Patna High Court
DEOMUNI DEVI and ORSversusRAM AUTAR MAHTO and ORS
- Decided
- Disposal
- ALLOWED
- Bench
- ASHOK KUMAR PANDEY
Holding
The appellate court held that the respondents' claim of title by adverse possession was not properly pleaded or proved and that the sale deeds were valid, thereby setting aside the trial court decree.
Summary
The appellants challenged a decree that had declared the respondents entitled to title over disputed land based on alleged adverse possession. The respondents claimed title through a genealogical claim and asserted that they had possessed the land openly since 1950, seeking confirmation of title and possession. The appellants contended that the respondents were not the owners, that the sale deeds executed by Ramjhari Devi were valid because she was the daughter of Devnarayan Mahto, and that the trial court had improperly found adverse possession without proper pleading or evidence. The High Court examined the pleadings, documentary evidence, and relevant case law, concluding that the respondents’ claim of adverse possession was not pleaded or proved and that the sale deeds were legitimate. Consequently, the Court set aside the trial court’s judgment and decree and allowed the appeal.
Issues considered
- The suit is maintainable and whether the respondents have a cause of action.
- Whether the respondents possess a valid right, title and interest in the suit land.
- Whether the appellants possess a valid right, title and interest in the suit land.
- Whether the claim of title by adverse possession is sustainable in law.
- Whether the sale deeds executed by Ramjhari Devi are valid or forged.
- Whether the trial court erred by relying on oral evidence not pleaded.
- Whether the limitation period bars the suit.
Legislation cited
- Code of Civil Procedure, 1908 — s. Order 41 Rule 33
- Indian Evidence Act, 1872 — s. 58, 91
Subjects
- title suit
- adverse possession
- joint family property
- partition
- sale deed
- forgery
- evidence
- pleadings
- CPC
- Evidence Act
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
FIRST APPEAL No.425 of 1990
======================================================
DEOMUNI DEVI and ORS
... ... Appellant/s
Versus
RAM AUTAR MAHTO and ORS
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Rajesh Kumar Singh, Advocate
Mr. Dhananjay Kumar Tiwary, Advocate
For the Respondent/s : Mr. Janardan Prasad Singh, Sr. Advocate
Mr. Dipak Kumar, Advocate
Mr. Arbind Kr. Singh, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
CAV JUDGMENT
Date : 02-02-2026
This appeal has been preferred against the judgment and
decree dated 28.07.1990 passed by 8th Subordinate Judge, Chapra
in Title Suit Number 129 of 85, wherein and whereunder the suit
was decreed with cost.
Case of the Plaintiffs/Respondents
2. Plaintiffs/Respondents have filed Title Suit Number
129 of 1985 for declaring their title on the disputed land and also
for delivery of possession if the Plaintiffs are found dispossessed
from any part of the disputed property.
3. For better appreciation of the case of the parties,
genealogical table is given in the plaint which is given
hereunder:-
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Ram Bhajju Mahto
|
_______|_______
| |
Hitlal Mahto Sukan Mahto
(Died 1950)
| (Took possession by
survivorship)
|
Dev Narayan Mahto
(Pre-deceased father,
Died 1940)
|
|
Ramjhari Devi
(Daughter)
4. The case of the Plaintiffs/Respondents in short was
that a genealogy is given at the foot of the plaint that is to be
deemed as a part of the plaint. From perusal of the genealogical
table, it will be clear that Ram Bhajju Mahto was the ancestor of
the Plaintiff's family. Ram Bhajju Mahto had two sons: Hitlal
Mahto and Sukan Mahto. Hitlal was the elder son. Family was
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joint. Hitlal Mahto had a son, Dev Narayan Mahto, who died
issueless 45 years ago; his wife had predeceased him.
5. It is further submitted that in the RS Survey, all the
joint family property along with other co-parceners was entered
in Khata Number 96. In that RS Survey, the shares of Hitlal
Mahto and Sukan Mahto are jointly shown. Before some time of
survey, Hitlal Mahto, who was the Karta of the joint family,
some lands were purchased in his name from the nucleus of joint
family that is entered in Khata Number 129 of RS in the name of
Hitlal Mahto, but the possession of both the brothers was there.
