Sanjay Kumar Dwivedi,J. - (1.) Heard Mr. S.N. Das, assisted by Mr. Pramod Kumar Choudhary, learned counsel appearing on behalf of the appellants.
(2.) The appellants have preferred this second appeal against the judgment and decree dated 22.12.2015 and 07.01.2016 respectively passed in Title Appeal No.35 of 2006 by the District Judge-1st at Seraikella-Kharsawan, whereby the judgment and decree dated 17.11.2006 and 25.11.2006 respectively passed in Title Suit No.07 of 2002 by the Munsif, Seraikella, has been affirmed.
(3.) The appellants/plaintiffs instituted the suit for declaration of title, the suit valued at Rs.1,000/- and subsequently by way of amendment one paragraph was added in the plaint as paragraph 10/A after amendment the suit value was raised to Rs.28,500/-. It was case of the appellants/plaintiffs that the Title Suit No.58/16/06 of 1954/56/57 one Rasoraj Das and Subodh Chandra Das sons of Late Dukho Das and their mother Babi Das wife of Late Dukhu Dasi filed a suit for partition against Raghunath Das, Drupati Dasi, Natram Das, Chutu Das, Chutu Mahato and Manu Mahali the suit was registered as T.S. No. 58/16/06 of 1954/56/57 and was disposed by the Additional Sub-Judge, Jamshedpur on 20.08.1957. In that suit the appellants/plaintiffs claimed the partition of their 4th Share over the suit lands of the suit. The suit land of the present suit bearing Plot No.2198 fully described in the schedule of that suit was one of the suit plot of the aforesaid Title Suit No. 58/16/06 of 1954/56/57. In the aforesaid Title Suit the learned Additional Sub-Judge, Jamshedpur by his judgment dated 12.08.1957 was pleased to decree the claim of the plaintiffs of the suit to the extent of 1/4th Share in the entire suit property and preliminary decree was framed on 06.09.1957. Thereafter, final decree was framed on 07.05.1977 after accepting the report of Pleader Commissioner which was to from part of the decree. The suit plot of this present suit bearing plot no.2198 of the present survey along with other lands were allowed to the appellants/plaintiffs share according to the Pleader Commissioner report accepted by the court. The appellant/plaintiffs of the aforesaid Title Suit No.58/16/06 after the final decree filed execution petition being Execution Case No.19/78 for delivery of possession of their 1/4th share as per the allotment chart of the Pleader Commissioner and the learned Additional Sub-Judge, Jamshedpur on 16.01.1980 issued writ to the Bailiff of the court to deliver possession of the appellants/plaintiffs 1/4th share and in accordance with the allotment chart, the plaintiffs of that suit were put in possession of the 1/4th share on 03.02.1980 and delivery of the possession report both of the Bailiff and the Pleader Commissioner, were submitted to the court. Since then the appellants/plaintiffs of the suit namely Rasoraj Das, Subodh Das, Babi Dasi came in possession of the land including the suit land of the present suit which fell to their share. Thereafter, there was a mutual decision of their properties in which Plot No.2198 fell to the exclusive share of Subodh Das, the appellants/plaintiffs of that suit along with some other lands and he came in possession over the suit Plot No.2198. It was further case of the appellants/plaintiffs that on 17.12.1997 the aforesaid Subodh Chandra Das by means of registered Sale Deed No.2185 sold the suit land bearing Plot No.2198 described in schedule of the plaint to the plaintiffs of the suit and the appellants/plaintiffs purchased the suit land for the purpose of construction of residential house. The appellants/plaintiffs had purchased the suit land on payment of consideration money of Rs.28,500/- to the vendor Subodh Das. The appellants/plaintiffs collected material which was stones and bricks for purpose of construction but on 10.01.2002 the respondent/defendant started creating trouble and took some labourers with a view to dig a portion of suit land and on protest the defendant went away giving threats that he will start digging and will teach the plaintiffs a lesson. Defendants has no manner right, title interest and possession over the suit land. All these statements made by the plaintiff in para-1 to 10 of the plaint and subsequently a new para has been added by way of amendment which contains the statement of facts that as it has been found that Khata No.404 Mouza Raghunathpur finally published in the year 1964 have been wrongly prepared in the name of Sheocharan Gorai and as such it was merely a paper transaction void, ab-initio and not binding on the plaintiffs, and