Ghanshyam Singh v. Arun Kumar Jaiswal

Plaintiff 2nd party- Appellant 2nd party- Respondent 2nd party. 15. The State of Bihar through Collector, Supaul P.S. and District Supaul.

S.D.O. Birpur, P.O. and P.S.Birpur District Supaul.

D.C.L.R. Birpur P.O. & P.S.Birpur Distt. Supaul.

C.O. Raghopur, P.O. and P.S. Raghopur District Supaul. -Defendant Ist Party –Respondent Ist Party- Respondent 3rd party.

Roop Narain Singh @ Bipur son of Late Kari Singh, resident of Village Durgapur P.S. Raghopur District Supaul-Defendant 2nd party-Respondent 2nd party-Respondent 4th party. - 2 - For the appellants : M/s Ganpati Trivedi & Tarkeshwar Pd. Verma, Advocates. For the respondents : M/s K.N.Choubey, Senior Advocate Uday Chand Prasad, Manoj Kumar & Binod Kumar Sinha, Advocates. -----------

20.01.2009 Heard learned counsel for the parties.

This second appeal has been filed on behalf of defendant 2nd party-respondent 2nd party-appellants challenging the judgments and decree of the learned courts below.

The matter arises out of Title Suit No.06 of 1995 which filed by plaintiffs-appellants-respondents Ist party declaration of title of plaintiffs Ist set and plaintiffs 2nd set over the suit lands described in Schedules II and III of the plaint respectively and for declaration that order dated 07.07.1987 passed by L.R.D.C. Birpur, in Mutation Case No.25/82-83 was illegal and not binding on the plaintiffs and also for recovery of possession of the suit lands from defendants 2nd party and for permanent injunction restraining the defendants from interfering with the plaintiffs’ right and possession over the suit lands and other ancillary reliefs.

The said suit was dismissed on contest with cost by the learned Subordinate Judge, I, Supaul vide his judgment and decree dated 24.02.2000. Against the aforesaid judgment and decree of the trial court, the plaintiffs filed Title Appeal No.16 of 2000 which was allowed on contest without cost by the learned 2nd Additional District Judge, Saharsa vide his judgment and decree dated

01.04.2005. The aforesaid judgment and decree of the learned court below is under challenge in the instant second appeal. - 3 -

It may be stated at the outset that the suit was filed by the plaintiffs,(who are respondents Ist set in this second appeal) against two sets of defendants, out of whom, defendants Ist set were the State of Bihar and its authorities, whereas defendants 2nd set (appellants in the instant second appeal) were private individuals, who are said to be in possession of the suit lands. However, the trial court non- suited not only the plaintiffs, but also defendants 2nd set (appellants) whose claim was rejected, but they did not challenge the said judgment and decree of the trial court and it was only the plaintiffs who challenged the same in Title Appeal No.16 of 2000 which was allowed. Against the said judgment and decree of the learned court of appeal below, no second appeal was filed by the State of Bihar and its authorities in whose favour the trial court had decided the suit and the instant second appeal was filed by the defendants 2nd set only without having challenged the judgment and decree of the trial court in any title appeal. Hence, this second appeal filed by the defendants 2nd set, who had not challenged the judgment and decree of the trial court against them either in any title appeal or in any cross appeal, does not appear to be maintainable.

So far the merit of the case is concerned, the learned trial court has rejected the claim of the plaintiffs on the ground that although earlier the plaintiffs’ predecessor –in-interest was raiyat of the ex-intermediary on the basis of registered document, but since no return was submitted by the ex-intermediary in favour of the plaintiffs’ predecessor at the time of vesting of Zamindari in the State of Bihar under the Bihar Land Reforms Act, the plaintiffs - 4 - cannot be held to have continued as raiyats. The learned trial court also rejected the claim of defendants 2nd party holding that the ex- landlord never settled the suit land in favour of Nishu Singh, the ancestor of defendants 2nd set, and as such they are not in rightful possession of the suit lands in any manner whatsoever. This finding of the trial court has never been challenged by defendants 2nd set.

However, the learned court of appeal below very carefully considered the pleadings and evidence of the parties and came to the conclusion that there is no dispute that earlier the predecessors of the plaintiffs were raiyats of the suit properties and there is nothing to show that they had ever abandoned the suit land and hence it was only a mistake on the part of the ex- intermediary who had not filed any return at the time of vesting of Zamindari, although earlier ex-intermediary himself submitted a return in the year 1941 recognising the predecessor of the plaintiffs as his raiyat acquiring right, title, interest and possession through the registered sale deed of 1918 (Ext.-3) executed by Dukha Mandal. Furthermore, there were zamindari rent receipts in favour of the predecessor of the plaintiffs and there is no material to prove that either the predecessor of the plaintiffs abandoned the suit property or the ex-landlord ever came in possession thereof.

It was also held by the learned lower appellate court that the plaintiffs 2nd set were the only survivors of the branch of Chamru Choudhary, the settled raiyat, and plaintiffs Ist set were the purchasers from them in the year 1994, whereafter the plaintiffs Ist set came in possession on the basis of the said purchase and only - 5 - thereafter they were ousted by defendants 2nd set, who were held to have no right, title and interest in the suit property as there being no iota of evidence that the original raiyat ever abandoned the suit land and ex-landlord ever came in possession thereof, the ex-intermediary had no right to settle the raiyati land with any other person. In the said circumstances, the learned court of appeal below decreed the claim of the plaintiffs and ordered recovery of possession.

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