Sogarath Paswan & Ors. v. Ram Payare Mahto

The plaintiff is the appellant herein and is aggrieved by the judgment and decree dated 31.07.1993 passed by learned First 2 Patna High Court SA No.644 of 1993 P2 / 11 Additional District Judge, Samastipur in Title Appeal No. 12/1990/31/1992 whereby he has affirmed the judgment dated

22.12.1989 and the decree dated 04.01.1990 passed in Title Suit No. 52 of 1981 by the learned Munsif, Dalsinghsarai in favour of respondents /plaintiffs.

2. The dispute over the suit land is between the vendees who claim to have purchased the suit land from the heirs of Ex-Landlords on the one part and descendants of Late Bannu Paswan who was in service as Barahil of the Ex-Landlord and in whose name the suit land was recorded as Khidmati Jagir (in lieu of service) in C.S. Khatian. The former are Plaintiffs / their legal heirs (Respondents herein) whereas the later are Defendants / their legal heirs (appellants in the present Appeal). The plaintiffs sought for a declaration of title of recovery of possession by removal of the huts and bricks over plot No. 2224 R.S. Plot No. 3774 appertaining to C.S. Khata No. 271 in Tauzi 3903/2010 for an area of 3 Khata 13 Dhurs situated at village Paran P.S. Sarairanjan District Samastipur.

3. The plaintiffs claimed that C.S. Plot No. 2224 admeasuring 1 Bigha 12 Dhurs was recorded in the name of Bannu Paswan in lieu of his service as Barahill to the Ex-landlord. They pleaded that Bannu Paswan left service of Ex-landlord and thereafter the Ex- landlord brought a suit vide Title Suit No. 598 of 1906 in the Court of Munsif, Samastipur in which decree was passed on 27.11.1906. In an 3 Patna High Court SA No.644 of 1993 P3 / 11 execution case, delivery of possession was affected on 03.12.1908 in favour of the Ex-landlord and since then the Ex-landlords were coming in possession over the suit land and Bannu Paswan had no concern with the said land whereafter. Subsequent to this, there was a partition in the family of the Ex-landlord and the plot in question was allotted to Hamidu Nissa wife of Sheikh Abdul Sayeed. Hamidu Nissa executed Atainama (deed of gift) in favour of her daughters. Half share was given to the four sons of her third daughter who was no more on the date of execution of Atainama and the remaining was given equally to two other daughters, namely, Bibi Hazra and Bibi Haseena. Sayeedur Rahman is one of such four grandsons of Bibi Hamidunisa who is said to have sold the suit land measuring 10 Kathas and 6 Dhurs to the plaintiffs by virtue of a sale deed dated

03.06.1965. They paid rent to the State of Bihar after obtaining receipt and they have been recorded in the original survey finding their possession over the suit land. The case of the plaintiff before the Trial Court was that the defendants claiming to be descendants of Khatiyani Raiyat Bannu Paswan started interfering with the peaceful possession over the suit property and in their absence on 12.04.1981 they threw their huts and bricks over the suit property.

4. The defendants appeared and filed written statement to the effect that the suit land was in possession of Bannu Paswan before cadestral survey and his descendants were coming in possession over 4 Patna High Court SA No.644 of 1993 P4 / 11 the suit land. They denied that Bannu Paswan ever left barahilgiri and pleaded that the said Bannu Paswan served as such till he was alive. They claimed that the vendor had no title and possession in the land to convey into the plaintiffs. It was pleaded that the entire C.S. plot No. 2224 measuring 1 Bigha and 12 Dhurs was in their possession and denied the story of dispossession and putting huts and bricks over the land as asserted by the plaintiffs. On the basis of pleadings in the plaint and those in the written statement, learned Trial Court framed altogether nine issues and came to the finding that the said Bannu Paswan had left Brahilgiri of Ex-landlord. A suit was filed by the Ex-landlords in the year 1906 and delivery of possession was taken over the suit land in the year 1908 by them and since then they and their family members had been coming in continuous possession over the suit land. The Trial Court also came to the finding that the suit land fell in the share of the vendor of plaintiff (Sayeedur Rahman) who got his name mutated and further that he had been dispossessed from the land in the year 1981 by the defendants. The Trial Court accordingly decreed the suit in favour of the plaintiffs.