further it has been transpired that on the basis of wrong entry in the record of rights of Khata No.404 of Mouza Raghunathpur in the name of Sheocharan Gorai who has two wives executed sale deed vide Sale Deed No.3287 dated 08.08.1991 in favour of the defendants is also void ab-initio nullity and false and fabricated documents which does not confirm any right, title and interest of the defendants, and the same is not binding on the appellants/plaintiffs. And it has been further stated by the appellants/plaintiffs in the plaint that as a result of the defendants absence on 10.01.2002 cloud has been cast on the appellants/plaintiffs title over the suit land and hence this suit is filed for declaration of title. The cause of action of this suit arose on 10.01.2002 when the defendants went near the suit land and challenged the title of the appellants/plaintiffs. It was further transpires that on notice, the defendants appeared in the suit and filed their written statement initially against the original plaint on 25.06.2002 and after amendment of a new paragraph 10A in the plaint, filed Additional written statement on 25.05.2005 according to both the written statements the defendants' case is that the suit is not maintainable in that present form either in law or facts. The suit is totally misconceived against the defendants and the suit has been filed by the plaintiffs as a test suit to establish their so-called mythological title over the suit land. The suit is bad in law. The suit for declaration is barred under Section 34 of the Specific Relief Act. The suit is also bad for non-joinder for necessary parties. The suit is also barred by limitation. The vendor of the appellants/plaintiffs Subodh Das along with Rasoraj Das, Shasibala Dasi, and Nokubala Dasi sold area 12.26 decimals of land including the suit properties i.e. R.S. Plot No.2198 bearing on area of 0.44 decimal under Khata No.404 of Mouza Raghunathpur to one Balram Das and Aditya Das both sons of Shasibhusan Das by means or registered sale deed bearing Sale Deed No.5000 dated 30.05.1975, for consideration of Rs.13,000/-. It has been further pleaded that after purchase the aforesaid Balram Das and Aditya Das present the sale deed before the Anchal Adhikari, Nimdih for mutation. The mutation case was registered as Mutation Case No.81/91 in which objection was filed by several persons of locality and the learned C.O. by his order dated 24.01.1991 rejected the prayer for mutation of the land purchased by Balram Das and Aditya Das. The C.O. found that the aforesaid purchasers and the vendors have got no right, title interest and possession over the land transferred to Balram Das and Aditya Das. Against the said mutation order, Balram Das and Aditya Das never filed any revision or to get any title suit to get their title declared over the property purchased by them including the suit property. Again Subodh Das i.e. vendor of the appellants/plaintiffs in the present suit sold the entire suit plot alongwith other lands to one Kokil Das and Akil Das by means of registered sale deed bearing No.3490 dated 03.12.1985 for a consideration of Rs.9985/- but the said deed was also never mutated in the name of the purchasers. The deed of transfer of which the appellants/plaintiffs prayed for relief for declaration of their title is nullity as stated here in above as per the Transfer of The Property Act, even rightful owner has got no right to sell his property to numerous persons by numerous sale deeds. If the sale deed of the year 1975 is taken into consideration in that case after such transfer had Subodh Das and his co-sharers of the lands including the suit property the title of the properties passed on Balram Das and Aditya Das. As such on date of the execution of the deed in respect of the suit land to the appellants/plaintiffs by Subodh Das is nothing but mere paper transaction and the sale deed is void ab-initio as on the date of execution. Subodh Das has or had no title over the suit land. It was further pleaded that the deed is forged and fabricated one and barred by the provision of T.P. Act and it is also clear that neither the plaintiffs nor the vendors of the appellants/plaintiffs has exercised in Act of possession over the suit land within 12 years from the date of filing of the suit as the suit is barred by limitation. It was further pleaded that if any such title partition suit was filed and tried by the Sub-Judge Jamshedpur then the same is without jurisdiction because Mouza Raghunathpur including the sub Division of Seraikella within the District Singhbhum having its judgeship at Chaibasa and sub-Judge Chaibasa has got jurisdiction to entertain such suit and the suit land was within the jurisdiction of sub-Judge, Chaibasa. It was further pleaded that neither the defendants nor the vendor of the defendants was a party to the aforesaid suit as such the judgment and decree if any passed in T.S.