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Jharkhand High Court
M/S. Sahara India Commercial … vs Uday Shankar Paul And Ors on 9 July, 2025
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
2022:JHHC:43341
IN THE HIGH COURT OF JHARKHAND AT RANCHI
First Appeal No. 43 of 2012
M/s. Sahara India Commercial Corporation Ltd., Sahara India and
others ... ... Appellants
Versus
Uday Shankar Paul and Ors. ... ... Respondents
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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Appellants : Mr. Vishal Kr. Tiwary, Advocate
: Mr. Rishi Pallava, Advocate
For the Resp. Nos. 1 to 9 : Mr. Rahul Kumar Gupta, Advocate
For Resp. Nos. 10 to 15 : Mr. Kanishka Deo, Advocate
For the Resp. Nos. 16 to 18 : Mr. Ayush Aditya, Advocate
For the Resp. No. 19 : Mr. Shailesh Kr. Singh, Advocate
---
96/09.07.2025 Learned counsel for the parties are present.
2. Learned counsel for the respondents/plaintiffs has referred to
section 105 of Code of Civil Procedure to submit that any error, defect
or irregularity in one or the other order passed by the learned trial
court at any stage of the proceedings can be challenged by raising a
specific ground to that effect in the memo of appeal. The learned
counsel submits that when the proceeding culminates in a judgment
and decree, then the procedure followed therein can be subject matter
of consideration by the learned 1st appellate court only if such
interlocutory orders are specifically challenged by raising a ground in
the memo of appeal in absence of which such grounds cannot be taken
into consideration.
3. The learned counsel further submits that against the
interlocutory orders at times the party moved in writ petition or civil
revision application and therefore, the party is required to put to notice
that the appellant is challenging final judgment and decree on the basis
of irregularity committed by one or the other interlocutory orders. He
has relied upon the judgment passed by the Hon'ble Supreme Court
reported in (2007) 13 SCC 293 (paragraph 21).
4. Further, the learned counsel for the respondents/plaintiffs has
submitted that the procedural irregularity with respect to one or the
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other order cannot be raised by a respondent in the present
proceedings, inasmuch as, such ground was required to be taken in the
memo of appeal. Duttas' having not filed appeal and hence they
cannot raise any ground of procedural irregularity. The learned
counsel submits that otherwise also the correctness of one or the other
interlocutory orders can be considered only if it is demonstrated
before the Court that such order has a direct bearing in the final
outcome of the judgment.
5. The learned counsel for the appellants, while referring to
Exhibit - 3, has submitted that the same relates to Compensation Case
No.391/1956-57, though it related to Haribol Paul. He has submitted
that during the compensation proceeding under the said case, Duttas'
were the objectors and they confined their claim of compensation to
Khewat nos.79, 81, 82 and 57, but ultimately their objection was
rejected even with respect to the aforesaid four Khewats, and the
compensation was directed to be paid to Haribol Paul. He submits that
the order sheet reveals that it was recorded that Duttas' had no right,
title, interest and possession over the property claimed by them this is
so in view of the fact that their entire right was already auction sold.
He has further submitted that the same document has been placed on
record by the defendants and has been marked as Exhibit - E.
6. The learned counsel further submits that similar proceeding was
undertaken for payment of compensation with respect to Murlidhar
Paul and the corresponding case number was compensation Case
No.565 of 1955-56 and the said proceeding was marked as Exhibit - 9.
The corresponding report of the Circle Inspector was marked as
Exhibit - 9/A. The learned counsel submits that in the said proceeding
relating to Murlidhar Paul also, the Duttas' had confined their claim of
compensation to Khewat Nos.79, 81, 82 and 57 but ultimately their
claim of compensation with respect to the aforesaid four khewats was
also rejected by observing that they had no right, title, interest and
possession over the property. He submits that nothing was left with
the Duttas', and accordingly, there can be no impediment in holding
that whatever rights the Duttas' had was already auction sold and once
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the entire rights of Duttas' stood auction sold, the boundaries of the
properties are immaterial.
