon, daughter of late Astul Mian
20. Minor Rajeda Khatoon, daughter of late Astul Mian
Both represented through their mother and natural guardian
Kuresha Bibi, Both residents of village Bhagabandh, P.O. + P.S.
Narayanpur and District- Jamtara
21. Yunus Mian
22. Hanif Mian
23. Rahim @ Hazi Mian
All sons of Late Baksu Mian
24. Kayum Mian, son of late Imabali Mian
25. Paran Mian
26. Rahman Mian
All sons of late Nawarali @ Niwajali Mian
27. (a) Sabiran Bibi, W/o Late Suleman Mian,
(b) Semun Bibi, daughter of Late Suleman Mian, w/o Halim
Mian,
Both residents of village- Narodih, P.O.- Glokhala, P.S.-
Narayanpur, District- Jamtara.
(c) Jamruddin Ansari, son of Late Suleman Mian,
Resident of Kundalika Dah Batbundah, P.O. & P.S.- Taratar,
District- Giridih,
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(d) Sojina Bibi, daughter of Late Suleman Mian, wife of Sahban
Ansari, Resident of Narodih, P.O.- Gothala, P.S.- Narayani Pur,
District- Jamtara
(e) Rogina Khatoon, daughter of Late Suleman Mian, wife of Firoz
Ansari, Resident of Bashavih, P.O.- Phuljharia, P.S.- Ahilapur,
District- Giridih.
(f) Matijan Khatun, daughter of Late Suleman Mian, wife of
Dildar Ansari, Resident of Batbunda, P.O. & P.S.- Taratar, District-
Giridih.
(g) Makaraddin Ansari, son of Late Suleman Mian, wife of Dildar
Ansari, Resident of Kundalukidih, P.O. & P.S.- Taratar, District-
Giridih,
(h) Rakubh Ansari, son of Late Suleman Mian, wife of Dildar
Ansari, Resident of Kundalukidih, P.O. & P.S.- Taratar, District-
Giridih,
28. Sakiran Khatoon, wife of late Islam Mian
29. Sakir Ansari, son of late Islam Mian
30. Sanaul Ansari
31. Anaul Ansari
Both sons of late Islam Mian
32. Tanbun Khatoon,
33. Jaiboon Khatoon,
34. Hazra Khatoon,
All daughters of late Islam Mian,
All residents of village Bhagabandh, P.O. & P.S.- Narayanpur,
Sub-division Jamtara, District- Jamtara.
35. Sultan Ansari,
36. Naimuddin Ansari,
37. Md. Moin Ansari,
38. Md. Samsuddin Ansari,
All sons of late Kulsum Bibi and late Banaruddin Mian,
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All resident of village Chandadih (Lakhanpur), P.O. Sabanpur,
P.S. Narayanpur, Sub-division and District- Jamtara.
39. Sakhina Bibi, wife of Rahman Mian, daughter of late Kulsum
Bibi, resident of village Dhosia, P.O. Dhosia, Mahabani, P.S.
Gobindpur, District- Dhanbad.
40. Jamala Bibi, wife of Asiruddin Mian, daughter of late Kulsum
Bibi, resident of village Kalha Dabar, P.O. Barwa, P.S. Gobindpur,
District- Dhanbad
…. …. …. Defendants/Performa Respondents /Proforma
Respondents
——
For the Appellants : Mr. Rahul Kr. Gupta, Advocate
Mr. Surya Prakash, Advocate
Mr. Rakesh Kr. Singh, Advocate
Mr. Swati Sigh, Advocate
For the Respondents : Mr. Ashutosh Pd. Joshi, Advocate
Mr. Shashank Shekhar, Advocate
Mr. Ram Prawesh Prajapati, Advocate
——
PRESENT
HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
——
By the Court:- Heard the parties.
2. This Second Appeal, filed under section 100 of the Code of Civil
Procedure, 1908 has been preferred against the judgment of concurrence dated
29.03.2019 passed by learned District Judge-I, Jamtara in Civil Appeal No.06 of
2017 whereby and where under the learned first appellate court after finding
that there is no illegality in the judgment impugned before it, passed by the
learned Civil Judge (Sr. Division)-II, Jamtara in Original Suit No.31 of 2003
dated 25.01.2017, dismissed the appeal.