6. Further case of the Plaintiffs/Respondents is that
Hitlal Mahto had separated from his brother in mess and
residence, but the lands were not partitioned. Hitlal Mahto was
issueless and had love and affection for the Plaintiffs. At the
occasion of Dussehra in year 1943, a reunion took place between
them. After the death of Hitlal Mahto, all the properties devolved
upon Plaintiffs by way of survivorship, and that possession was
without any obstruction and the names of Plaintiffs were entered
in the records of ex-landlord. And, the Plaintiffs are getting rent
receipts after paying the rent.
7. Further case of the Plaintiffs is that the title of the
Plaintiffs is in continuance since 1950 and is in the knowledge of
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the Defendants and without their interference; as such, the title
of Plaintiffs has been confirmed by way of adverse possession.
8. It has further been submitted that the enemies of the
Plaintiffs have executed a sale deed in favor of Defendant
Numbers 2 and 3, due to which there is some cloud of doubt on
the title of the Plaintiff, hence the need for suit.
9. It has further been submitted that Defendants have
wrongly stated in their W.S. that the marriage of Dev Narayan
was solemnized with Tetari Devi and Ram Jhari was daughter of
Dev Narayan. Dev Narayan was married to one Kailashi Devi,
daughter of Dular Chand, resident of Hajipur, who predeceased
her husband issueless. Tetari is the daughter of Shivnandan,
resident of Basant, and is wife of Kishun Mahto. Ram Jhari is
daughter of Kishun Mahto.
10. Further case of the Plaintiffs is that the sale deed
dated 02.01.1985 executed by Ram Jhari Devi in favor of Triloki
Mahto and Dev Muni Devi, Defendant Nos. 2 and 3, is forged
and fraudulent and is without consideration. It has also been
submitted that the deed was not acted upon. Ram Jhari Devi did
not have title or possession over the lands of the deed, and the
purchasers also did not receive possession of the land at any
moment.
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11. At the time of the death of Hitlal Mahto, the
Plaintiff had possession over the entire stretch of land, and the
sale deed in question is sham and fraudulent.
12. It has also been submitted that Hitlal Mahto, Sukan
Mahto, Dev Narayan Mahto and the Plaintiff were members of
joint family. There was no partition between them. Hitlal Mahto
was the Karta of the joint family. And, after the death of Sukan
Mahto and Hitlal Mahto, Ram Avtar became the Karta of the
joint family. Dev Narayan died in the lifetime of Hitlal.
13. The lands of the two sale deeds dated 2.1.85 is
detailed in Schedule 1 and 2 of the plaint which is the disputed
land.
Submission of the Appellants
14. Learned counsel for the Appellant has submitted that
the Trial Court has decreed the suit without considering the fact
that the Plaintiff-Respondent had no cause of action. Plaintiff-
Respondent is neither the owner nor has right, title, and interest
over the suit land. Learned Trial Court did not consider that the
suit property was the self-acquired property of Ram Narayan, who
died leaving behind his daughter Ram Jhari Devi, the Appellant,
who is the owner of the suit. Ram Jhari Devi sold the same to the
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Appellant's ancestors who are the rightful owner of the suit
property.
15. It has further been submitted that the story set up by
Plaintiff in the pleading is self-contradictory. As such, cannot be
relied upon. Learned counsel for the Appellant has submitted that
at one place the Plaintiffs-Respondents claim that they are the
owner of the disputed land, and in the next para of the plaint, the
case of the Plaintiffs is that the title of the Plaintiffs is confirmed
by adverse possession.
16. Learned counsel for the Appellants has submitted
that no one can have adverse possession on his own land. Adverse
possession is the hostile possession against the real owner. Learned
counsel for the Appellants has further submitted that the
Plaintiffs/Respondents have nowhere stated as to when their
possession was hostile to the interest of Appellants as they have
claimed that the land belongs to them.
17. It has also been submitted that it is well-settled law
of pleadings that a Plaintiff cannot make contradictory claims;
however, the defendant is at liberty to make contradictory
defenses.
18. Learned counsel for the Petitioner has further
submitted that Trial Court could not consider that the question of
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title by adverse possession does not arise as there cannot be any
question of hostile title or possession in joint family property.
19. Learned Trial Court has not considered the story of
partition and reunion as set up by Plaintiff is false as there is no
document of reunion.
20. Learned Trial Court has not considered that Ram
Narayan is the son of Hitlal and Ram Jhari Devi is the daughter of
Dev Narayan and grand-daughter of Hitlal.
21. Learned Trial Court has not considered the
documentary evidence that is Exhibit B wherein Plaintiffs
admitted that Ram Jhari is the daughter of Ram Narayan and
grand-daughter of Hitlal.
