HONOURABLE MR. JUSTICE v. NATH ORAL JUDGMENT Date
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA First Appeal No.95 of 1987 =========================================================== 1. Dr. Shivshankar Choubey, son of late Barhmeshwar Nath Choubey. 2. Sri Nirmal Mumar Choubey, son of late Barhmeshwar Nath Choubey. 3. Sri Sushil Kumar Choubey, son of late Barhmeshwar Nath Choubey. 4. Sri Anil Kumar Choubey, son of late Barhmeshwar Nath Choubey. 5. Rakshpato Kuer widow of late Barhmeshwar Nath Choubey, all are resident of village Choubey Chapra, P.S. Naldi District-Balia(U.P.) at present Judge Bazar, Bihiya, P.S. Bihiya District-Bhojpur. Versus 1. Kedar Singh son of Hardwar Singh Vilalge Haradian P.S. Jagdishpur District- .... .... Appellant/s Bhojpur. 2. Sheopujan Singh son of Sheodeni Singh village Bagen P.S. Brahmpur District- Bhojpur. 3. Sukhdeo Singh son of late Shri Kumar Singh resident of village+post Barnawan , P.S. Ayar, District-Bhojpur. 4. Mostt. Ram Sakhi Kuer wife of late Shri Rang Narayan Singh, resident of village and Post Kesar, P.S. Bhagwanpur, District-Kaimur at Bhabua. 5. Kalawati Devi wife of Shri Nagendra Kumar Singh, resident of village +Post Ruppur P.S. Mohania, District-Kaimur at Bhabua. 6. Bidyawati Devi wife of Shri Rishavdeo Singh, resident of village +post Umapur Saraiyan, P.S. Bhagwanpur, District-Kaimur at Bhabua. 7. Pramila Singh wife of Shri Sanjay Kumar Singh, resident of village Bhabhua, ward no. 2 behind Bhabua Municipality office P.S. Bhabua District-Kaimur at Bhabua. .... .... Respondent/s =========================================================== Appearance : For the Appellant/s : Mr. A.B.Ojha For the Respondent/s : Mr. K.N. Choubey, Sr. Adv. Mr. Girija Nandan Singh Mr. Krishna Bihari Mr. Tarkeshwar Nath Singh Mr. Sachida Nand Singh =========================================================== CORAM: HONOURABLE MR. JUSTICE V. NATH ORAL JUDGMENT Date: 21-06-2013 Patna High Court FA No.95 of 1987 dt.21-06-2013 2 Taking exceptions to the judgment and decree dated 19th December 1986 passed in T.S. No. 36 of 1983 by Sub-Judge-II, Arrah whereby the suit has been decreed, the defendant 1st set (now deceased, through L.R.) has filed this appeal. The plaintiffs have filed the suit for declaration of their title over the suit property described in the plaint on the basis of the sale deeds executed in their favour by the defendant no. 2 Raj Kumari Devi and also for confirmation of their possession and alternatively, in case of dispossession, for recovery of possession. The plaintiffs have also, besides the relief for permanent injunction against the defendants, have prayed for demarcation of the suit land by fixing pillars on all sides of the suit land. The plaintiffs’ case, in short, is that Narain Sah was the title holder of 4 acres 8 decimal of land including the suit land which were auction sold in execution of the rent decree obtained by the ex landlord. It is the further case of the plaintiffs that Most. Sugia widow of late Narain Sah had filed a suit in the year 1943 assailing the rent decree and auction sale of the suit land and other lands but later on she left pursuing the said suit accepting the validity of the auction sale and title and possession of auction purchaser, and later on Laxman Sah who was Bhagina of late Narain Sah filed T.S. No. 44 of 1950 against the mortgagers, auction purchasers and the ex landlord in
Legal Reasoning
Patna High Court FA No.95 of 1987 dt.21-06-2013 3 which a compromise decree was passed whereby the suit land area 54 decimal was given to Laxman Sah and he came in possession thereof. The plaintiffs’ further case is that the defendant no. 2 Raj Kumari Devi inherited the property of her father Laxman Sah after his death and she has transferred the suit land by sale to the plaintiffs. It is the case of the plaintiffs that defendant no. 1 has been wrongly claiming title over the suit land on the basis of purchase from Most. Sugia although she had lost title and possession over the suit land after its auction sale in 1939. The plaintiffs have thus claimed their exclusive title and possession