3. The brief facts of the case is that the ancestor of the respondents of this
second appeal namely Fazalu Mian- who was the original plaintiff, filed
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Original Suit No.31 of 2003 in the court of Civil Judge (Senior Division),
Jamtara with a prayer for declaration of his right, title and interest and
possession over the suit land, with adjudication that the plaintiff has acquired
indefeasible title by way of adverse possession by possessing the suit land
since 1936, as per Sanglinama-Surrender-cum-Deed of Family Settlement dated
15th day of Baisakh, 1343 B.S. (Bikram Samwat) corresponding to April, 1936,
confirmation of possession or in alternative recovery of possession, injunction,
cost of the suit and other reliefs.
4. The case of the original plaintiff in brief is that the suit land was recorded
in the name of Nemdar Mian who died in the year 1935 leaving behind his two
sons namely Sannu Mian and Bannu Mian. Sannu Mian died issueless. The
entire property devolved upon Bannu Mian. The first wife of Bannu Mian died
in the year 1935. At that time, Bannu Mian did not have any issue from his first
wife. Kashiran Bibi is the second wife of Bannu Mian. At the time of his
marriage with Kashiran Bibi, Bannu Mian executed a deed of Sanglinama-cum-
Family Settlement for inheritance of his properties and Bannu Mian
surrendered his entire property in favour of the plaintiff- who is the son of
Kashiran Bibi from an earlier marriage, before Kashiran Bibi marrying Bannu
Mian. After the death of Bannu Mian, Kashiran Bibi and the plaintiff remained
in the house of Bannu Mian and continued in possession over the same. In
course of peaceful possession, the plaintiff got the suit land mutated in his
name. Kashiran Bibi did not beget any issue from Bannu Mian. Kashiran Bibi
died in the year 1987 and the plaintiff continued his peaceful possession over
the suit land. The plaintiff acquired his title by possessing the suit land
continuously as of his right, in open assertion of all the Raiyats of Mouja
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Bhagabandh since the date of surrender by Bannu Mian in 1936. After the
death of Kashiran Bibi, some of the defendants filed R.E. Case No.13 of 1987-88
in the court of S.D.O. Jamtara for eviction of the plaintiff from the suit land. In
his show-cause, the plaintiff contended that earlier also, the defendants
instituted R.E. Case No.16 of 1975-76 but the same was dismissed by the S.D.O.
Jamtara vide order dated 29.03.1976 and as no appeal or revision was preferred
against the said order, the said order will operate as res judicata. The S.D.O.
Jamtara has no jurisdiction to pass eviction order. The S.D.O. Jamtara passed
order for eviction of the plaintiff in R.E. Case No.13 of 1987-88 dated
31.08.1988. The plaintiff filed an appeal in the court of Deputy Commissioner,
Dumka vide Revenue Misc. Appeal No.118 of 1988-89. The Deputy
Commissioner, Jamtara vide his order dated 27.08.2003 illegally dismissed the
appeal. The plaintiff is still in peaceful possession of the suit land but as the
defendants being emboldened by the said order of eviction passed by the
S.D.O Jamtra which was confirmed by the Deputy Commissioner, Jamtara,
may create any trouble and apprehending the same, the plaintiff filed the suit
for the prayers as already indicated above.
5. In his written-statement, the defendant No.1 challenged the
maintainability of the suit on various technical grounds. This defendant
further pleaded that the plaintiff has no concern with the suit property or the
properties of Bannu Mian nor has he ever possessed the same. The mutation in
the name of the plaintiff is the result of a fraud practiced upon the court but
the same cannot confer any title upon the plaintiff in respect of the suit land.
The plaintiff was never recognized as the son of Bannu Mian and the plaintiff
cannot be the son of Bannu Mian as per Muslim Law.