7. The learned counsel for the respondents/plaintiffs has submitted
that it has been the specific case of the defendants before the learned
court that the entire auction sale and handing over of property was a
paper transaction and the plaintiffs never came in actual physical
possession of the property and Pauls continued to be in possession of
the property involved in the capacity of raiyats.
8. The learned counsel has referred to Section 114 (e) of Evidence
Act and has in particular referred to illustrations (e) therein to submit
that there is a presumption with regard to the existence of fact that the
judicial and official acts have been regularly performed.
9. The learned counsel has referred to a judgement passed by the
Hon'ble Supreme Court reported in (1996) 8 SCC 259 (Tamil Nadu
Housing Board Vs. A. Viswam (dead) by Lrs.) paragraph 7 to submit
that similar issue fell for consideration before the Hon'ble Supreme
Court arising out of land acquisition proceeding and the argument of
the appellants was accepted by referring to presumption under Section
114 (e) of the Evidence Act with regard to possession of the property.
The learned counsel has also submitted that in the said paragraph, a
reference has been made to another judgement passed in the case
reported in (1976) 1 SCC 700 (Balwant Narayan Bhagde Vs. M.D.
Bhagwat and Ors.) that the possession could be in the form of a
declaration by beat of drum or otherwise or by hanging a written
declaration on the spot that the authority had taken possession of the
land. The learned counsel submits that the manner of taking
possession of vacant land is numerous, and therefore, the presumption
under Section 114 illustration (e) is attracted in the present case.
10. The learned counsel has also referred to Exhibit - 4 to submit
that a legal notice was sent to Sahara by stating that the plaintiffs had
seen a newspaper publication calling for invitation with respect to suit
land by Sahara which became the cause of action of the case. He
submits that although the newspaper publication has not been
exhibited, but the notice issued in connection with newspaper
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publication has been exhibited as Exhibit - 4 and in absence of written
statement by Sahara, this fact remained undisputed and in the said
notice, it was mentioned that as per the newspaper publication, Sahara
was going to start housing project on the property of the plaintiffs
which exactly matched the property mentioned in the schedule to the
plaint.
11. The learned counsel has submitted that Exhibit - 5 to Exhibit
5/D are the rent receipts issued in favour of the Pauls (the plaintiffs),
and the oldest one is of the year 1964, as the rent fixation had taken
place in the year 1962-63 after the compensation case under Bihar
Land Reforms Act, 1950 was finalized. The learned counsel has
referred to Exhibit - 6 and submits that the same is a proceeding of
Land Acquisition Reference Case No.104 of 1985 and other analogous
cases, which concerned the other properties arising out of the auction
sale. The learned counsel has submitted that the land was acquired for
BCCL, and the purchasers of certain properties from Duttas had
claimed compensation, but the court in the reference case ultimately
refused compensation to the purchasers of Duttas by holding that they
had no right, title, interest and possession over the properties. The
learned counsel submits that the said property was also covered by
auction sale, though the said property acquired by BCCL is not
covered by schedule to the plaint.