over the suit land. The defendant no. 1 by filing the contesting written statement in the suit has asserted that the description of 4 acres 8 decimal land of Narain Sah as given in the plaint is wrong and vague. It is the case of the defendant that plot no. 370 and 371 is situated in village-Bihiya and had been recorded in cadastral survey in khata no. 106 whereas the lands of plot no. 116 and 117 are situated in village- Jungle Dawan and had been recorded in the cadastral survey in khata no. 124. The defendant has further asserted that the T.S. No. 44 of 1950 was not with regard to any land of village-Bihiya and in fact it was for the land of village-Dawan and had also been wrongly filed by Laxman Sah as plaintiff claiming to be the reversionary heir although he had no vested interest in the suit land. It is also the case of the Patna High Court FA No.95 of 1987 dt.21-06-2013 4 defendant that in any view of the matter, the benefit of the said compromise decree by which the auction sale with regard to the suit land had been set aside, would legally enure to Most. Sugia who had been coming in possession over the same, and her such right also became absolute after the passing of the Hindu Succession Act, 1956. The defendant has also denied the status of Raj Kumari Devi (defendant no. 2) as daughter of Laxman Sah. The defendant has claimed that he had purchased the land of plot no. 370 and 371 by sale deed dated 17.01.1958 executed by Most. Sugia Devi in the benami name of Sachidanand Tiwari and is continuing in possession over the same along with other lands which he had purchased from Bihar Bank by sale deed dated 27.08.1956 as the lands of plot no. 370 and 371 stood amalgamated on the spot with those other lands. The defendant has also claimed his title over the suit land on the basis of adverse possession. The defendant no. 2 Raj Kumar Devi has filed her separate written statement supporting the case of the plaintiffs. In view of the rival pleadings of the parties, the learned court below framed altogether 15 issues out of which the issue nos. 9, 10, 11, 12, 13 and 14 have been tried as material issues which, as framed, are as follows:- Issue no. 9:- Is the suit barred by constructive res judicata? Patna High Court FA No.95 of 1987 dt.21-06-2013 5 Issue no. 10:- Whether the defendant no. 2 Smt. Raj Kumari Devi is daughter of Laxman Sah? Issue no. 11:- If the plaintiffs have got subsisting right, title and interest in the suit properties? Issue no. 12:- If the plaintiffs have got possession over the suit lands? Issue no. 13:- If the suit barred by adverse possession? Issue no. 14:- If the suit is contested by the defendant no. 1? After scrutinizing the evidence of the parties, the learned court below decided the issue no. 10 in favour of the plaintiffs and has held that the defendant no. 2 Raj Kumari Devi is daughter of Laxman Sah. The claim of the defendant no. 1 over the suit land on the basis of adverse possession has also been negatived and the issue no. 13 has accordingly been decided in favour of the plaintiffs. The learned court below has further found that the plaintiffs have got subsisting right, title and interest over the suit land and are in possession over the same and accordingly issue nos. 11 and 12 have also been decided in favour of the plaintiffs. The defendant’s plea of res judicata also did not find favour with the learned court below and has been further held that the suit has in fact not been contested by the defendant no. 1 because Rambriksh Tiwari who contested the Patna High Court FA No.95 of 1987 dt.21-06-2013 6 suit on behalf of defendant no. 1 was not his duly constituted attorney with regard to the suit land. On the basis of the aforesaid findings, the suit has been decreed by the impugned judgment and decree.
Legal Reasoning