22. Learned Trial Court has not considered the
admissions by Plaintiff in Exhibits B and D which completely
demolish the case of Plaintiffs. It has further been submitted that
the documentary evidence adduced by the Appellants clearly
establish that Ram Jhari Devi is the daughter of Dev Narayan
Mahto and grand-daughter of Hitlal.
23. Learned Trial Court has relied on the oral evidences
that Ram Jhari gave the document and money to Ram Avtar and
the same doe not seem to be true without considering that she in
good faith gave the documents and money to her uncle.
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24. Learned Trial Court failed to consider that the case
of the Plaintiff about adverse possession cannot be accepted with
the case of title as well.
25. It has further been submitted that learned Trial Court
should have considered the oral evidences of the Appellant and
should have disbelieved the PWs. As such, it has been prayed to
set aside the judgment and decree of the learned Trial Court.
Case of the Defendant
26. The defendant’s case in brief is that the case of the
plaintiffs is not maintainable and the plaintiffs have no title and
interest in the suit property. It is further said Hitlal had a son:
Dev Narayan Mahto who was married to Tetri Devi daughter of
Shiv Nandan Mahto of village- Aami and Ram Jhari Devi is their
daughter. Khata No. 129 was acquired by Hitlal Mahto after the
death of Hitlal Mahto and the death of the parents of Ram Jhari
Devi in the lifetime of Hitlal Mahto, the properties came in the
possession of Ram Jhari Devi. Khata No. 129 was not acquired
through the joint family fund and the same was acquired by the
personal income of Hitlal Mahto out of his earnings in Assam
and as such, Sukan Mahto or the plaintiff Ram Avtar Mahto had
no joint possession along with Hitlal Mahto. Ram Jhari Devi
used to manage her properties with the help of the persons of his
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nanihaal and the usurp was enjoyed by her. Ram Jhari Devi was
a plain, simple and illiterate lady and as such, if some documents
have been forged and prepared against her, the documents are
not binding upon her.
27. Further case of the defendants/appellants is that for
meeting her own purposes, the said Ram Jhari Devi executed a
sale deed in favour of the defendants and the
purchasers/defendants came into possession of the suit property
by virtue of the sale deeds executed by Ram Jhari Devi. It is also
alleged that the plaintiffs have a larger income than what is
shown by them to save the court fee. Further case of the
defendants is that in case of 685 and 785 under the Ceiling Act,
the sale deeds have been accepted by the plaintiffs and a
compromise has been effected with the defendants. So, the suit is
hit by estoppel, waiver and acquiescence.
28. Learned counsel for the respondents has submitted
that the learned trial court has considered all the documentary
and oral evidence of the parties and has rightly decreed the suit
of the plaintiffs/respondents. Learned counsel for the
respondents/plaintiffs has further submitted that at the stage of
first appeal, this Court can reappraise the evidence and in
reappraisal of the evidence, if this Court finds that the finding of
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the learned trial court that the plaintiffs have completed their title
by adverse possession is superfluous but otherwise, the suit is
liable to be decreed then the same may be accordingly made.
29. Learned counsel for the respondents has brought to
the notice relevant provisions of CPC Order 41 Rule 33. The
same is being reproduced hereunder for reference:-
33. Power of Court to appeal- The Appellate Court shall have power
to pass any decree and make any order which ought to have been
passed or made and to pass or make such further or other decree or
order as the case may require, and this power may be exercised by the
Court notwithstanding that the appeal is as to part only of the decree
and may be exercised in favour of all or any of the respondents or
parties, although such respondents or parties may not have filed any
appeal or objection 2[ and may, where there have been decrees in
cross-suits or where two or more decrees are passed in one suit, be
exercised in respect of all or any of the decrees, although an appeal
may not have been filed against such decrees]:
3
[Provided that the Appellate Court shall not make any order under
section 35A, in pursuance of any objection on which the Court from
whose decree the appeal is preferred has omitted or refused to made
such order].
30. After considering the pleadings of the parties,
learned trial court framed the following issues :-
(i) is the suit as framed maintainable?
(ii) have the plaintiffs got cause of action?
(iii) have the plaintiffs’ right, title and interest in the
suit land ?
(iv) have the defendants right, title, and interest in the
suit land?
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(v) is the suit barred by law of limitation ?
(vi) any other reliefs or reliefs to which the plaintiffs
are entitled to ?