5. The defendants filed appeal vide Title Appeal No. 12/1990/31/1992 against the said judgment and decree in the file of learned First Additional District Judge, Samastipur. Learned First Appellate Court, on the basis of evidence adduced in course of trial both oral and documentary, concurred with the findings of fact adding 5 Patna High Court SA No.644 of 1993 P5 / 11 that Bannu Paswan the ancestor of the defendants had no concern and possession over the suit land. It is against this judgment of learned First Appellate Court that the present Second Appeal has been filed.

6. This appeal was admitted for hearing on the questions of law as mentioned in order No. 9 dated 07.02.1997 which are being quoted herein below :- I. “Whether the judgment and decree passed by the Appellate Court against dead persons is nullity in view of the fact that no order for substitution was passed by the Appellate Court on the Substitution Petition filed on 16.06.1993 about the death of Parmeshwar Paswan who died on

31.05.1993 leaving behind the Appellants?” II. “Whether the Courts below are justified in law in accepting the Compromise Petition between Plaintiffs on the one hand and Defendants 6, 8 and 9 on the other particularly when the contesting Defendants have filed objection that the Compromise Petition was forged and fabricated on the ground that those Defendants 6, 8 and 9 did not appear or whether it was the duty of the court below to make enquiry under the provisions of proviso to Rule 3 of Order 23 C.P.C.?” III. “Whether in view of the fact that the land was given for tenant and he or his the recorded khidmatgiri descendants continued in possession after vesting the said land was excluded from operation of Section 6(i) of Bihar Land Reforms Act, 1950 and the vender of plaintiffs or plaintiffs acquired no title or possession as the possession of Defendants was found by the local authorities as well as Advocate Commissioner?”

7. So far as substantial question of law No. 1 as quoted above the same is not requited to be dealt any more in view of the fact that 6 Patna High Court SA No.644 of 1993 P6 / 11 legal heirs of Parmeshwar Paswan came to be substituted subsequently during the pendency of the second appeal which is an admitted position.

8. Before adverting to the second substantial question of law it would be apt to refer to the position of the parties before the Trial Court. The plaintiffs / the respondent 1st set are the purchasers of the suit land from Sayeedur Rahman. The defendants / respondents 2nd set are the descendants of Bannu Paswan. Bannu Paswan had one son Sheo Charan Paswan who died leaving behind four sons, namely, Babu Lal, Ramphal, Jivlal and Lal Chand. Ram Phal had three sons, namely, Sarju Paswan, Parmeshwari Paswan and Bhagwat Paswan. Parmeshwari Paswan was impleaded defendant No. 1 whereas his two sons, namely, Sogarath Paswan and Jinish Paswan were impleaded as Respondent Nos. 2 and 3. Bhagwat Paswan son of Ramphal Paswan and full brother of Parmeshwari Paswan was defendant No. 6. Descendants of Babu Lal, namely, Binda Paswan and Rambali Paswan was impleaded as defendants Nos. 4 and 5. Son of Jivlal Paswan, Prema Paswan was impleaded as defendant No. 7 whereas son of Lal Chand, namely, Dhanushi was defendant No. 8. Hari Lal son of Saryug Paswan who was full brother of Prameshwari Paswan was defendant No. 9. A compromise was entered into between the plaintiffs on the one hand and the branches of defendant Nos. 6, 8 and 9 on the other hand. The judgment and decree of the Trial Court was 7 Patna High Court SA No.644 of 1993 P7 / 11 not assailed by any branch of the descendant of Bannu Paswan except that of Prameshwari Paswan before the First Appellate Court. The present appeal under Section 100 of the Code has also been preferred on behalf of descendants of Prameshwari Paswan.

9. Learned counsel appearing on behalf of the appellant has submitted that the appellants had questioned the compromise petition itself as forged and fabricated and not valid in the eye of law for the reasons that it did not satisfy the provisions of Order 23 Rule 3 of the Code. He contended that the compromise petition did not bear the signature of the parties and further that compromise ought to have been recorded by the Court. He further submitted that once validity of the alleged compromise petition was questioned on the basis that it was forged and fabricated it was the duty of learned Trial Court, to have called the parties to such compromise petition and examined them. He submits that judgment and decree based on such compromise petition is not sustainable.

10. Order 23 Rule 3 of the Code deals with the compromise of suit which reads as follows:- “O. 23, R. 3-Compromise of Suit.- Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise [in writing and signed by the parties], or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith [so far as it relates to the parties 8 Patna High Court SA No.644 of 1993 P8 / 11 to the suit, whether or not the subject-matter of the agreement, compromise or satisfaction is the same as the subject-mater of the suit]: [Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question; but no adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment.]”