Mr. A.B. Ojha, the learned senior counsel appearing for the appellant, at the out set, has submitted that the finding with regard to the status of the defendant no. 2 Raj Kumar Devi as daughter of late Laxman Sah is not being assailed in this appeal but has propounded that the findings on other issues in the impugned judgment and decree are not sustainable either in law or on facts. It has been urged that the learned court below has ignored the material evidence on record which clearly establish that the defendant no. 1 has given the power of attorney to Rambriksh Tiwari for the suit land and therefore the finding that the suit has not been contested by the defendant no. 1 is demonstratively erroneous. Criticizing the impugned judgment further the learned senior counsel has submitted that the T.S. No. 44 of 1950 could not have been maintained by Laxman Sah in the capacity of the reversioner of Late Narain Sah during the life time of his widow Most. Sugia. It has thus been urged that the compromise decree in the said suit could not be binding upon Most Sugia who was also impleaded as defendant no. 6 in the said suit and against her, the suit was dismissed. Putting much emphasis Patna High Court FA No.95 of 1987 dt.21-06-2013 7 on the identity of the suit land, the learned senior counsel has urged that the learned court below has not taken into notice the distinction between the land situated in village Jungal Dawan and the lands situated in village Bihiya. It has been pointed out that the lands subject matter of T.S. no. 44 of 1950 filed by Laxman Sah were the lands of village Dawa whereas the present suit has been filed with regard to the lands of village Bihiya. The learned counsel has also submitted that the decree passed in T.S. no. 113 of 1963 had not been executed and delivery of possession had not been effected, and in support thereof has relied upon the report of the pleader commissioner Atama Nand Sahaya appointed by the executing court for execution of the decree passed in the said suit. On this basis it has also been canvassed that the decree which could not be executed is a void decree and has no impact on the rights of the parties as the findings on the issues therein would not operate as res judicata. Per contra, Mr. K.N. Choubey, the learned senior counsel for the plaintiff-respondents has submitted that the learned court below has committed no error in law or on facts and has passed a well reasoned judgment perfectly in accordance with law. It has been urged that the bar of res judicata in the trial of the issues in this suit is glaring from the perusal of the judgment passed in T.S. no. 113 of 1963 where also the defendant no. 1 has asserted his title and Patna High Court FA No.95 of 1987 dt.21-06-2013 8 possession over the suit land on the basis of the sale deed dated 17.01.1958 by Most. Sugia in his favour. Elaborating his submissions Mr. Choubey has argued that Most. Sugia had earlier filed T.S. No. 212 of 1943 challenging the auction sale and delivery of possession over her lands including the suit land and the averments made in the plaint of that suit clearly reveal that the present suit land had been included in the auction sale and the auction purchasers had been put in possession thereupon. Pointing out that Most. Sugia later on abandoned the said suit by filing a petition wherein she recognized the validity of the auction sale and accepted the title and possession of the auction purchaser in the lands subject matter of the auction sale, the learned senior counsel has submitted that Most Sugia had thereby effaced herself from the title and possession over those lands which included the suit land as far back as in the year 1944 itself and thereafter she was left with no right, title and interest in the suit land to transfer the same in favour of the defendant no. 1. It has been propounded that after the acceptance of absence of her right, title and interest in the auction sold lands which included the suit land it was her least concern whether the auction purchasers transferred the auction purchased land in favour of Laxman Sah by compromise in T.S. No. 44 of 1950 and at the most those auction purchasers alone are entitled to raise any objection to the claim of title and possession Patna High Court FA No.95 of 1987 dt.21-06-2013 9 over the suit land by Laxman Sah or his heir or the transferees claiming through either of them. The learned senior