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6. The defendant Nos.2 to 11 in their joint written-statement also challenged
the maintainability of the suit on various technical grounds. These defendants
asserted that with a malafide motive, the original plaintiff claims to be the son
of Bannu Mian. They further pleaded that earlier in Title Suit No.28 of 1963 of
the court of Sub Deputy Collector, Jamtara, the original plaintiff- Fazalu Mian
was shown as the son of Konka Mian and in that suit, the original plaintiff-
Fazalu Mian never claimed that he is the adopted son of Bannu Mian. The
defendant Nos.2 to 11 were not parties to Raiyati Eviction Case No.66 of 1975-
76.
7. In their joint written-statement, the defendant Nos.14 to 19 also
challenged the maintainability of the suit on various technical grounds.
8. On the basis of rival pleadings of the parties, the learned trial court
settled the following six issues:-
(i) Is the suit as framed maintainable?
(ii) Whether there is any cause of action to the plaintiff to file the suit?
(iii) Whether the plaintiff has right, title and interest on the suit land?
(iv) Whether the suit is barred by resjudicata?
(v) For what relief or relieves, the plaintiff is entitled to?
(vi) Whether the Defendant Nos. 14 to 19 are heirs and successors of
recorded tenant of the suit lands?
9. During the pendency of the suit, the original plaintiff has died and his
legal heirs have been arrayed as plaintiff Nos.1 to 10.
10. In support of their case, the plaintiff altogether examined five witnesses
and proved the documents which have been marked Ext. 1 to 7 while the
defendants examined eight witnesses and they also proved the documents
which were marked Ext. A to Ext. O/1.
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11. The learned trial court first took up issue Nos. (iii) and (iv) together and
after considering the evidence in the record, came to the conclusion that the
Sanglinama which has been marked as Ext. 4, is not a genuine document and
on the basis of the said Sanglinama right, title and interest cannot be declared.
The learned trial court then considered that the plaintiff could not prove their
adverse possession as per Regulation-III of 1972 and the claim of adverse
possession is not proved by the plaintiff but went on to hold that as per
Mohammedan Law, the original plaintiff has succeeded to all the properties as
residuary and decided the issue No.(iii) in favour of the plaintiff and right, title
and declared interest of the plaintiff over the suit land, but the issue No.(iv)
was declared in the negative.
12. The learned trial court next took up issue Nos.(i), (ii) and (iv) together
and after considering the materials available in the record came to the
conclusion that the suit, as framed and filed, is maintainable, there is cause of
action for the suit and disposed of the issue Nos.(i), (ii) and (iv) as not pressed.
13. Lastly, the learned trial court took up issue No.(v) and held that the suit
is decreed on contest without cost and the right, title and interest in the suit
property is declared in favour of the plaintiff but prayer of injunction was not
allowed.
14. Being aggrieved by the judgment and decree passed by the learned trial
court, the defendants filed Civil Appeal No.06 of 2017 in the court of learned
Principal District Judge, Jamtara which was ultimately heard and disposed of
by the learned first appellate court by the impugned judgment as already
indicated above.
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15. The learned first appellate court on the basis of the materials available in
the record and the submissions made before it, formulated the following two
points for determination: –
“A. Whether the learned lower court has rightly held that on the death
of Banu Mian, his widow Kashiran Bibi has succeeded his entire estate
i.e. ¼th as sharer and ¾th by return u/s 66 of Hanifi Law of
Inheritance?
B. Whether the learned lower court has committed grave error by not
framing the issue that defendants/appellants are the residuaries of Banu
Mian and whether learned lower court was justified in decreeing the
suit of plaintiffs, which calls for any interference?”
16. The learned first appellate court took up the point for determination No.
A and B together and after making independent appreciation of the evidence
in the record, came to the conclusion that the original plaintiff- Fazalu Mian
being the only son of Kashiran Bibi as per Mohammedan Law, has inherited
and succeeded all her properties as residuary and went on to hold that the
learned trial court has rightly held that the widow of Bannu Mian has
succeeded ¼th share and ¾th share of Bannu Mian by principle of return
under Section 66 of Hanifi Law of inheritance, she succeeded the entire
properties of Nemdar Mian and the original plaintiff- Fazalu Mian was son of
Kashiran Bibi, hence, he inherited the entire properties of his mother and
therefore, the learned trial court decided the suit in favour of the plaintiff
rightly and dismissed the appeal.