12. The learned counsel has, in particular, referred to the
paragraphs 23 to 24 of the said judgement to bring the discussions
made in connection with the right, title, interest and possession of
Kailash Chandra Dutta with respect to the property involved in the
said case. Paragraphs 23 to 24 of the judgment passed in Land
Acquisition Reference Case No.104 of 1985 are quoted as under:
"23. After going through the evidences of the parties O.P. W.No. 1 has
stated in para-6 that the receipt which has been Issued on 5.4.83 in
favour of the defendant/O.P. does not bear the mutation case no. In
para-9 he has stated that the two rent receipts dt. 8.1.80 and 12.3.83
were issued in the name of Satyanarayan Paul. O.P.W.No.2 has
admitted that Murlidhar Paul and Horibole Paul have purchased the
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disputed land through auction sale and they came in possession of the
same. O.P.W.NO. 5 in para-8 has also supported the contention of
O.P.W.No.2. From Ext-1 to 11 it is clear that the disputed land had
fallen in the share of the applicants not in the share of Surendranath
Dutta and his son Kailash Chandra Dutta and Dhirendra Nath Dutta
So, transferred made by these vendors have got no value at all. It is
settled principle of law that nobody can transfer better title what he
has. There is one surprising thing that the O.P.s have purchased the
land in the year 1968 and rent receipts as alleged was issued in the
year 1981, after the lapsed of thirteen year. O.P. has not filed the copy
of the mutation order and he has also not explained why the land was
not mutated in the name of O.P. thus, as discussed above the transfer
was made by the vendors of the O.P.s without title.
24. Perused the record as well as the evidence of the parties such as
oral and documentary evidence. O.P.W.No.1 has stated in para-6 that
the rent receipt which were issued on 5.7.83 in which there was no
any mutation case no. and O.P. members have not proved the case
and left their pairabi later on. On perusal of the documents like as
deed, rent receipts, copies of orders as mentioned and other relevant
papers available on the record, I come to the conclusion that the O.P.
members have failed to prove their case and the applicants have
proved the case by way of filing and examining the witnesses and by
filing the relevant papers regarding the case, the applicants have got
their right, title and interest over the disputed land.
24. In view of the above discussions and after considering the
facts and circumstances of the case. It is hereby ordered:-
ORDER
The applicants petition is allowed, and they are entitled to
get right, title and interest over the land as mentioned and accordingly
the suit is decreed in favour of the applicants. Let a decree be
prepared in separate cases each.”
13. Learned counsel for the respondents has further referred to
paragraph 13 of the aforesaid Ext. 6 and has submitted that even
Exhibit 6 finds reference to the M-form No. 388 of 1962-63; M-form
No. 394 of 1962-63 and M-form No. 390 of 1962-63 and M-form No.
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389 of 1962-63 to submit that M-forms were marked Exhibit 9 to 9/c
in the said proceedings.
14. Learned counsel for the respondents-plaintiff has submitted that
Circle Officer in the year 1981-82 has fixed the rent in favour of
Duttas and the order was marked as Exhibit-B/1 and this exhibit was
subject matter of challenge before the Deputy Commissioner and was
finally numbered as Misc. Case No. 5 of 2008 and the order passed by
the Circle Officer was set aside. The order passed by the Deputy
Commissioner has been marked as Exhibit-B and B/3. He submits that
Exhibit B and B/3 are one and the same document and only one
additional page of the said proceeding is there in Exhibit- B/3.
15. So far as Exhibit B/2 is concerned, the learned counsel submits
that entire proceeding of calling for a report from the office of Circle
Officer has been filed which is the proceeding sheet dated 23.06.1981
onwards in Rent Fixation Case No. 2 (3) of 81-82 u/s 5, 6 and 7 of
Bihar Land Reforms Act. The learned counsel submits that Exhibit
B/2, B/1 and B are to be read in sequence.
16. The learned counsel has further submitted that the order passed
in Rent Fixation Case No. 1(iii) of 1980-81 and 2(iii) of 80-81 were
quashed and Jamabandi No. 125 to 128 and 154 and all Jamabandi
created from these Jamabandis were cancelled. He submits that
Jamabandi of Plot No. 631 and 632 belonging to Jamabandi No. 49
Khata No. 62 belonging to Jamabandi No. 52 and Khata No. 83
belonging to Jambandi No. 53 were also cancelled. This order has
been placed on record just above exhibit-B/3.
17. The learned counsel for the respondent plaintiff in order to
complete the facts placed on record by the parties has also submitted
that defendant No. 3 had placed their own Exhibit-B which was a
proceeding under Section 87 of Chhotanagpur Tenancy Act bearing
Case No. 444 of 2007 and the said proceeding was dismissed for non-
prosecution vide order dated 07.05.2009. He submits that since the
suit was pending the plaintiff did not proceed in the said proceeding.