counsel has thus concluded that the learned court below has considered the entire material evidence on record and the findings recorded in the suit are based upon the appreciation of the evidence in legally correct perspective and no interference is warranted. In view of the rivalised contentions of the parties, the following points emerge for determination in this appeal:- (i) Whether Most Sugia was left with any right, title and interest in the suit land after its admitted auction sale in the execution of the rent decree in the year 1939 and also after abandoning the T.S. No. 212 of 1943 filed by her accepting the title and possession of the auction purchasers over the auction sold land including the suit land? (ii) Whether the defendant no. 1 has acquired valid right, title and interest in the suit land on the basis of the sale deed dated 17.01.1958 executed by Most. Sugia in his favour? (iii) Whether the defendant no. 1 is legally entitled to re-agitate the issue pertaining to the title over Patna High Court FA No.95 of 1987 dt.21-06-2013 10 the suit land which has been decided against him after contest with the predecessor-in- interest of the plaintiffs in earlier T.S. No. 113 of 1963? (iv) (v) Whether the defendant no. 1 has contested the suit through his power of attorney holder? Whether the impugned judgment and decree is legally sustainable on facts and in law? For convenience all the points are taken up together for determination. The suit land, as described, in the plaint has an area of 54 decimal recorded in plot no. 691 and 691/2541 of khata no. 709 and 405 Ka of village-Bihiya District Bhojpur. It is not in dispute between the parties that the suit land originally belonged to Narain Sah who died in the year 1932 leaving behind his widow Most. Sugia Devi. It has also not been denied by the defendant no. 1 that Laxman Sah was the Bhagina of Narain Sah rather this fact stands corroborated by Ext. V-1 which is a registered deed of Ekrarnama by way of family arrangement jointly executed by Most Sugia and Laxaman Sah and has been brought in evidence on behalf of the defendant no. 1. The plaintiffs have claimed their title over the suit land on the basis of the sale deeds executed by the defendant no. 2 Patna High Court FA No.95 of 1987 dt.21-06-2013 11 Raj Kumari Devi daughter of Laxman Sah in their favour in the year 1978. On the other hand, the defendant no. 1 has claimed his title over the suit land on the basis of his purchase from Most. Sugia by a registered sale deed in the year 1958. The Ext. 13, adduced in evidence on behalf of the plaintiffs, is the plaint of T.S. No. 212 of 1943 filed by Most. Sugia seeking declaration that the rent decree passed in rent suit no. 661 of 1938 by the court of Munsif-III, Arrah was null, void and not binding on the plaintiff and further for declaration that the defendant no. 4 and 5 did not acquire any right, title or interest by purchasing the suit land in auction sale in execution of the rent decree. It transpires from the perusal of the Ext. 13 that the total area of 4.8 decimal out of four plots had been described as the suit land in that suit. Those four plots were plot no. 116/2, area 18 decimal, plot no. 117/2, area 3.36 acres, plot no. 371/2, area 14 decimal and plot no. 370/3, area 40 decimal. It has been further mentioned that out of the four plots only plot nos. 116/2, area 18 decimal and 117/2 area 3.36 acres were under mortgage and sub-mortgage. The khata number of four plots had been mentioned as khata no. 128 of village-Jungle Dawan Pargana-Bihiya, P.S. Shahpur. The Ext. 14 is the petition filed by the plaintiff Most. Sugia Devi in the aforesaid T.S. No. 212 of 1943 on 12.07.1945. It would be pertinent to take into notice the statements made by Most. Patna High Court FA No.95 of 1987 dt.21-06-2013 12 Sugia in this petition which are as follows:- “eu fQnfo;k dks nj;kir ls ekyqe gqvk gS fo”oukFk jke o ryqdk jk; eqnky; uEcj 4 vkSj 5 us eqdnek 352 lu 1939 btjk; esa ,jkth rdjkjh dks lgh rkSj ij fuyke crkjh[k 18-07-39 dks [kjhndj ds mlij n[ky nsgkuh crkjh[k 26-5-40 dks ysdj mlds n[ky dCtk esa pyk vkrk