17. This Second Appeal was admitted vide order dated 07.08.2023 on the
following substantial questions of law:-
(i)Whether both the courts below have committed perversity by
declaring the right, title and interest of the plaintiff on the ground of
succession which is not the case of the plaintiff made in the plaint rather
the plaintiff prayed for title on the basis of adverse possession?
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(ii)Whether both the courts below committed a grave illegality by
ignoring Section 63 of Santhal Parganas Tenancy (Supplementary
Provision) Act, 1949 by ignoring the order of eviction passed by the
S.D.O. and Deputy Commissioner in R.E. Case No. 16 of 1975-76 and
R.M.A. No. 51 of 2001-02 respectively?
18. Learned counsel for the appellants relies upon the judgment of the
Hon’ble Supreme Court of India in the case of Bachhaj Nahar vs. Nilima
Mandal & Another reported in (2008) 17 SCC 491 paragraph-10 of which
reads as under:-
“10. The High Court, in this case, in its obvious zeal to cut delay
and hardship that may ensue by relegating the plaintiffs to one more
round of litigation, has rendered a judgment which violates several
fundamental rules of civil procedure. The rules breached are:
(i) No amount of evidence can be looked into, upon a plea which
was never put forward in the pleadings. A question which did
arise from the pleadings and which was not the subject-matter
of an issue, cannot be decided by the court.
(ii) A court cannot make out a case not pleaded. The court
should confine its decision to the question raised in pleadings.
Nor can it grant a relief which is not claimed and which does
not flow from the facts and the cause of action alleged in the
plaint.
(iii) A factual issue cannot be raised or considered for the first
time in a second appeal.” (Emphasis supplied)
and submits that it being a settled principle of law that a court cannot
make out a case not pleaded and the court should confine its decision to the
questions raised in the pleadings and though it was never pleaded by the
plaintiff in the suit that the original plaintiff has acquired right, title and
interest by way of inheritance rather it is all along the case of the plaintiff that
he continued in possession of the suit land only, both the courts below have
committed grave illegality by making out a third case; which was neither the
case of the plaintiff nor that of the defendants; that the plaintiff has inherited
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the property of Bannu Mian. Hence, it is submitted that the judgment and
decree passed by both the courts below be set aside, on this score alone.
19. So far as the second substantial question of law is concerned, learned
counsel for the appellants submits that Section 63 of the Santhal Parganas
Tenancy Act which reads as under:-
63. Bar to suits. – No suit shall be entertained in any court to vary,
modify or set aside, either directly or indirectly, any order of the
Deputy Commissioner in any application which is cognizable by the
Deputy Commissioner under this Act and every such order shall,
subject to the provisions of this Act relating to appeal and revision, be
final :
Provided that nothing contained in this section shall bar the
jurisdiction of a Civil Court in matters in which it had jurisdiction
immediately before the commencement of this Act.
and submits that the Section 63 of the Santhal Parganas Tenancy
Act prohibits a title suit to be brought for avoiding the order of Deputy
Commissioner.
20. It is next submitted that the undisputed fact remains that the plaintiff
was directed to be evicted from the suit land by the order of the S.D.O.,
Jamtara in R.E. Case No.13 of 1987-88 and the same has been upheld by the
Deputy Commissioner, Jamtara in R.M.A. No.51 of 2001-02. It is next
submitted that there was a forum for revision for the plaintiff to challenge the
order of the Deputy Commissioner in terms of Section 59 of the S.P.T.
(Supplementary Provisions) Act, 1949 but instead of availing that statutory
revision, the plaintiff having filed the suit for the sole purpose of avoiding the
order passed by the Deputy Commissioner, Jamtara in R.M.A. No.51 of 2001-02
the same, makes the suit not maintainable in view of the bar contained in
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Section 63 of the S.P.T. (Supplementary Provisions) Act, 1949 which bars a suit
to avoid the order passed by the Deputy Commissioner in terms of the
provisions of the S.P.T. (Supplementary Provisions) Act, 1949. Hence, it is
submitted that on this score also, the suit of the plaintiff ought to have been
dismissed as not maintainable; instead of the same being decreed as was
erroneously made by both the courts below.
