HONOURABLE MR. JUSTICE v. NATH ORAL ORDER Patna High Court SA No
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.97 of 2010 ====================================================== 1. Upendra Narayan Singh. 2. Mahendra Narayan Singh. 3. Yogendra Narayan Singh @ Yogendra Singh, all sons of late Bateshwar Pd. Singh residents of village-Gauchhari, P.S. Gogri (Maheshkhunt) District-Khagaria. 4. Manjula Devi, wife of Harsilal Singh, R/o village-Chakla, P.S. Gogri, District-Khagria. 5. Ranjula Devi, Wife of Arun Mehta, R/o Village-Phulaut P.S. Chausa, District-Madhepura. 6. Sanjula Devi, wife of late Prakash Singh, resident of village Amni, P.S. Mansi, District-Khagaria, appellant no. 4 to 6 are daughters of late Bateshwar Pd. Singh. .... .... Appellant/s Versus 1. The State Of Bihar through the Collector, Khagaria. 2. Circle Officer, Gogri. 3. B.D.O. Gogri anchal, P.S. Gogri, District-Khagria. 4. S.D.O. Khagaria, P.S. & District-Khagaria. 5. Ram Dhari Pd. Mandal, son of late Bhagwat Mandal R/o Village- Gauchhari, Ex-Mukhiya, Gram Panchayat Gauchhari, P.S. Gogri, District-Khagaria. 6. Deo Narayan Mandal son of Chhuni P.D. Mandal. 7. Kanik Mandal son of late Mahavir Mandal. 8. Sikandar Mandal son of late Jibar Mandal, all of village-Gauchhari, P.S. Gogari, District-Khagaria.
Legal Reasoning
.... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Dronacharya Mr. Akhileshwar Pandey For the Respondent/s : Mr. Sanjay Kumar Srivastava ====================================================== CORAM: HONOURABLE MR. JUSTICE V. NATH ORAL ORDER Patna High Court SA No.97 of 2010 (17) dt.14-01-2013 2 17 14-01-2013 Heard the learned counsel for the parties. This appeal by the plaintiffs has been filed against the judgment and decree dated 30th January 2010 by the District Judge, Khagaria in T.A. No. 25 of 2003 affirming the judgment and decree dated 12.09.2003 passed by the Munsif, Khagaria in T.S. No. 33 of 1991 dismissing the suit of the plaintiffs. The T.S. No. 33 of 1991 has been filed for declaration of title and confirmation of possession over the suit land and further for direction to the defendants to remove the construction made by them over the suit land at their cost. The alternative relief for recovery of possession has also been sought by the plaintiff in case of finding of dispossession. For the sake of convenience, the parties shall hereinafter be referred by the position held by them is the suit. The plaintiff’s case is that her vendor Hazari Mandal acquired 7 kathas of land of plot no. 245, described in schedule-I of the plaint and on the basis of the Return filed by the ex-landlord, the Jamabandi was created in his name for the aforesaid land. The son of Hazari Mandal sold 5 kathas 10 dhurs to the plaintiff, described in schedule III of the plaint, which was the remaining land after earlier sale of area one katha 10 dhurs by him to another purchaser Bindeshwari Singh. The further case of the plaintiff is that her name was mutated for Patna High Court SA No.97 of 2010 (17) dt.14-01-2013 3 her purchased land and a separate Jamabandi was opened and since then she has been paying rent to the State of Bihar and getting rent receipts. The allegation of the plaintiff is that the defendants have forcibly made construction over the part of her purchased land, described in schedule III of the plaint, which is the suit land. The plaintiff has further alleged that the defendants have forcibly encroached upon the portion of the suit land from south and are adamant to dispossess the plaintiff from the entire suit land. The defendant 1st set-State of Bihar has filed a contesting written statement denying the claim of the plaintiff. It has been asserted that the entire area of about 45 bighas of plot no. 245 of khata no. 115 is Gairmazarua Aam land and has vested in the State of Bihar and Gram Panchayat after the abolition of Zamindari, and since thereafter it has come in their possession. The existence of suit land as alleged in the plaint has been specifically denied. It has been further stated that a government school building is existing since before 1967 over plot no. 245, and within the boundary of the school there was a ditch which has been filled up under Jawahar Rojgar Yojana for the purpose of extension of the school rooms and there is no house or any structure of the plaintiff existing within the boundary of the Patna