Motilal Singh v. Bashisth Singh

…. Defendant 2nd party-Respondent 2nd set-Respondent 2nd set. For the appellant :Mr. Mukesh Kant, Advocate. For respondents 2nd set :Mr. Raghav Prasad, Advocate. ----------- 16/

28.08.2009 Heard learned counsel for the appellant and learned counsel for respondent 2nd set, who are contesting parties.

2. This second appeal has been filed by plaintiff- appellant-appellant challenging judgment and decree dated

27.06.2008 by which the learned District Judge, Siwan, dismissed 2 Title Appeal No.37 of 2003 and affirmed judgment and decree dated 24.07.2003 by which the learned Subordinate Judge-V, Siwan, dismissed Title Suit No.364 of 2000 filed by the plaintiff- appellant for declaration of his title and other ancillary reliefs with respect to the suit properties.

3. Leaned counsel for the appellant vehemently challenges the judgments and decree of both the learned courts below and the findings of the courts upon which the said judgments were based. He has also stated that the learned court below has violated the provisions of Order XLI Rule 31 of the Code of Civil Procedure by not framing the issues to be considered in the title appeal. He has further claimed that learned courts below have wrongly relied upon the claim of defendants, which was based on Jamabandi and rent receipts in favour of the defendants-respondents, which were for the period during the pendency of the instant litigation and the only other material was a patta of 1925 and there is nothing to show that the said patta was ever acted upon, whereas the plaintiff’s claim was fully proved by the cadastral survey khatian, which was produced by the plaintiff- appellant. This contention of learned counsel for the appellant has been contested by learned counsel for respondent 2nd set.

4. From the facts and circumstances of the case as well as from paragraph-20 of the judgment of the learned court of appeal below it is quite apparent that it had formulated the question for deciding the title appeal, namely “whether the 3 plaintiff has been able to establish his title and possession over the suit land to get a decree?”. Thereafter the learned lower appellate court went on to decide the said question from paragraph-21 to paragraph-41 arriving at deferent findings with respect to the said question. In the said circumstances, the said point raised by the appellant does not appear to be applicable in the instant second appeal.

5. So far the other question raised by learned counsel for the appellant is concerned, the learned courts below had considered the entire pleadings and evidence, both oral and documentary on behalf of both the parties and thereafter had come to the conclusion that the plaintiff-appellant had neither been able to show any Jamabandi in his name nor had filed any rent receipt and even his oral evidence regarding possession was found to be contradictory, unreliable and untrustworthy, whereas to the contrary Ext.H the settlement patta of the land executed by the ex- landlord, Ext.G series the notices of the land acquisition proceeding in the name of respondent 2nd set, Ext.F the compensation in the name of defendant 2nd set, raised presumption about the settlement and possession in favour of defendant 2nd set, which was further followed by Register-II and rent receipts issued in the name of defendant 2nd set. These materials sufficiently proved the settlement and the possession of respondent 2nd set. However, in any view of the matter the claim of the plaintiff can be allowed on the basis of his own pleadings and evidence and he 4 cannot take advantage of the weakness, if any, of the claim of the defendants.

6. The learned courts below after taking into consideration the entire evidence had found that since the plaintiff had only a khatian in the name of Abhilakh and no other document had been filed regarding his possession and no document had been proved except khatian, his title and possession cannot be proved merely on that basis, whereas on the other hand the defendants- respondents had produced registered document of settlement from the ex-landlord Lal Bahadur Pandey, which recited about the fact that the land was owned by the ex-landlord in a decree for rent and in the execution of the said decree he also got possession of the said land and settled it with the predecessor of defendants- respondent 2nd set. This claim of defendants-respondent 2nd set was followed by Register-II, rent receipts Ext.A series, notice regarding the land acquisition case with respect to part of the settled land and the documents of compensation etc.

7. In the said circumstances, this court does not find any illegality in the impugned judgments and decree of the learned courts below, nor does it find any substantial question of law involved in the instant second appeal, which is accordingly, dismissed at this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. harish/ ( S. N. Hussain, J. )