Most. Noonu Devi @ Noonee Devi v. Sukhdeo Prasad Das

village-Rampur, Naya Tola, P.S. and P.O. Sadar, District-Purnea. 9. Smt. Kalawati Devi wife of late Raghu Mandal, resident of village- Gunmanti, P.S. and P.O. Basait, District-Araria.

10. Ful Kumari Devi wife of Saudhu Lal Mandal, resident of Karhaiya, P.S. and P.O. Araria, District-Araria.

11. Most. Ahiliya Devi wife of Late Pradip Kumar Das. 12. Papu Kumar Das. Patna High Court SA No.89 of 2011 (10) dt.12-02-2013 2

13. Ranjan Kumar Das. 14. Shesav Kumar Das, all three sons of late Pradip Kumar Das. 15. Babita Devi wife of Umesh Mandal, respondents no. 11 to 15 are resident of village-Karuweli, P.O.-Jadu Napatti, P.S.-Kumarkhand, District-Madhepura.

16. Ashok Kumar Mandal son of late Hawa Devi wife of Jiwachh Lal Mandal.

17. Deepak Kumar, Mandal, son of Jiwachh Lal Mandal. 18. Chandri Devi daughter of Jiwachhlal Mandal and wife of Jaggan Mandal respondents no. 16 to 18 residents of village-Jai Krishnapur, Kataha, P.S. and P.O. K. Nagar, District-Purnea all by caste Hindu, Occupation-Cultivation.

19. Jitendra Das. 20. Jagdish Prasad Das. 21. Dukh Mochan Das. 22. Bipin Kumar Das, all sons of late Dorik Mandal and residents of village-Rampur, Naya Tola, P.S. and P.O. Sadar, District-Purnea.

23. Smt. Mahangi Devi wife of Devan Mandal. 24. Smt. Jhubri Devi wife of Panna Lal Mandal respondents no. 23 and 24 residents of village-Chhatiyana, P.S. and P.O. Raniganj, District- Araria, all by caste Hindu, Occupation-Cultivation.

25. Sri Jagarnath Das, son of late Mannu Lal Mandal and residents of village-Rampur, Naya Tola, P.S. and P.O. Sadar, District-Purnea.

26. Shanti Devi wife of late Badri Das. 27. Deepak Kumar son of late Badri Das 28. Abhinab Kumar Aniket son of late Badri Das all residents of village Rampur Naya Tola, P.S. Sadar, P.O. Sadar, District-Purnea. 29. Smt Asha Rani daughter of late Badri Das, wife of Maoj Kumar Mandal resident of village-Milki, p.o. Saurgaon P.S. Tarabadi, District-Ararai.