31. The Same is hereby decreed on contest with cost
and it is held and declared that plaintiffs have right title and
interest over the suit land and defendants possesses no right title.
32. Plaintiffs have examined 8 witnesses which are
given hereunder in a tabular form. Apart from that, Plaintiffs
have also adduced certain documentary evidence, the same is
also given hereunder in tabular form.
P.W.1 Ram Janak Singh
P.W.-2 Sukhdeo Pandit
P.W.-3 Ram Jiyach Mahto
P.W.-4 Dashrath Singh
P.W.-5 Manager Rai
P.W.-6 Durga Prasad Singh
P.W.-7 Lalan Singh
P.W.-8 Ram Avtar Mahto
Documentary Evidence on behalf of
plaintiffs/respondents
Ext-1 Baimeyadi deed executed by Ram
Avatar Mahto in favour of R Lal
Bahadur
Baimeyadi deed executed by Ram
Ext-1/a Avtar in favour of Sitaram Singh
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Ext- 2 to 2/B Rent Receipt
Ext-3 Original (Zerpheshgi) deed
executed by HIt Lal Mahto in
favour of Mohan Kumar dt.
23.09.15
Ext-3/A Original (Zerphesgi) deed executed
by Hit Lal Mahto in favour of
Shital Raut dt. 05.12.47
Ext-3/B Original (Zerphesgi) deed executed
by Hit Lal Mahto in favour of Deo
Narain dt. 16.06.43
Ext-4 Land possession Certificate
Ext-5 Certified copy of Khatiyan
Ext-5/A Certified copy of Khatiyan
Ext-6 Certified copy of order sheet dated
06.07.85
Ext-6/A Certified copy of order sheet
3.10.79
Ext-7 Certified copy of Electoral roll
(voter list)
Ext-7/A Certified copy of Voter list
Ext-3/C Original (Zerpeshgi) deed executed
by Hit Lal Mahto in favour of
Shital Rai 02.01.46
Ext-3/D Original Zerpeshgi dee executed
by Mohit Mahto in favour of Jainur
Haque dated 03.07.45
33. As against this, defendants have examined 14
witnesses. Apart from that, defendants have adduced documentary
evidences which is given hereunder in a tabular form.
D.W.-1 Ram Nath Mahto
D.W.-2 Ram Jeet Mahto
D.W.-3 Vijay Kumar
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D.W.-4 Vidur Singh
D.W.-5 Heera Lal Singh
D.W.-6 Mathura Mahto
D.W.-7 Om Prakash Mahto
D.W.-8 Ram Jeet Mahto
D.W. -9 Madhusudan Bind
D.W.-10 Badri Mahto
D.W.-11 Prem Prasad Singh
D.W.-12 Ram Jhari Devi
D.W.-13 Lamuna Rai
D.W.-14 Braj Kishore Singh
Documentary evidence on behalf of
appellants/defendants
Ext-A Original Sale deed executed by Smt.
Ram Jhari Devi in favour of Smt.
Deomuni Devi
Ext-A/1 Sale deed executed by Ram Jhari Devi in
favour of Triloki Mahto
Original Sale deed executed by Smt. Jago
Ext-A/2 Devi in favour of Jagernath Mahto dated
Ext-B Original written statement in T.S. No.
72/85 in the court of of 3rd Munsif,
Chapra
Ext-C Certified copy of order sheet dated in
case no. 6/85-86
Ext-D Certified copy of petition ceiling case no.
6/85
Ext-D/1 Certified copy of petition ceiling case no
7/85 in the Court of D.C.L.R., Chapra
Ext-E Certified Copy of order sheet dated
08.01.86 in the ceiling case no. 7/85-86 in
the court of D.C.L.R, Chapra
Ext-F Certified copy of order sheet in Misc.
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32/72/86 in the court of S.D.O, Chapra
Ext-G Certified copy of Khatiyan
Ext-H Original Zerpeshgi deed executed by
Sheo Nandan Mahto in favour of Ramji
Prasad
Ext-I Ration Card in the name of Mathura
Mahto
Ext-J Certified copy of voter list.
Ext-H/1 Certified copy of zerpeshgi executed by
Ram Avtar Mahto in favour of Shital Raut
Ext-H/2 Certified copy of Zerpeshgi executed by
Hitlal Mahto in favour of Shital Raut
34. Heard the learned counsel for the parties and perused
the case of the learned trial court. During the course of arguments,
learned counsel for the respondent has admitted that the finding of
the trial court regarding completion of adverse possession of
respondents/ plaintiffs should not have been made and it has also
been argued that the finding is not on merits but that is a
superfluous finding, and notwithstanding that the case of the
respondents is proved.