21. Learned counsel for the respondents on the other hand relies upon the
judgment of the Hon’ble Orissa High Court in the case of Managobinda &
Others vs. Brajabandhu Misra reported in AIR 1986 Orissa 281 and submits
that therein the Hon’ble Orissa High Court has held in paragraph-10 of the
said judgment that when the question relates to the title of both the parties and
evidence has been led about it and both the parties are aware of the same, the
mere technicality that the issue was not expressed in the pleadings is of formal
nature and should not be allowed to preclude the court from granting the
relief.
22. It is next submitted that the court can mould the relief and though in this
suit, the plaintiff has prayed for declaration of right, title and interest with
adjudication that the plaintiff has acquired indefeasible title by way of adverse
possession, that did not preclude the learned trial court to the relief, which the
plaintiff was otherwise entitled in law. Hence, it is submitted that no
perversity has been committed by both the courts below in declaring the right,
title and interest of plaintiff on the ground of succession, as the plaintiff also
pleaded that he is the son of Bannu Mian and also filed documents to that
effect. Hence, it is submitted that the first substantial question of law be
answered in the negative.
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23. So far as the second substantial question of law is concerned, learned
counsel for the respondents relies upon the judgment of the Hon’ble Patna
High Court in the case of Tarini Marandi & Others vs. Lakshmi Mahto &
Others reported in 1998 3 BLJR 1662 paragraph-9 of which reads as under:-
“9. From perusal of Section 63 of the Santhal Parganas Tenancy
Act (Supplementary Provisions) Act, 1949 it is clear that this
section bars the institution of suits which seek to vary, modify or set
aside an order passed by the Deputy Commissioner in exercise of his
revenue jurisdiction under the Act. It is, therefore, clear that a suit
does not seek to vary, modify or set aside the order of the Deputy
Commissioner or to avoid such order, the civil court has jurisdiction
to entertain suit. By implication it follows further that where an
order of the Deputy Commissioner is in excess of the Jurisdiction or
without jurisdiction then it can certainly be challenged in a suit and
the civil court has jurisdiction to entertain the suit. In the case of
M.P. Electricity Board v, Vijay Timber Co. (1997) 1 SCC 68, the
Apex Court held that the exclusion of jurisdiction of civil court
cannot be readily inferred and the normal rule is that civil courts
have Jurisdiction to try all suits of a civil nature except those of
which cognizance by them is either expressly or impliedly excluded.
In the case of Vankamamidi Venkata Subba Rao V/s. Chatlapalli
Seetharamaratna Rranganayakamma — the Apex Court considered
the scope of Section 9 of the Code of Civil Procedure Cand held as
under:
Under Sec. 9 CPC, the Courts shall subject to the
provisions contained therein, have jurisdiction to try all
suits of civil nature excepting suits cognizance of which is
either expressly of impliedly barred. When a legal right is
infringed, a suit would lie unless there is a bar against
entertainment of such civil suit and the civil courts would
take cognizance of it. Therefore, the normal rule of law is
that civil courts have jurisdiction to try all suits of civil
nature except those of which cognizance is either
expressly or by necessary implication excluded. The rule
of construction being that every presumption would be
made in favour of the existence of a right and remedy in a
democratic set up governed by rule of law and jurisdiction
of the civil courts generally construe the provisions
strictly when jurisdiction of the civil courts is claimed to
be excluded. However, in the development of civil
adjudication of civil disputes, due to pendency of
adjudication and abnormal delay at hierarchical stages,
statutes intervene and provide alternative mode of
resolution of disputes with less expensive but expeditious
disposal. It is settled legal position that if a tribunal with
limited jurisdiction cannot assume jurisdiction and decide
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for itself the dispute conclusively, in such a situation, it is
the court that is required to decide whether the tribunal
with limited jurisdiction has correctly assumed
jurisdiction and decided the dispute within its limits.