30. Smt. Nutan Rani daughter of late Badri Das, wife of Saroj Kumar Mandal resident of village-Uphraul P.O. Aamgachhi P.S. Sikti District-Araria. .... .... Respondent/s Appearance : For the Appellant/s : Mr. Rudal Prasad Patna High Court SA No.89 of 2011 (10) dt.12-02-2013 3 For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE V. NATH ORAL ORDER 10 12-02-2013 Heard Mr. Rudal Prasad, the learned counsel appearing on behalf of the appellants in support of this appeal. The appellants (substituted heirs of the sole plaintiff) have filed this appeal against the judgment and decree of affirmance by the appellate court below upholding the dismissal of the suit of the plaintiff for declaration of his title and confirmation of possession over the suit land as described in schedule-ka of the plaint. As the factual matrix would unveil, the suit land area 19 decimal of R.S. plot no. 249 is admittedly part of C.S. plot nos. 120, 121 and 124 of C.S. khata no. 20 out of which R.S. plot nos. 247 and 249 of R.S. khata no. 310 has been carved out. It is also admitted that the C.S. khata no. 20 had been recorded in the name of three persons namely Most. Chouria with one share, Ram Mandal and Ravi Mandal together with one share and Soti Mandal with one share. By sale deed (Ext.-5) dated 02.01.1952 the plaintiff’s father Mannu Lal Mandal purchased total 8.26 ¾ decimal of land being 1/4th share of Dorik Mandal in several plots described in detail in the sale deed which also included the C.S. plot nos. 120, 121 and 124. In the recent survey khatiyan, the corresponding records of rights of the plots of C.S. khata no. 20 Patna High Court SA No.89 of 2011 (10) dt.12-02-2013 4 has been prepared in R.S. plot nos. 247 and 249 of R.S. khata no. 310 in the name of the Bhola Mandal and Sonai Das Mandal. Dorik Mandal, the vendor of the plaintiffs, has been shown as Sikmidar (under raiyat) of the suit land and a separate Sikmi Khata has been prepared in the name of Dorik Mandal. The plaintiff has claimed his title and possession over the suit land on the basis of the sale deed (Ext.5) with assertion that the suit land has been allotted to his share in partition with his brothers after the death of his father. The plaintiff has alleged that the defendant 1st set and defendant 2nd set have been giving threats of dispossession claiming their right, title and interest over the suit land on the basis of the wrong entry in the recent survey khatiyan with regard to the suit land. The defendant 1st set are the descendants Bhola Mandal and Sonai Das Mandal and the defendant 2nd set are the descendants of Dorik Mandal. The defendant 3rd set are the brothers of the plaintiff who did not contest the suit. The defendant 1st set and 2nd set contested the claim of the plaintiff and denied the right, title and interest of Dorik Mandal over the suit land, questioning his entitlement to transfer valid title in favour of the plaintiffs. The validity and genuineness of the sale deed (Ext.5) by Dorik Mandal has also been denied with assertion that Dorik Mandal had the status as under raiyat as rightly recorded Patna High Court SA No.89 of 2011 (10) dt.12-02-2013 5 in recent survey khatiyan. The trial court, after scrutinizing the pleading and evidence of the parties, has concluded that the plaintiff has failed to establish his exclusive title and possession over the suit land and he can claim only 1/4th share in the plots mentioned in the sale deed (Ext.5) by filing a suit for partition. In appeal the appellate court, on reappraisal of the evidence on record, concurred with the findings of the trial court and dismissed the appeal. Mr. Rudal Prasad, the learned counsel appearing for the appellants has submitted that there are sufficient evidence on record to establish the plaintiff’s exclusive title and possession over the suit land but the same have not been considered by both the courts below. It has been urged by the learned counsel that soon after the purchase, the father of the plaintiff constructed a house over the suit land and since thereafter the plaintiff continued in exclusive possession. It has also been pointed out that some witnesses of the defendants have also accepted the possession of the plaintiff over the suit land. On this basis, it has been canvassed that substantial questions of law arise for consideration in this appeal. On perusal of the impugned judgments and after considering the submissions of the learned counsel for the Patna High Court SA No.89 of 2011 (10) dt.12-02-2013 6 appellants, it is manifest that the plaintiff has filed the suit seeking declaration of his right, title and interest as well as possession over the suit land which is 19 decimal of land of R.S. plot no. 249 of R.S. khata no. 310. The basis of claim of exclusive title and possession over the suit land is the sale deed dated 02.01.1952 (Ext. 5) executed by Dorik Mandal in favour of the plaintiff’s father Mannulal Das. It has been admitted by the plaintiff that the