35. As against this, the main contention of the appellants
is that trial court has not considered the documentary evidences of
the appellants and that the finding of the learned trial court
regarding adverse possession of plaintiffs/respondents is against
the established law.
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36. So the first issue which I would like to discuss is
whether the finding of the learned trial court regarding adverse
possession is sustainable in the eye of the law?
37. Learned Trial Court has held in para- ‘10’ of the
judgment which is given hereunder:-
“After the death of Hitlal Mahto the said Ram Autar Mahto came
to acquire the properties of the deceased Hitlal Mahto. There is ample
evidence on record to support the contention of the learned counsel for the
plaintiff. At the same time learned defence counsel submits that there was no
question of re-union as it was not possible under the existing circumstances
and the law on the point. This position and state of affairs requires
investigation into the fact that at the zerpeshgi deeds executed by Hitla Mahto
have been produced from the possession of Ram Autar Mahto. Further it
appears from the evidence on record that Ram Autar Mahto paid the
redemption money in order that the properties may be cleared from the charge
and encumbrance created by the zerpeshgi deeds. On this count one Ramjhari
Devi appearing as a defence witness says that the documents and money for
the purposes were given by her to her uncle Ran Autar Mahto but the same
were not returned to her, I fail to understand why Ramjhari Devi shall take the
risk of giving the documents as well as the money to Ram Avtar Mahto to
meet the requirements of law. Even the earlier rent receipts have been
produced from the custody of the plaintiff and not from the custody of
Ramjhari Devi or her purchasers. Further there is cogent and reliable evidence
on record to show that Ram Avtar Mahto has been in possession of the
properties and has been cultivating the same since long, for several 12 years.
That way it will not be out of place to mention that he has acquired adverse
possession over the suit properties as argued by learned counsel for the
plaintiff. Ext. 1 series the Baimeyadi deeds show that Ram Autar Mahto has
been dealing with the properties. Ext. 3 series the zerpeshgi deeds and their
custody go to show that Ram Autar Mahto was in possession of the
documents as also he was the real person who dealt with and transacted the
business relation to the properties of deceased Hitlal Mahto. One of the
defence witness saying that Ramjhari Devi was major at the time of Hitlal's
death, dispels the claims of Ramjhari Devi that she was brought up by Hitlal
Mahto and thereafter looked after by her maternal uncle. One circumstance
creating great doubt is that had Hitlal been alive at the time of majority of
Ramjhari Devi, he would have solemnized her marriage in the capacity of
guardian and manager of the family, rather than her maternal uncle who is
said to have come from a different village to look after her and solemnized
her marriage. The proposition of the learned defence counsel that the
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documents and the money for the payment of rent and redemption were
entrusted to Ram Autar Mahto by Ramjhari Devi does not stand to reason as,
after the documents were not returned to her, she did not take action in
accordance with law for the possession and custody of the same. Needless to
say, that Ram Autar Mahto had all along been in custody as well as the
properties in question and the said Ramjhari Devi, did not have any role to
play in the said transactions. Even if, the doctrine of re-union is not invoked
in the instant case, there is perfection of title on the part of Ram Autar Mahto,
by dint of continuation of adverse possession over the suit properties for
several 12 years. In that view of the matter Ext. A series the sale--deeds in
favour of the defendant executed by Ramjhari Devi do not last any cloud over
the title of Ram Autar Mahto and thereby his title and interest over the suit
lands are not encroached upon by the said sale-deeds which are not binding
upon Ram Autar Mahto as it has been executed by one who has no stake,
right, title and interest in the suit properties. The possession of Ext. 4, land
possession certificate and Ext. 5 & 5/A khatiyans also substantiate the case of
the plaintiff.
38. Learned counsel for the appellant has stated that in
this case, issue numbers 4 and 5 are the most pertinent issues, and
the Trial Court has decided these issues in favor of the Plaintiffs/
Respondents.
39. Learned Trial Court has held that there is perfection
of title on the part of Ram Avtar Mahto by dint of continuation of
adverse possession over the suit properties for several 12 years.