In the case of D.R. Chawla Ors. V/s. Municipal Corporation of
Delhi (1993) 3 S.C. C 162, the Apex Court held that where a statute
purports to curb and curtail the pre-existing common law right and
purports to Oust the jurisdiction of the court so far remedy against
the order passed under such statute is concerned then in such cases,
the courts have to be more vigilant, while examining the question as
to whether an adequate redressal machinery has been provided,
before which the person aggrieved may agitate his grievance.”
and submits that therein the court has held that where the order of the
Deputy Commissioner is in excess of the jurisdiction or without jurisdiction,
then it can certainly be challenged in a suit and the civil court has the
jurisdiction to entertain the suit.
24. It is next submitted that as the R.E. Case No.13 of 1987-88 was barred by
res judicata as the self-same prayer was already rejected by the same forum in
R.E. Case No.16 of 1975-76, so, the dismissal of R.M.A. No.51 of 2001-02 was
without jurisdiction, hence, the suit was maintainable and has rightly been
decreed. It is therefore submitted that the second substantial question of law be
also answered in the negative and this Second Appeal, being without any
merit, be dismissed.
25. Having heard the rival submissions made at the Bar and after carefully
going through the materials available in the record, so far as the first
substantial question of law as to “whether both the courts below have committed
perversity by declaring the right, title and interest of the plaintiff on the ground of
succession which is not the case of the plaintiff made in the plaint rather the plaintiff
prayed for title on the basis of adverse possession” is concerned, it is a settled
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principle of law that the court cannot make out a third case, not pleaded by
either of the parties and that the parties should not be allowed to lead evidence
which is not in accordance with their pleadings.
26. Now, coming to the facts of the case, this Court after carefully going
through the plaint of this suit filed by the original plaintiff, is of the considered
view that there is absolutely no pleading of the plaintiff that the original
plaintiff inherited the suit property from Bannu Mian, rather it is all along the
case of the defendants that since the death of Nemdar Mian in the year 1935,
from 1936 onwards, the plaintiff has been in continuous possession of the suit
land on his own right in open assertion of all the Raiyats of Mouza
Bhagabandh since the date of surrender of the said land by Bannu Mian in
1936. It is a settled principle of law that possession howsoever long cannot
confer title. As the plaintiff has nowhere pleaded that he succeeded to the
property of Bannu Mian nor has pleaded that he has acquired right, title and
interest by way of inheritance from Bannu Mian. Since, both the courts below
came to the finding that Sanglinama which has been marked as Ext. 4, is not a
genuine document upon which the right, title and interest of the plaintiff can
be declared and also the finding that in view of Santhal Parganas Tenancy Act,
the plaintiff failed to prove adverse possession, the suit ought to have been
dismissed but the finding of the courts below that on the principles of return
under Section 66 of the Hanifi Law of Inheritance the right, title and interest of
the plaintiff in the suit property is declared, even though the same was not the
case of the plaintiff certainly amounts to making out a third case; which is not
pleaded by the parties and which was prohibited in law, hence, the same is the
perversity committed by both the courts below. Therefore, the first substantial
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question of law is answered in the affirmative by holding that both the courts
below have committed perversity by declaring right, title and interest of the
plaintiff on the ground of succession which is not the case of the plaintiff made
in the plaint, rather as the plaintiff prayed for the title on the basis of adverse
possession.
27. So far as the second substantial question of law as to “whether both the
courts below committed a grave illegality by ignoring Section 63 of Santhal Praganas
Tenancy (Supplementary Provision) Act, 1949 by ignoring the order of eviction passed
by the S.D.O. and Deputy Commissioner in R.E. Case No. 16 of 1975-76 and R.M.A.