High Court SA No.97 of 2010 (17) dt.14-01-2013 4 school. It has been also disclosed that the son of the plaintiff is a Karmchari who has bungled the Jamabandi records, and the documents of mutation or receipts relied by the plaintiffs are result of forgery. The defendant 2nd set and 3rd set have also taken the similar stand in their written statement supporting the case as set up by the defendant 1st set. After considering the pleadings and evidence of the parties, the trial court has come to the finding that the plaintiff has failed to prove the acquisition of title over the suit land by Hazari Mandal and sequentially by her. The trial court has also reached to the conclusion that the plaintiff has also failed to prove her possession over the suit land. The suit was therefore, dismissed on these findings. The appellate court below, on reappraisal of evidence, has also come to the conclusion that the plaintiff has failed to prove her title over the suit land as she could not establish that Hazari Mandal, father of her vendor, had acquired title over the suit land. The appellate court below has also found that revenue records like mutation order, rent receipts or Jamabandi were not sufficient to establish the title as claimed by the plaintiff. The appeal was, therefore, also dismissed affirming the findings of the trial court. Patna High Court SA No.97 of 2010 (17) dt.14-01-2013 5 Mr. Shivnandan Roy, the learned senior counsel for the plaintiff-appellant has mainly submitted that both the courts below have committed error in law in dismissing the suit of the plaintiff by ignoring her possessory title over the suit land. It has been urged that the revenue records, adduced as evidence in the suit, clearly support the case of the plaintiff that Hazari Mandal and after the purchase, the plaintiff has been coming in possession over the suit land and in this view of the matter, when the defendant-State of Bihar has recognized Hazari Mandal as Raiyat over the suit land and realized rent from him and thereafter from the plaintiff, the possession of the plaintiff should have been protected. The reliance in this regard has been placed on an unreported judgment of this Court in S.A. No. 521 of 1988 (Bharat Singh Vs. State of Bihar). It has also been contended that the trial court has committed error of record in holding that Ext. 8 and Ext. 8/A do not contain the plot number of the suit land and as such its finding is vitiated and should not have been affirmed by the appellate court below. It has thus been submitted that substantial questions of law arise for consideration in this appeal and impugned judgments of both the courts below are not sustainable. The learned counsel for the respondent-State of Bihar Patna High Court SA No.97 of 2010 (17) dt.14-01-2013 6 and for other respondents have supported the impugned judgments and submitted that no substantial question of law arises for consideration in this appeal. It is not in dispute that the land of plot no. 245 of khata no. 115, a portion of which is the suit land, was ‘Gairmazarua Aam’ land under the ex-intermediary. After abolition of Zamindari, under the provisions of Land Reforms Act, 1950, such land has vested absolutely in the State of Bihar. However, the plaintiff has claimed that Hazari Mandal (father of the vendor of the plaintiff) acquired 7 kathas of plot no. 245 but conspicuously enough, the manner and mode of the said acquisition by Hazari Mandal has not been disclosed. It has been claimed that on the basis of the Return, the Jamabandi has been created in the name of Hazari Mandal for the 7 katha of land of plot no. 245 but again no evidence to prove the settlement of the said 7 kathas of land by the ex-intermediary in favour of Hazari Mandal has been brought on record by the plaintiff. The reliance has been placed by the plaintiff only on Jamabandi and register II in the name of Hazari Mandal for acquisition of title by him. The certified copies of the said Jamabandi and register-II in the name of Hazari Mandal have been adduced in evidence as Ext. 6 and Ext. 8/A. However, the perusal of these two documents shows that the plot no. 245 has not Patna High Court SA No.97 of 2010 (17) dt.14-01-2013 7 been mentioned anywhere in these documents. Both these two documents therefore do not support the case of the plaintiff that Hazari Mandal had acquired 7 kathas of