40. It has also been submitted by learned counsel for the
appellants that Plaintiff cannot make out contradictory claims
regarding his title. In this case, the Plaintiff claims title over the
disputed land and vis-a-vis also claim adverse possession.
41. It is pertinent to note that it is well-settled law that
plaintiffs may make rival pleas in the alternate.
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42. The learned counsel for the appellants has relied on a
judgment of Hon’ble Apex Court in the case of Kishundeo Rout
and Ors. V. Govind Rao and Ors. in SLP Civil Number 22070
2025. In para 20 of the said judgment, Hon’ble Apex Court has
held as follows:
“20. The plea of adverse possession is not always a legal
pleas. Indeed, it is always based on facts which must be asserted and
proved. A person who claims adverse possession must show on what
date he came into possession, what was possession, whether the
factum of his possession was known to the legal claimants and how
long his possession continued. He must also the nature of his These
are show whether his possession was open and undisturbed. all
questions of fact and unless they are asserted and proved, a plea of
adverse possession cannot be inferred from them. (Therefore, in
normal cases an appellate Court will not allow the plea of adverse
possession to be raised before it.) There is no doubt that in some
cases, the plea will be allowed for the reason that in some form or the
other allegation upon which it can be raised might have been made at
the time and the facts necessary to prove the plea were brought before
the court and proved.”
43. In this case, from perusal of the pleading of the
Plaintiffs/Respondents, only this much has been pleaded that the
Plaintiff has continuous possession since 1950 for more than 12
years. As such his title has perfected by way of adverse
possession as well.
44. Learned counsel for the appellants has submitted
that no details regarding the dates when this hostile possession
started and when the same completed, is there in the pleading of
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the Plaintiffs/ Respondents. Nor there is any evidence on that
point. But the learned Trial Court has held without the specific
pleading and evidence that the Plaintiffs/Respondents have also
perfected his title by way of adverse possession.
45. It has also been submitted that learned Trial Court
has not considered the documentary evidence of the defendants.
46. That is Exhibit B, which is W.S. [Written
Statement] filed by Ram Avtar Mahto in Title Suit Number 72 of
1985. Needless to say that Ram Avtar Mahto is the plaintiff of
this case. In Exhibit B in para 7, he has stated that Dev Narayan
Mahto pre-deceased his father Hitlal in the year 1940 and he had
a daughter namely Ramjhari. In 1950 Hitlal Mahto also died and
his brother Sukan Mahto got the possession over his lands by
way of survivorship.
47. Learned counsel for the appellants has submitted that
in this written statement which was filed in Title Suit Number 72
of 1985, the plaintiff of present case has admitted that Ramjhari
Devi was the daughter of Dev Narayan Mahto. Whereas in this
case, plaintiff has stated that Ramjhari Devi is not the daughter of
Dev Narayan.
48. It has also been submitted that the pleading of the
parties are filed on affidavits and any statement made therein
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against the interest of the parties is treated as admission. Section
[58] of Evidence Act declares that facts admitted need not be
proved and the same is quoted hereunder:-
58. Facts admitted need not be proved.- No fact need to
be proved in any proceeding which the parties thereto or their agents
agree to admit at the hearing, or which, before the hearing, they agree
to admit by any writing under their hands, or which by any rule of
pleading in force at the time they are deemed to have admitted by
their pleadings:
Provided that the Court may, in its discretion, require the
facts admitted to be proved otherwise than by such admissions.
49. It has further been submitted that in Exhibit D/1
also, the case which was filed under Ceiling Act by Ram Avtar
Mahto, the plaintiff of this case, Ramjhari Devi was one of the
defendants and her parentage is shown as daughter of Dev
Narayan Mahto. This case was also filed by Ram Avtar Mahto, the
plaintiff of this case.
50. In that case, a genealogy was also appended and
the genealogy also shows that Ramjhari Devi was the daughter
of Dev Narayan. Exhibit D/1 is also the plaint of Ceiling Case
and in that case also ,same facts are averred by the plaintiff of
this case.
51. These exhibits prove that Ramjhari Devi was the
daughter of Dev Narayan. In this respect, I would also like to
refer Section 91 of the Evidence Act which is regarding exclusion
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of oral evidence regarding documents and the same is being
reproduced hereunder:-
91. Evidence of terms of contracts, grants and
other dispositions of property reduced to form of
document.- When the terms of a contract, or of a grant, or of
any other disposition of property, have been reduced to the
form of a document, and in all cases in which any matter is
required by law to be reduced to the form of a document, no
evidence shall be given in proof of the terms of such contract,
grant or other disposition of property, or of such matter,
except, the document itself, or secondary evidence of its
contents in cases in which secondary evidence is admissible
under the provisions hereinabove contained.