The learned counsel has submitted entire bunch of Exhibit B to B/5
filed by defendant no. 3 relates to the proceeding under Section 87 of
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Chhotanagpur Tenancy Act and different suits were numbered and all
of them were dismissed for default and the plaintiff did not proceed in
the matter as the present suit was pending. The learned counsel has
referred to exhibit D to D/31 filed by defendant no. 3 to submit that
they are primarily relating to different mutation orders in favour of
appellant no. 3. He submits that all the mutation orders were passed
prior to passing of the final judgment by the Deputy Commissioner in
Misc. Case No. 5 of 2008 and therefore those rent receipts have no
value in the eyes of law.
18. The learned counsel for the respondent plaintiffs has submitted
that in the compensation case of the year 1955-56 the authority had
got enough power to look into the title of the property so as to decide
on the entitlement of compensation. He submits that once certain
exercise was done in favour of Pauls in spite of objection raised by
Duttas and their objection claiming right, title, interest over the
property having been rejected followed by rejection of their claim of
compensation, such finding inter-parte is binding on the parties and
therefore any finding, if recorded by this court, contrary to the
findings recorded in Land Compensation Case of the year 1955-56,
which was essentially under the provisions of Bihar Land Reforms
Act fixing the compensation arising out of vesting, the same would be
contrary and in conflict with the finding recorded therein and will be
hit by the principles of res-judicata. The learned counsel has referred
to Section 11 explanation (viii) of C.P.C. and has submitted that inter
parte judgments rendered by a court of limited jurisdiction also
operates as res-judicata in the subsequent suit and therefore the Land
Compensation Case of 1955-56, though was having a limited
jurisdiction, but title of the parties and entitlement of compensation
was directly and substantially in issue in the said proceeding and
therefore such findings recorded therein is binding upon the Pauls and
Duttas in this proceedings. He submits that there is a clear finding that
the entire interest of Duttas were taken over by Pauls in the auction
conducted pursuant to the decree passed in the earlier Title Suit. He
has relied upon the judgement passed by the Hon’ble Supreme Court
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reported in (2000) 8 SCC 99 (Rajendra Kumar versus Kalyan (Dead)
By Lrs.) paragraphs 14,15,16,17 and 19.
19. Learned counsel for the respondents plaintiffs has further
referred to the provisions of Section 3 of the Bihar Land Reforms Act
and then to Section 5,6 and 7 and onwards and also the provisions of
Chapter-5 dealing with assessment of compensation to submit that the
compensation was quantified on the basis of net income and gross
assets of the intermediary and the formulae of compensation was also
prescribed under the Bihar Land Reforms Act. The learned counsel
has submitted that there is no foundational pleading from the side of
Duttas or any of the respondents that what was mortgaged was only
the right to collect rent from the then raiyats which ultimately was
subject matter of sale. The learned counsel submits that right over the
entire estate stood mortgaged and the right over the entire estate was
sold in auction and therefore Duttas had no remaining property to
claim.
20. The learned counsel for the respondent nos. 16,17 and 18 has
submitted that their case would depend upon adjudication of the right
of the plaintiffs as these respondents are decree holder in a suit for
specific performance against the plaintiffs of the present case.
21. Learned counsel for the respondent no. 19 has submitted that
they have also purchased the property from the plaintiffs and their
case would also depend upon the title of the plaintiffs. He has
however submitted that one suit is pending with regard to cancellation
of their sale deed, which issues are not the subject matter of the
present case.
22. Post this case tomorrow i.e. 10.07.2025 at 2:15 P.M. for the
rejoinder arguments of the respondent nos. 10 to 15.
(Anubha Rawat Choudhary, J.)
Pankaj/Saurav/Binit
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