11. The requirement for a valid compromise of the suit as per the said provision is that the compromise should be in writing and signed by the parties. I have perused the said compromise petition dated 07.03.1986 and I find that the same bears signature / L.T.I. of defendants No. 6, 8 and 9. This is to be noted that the existence of the compromise petition had not been questioned by the said defendants No. 6, 8 and 9 at any stage.

12. Learned counsel for the appellant has referred to a judgment of the Apex Court reported in A.I.R. 2001 (1) SC 941 (Star Construction and Transport Co. V. India Cements Ltd.), to contend that unless all the ingredients of Order 23 Rule 3 of the Code were satisfied, the Court could not exercise power under the said Rule. In case of Star Construction and Transport Co. V. India Cements Ltd., the parties to the compromise had disputed the compromise itself and in that background the Apex Court observed that unless it was clearly established that such compromise had been entered into between the parties, the power under Order 23 Rule 3 of the code could not be 9 Patna High Court SA No.644 of 1993 P9 / 11 exercised. In the present case, however, the parties to the compromise agreement have not disputed the factum of compromise. In any view of the matter, I am of the view that the First Appellate Court has not adjudicated upon the lis between the parties on the sole basis of the said compromise entered into between the plaintiffs and plaintiffs/respondents first set and defendants 6, 8 and 9 who have been impleaded respondents No. 11, 13 and 14 in the present appeal.

13. Learned counsel has also referred to a judgment reported in A.I.R. 1992 P & H 96 Mani Lal Vs. Sabri Devi wherein it was held that the Court should allow to lead additional evidence if the compromise decree was obtained fraudulently. This decision in my opinion will not apply in the present case as no compromise decree was passed by learned Trial Court on the basis of the said compromise petition rather that was one of the factors before the Courts below in addition to other evidence on record for reaching to the findings under challenge. In such view of the matter, the findings of the Court below, taking into account the compromise petition and other circumstances cannot be said to be perverse or against materials available on record.

14. So far as third substantial question of law is concerned, learned counsel for the appellants submits that admittedly the land was given to Bannu Paswan, who was the recorded tenant for khidmatgiri before 1896 and there was no dispute that the appellants 10 Patna High Court SA No.644 of 1993 P10 / 11 were the descendents of said recorded tenant Bannu Paswan. The defendants-appellants’ case is based on their claim of continuous possession over the suit since prior to 1896 by way of rendering services to the family members of the Ex-landlord. He submits that the Courts below rejected the defendants’ case of continuous possession over the suit land without considering the documentary evidence brought on record which would go to show that the appellants were in possession over the entire plot No. 2224, Khata No. 271, Touzi No. 3903/10 measuring 1 Bigha and 12 Dhurs which includes the suit land measuring 3 khats and 13 Dhurs as found by the local authorities as well as the learned Advocate Commissioner.

15. As it would appear from the substantial question of law No. 3 so framed, it pre-supposes the fact that the appellants were in possession over the suit land as found by the local authorities. It appears, however, that learned Courts below taking into consideration, the decree in case No. 958/1906 and delivery of possession in Execution Case No. 2732/1907 (Exhibits 15 and 16) and other evidence came to a definite finding that after Bannu Paswan having left rendering service as Brahil of Ex-landlord, the Ex-landlords were put in Khas possession of the execution of the decree. As regards the plea raised on behalf of the appellants that the local authorities as well as learned Advocate Commissioner found the possession over the suit land, it has been rightly submitted on behalf of the Respondent 1st Set 11 Patna High Court SA No.644 of 1993 P11 / 11 that the plaintiffs had claimed that they were dispossessed in the year 1981 whereafter the suit was filed and there is no documentary evidence to support the case that the defendants were in possession prior to 1981.

16. Having heard learned counsel for the appellant and learned senior counsel appearing on behalf of the respondents and after having gone through the relevant materials available on record, I am of the view that the concurrent findings of fact arrived at by the Courts below needs no interference as there is neither any perversity in finding nor the substantial questions of law as framed by this Court can be said to have been wrongly decided by the Courts below. This appeal is, accordingly, dismissed.

17. Before parting with, I record my deep appreciation for the quality of assistance extended by Mr. Anshay Bahadur Mathur, learned counsel for the appellant as also by Mr. Raghib Ahsan, learned Senior Advocate for the respondents in course of hearing of this appeal. Saif/-N.A.F.R. (Chakradhari Sharan Singh, J.)