gS-------------------------------------- ,sls gkykr esa eqdnek gktk esa eu fQnfo;k dks dke;kch dk lqjr utj ugha vkrk gSA eu fQnoh eqdnek gktk pykuk ugha pkgrh gS blfy, loky gktk nkf[ky dj mEehnokj ds eqdnek gktk [kkjht fd;k tk, ds gdjlh fQnfo;ku gksosA” The defendant no. 1 has nowhere denied the filing of the T.S. No. 212 of 1943 by Most. Sugia and also the statement made by her in the petition (Ext. 14) whereby she prayed for dismissal of the suit after accepting the title and possession of the auction purchasers Bishawanath Rai and Taluka Rai over the suit land. There is also no evidence on behalf of the defendant no. 1 that Most. Sugia ever retracted from her statement made in the petition (Ext. 14) or thereafter ever tried to revive her claim of title and possession over the aforesaid suit land acre 4.8 acres. In support of their case that Laxman Sah thereafter filed T.S. NO. 44 of 1950 assailing the rent decree and auction sale of the aforesaid 4.8 acres of land, the plaintiffs have adduced in evidence the compromise decree passed in the said suit as Ext. 12. It appears Patna High Court FA No.95 of 1987 dt.21-06-2013 13 from the perusal of Ext. 12 that besides the mortgagees from Narain Sah, the auction purchasers Bishawanath Rai and Taluka Rai had been also impleaded as defendant no. 3 and 4 in the suit and Most. Sugia had been impleaded as defendant no. 6. The area of the suit land had been mentioned as 4.8 acres out of four plots which were the same as mentioned in the plaint of T.S. no. 212 of 1943 (Ext. 13) earlier filed by Most. Sugia with the only differences that the khata number was mentioned as khata no. 128 in the suit filed by Most. Sugia whereas in this suit the khata number had been mentioned as 124/54 of village-Jungle Dawan. From this Ext. 12, it transpires that the T.S. No. 44 of 1950 had been disposed of on the basis of compromise whereby the plaintiff Laxman Sah had been given the lands of plot no. 371/2 area 14 decimal and plot no. 370/3 area 40 decimal and the remaining two plots i.e. plot no. 116/2 and 117/2 total area 3.54 decimal were allowed to be retained by the auction purchasers defendant no. 3 and 4. Further, the auction sale and delivery of possession with regard to 54 decimal of land given to the plaintiff Laxman Sah were agreed to have been nullified to that extent. This compromise decree has been passed on 02.07.1951 by the court of Munsif-III, Arrah. Another important documentary evidence (Ext. 17 and 18) on behalf of the plaintiffs are the judgment and decree of T.S. no. 113 Patna High Court FA No.95 of 1987 dt.21-06-2013 14 of 1963 filed by Laxman Sah in which the present defendant no. 1 Barmeshwarnath Choubey was impleaded as defendant no. 5 and his power of attorney holder Rambriksh Tiwari was also impleaded as defendant no. 6. It becomes transparent from the perusal of these two exhibits that the said suit (T.S. No. 113 of 1963) was filed by the plaintiff Laxman Sah for declaration of his title over the suit land and for removal of encroachment made by the defendant. The suit land had been described as 65 kari in the southern part of plot no. 370/3 and 53 kari in the western part of plot no. 371/2 of khata no. 106/24 of village Bihiya Jungle, Paragna-Bihiya, P.S. Bihiya District- Shahabad. As this T.S. No. 113 of 1963 was clearly between the parties of the present suit i.e. the plaintiffs’ vendor’s father Laxman Sah as plaintiff in that suit and the present defendant no. 1 as the contesting defendant, it would be pertinent to consider the judgment (Ext. 18) of that suit containing the cases of the respective parties, the issues arising between them and the findings thereupon. Laxman Sah as plaintiff of that suit had claimed that the suit plots (the plot no. 370/3 and 371/2) originally belonged to Narain Sah; that the two plots were auction sold in execution of a rent decree; that Most. Sugia widow of Narain Sah filed a suit challenging the rent decree and auction sale of the suit land but later on accepted the title and possession of the auction purchaser over the auction sold land and Patna High Court FA No.95 of 1987 