suit land has been carved out of C.S. plot nos. 120, 121 and 124 of C.S. khata No. 20. The plaintiff has filed the certified copy of C.S. khatiyan of khata No. 20 which reveals that the raiyats of the said khata No. 20 are Most. Chourai w/o Pahalwan, Ram Mandal and Ravi Mandal son of Haluman Mandal, and Soti Mandal son of Gopal Mandal. The name of Dorik Mandal, who sold the suit land in favour of the plaintiff’s father, is not mentioned therein. There is no statement in the plaint to establish the fact that Dorik Mandal had the title over the lands of C.S. khata no. 20 or had acquired the title by inheritance or otherwise from the said recorded raiyats. The plaintiff has placed reliance on the deposition of the D.W.1 Jitendra Das son of Dorik Mandal where he has stated that Dorik Mandal was son of Devayanti Devi who was the only daughter of Ram Mandal. It has also been stated by the D.W. 1 in his deposition that Pahalwan, Ram Mandal and Ravi Mandal were full brothers. On the basis of this statement, the plaintiff has tried Patna High Court SA No.89 of 2011 (10) dt.12-02-2013 7 to develop his case that Dorik Mandal had the title in the land of C.S. khata No. 20 which he transferred to the plaintiff’s father. However, even after accepting the statement of the D.W.1, the further pleading and proof by the plaintiff was still required to hold Dorik Mandal exclusively entitled to the suit land. The plaintiff has also not averred or filed the copy of the Return, submitted by the ex landlord, to show that Dorik Mandal had inherited the land of C.S. khata no. 20 and was thereafter accepted by the ex landlord as raiyat for the land of the said khata. There is also no statement or evidence explaining away the interest of Soti Mandal who had also been recorded as a co-sharer having equal share in the lands of C.S. khata no. 20. To the contrary, the certified copy of R.S. khatiyan (Ext. A) and certified copy of Sikmi khatiyan (Ext.-A/1) have been brought in evidence by the contesting defendants. It has been admitted by the plaintiff that the land of R.S. Khatiyan of khata no. 310 (Ext. A) has been carved out of the land of C.S. khata No. 20 (Ext.3/A). The R.S. khatiyan (Ext. A and A/1) shows that the Bhola Das Mandal and Sonie Das Mandal (predecessor of the defendant no.1) have been recorded as Raiyats, and Dorik Mandal (predecessor of defendant no. 2) has been recorded as Sikmidar. The entries in the R.S. khatiyan carry statutory presumption of correctness but there is no pleading and cogent evidence on behalf of the plaintiff to rebut the said Patna High Court SA No.89 of 2011 (10) dt.12-02-2013 8 presumption. The rent receipts filed by the plaintiff do not take him any far in absence of pleading and evidence of exclusive transferable title of Dorik Mandal over the suit land. Further, the sale deed (Ext.5) which is the pivot of the plaintiff’s claim of exclusive title over the suit land depicts an entirely different picture. As taken into notice by the trial court, through sale deed (Ext.5) Dorik Mandal has transferred his 1/4th share i.e. 8.26 ¾ acres of land out of 33.7 acres of land of C.S. khata no. 20 in favour of the plaintiff’s father. Altogether 37 plots have been mentioned in the sale deed but without specifying the area or boundary of land which have been transferred. Admittedly, there were several co-sharers mentioned in C.S. khata no. 20 and even after accepting the title of Dorik Mandal as the only heir of one of the co-sharers namely Ram Mandal, being his daughter’s son, the further pleading and evidence by the plaintiff is absent that there had been partition among co-sharers in which the suit land exclusively came to the share of Dorik Mandal or Dorik Mandal inherited the entire land of C.S. khata no. 20 as the sole heir of all the co-sharers mentioned therein. The submission on behalf of the appellants on the basis of admission by the contesting defendants or their witnesses regarding the possession of the plaintiff is also misconceived in view of the categorical averment in the written statement that the Patna High Court SA No.89 of 2011 (10) dt.12-02-2013 9 plaintiff’s father, who was in distress, was permitted by the contesting defendants to reside over 2 decimal of the suit land. But in any view of the matter, the defendants’ admission of possession of the plaintiff will not establish his exclusive title over the suit land which has been sought as the main relief in the suit. The appellate court below has meticulously scrutinized the pleadings and evidence of the parties and has passed a well reasoned judgment. No perversity in any manner could be established on behalf of the appellant in the findings by the appellate court below. The issues arising between the parties are now concluded by the concurrent findings of fact. In view of the aforesaid discussions, I do not find any substantial question of law arising for consideration in this appeal, which is, accordingly, dismissed. Devendra/- (V. Nath, J)