No. 51 of 2001-02 respectively” is concerned, it is pertinent to mention here that it
is the admitted case of the plaintiff that the plaintiff voluntarily submitted to
the jurisdiction of the Deputy Commissioner by filing R.M.A. No.51 of 2001-02
but having availed the forum of appeal voluntarily but having lost the same; it
is not open for the plaintiff to contend that the Deputy Commissioner was not
having the jurisdiction to pass the order in R.M.A. No.51 of 2001-02 more so
when such plea was not taken in the plaint. It is needless to mention that in the
plaint there is no assertion that the Deputy Commissioner was not having the
jurisdiction to entertain R.M.A. No.51 of 2001-02 and in this respect, it is
appropriate to refer to the judgment of the Hon’ble Supreme Court of India in
the case of Kedar Shashikant Deshpande & Others vs. Bhor Municipal
Council & Others reported in (2011) 2 SCC 654 paragraph-29 of which reads
as under:-
“29. It is well settled that if a person has submitted to the
jurisdiction of the authority, he cannot challenge the proceedings,
on the ground of lack of jurisdiction of the said authority in further
appellate proceedings. Had this plea, been raised before the
Additional Collector, the respondents would have got the16
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opportunity to place on record notification issued under the
provisions of the Maharashtra Land Revenue Code, 1966 to
establish that the Additional Collector was delegated the powers of
the Collector and was competent to decide the disqualification
petition.” (Emphasis supplied)
28. As has been reiterated by the Hon’ble Patna High Court in the case of
Tarini Marandi & Others vs. Lakshmi Mahto & Other (supra), Section 63 of
the Santhal Parganas Tenancy (Supplementary Provisions) Act, 1949, prohibits
any suit inter alia to avoid any order of the Deputy Commissioner and in this
case, the order of the Deputy Commissioner is for eviction of the plaintiff from
the suit land passed in R.M.A. No.51 of 2001-02. It is needless to mention here
that there is a provision for revision against the order passed by the Deputy
Commissioner in R.M.A. No.51 of 2001-02 but in the absence of any exceptions
where suit can be filed despite Section 63 of the Santhal Parganas Tenancy
(Supplementary Provisions) Act, 1949, like the Deputy Commissioner was
without jurisdiction, as contended by the learned counsel for the respondents,
this Court has no hesitation in holding that both the courts below have
committed a grave illegality by ignoring the provisions of Section 63 of the
Santhal Parganas Tenancy (Supplementary Provisions) Act, 1949 as the suit
being essentially to avoid the order passed by the Deputy Commissioner,
Jamtara in R.M.A. No.51 of 2001-02 which was passed in exercise of power
under Section 57 of the Santhal Parganas Tenancy (Supplementary Provisions)
Act, 1949; the same is barred by section 63 of the Santhal Parganas Tenancy
(Supplementary Provisions) Act, 1949. So, the second substantial question of
law “whether both the courts below committed a grave illegality by ignoring Section
63 of Santhal Praganas Tenancy (Supplementary Provision) Act, 1949 by ignoring the
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order of eviction passed by the S.D.O. and Deputy Commissioner in R.E. Case No. 16
of 1975-76 and R.M.A. No. 51 of 2001-02 respectively” is also answered in the
affirmative.
29. In view of answer to both the substantial questions of law, this Court is of
the considered view that the judgment and decree passed by the trial court
being the learned Civil Judge (Sr. Division)-II, Jamtara in Original Suit No.31 of
2003 dated 25.01.2017 and the judgment and decree passed by the learned first
appellate court being the learned District Judge-I, Jamtara in Civil Appeal
No.06 of 2017 dated 29.03.2019, being not sustainable in law are set aside and
the Original Suit No.31 of 2003 is dismissed being not maintainable, in view of
the bar under Section 63 of Santhal Praganas Tenancy (Supplementary
Provision) Act, 1949 because of the finding of both the courts below that
Sanglinama which has been marked as Ext. 4, is not a genuine one and on the
basis of the same right, title and interest of the plaintiff cannot be declared and
as the plaintiff has failed to prove his perfection of title by way of adverse
possession.
30. In the result, this Second Appeal is allowed on contest but under the
circumstances without any cost.
31. Let a copy of this judgment along with the lower court records be sent to
the courts concerned forthwith.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated the 19th of December, 2024
AFR/ Animesh
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