dt.21-06-2013 15 prayed for dismissal of the suit; that Laxman Sah thereafter filed T.S. No. 44 of 1950 challenging the rent decree and auction sale and the suit was disposed of in terms of the compromise with the auction purchasers by which Laxman Sah was given 54 decimal of the two plots i.e. plot no. 370/3 and 371/2 and that the defendant Barmeshwarnath Choubey had not acquired title and possession by his purchase of the suit land from Most. Sugia. The defendant no. 1 Barmeshwarnath Choubey in that suit contested the claim of the plaintiff on the pleas inter alia that Most Sugia continued in possession of the suit land even after the rent decree and auction sale and had validly sold the suit plots to the defendant Barmeshwarnath Choubey who had purchased it in the benami name of Sachidanand Tiwari by registered sale deed dated 17.01.1958 and that the filing of the petition by Most. Sugia praying for dismissal of the suit was the fraudulent act of the plaintiff Laxman Sah and the compromise decree passed in the T.S. No. 44 of 1950 was a collusive decree which the plaintiff Laxman Sah obtained in collusion with the auction purchasers. The learned court framed specific issue with regard to the title of the plaintiff Laxman Sah as issue no. 5 which reads “Has the plaintiff got subsisting title to the suit land? If so is the plaintiff entitled to get a decree for recovery of possession after removal of the encroachment.” Patna High Court FA No.95 of 1987 dt.21-06-2013 16 It further appears from the judgment (Ext. 18) that both the plaintiff Laxman Sah and the defendant Barmeshwarnath Choubey led their evidence on this issue and on scrutiny of the evidence it has been found by the learned court that Most Sugia’s title over the suit land stood extinguished after the auction sale of the suit lands and the dismissal of the suit filed by her. It has been further held that the plaintiff Laxman Sah had acquired valid title and possession over the suit land by virtue of the compromise decree in T. S. No. 44 of 1950 and accordingly the suit filed by the plaintiff Laxman Sah was decreed. Further from Ext. 21, it appears that the title appeal no. 101 of 1968 filed by Sachidanand Tiwari challenging the judgment and decree (Ext. 17 and 18) was dismissed. These facts inevitably lead to the conclusion that the issue of title and possession with regard to 54 decimal of the present two suit plots has already been finally determined between the plaintiffs’ vendor and the defendant Barmeshwarnath Choubey and there is, thus, substance in the submission on behalf of the plaintiff-respondents that the issue of title and possession over the suit land cannot now be allowed to be re- agitated by the defendant Barmeshwarnath Choubey. Faced with this fact-situation, Mr. Ojha, the learned senior counsel for the appellant has tried to wriggle out by putting emphasis on the identity of the suit land and further has also submitted that a Patna High Court FA No.95 of 1987 dt.21-06-2013 17 decree which is void cannot operate as res judicata. It has been proponed that Laxman Sah, the father of the vendor of the plaintiff, did not acquire any right title and interest over the suit land on the basis of the compromise decree in T.S. No. 44 of 1950 as the lands in T.S. No. 44 of 1950 which were given to Laxman Sah were the lands of village-Jungle Dawan whereas present suit land is of village- Jungle Bihiya. On this basis, it has been further argued on behalf of the appellant that the plaintiffs’ claim of acquiring title over the present suit land on the basis of purchase from the daughter of Laxman Sah has no legs to stand because Laxman Sah himself had no title over the suit land. After consideration, this submission on behalf of the appellant appears to have been made in desperation. From the judgment of T.S. No. 113 of 1963 (Ext. 18), it does not appear that the defendant Barmeshwarnath Choubey ever raised this objection and resisted the claim of title by Laxman Sah on the suit plots on this ground also. The fact that the present two suit plots i.e. plot no. 691, 691/2541 total area 54 decimal have been