plot no. 245 as described in schedule-I of the plaint. The plaintiff has also relied upon the mutation order (Ext.7) and register II (Ext.8) by which her purchased area of 5 kathas 10 dhurs out of the said 7 katha of land of plot no. 245 has been mutated in her name, and also on the rent receipts (Ext. 1 series) showing payment of rent by the plaintiff to the State of Bihar. However, the mutation of the name of the plaintiff and payment of rent by her to the State of Bihar for the suit land cannot be taken to be sufficient evidence evincing title of the plaintiff over the same particularly when there is complete lack of evidence establishing title of her vendor over the same. Non reliability of these evidence (Ext. 8 and Ext. 1 series) becomes all the more emphasized in view of the assertion by the defendant- State of Bihar in its written statement that the son of the plaintiff was a Karmchari in the concerned office and he has created these documents by committing forgery and bungling. The son of the plaintiff has been examined as D.W. 17 in the suit and has accepted that he has been working in the concerned department from 30.09.1976. Both the court below have carefully scanned the evidence of the parties and thereafter have come to the finding that Patna High Court SA No.97 of 2010 (17) dt.14-01-2013 8 the plaintiff has failed to prove her claim of title over the suit land. The submission on behalf of the plaintiff-appellant with regard to the acquisition of possessory title over the suit land is equally misconceived. In view of the pleadings and evidence on record, it is manifest that the land of plot no. 245 is Gairmazarua Aam land, and the same shall be taken to have vested in the defendant-State of Bihar after abolition of Zamindari. The plaintiff has claimed the reliefs over the suit land on the basis of her title through purchase asserting that her vendor had the valid title over the same. The defendant-State of Bihar in which the entire interest over plot no. 245 has statutorily come to vest, has denied the title of the plaintiff over the suit land and has claimed its possession over the same. It is well settled that the question of ‘possessory title’ would arise for consideration only in a case where either party to the suit has failed to prove his title over the suit property, and in that circumstance the settled and effective possession of the party over the suit property would become the determining factor. In the present case the plaintiff has based her claim over the suit land on the basis of her title which she has failed to establish while the defendant-State of Bihar has the statutory title over the entire area of plot no. 245 of which the suit land is a part. In such a circumstance, the consideration of the question of possessory title Patna High Court SA No.97 of 2010 (17) dt.14-01-2013 9 of the plaintiff over the suit land does not arise. The reliance on the unreported judgment of this Court in S.A. No. 521 of 1988 (Bharat Singh Vs. State of Bihar) is also misplaced as the said decision has been rendered in an entirely different setting of facts where neither parties to the suit had been found to have title over the Dhab land in question in which the fishery right had been claimed by the plaintiff and in that circumstance, the issue of possessory title of the plaintiff on the basis of his effective long possession over the Dhab land arose for consideration and decided. Therefore, the reliance on this judgment will also not take the plaintiff any far. It is also well settled by now that the entries in the revenue records are not by themselves alone sufficient to confer title. Moreover, even in the revenue records i.e. Jamabandi (Ext. 6) and Register-II (Ext.-8/A) which are in the name of Hazari Mandal, the suit plot no. 245 has not been mentioned. In this circumstance, even if the mutation order (Ext. 7), Register-II (Ext. 8) and rent receipts (Ext. 1 series) are in the name of the plaintiff for the suit land, the same will not be sufficient to entitle the plaintiff to get the reliefs as prayed. In view of the aforesaid discussion, there appears to be no infirmity in the findings by both the courts below. Thus, no Patna High Court SA No.97 of 2010 (17) dt.14-01-2013 10 substantial question of law arises for consideration in this appeal, which is, accordingly, dismissed. Devendra/- (V. Nath, J)