- (1.) This Second Appeal has been filed against the judgment and decree dated 10.4.1996 passed by the learned 4th Additional Judicial Commissioner, Ranchi dismissing the Title Appeal No. 14 of 1973 filed by the appellants, and affirming the judgment and decree dated 3.11.1972 passed by learned Additional Sub Judge, Ranchi in Title Suit No. 12.9/46 of 1965-67.
(2.) Mr. L.K. Lal, learned Counsel, appearing for the appellants, argued on the following questions of law formulated on 2.9.1997 at the time of admission of this appeal: (i) Whether the learned appellate court committed error of law in holding that the appeal had been abated for non impleading of the proper parties only because there was no formal order, although petition for substitution were there on record (ii) Being a Ist Appellate court and final fact finding court, the learned first appellate court did not discharge his duties and as such committed error of law He submitted that the learned appellate court has not given any finding whether due to non substitution of a necessary/proper party, the appeal had actually abated or not. He submitted that the appellant No. 1 (plaintiff No. 1) and his brothers, defendant No. 7 and 8 (Nandu Munda and Sonia Munda respectively) were only necessary/proper parties and due to death of other parties, the appeal had not abated. Moreover, petition was filed for substitution of some of the legal heirs but formal order was not passed. With regard to the second question of law, he submitted that the appellate court simply reproduced the findings of the trial court whereas it was duty bound to consider the case independently. 4. The case of the plaintiffs/appellants in short was as follows. In the customary law of tribal, one Mangru Munda inherited eight Annas interest of his father Soma Munda in the suit lands and came in joint possession with Daru Munda. After death of Mangru, his three sons- plaintiff No. 1 and proforma defendants Nos. 7 and 8 jointly inherited eight Annas of Soma Munda and possessed jointly with Daru Munda, brother of Scma. Daru died without any male issue and his widow, defendant No. 6 having remarried, plaintiff No. 1 and proforma defendants No. 7 and 8 jointly inherited the eight Annas interest of Daru Munda and thus they became sixteen Annas owner of the entire suit lands comprising in Schedule B of the plaint. Most. Mangri and defendant No. 6 who were respectively mother and widow of Daru Munda were in possession over the suit property in lieu of maintenance only and therefore the plaintiffs sought declaration lieu of maintenance only and therefore the plaintiffs sought declaration of title of plaintiff No. 1 and proforma defendants No. 7 and 8 as full owners of the suit property and since they stood dispossessed, therefore, recovery of possession was sought after evicting defendants No. 1 to 5 therefrom. 5. The further case of the plaintiffs was that plaintiff No. 1 and proforma defendants No. 7 and 8 possessed the suit lands till 1950-51 along with Most. Mangri, but defendants No. 1 to 4 who were sons of one of the daughters of Most Mangri got a sale deed from Mangri in the suit lands and wanted to dispossess the plaintiff No. 1 forcibly due to which a proceeding under Section 145 of the Code of Criminal Procedure (Cr.P.C.) was initiated. Defendants No. 1 to 5 contended therein that Soma Munda had no son by name Mangru and the plaintiffs and defendants 7 to 8 do not belong to his family even. However, the proceeding was terminated against the plaintiffs on 5.8.1952 and since then the plaintiffs stood dispossessed from the suit lands. Further case of the plaintiffs was that since Most. Mangri was in possession over the entire suit property in lieu of maintenance only, defendants No. 1 to 5 purchased only life time interest of Mangri and after death of Mangri on 3.8.1959, the succession has again opened, therefore an alternative case was put forward by the plaintiffs that if it is found that Soma Munda had no son and plaintiff No. 1 and proforma defendants 7 and 8 do not belong to his family then in that case, the plaintiffs 3 to 7 being the nearest male agnatic relations of Soma Munda and Daru Munda, being the preferential heirs, were entitled to the suit lands of Soma Munda and Daru Munda and plaintiff No. 1 and defendants No. 7 to 8 being heirs of Soma are entitled to get a partition decree for eight Annas interest in the suit lands by metes and bounds. In the alternative, the plaintiffs claimed that a partition decree in between plaintiffs 3 to 7 against defendant No. 5 who is daughter of Daru Munda be passed caring out eight Annas in the suit lands. 