Explanation 3.- The statement, in any document
whatever, of a fact other than the facts referred to in this
section, shall not preclude the admission of oral evidence as to
the same fact.
52. Learned counsel for the appellant has submitted that
if the appellant is able to prove that Ramjhari Devi is the daughter
of Devnarayan, in that case, the sale deeds executed by her are
valid deeds and the vendees of Ramjhari Devi will get title from
that transfer.
53. It has also been submitted that though, by
amendment, the plaintiff-respondent has introduced a case of
adverse possession, he has not pleaded the essentials of adverse
possession—such as, when the possession started, when it was
hostile, that the same was in the knowledge of the real owner and
ultimately the date on which the adverse possession was
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completed and by way of adverse possession the plaintiff has got
his title over the disputed land.
54. Admittedly, the disputed land has been sold by
Ramjhari Devi to defendant No. 2 and defendant No. 3. The sale
deeds have been executed by Ramjhari Devi; that much is the
admitted position. But the case of the plaintiff is that as Ramjhari
Devi is a stranger to the family of the plaintiff, she has got no right
and title over the disputed land, and likewise, her transferee also
did not get any title out of those transactions.
55. Learned counsel for the appellant has further
submitted that the plaintiff has not challenged the sale deeds in
question directly but indirectly challenged the right of Ramjhari
Devi who, according to the plaintiff, is a stranger in the family of
the plaintiff. It is apparent from the above exhibits (Ext-B and Ext-
D/1), as discussed above, that the plaintiff himself has admitted in
these documents that Ramjhari Devi was the daughter of
Devnarayan Mahato.
56. Learned counsel for the appellant has further
submitted that from a perusal of the impugned judgment, it is clear
that the learned trial court has relied on the oral evidences which
are not the pleadings of the parties, and that there is no statement
in the plaint regarding the Zarpeshgi deed which has come in the
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evidence that Hitlal Mahato has executed a Zarpeshgi deed in
favor of Mohar.
57. Learned trial court has relied mostly on the oral
evidences which were beyond the pleadings of the plaintiff-
respondent. It is well settled that in civil cases, parties have first of
all to plead their case, and after pleading, they have to prove their
case from oral and documentary evidences. I find it appropriate to
refer the judgment of the Hon’ble Apex Court in the case of
Shivshankara and Another Vs. H.P. Vedavyasa Char reported
in 2023 SCC OnLine SC page- 358 wherein in para-64 and para-
65, the Hon’ble Apex Court has held which are given hereunder:-
“64. In the decision in Duggi Veera Venkata Gopala
Satyanarayana v. Sakala Veera Raghavaiah [Duggi Veera Venkata Gopala
Satyanarayanav. Sakala Veera Raghavaiah, (1987) 1 SCC 254] this Court
agreed with the observation made in the earlier decision in Hasmat Rai v.
Raghunath Prasad [Hasmat Rai v. Raghunath Prasad, (1981) 3 SCC 103]
that any amount of proof offered without pleadings is generally of no
relevance. I Duggi Veera Venkata Gopala Satyanarayana [Duggi Veera
Venkata Gopala Satyanarayana v. Sakala Veera Raghavaiah, (1987) 1 SCC
254] with respect to the aforesaid observations in Hasmat Rai [Hasmat Rai v.
Raghunath Prasad, (1981) 3 SCC 103] this Court held, “we respectfully agree
with the above statement of law and reiterate the same”. Further, it is also
relevant to refer to para 85.6 of the decision in Union of India v. Ibrahim
Uddin [Union of India v. Ibrahim Uddin, (2012) 8 SCC 148 : (2012) 4 SCC
(Civ) 362] , which reads thus : (Ibrahim Uddin case [Union of India v.
Ibrahim Uddin, (2012) 8 SCC 148 : (2012) 4 SCC (Civ) 362] , SCC p. 182)
“85.6. The court cannot travel beyond the pleadings as no party can lead
the evidence on an issue/point not raised in the pleadings and in case, such
evidence has been adduced or a finding of fact has been recorded by the
court, it is just to be ignored. Though it may be a different case where in
spite of specific pleadings, a particular issue is not framed and the parties
having full knowledge of the issue in controversy lead the evidence and the
court records a finding on it.”