carved out from the C.S. plot no. 370 and 371 is apparent from the different orders passed by the survey authorities particularly Ext. F-1, adduced in evidence in the suit on behalf of the defendant no. 1. Moreover, it is nowhere the case of the defendant Barmeshwarnath Choubey that Narain Sah or Patna High Court FA No.95 of 1987 dt.21-06-2013 18 for that matter his widow Most. Sugia had 54 decimal land in plot no. 370 and 371 in village Dawan or Jungle Dawan as well as further 54 decimal land bearing the same two plot numbers in village Jungle Bihiya. Although, the D.W. 18 Rambriksh Tiwari (power of attorney holder of the defendant-Barmeshwarnath Choubey) in his deposition has tried to make out such a case by stating that the plot no. 370 and 371 in village-Bihiya is distinct from plot no. 370 and 371 of village- Jungle Dawan. But in absence of specific pleading in this regard and corroborating evidence thereof this statement on behalf of the defendant loses its relevance. The falsity of such a case on behalf of the appellant is also emphasized from the fact that such a plea was not raised by him in the previous litigation i.e. T.S. No. 113 of 1963 where the issue of title and possession over the suit plots was directly and substantially in issue between the parties. It has never been the specific case of the defendant-appellant either in the previous suit or in the present suit that Narain Sah or Most Sugia ever possessed the two plots no. 370 and 371 with the same area both in village Jungle Dawan and village-Jungle Bihiya or Bihiya (accepted by the D.W. 18 that Jungle Bihiya and Bihiya are the same village). This fact becomes all the more important when the claim of title over the suit land by both the contesting parties flows from the admitted original title holder Narain Sah. The D.W. 18 Rambriksh Tiwari has further Patna High Court FA No.95 of 1987 dt.21-06-2013 19 admitted in his deposition that there had been litigation between Laxman Sah and Barmeshwarnath Choubey with regard to the suit land before the survey authorities and also admitted in paragraph-20 that T.S No. 113 of 1963 filed by Laxman Sah against Barmeshwarnath Choubey was with regard to the present suit land. There remains, thus, no doubt that the defendant Barmeshwarnath Choubey never called in question the identity of the suit land and instead advanced his claim on the basis of title derived from Most. Sugia by purchase. There is thus no difficulty in holding that the submission with regard to the identity of the suit land on behalf of the appellant has got no substance and is accordingly rejected. It is further held that this plea on behalf of the defendant-appellant Barmeshwarnath Choubey is also barred by constructive res judicata as he had failed to raise this plea as a ground of his defence in the previous T.S. No. 113 of 1963 for the same suit land instituted by the father of the plaintiffs’ vendor and he cannot be allowed to re-agitate this issue which has been settled by the prior litigation. The submission on behalf of the defendant-appellant that the decree passed in T.S. No. 113 of 1963 is a void decree as it has not been executed, is equally devoid of merit for the reason that the finding regarding extinguishment of the title of Most. Sugia over the suit land cannot become nullity for the non-execution of the said decree. Patna High Court FA No.95 of 1987 dt.21-06-2013 20 Moreover, the report of the pleader commissioner (Ext. 22) in Execution Case No. 171 of 1968, filed for execution of the decree of T.S. No. 113 of 1963, shows that the delivery of possession in fact was effected. In view of the aforesaid premised reasons and discussions, it is held that the defendant-appellant Barmeshwarnath Choubey did not acquire valid title and possession over the suit land by his purchase from Most. Sugia as Most. Sugia had been left with no title and possession over the suit land in the year 1958 when she had transferred the same to the defendant-appellant. It is further held that the plaintiffs have acquired valid title and possession over the suit land by their purchase from the