6. The suit was contested by defendants No. 2 to 5 on the following grounds. There was no cause of action. The suit was barred by limitation and adverse possession, as well as under Article 47 of the old Limitation Act, as well as under Article 142 of the Limitation Act. The plaintiffs were never in possession over the suit property within 12 years of the suit. The genealogy was denied and disputed. Persons shown as sons, daughters and grand sons of Soma Munda are all fictitious because Soma Munda died issueless. Soma Munda and Daru Munda were full brothers. Soma Munda died leaving behind Daru Munda 33 years ago. Plaintiffs are not related to Soma Munda in any way, nor the plaintiff No. 1 is son of Mangru as alleged. After death of Soma Munda, his borther Daru Munda inherited all the suit lands and came in possession thereof as exclusive owner. There was no family arrangement as alleged. Daru Munda died 33 years ago prior to institution of the suit leaving behind his widow-defendant No. 6 and daughter-defendant No. 5 and mother-Most. Mangri. 7. After death of Daru Munda, Mangri was in exclusive possession of the suit lands in exercise of her exclusive right openly and adversely to all, as after Daru s death his widow defendant No. 6 left the family and went away after remarriage. Mangri since the year 1933 remained in possession over the suit lands as exclusive owner. Her possession was not in lieu of maintenance or by any arrangement with plaintiff No. 1 or his father as alleged. Thus she acquired title by adverse possession also. None of the plaintiffs, nor proforma defendants No. 7 and 8 were in possession of the suit lands even for a single day, but at the instigation of interested persons a conspiracy was hatched up between the plaintiffs No. 1 and 3 to 8 to dispossess the father of defendant No. 1 and defendant No. 3 and 4 in the year 1950 which resulted in a proceeding under Section 145 Cr.P.C. which was decided against plaintiff No. 1 and plaintiffs No. 3 to 8 and it was held therein that the plaintiffs are not of the branch of Soma Munda even. After the said decision in 145 Cr.P.C. case, plaintiffs brought a Title Suit being T.S. No. 200 of 1952 which was also withdrawn by the plaintiffs. Having not brought any civil case for declaration of title and possession within 3 years of the said decision of 145 Cr.P.C. proceeding, the claim of the plaintiffs is time barred. 8. The trial court framed six issues. With regard to issue No. 2 -" Is the suit barred by limitation and adverse possession" and issue No. 5- "Are the plaintiffs entitled to a decree as claimed", the trial court inter alia, held as follows. The plaintiff No. 1 has only relied on the oral testimonies in support of his case that he is the grand son of Soma Munda and plaintiff No. 2 is the daughter of Soma, but the oral evidences do not inspire confidence and does not prove the case of the plaintiffs. The plaintiffs witnesses are interested witnesses and not a single independent witness of the village has come forward to support his case. There is no documentary evidence also in support of the oral evidences of the plaintiffs. The evidence of P.W. 1 coupled with the other evidences of the plaintiffs disproved the fact that plaintiff No. 1 is connected with Soma Munda in any way. All the evidences conclusively proved that Jhingra, Milu and Guju do not belong to the common ancestor. After considering and weighing the materials on record thoroughly and examining the case from all possible angles it was held by the trial court that it could not be proved by the plaintiffs that any of them belong to the same common ancestor to which Soma Munda and Daru Munda belonged or that plaintiff No. 1 is the grand son of Soma Munda. 9. On the question of possession and dispossession and the law involved regarding the same, the trial court, inter alia, |held as follows. Admittedly none of the plaintiffs are in possession over the suit lands since the proceeding under Section 145 Cr. P.C. was decided on 5.8.1952 (Paragraph-9 of the plaint). Even the plaintiff No. 1 (P.W.