(P) No. 58/16/06 of 1954/56/57 has got no binding upon the defendants or his vendor. Neither Rasoraj Das, Subodh Das and Babi Dasi have any occupation to possess the suit property and the story narrated in plaint are false and suit property fell to the exclusive share of Subodh Das in actual division among other co-sharers. The further case of the defendants was that the suit property was purchased by the appellants/plaintiffs from Subodh Das which is nothing but paper transaction and Subodh Das has or had no right or possession over the suit property at any point of time no title can pass on the plaintiffs, if the alleged deed was executed by the Subodh Das on 17.12.1997. The aforesaid sale deed dated 17.12.1997 related said property was presented by the plaintiffs for mutation before the Anchal Adhikari, Nimdih and Mutation Case No.169/98-99 has been registered and notice of which was sent to the defendants. The defendants after receiving the notice filed objection and after hearing the learned Anchal Adhikari, Nimdih, was pleased to reject the prayer for mutation of the plaintiffs. And further plaintiff nos.2 and 4 filed an application before the S.D.M. Seraikella dated 14.03.2000 with an allegation is that the defendant's second party on 13.03.2000 collected stones and bricks on the Eastern side of the suit property. Thereafter, a proceeding under Section 144 of Cr.P.C. has drawn by the learned S.D.M. and after hearing both the parties the learned S.D.M. vide his order dated 27.05.2000 dropped the proceeding with observation that the dispute in between parties in Civil in nature and directed the first party that is plaintiff nos.2 and 4 to take shelter of civil court. Sheocharan Gorai was all along in possession of the suit property on payment of rent to the State Government. And aforesaid record of right and right, title interest and possession of Sheocharan Gorai over the suit land was never challenged by the so called venders of the appellants/plaintiffs. This fact also supported from the tabulation chart of the Pleader Commissioner in T.S.(P) No.58 of 1954 in which against the plot no.2198 under Khata No.404 was shown in possession of Sheocharan Gorai. Sheocharan Gorai died leaving behind his two wives who were in turn sold the suit property to the defendants by means of registered Sale Deed No.3287 dated 08.08.1991 for a consideration of Rs.21,000/-. After that defendants mutated his name in respect of the suit property vide Mutation Case No.375/1996-97 and also paying rent to the State Government in regular course and pray that the appellants/plaintiffs' suit is liable to be dismissed with cost. And after amendment of the plaint additional written statement filed on behalf of the defendants and stated that the Sale Deed No.3281 dated 08.08.1991 executed by the widows of Sheocharan Gorai in favour of defendants is not at all void ab-initio and nullity and fabricated document are totally false and plaintiffs did not seek relief to declare the record of right as wrong in respect of the suit property and also did not seek any relief to declare the Sale Deed No.3287 dated 08.08.1991 as null and void because they have got knowledge that such relief are already time barred. On the basis of above pleadings the trial court entered into the lis and formulated nine issues to decide the case. While deciding the issue no.6 with regard to the appellants/plaintiffs got valid, title and possession over the suit land the trial court came to the finding that the deed transfer of which the plaintiffs prayed for relief for declaration of their title is a nullity, purchase of the suit property by the plaintiffs from Subodh Das is nothing but paper transaction and as Subodh Das has or had no right or possession over the suit property at any point of time no title can be passed on the plaintiffs, if the alleged deed was executed by Subodh Das on 17.12.1997. The observations made with regard to the issue no.6, the trial court has also considered elaborately and after discussing the witnesses and documents came to the finding that the appellants/plaintiffs have failed to establish his case, accordingly, the Title Suit No.7 of 2002 was dismissed by the Munsif, Seraikella dated 17.11.2006. ;