defendant no. 2 Raj Kumari Devi who inherited the same after the demise of her father Laxman Sah. The finding by the learned court below in this regard is, accordingly, upheld. Another controversy between the parties is with regard to the fact as to whether the defendant no. 1, in fact, has contested the suit. It is not in dispute between the parties that the suit has not been contested by the defendant no. 1 Barhmeshwar Nath Choudhary rather it has been contested by Rambriksh Tiwari on his behalf on the basis of a general power of attorney, said to have been executed by the defendant no. 1 Barhmeshwarnath Choubey. The learned court Patna High Court FA No.95 of 1987 dt.21-06-2013 21 below has come to the finding that the general power of attorney (Ext. E-1) dated 26.09.1974 did not contain the suit plot and therefore the power of attorney holder Rambriksh Tiwari was not legally entitled to contest the suit in that capacity on behalf of the defendant no. 1. Assailing the said finding, it has been submitted on behalf of the appellant that the power of attorney dated 26.9.1974 (Ext. E-1) has been executed by the defendant no. 1 in favour of Ram Briksh Tiwari with regard to khata no. 404 for the lands of village Bihiya and khata no. 1111 for the lands of village Jungal Dawan. Referring to Ext. F/1 (also marked as Ext. Y-2) and Ext. Q/1 (which are the report and order passed by the survey authorities) it has been pointed out that the suit plots have been included in the khata no. 404. From the perusal of the plaint, it transpires that in the schedule of the plaint the disputed land has been described as 54 decimal of land in khata no. 709 plot no. 691 of village Bihiya P.S. Bihiya District-Bhojpur. Further khata no. 405 (K) has also been mentioned below khata no. 709 and plot no. 691/2541 has also been mentioned in the said schedule. From the pleadings of the parties, it is evident that the suit land was the part of C.S. plot no. 370 and 371. It appears from the record that the defendant no. 1 Barhmeshwarnath Choubey had filed an objection under 103 (A) of the B.T. Act and the report by the Assistant Survey Officer had been submitted in the Patna High Court FA No.95 of 1987 dt.21-06-2013 22 said case which has been adduced in evidence as Ext. F/1 in this suit. From the perusal of the said report, it transpires that the present plot no. 691 and 691/2541 have been found to have been carved out of C.S. plot no. 370 and 371 also and it has been further found that the present plot no. 691 and 691/2541 stood entirely amalgamated on the spot. It has also been reported that on the spot there was no separate existence of plot no. 691/2541. The Ext. Q/1 is the order passed in the proceeding under Section 103 (A) of the B.T. Act in the objection case no. 33 filed by Barhmeshwarnath Choubey. From the perusal of the different orders passed in the said proceeding the fact becomes evident that the plot no. 691 and 691/2541 have been carved out of C.S. plot no. 370 and 371. From the copy of the survey khatiyan (Ext. Y/1) it appears that plot no. 691 has been recorded in khata no. 404 in the name of defendant no. 1 Barhmeshwar Nath Choubey. On behalf of the plaintiff-respondents no evidence or material could be pointed out contrary to the facts mentioned in the aforesaid documentary evidence. Thus, there is no difficulty in coming to the conclusion that the suit plot was initially the part of khata no. 404 of the defendant no. 1 Barhmeshwarnath Choubey. The learned court below has ignored the relevant evidence before coming to the finding that the power of attorney (Ext. E/1) did not relate to the said plot. Accordingly, it is held that the defendant no. 1 has Patna High Court FA No.95 of 1987 dt.21-06-2013 23 contested the suit through his power of attorney holder Ram Briksh Tiwari and the finding to the contrary by the learned court below is set aside. In result, I do not find any merit in this appeal, which is, accordingly, dismissed and the impugned judgment and decree are upheld. In the facts and circumstances of the case, there shall be no order as to costs. Devendra/- (V. Nath, J)