Ram Krishna Yadav, Son of Keshwar Yadav v. Jai Prakash Yadav, Son of Birendra Yadav & Ors.

Station and District- Katihar. Plaintiff/Respondent no.1/Respondent 1st Party—Respondents.

2. Kartik Prasad Singh. 3. Ganesh Prasad Singh. Both Sons of Late Bholanath Singh. By caste Hindu occupation- cultivation, resident of Mohalla- Mirchaibari, Barmasia, Police Station and District- Katihar. Defendant 1 and 2/Respondent no.2 & 3. 4. Most Debki Devi, Wife of Late Nandlal Singh. 5. Dilip Singh, Son of Late Nandlal Singh. Both caste-Hindu-occupation-cultivation, residing of Mohalla- Haveli, Gorhi Tola Saifganj, P.S.and District-Katihar. Defendant no.3 and 4/Respondent 4 & 5 ----Respondents-2nd set. ... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Shashi Shekhar Sharma, Adv. : Mr. Chitragupta Prasad, Adv. For the Respondent/s : Mr. Ragib Hassan, Sr.Adv. Mr. Bhola Prasad, Adv. Mr.Mukesh Kumar Jha ====================================================== CORAM: HONOURABLE MR. JUSTICE VIJAYENDRA NATH Mr. Tarun Prasad Mandal 2 Patna High Court SA No.473 of 2009 (10) dt.21-03-2012 10 21-03-2012 Heard the learned counsel appearing on behalf of the ORAL ORDER appellants.

2. The defendants are the appellants in this second appeal against the judgment of affirmance. The plaintiff filed the suit for declaration of title over the suit land and confirmation of possession and further for declaration that the municipal survey khatian as well as the municipal survey map, which included the suit land with the land of the defendants, are wrong. The plaintiff’s case was that the suit land comprising of the portions of Plot Nos. 220 & 221 belonged to Nandlal Singh and after his death his widow (defendant no.3) and his son (defendant no.4) inherited the same. The plaintiff is claiming on the basis of purchase from the defendant no.3. It is also the case of the plaintiff that the defendants who are purchasers of the adjacent plots have dispossessed the plaintiff during the pendency of the suit and therefore, the plaintiff has amended the plaint by claiming the relief for recovery of possession. The defendant nos.1 & 2 filed the written statement but thereafter they left participating in the proceeding of the suit. The defendant nos. 5 & 6 who are purchasers from the defendant nos. 1 & 2 have mainly contested the suit and have denied the assertions of the plaintiff in the written statement. It is the specific case of the defendants that the suit land was in possession of the vendors of the defendant nos. 1 & 2 after purchase 3 Patna High Court SA No.473 of 2009 (10) dt.21-03-2012 the defendant nos. 5 & 6 came in possession. The main plank of the case of the defendant nos. 5 & 6 is that the suit land has been included in the recent municipal survey khatian in M.S.Plot No. 723 and in the remark column, the possession of the contesting defendants has been shown and thus the defendant nos. 5 & 6 have also asserted acquisition of title over the suit land by adverse possession.

3. Both the courts below after hearing the parties and considering their evidence have come to the conclusion that the contesting defendants have failed to establish their claim of adverse possession over the suit land, and have also failed to establish their right, title and interest over the suit land. Both the courts below have also come to the finding that the contesting defendants have dispossessed the plaintiff during the pendency of the suit. On the basis of these main findings, the suit was decreed and the appeal filed by contesting defendants was dismissed.

4. Learned counsel appearing on behalf of the appellants has firstly submitted that both the courts below have committed error of law in not drawing adverse inference against the plaintiff who has failed to examine himself in the suit and thereby support his case. It has been urged that in view of Section 114(g) of the Evidence Act, the courts were bound to draw adverse inference against the plaintiff 4 Patna High Court SA No.473 of 2009 (10) dt.21-03-2012 and non-suit him on that score. It has also been contended that the finding on adverse possession as against the contesting defendants has been recorded ignoring the material evidence on record. The learned counsel has argued that contesting defendants, and prior to them their vendors, have been coming in possession adversely which fact is fully corroborated by the materials brought on record.

5. After the perusal of the judgment of both the courts below and considering the submissions of the learned counsel for the appellants, it is manifest that the contesting defendants have based their claim over the suit land mainly on the basis of adverse possession. However, both the courts below on the basis of appreciation of evidence have recorded the finding that the claim of adverse possession by the contesting defendants could not be established. Both the courts below have taken notice of the fact that in the written statement, there is no specific pleading regarding the date and the person against whom the defendants claimed to have acquired right by adverse possession. During the course of argument, no perversity could be pointed out in the finding of fact by both the courts below, which are based upon the appreciation of evidence of the parties and are in accordance with the principles of law. The non- examination of the plaintiff cannot be fatal to this case unless and until, it is established that the plaintiff did not deliberately examine 5 Patna High Court SA No.473 of 2009 (10) dt.21-03-2012 himself in the suit in order to withhold some fact personal to his knowledge. It is well settled that in every case, the court is not bound to draw adverse inference against the plaintiff, if he fails to examine himself in the suit, and the provision of Section 114(g) of Evidence Act also does not provide for the same. In this regard, the reliance can be placed upon the decision of the Apex Court by a three Judges Bench reported in AIR 1981 SC 2235(Pandurang Jivaji Apte. Vs. Ramchandra Gangadhar Ashtekar,(dead)by LRs. And Ors.) Moreover, this aspect has also been examined by both the courts below which have refused to draw adverse inference against the plaintiff on this ground with the finding that there are sufficient evidence on behalf of the plaintiff to sustain his case. As such, there is no force in the submission on behalf of the appellants that adverse inference must have been drawn against the plaintiff as he failed to examine himself in the suit.

6. The findings by both the courts below are based upon evidence on record and in accordance with the principles of law, and there is no perversity in the same. There is no substantial question of law arising for consideration in this appeal, which is accordingly, dismissed. Nitesh/- (Vijayendra Nath, J)