Patna High Court FA No.425 of 1990 dt.02-02-2026
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65. In such circumstances, we have absolutely no hesitation to hold
that the original defendants failed to raise sufficient and appropriate
pleadings in the written statement that they have better right for possession
of the suit properties. No amount of proof offered without appropriate
pleadings would have any relevance. The courts below have rightly relied
on the evidence of PW 5 to hold forceful dispossession of the defendants
from ‘B’ schedule property. Nothing is on record to uphold the said
finding.”
58. In the instant case, the evidences adduced by the
parties, especially the plaintiffs, to prove that Ramjhari was not the
daughter of Devnarayan have brought a Zarpeshgi deed which,
according to the plaintiff's oral evidence, was executed by Hitlal
Mahato in favour of Mohar. It is well settled that no amount of
evidence cannot remove the defect of pleading. The facts which
are not pleaded cannot be proved by any amount of evidences.
59. Regarding the exhibits (Ext- B and Ext-D/1), it has
been stated by the plaintiffs that the ceiling cases were filed on
wrong advice. If this piece of evidence is admitted, then also there
is no evidence that the averments made in those ceiling cases were
false. Only that the cases were filed on wrong advice, but it is not
specifically the case of the plaintiff that the statements made by the
plaintiff in those ceiling cases are not true or against the real state
of affairs. In my view, these two documents sufficiently prove that
Ramjhari Devi was the daughter of Devnarayan Mahto. And she
being the daughter of Devnarayan Mahto has executed the sale
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deed with regard to the disputed land. As she was the daughter, she
has the right to sell it out.
60. The case of the plaintiffs is that the defendant No.1,
Ramjhari Devi, was a stranger to their family, is fully demolished
by the above exhibits (Ext-B and Ext-D/1) of the appellants-
defendants. Now, the other ground on which the learned trial court
has decreed the suit is that the plaintiffs have completed their title
by way of adverse possession. It is needless to reiterate that
regarding adverse possession, pleadings made by the plaintiffs are
insufficient and they do not disclose the manner or the period in
which the title was completed by adverse possession. There is not
only a lack of pleading on the point of adverse possession rather
there is no evidence as well. I am surprised how the learned trial
court has concluded without pleading and evidence that the
plaintiffs have completed their title by way of adverse possession.
61. Learned counsel for the plaintiff/respondents has
argued that in view of the provisions of CPC (Supra), the first
Appellate Court has got the same jurisdiction which the trial court
has and it can look into the materials and come to its own finding.
This is well-settled law that appeal is the continuation of the suit.
But the bases on which the plaintiffs have claimed title in this case
are two: First is that defendant no. 1 was a stranger to the family of
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the plaintiffs, as such sale deeds executed by her did not confer
any right or title to the defendant nos. 2 and 3. And second is that
plaintiffs have completed their title by way of adverse possession.
62. On both scores, the plaintiffs have not been able to
prove their case either by way of oral or documentary evidence.
63. Learned trial court has relied mostly on oral
evidences and has relied on the Zarpeshgi deed executed by Hitlal
Mahato in favor of Mohar which was not in the pleading, and has
assumed on the basis of oral evidence that Ramjhari Devi was not
the daughter of Devnarayan Mahato. This assumption of the trial
court is not based on the material on record. And at this stage,
from perusal of all the materials, especially the exhibits ( Ext-B
and Ext-D/1), it is amply clear that the plaintiffs have admitted that
Ramjhari Devi was the daughter of Devnarayan Mahto.
64. From the above discussions, it is clear that Ramjhari
Devi was the daughter of Devnarayan Mahto, and as she was the
daughter of Devnarayan Mahato, she has executed the sale deeds
in favor of Defendant Nos. 2 and 3, which is legal and binding.
And as far as the claim of the plaintiffs regarding title on the basis
of adverse possession is concerned, the same is not properly
pleaded and proved.
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65. Therefore, the findings of the learned trial court are
erroneous and perverse. As such, the judgment and decree of the
learned trial court is hereby set aside.
66. In result, this appeal is allowed.
67. Office is directed to draw decree accordingly.
68. Let the records of the learned trial court with a copy
of this judgment be sent to the learned trial court.
(Ashok Kumar Pandey, J)
Shubham/-
AFR/NAFR NAFR
CAV DATE 04.11.2025
Uploading Date 02.02.2026
Transmission Date 02.02.2026
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