-5) did not say a word that he ever cultivated the suit lands. Seven witnesses were examined on behalf of the plaintiffs but not a single witness had stated that the plaintiffs had cultivated the suit land either independently or jointly with Most. Mangri. From the material brought on the record it was clear that there was no evidence on behalf of the plaintiffs about their actual possession or of possession of Mangru claimed to be son of Soma; on the contrary the defendants evidence clearly shows that none of the plaintiffs were ever in possession independently or under any arrangement in joint cultivation with Most. Mangri. It was further held that the possession of Most. Mangri was in her exclusive right. Admittedly the plaintiffs stood dispossessed at least in 1952 i.e. after the decision in 145 Cr.P.C. proceeding. The plaintiffs filed a suit being Title Suit No. 200 of 1952, but the plaint was returned for proper filing, but it was never filed. Thus the claim of title of the plaintiffs was closed, but the present suit was filed after more than 12 years from the decision of 145 Cr.P.C. proceeding and therefore, the suit was barred by limitation. Moreover, Most. Mangri acquired title by adverse possession and she had absolute right to transfer in favour of father of defendant No. 1 and defendant Nos. 2 to 4 by registered sale deeds and the purchasers came in possession in their exclusive rights from 1946 and therefore they had also acquired title by adverse possession. The purchasers have also been mutated in the Landlord s Sarishtha, therefore, the title of the plaintiffs, if any, was lost a provided in Limitation Act. 10. The plaintiffs filed the appeal in question, raising the following issues. (a) The trial court erred in holding that Soma Munda had no issue and the plaintiffs were imposters; and that the evidences adduced on behalf of the defendants/respondents were reliable; (b) Limitation did not bar their claim as it has to start from the time of death of Most. Mangri and not from the time of decision in the proceeding under Section 145 Cr.P.C. Thus on such contentions raised on behalf of the appellants, the lower appellate court considered the issues whether the plaintiffs/appellants have been able to establish their claim of continuing possession with the widowed mother of Daru Munda (Most Mangri) and whether they were descendants of Soma Munda or not. 11. The lower appellate court noted the relevant cases of the parties (Paragraphs-2 to 4). On careful perusal of the judgment of lower appellate court it is clear that it has fully applied it s mind to the respective contentions raised by the parties. It has recorded independent findings on the issues raised by the plaintiffs/appellants from Paragraph-8 onwards. failed in its duty being the final fact finding court. In fact, the findings of the trial court have been considered by the lower appellate court in the light the contentions raised by the appellants and the materials available on the record and then only the same were affirmed. The lower appellate court found that the reasons given by the trial court were based on records and were justified. In my opinion, there has been conscious application of mind to the contentions raised by the plaintiffs/appellants by the lower appellate court and therefore, question No. (ii) does not arise for consideration in this second appeal. In the judgment reported in (Girijanandini Devi and Ors. v. Bijendra Narain Choudhary), in Paragraph-12 observed as follows: It is not the duty of the appellate Court when it agrees with the view of the Trial Court on the evidence either to restate the effect of the evidence or to reiterate the reasons given by the Trial Court. Expression of general agreement with the reasons given by the Court, decision of which is under appeal would ordinarily suffice. 12. Further, in my opinion, the question No. (i) also does not arise for consideration in this second appeal. The appeal was not dismissed by the lower appellate court only on the ground of abatement. Abatement was one of the circumstances noticed by the lower appellate court. The appeal was dismissed as the contentions raised by the plaintiffs/appellants were not found sustainable by the lower appellate court. The lower appellate court also recorded independent finding that though the plaintiffs were duty bound to prove that they were descendants of common ancestor but they failed to prove the same. It was also held that the suit was barred by limitation as the cause of action arose on 5.8.1952 when the claim of the plaintiffs was denied in the proceeding under Section 145 Cr.P.C. as the date of knowledge and dispossession was admittedly 5.8.1952. It was also taken into consideration that a suit was filed by the plaintiffs/appellants being Title Suit No. 200 of 1952, but after it s withdrawal, it was not filed again. plaintiffs/appellants being Title Suit No. 200 of 1952, but after it s withdrawal, it was not filed again. 13. Mr. Lal, appearing for the appellants, did not raise any other substantial question of law. In the result, this second appeal is dismissed. However, no costs.;