Gaura Devi @ Gauri Devi, wife of Arjun Mahto v. Madan Prasad Mahto & Ors.

4. Chathiya Devi, daughtger of late Khopri Mahto, resident of village Sunderpur, P.S. Dharhara, P.O. Babachauki, District Mudnger. …Plaintiffs-Respondents-Respondents. ----------- For the appellants : Mr. Bishwa Nath Chaudhary, Advocate. For the respondents: Mr. Devendra Prasad Singh, Advocate. ---------- 05/

15.04.2009 Heard learned counsel for the appellants and learned counsel for the respondents.

2. This second appeal has been filed by the defendants-appellants-appellants challenging the judgments and decree of both the learned courts below.

3. The matter arises out of Title Suit No.134 of 1990 which was filed by the plaintiffs-respondents-respondents for declaration of their title over the suit land detailed in Schedule-II of the plaint and also for declaration that purcha issued by the Anchal Adhikari, Surajgarha in favour of the defendants under the Privileged Persons Homestead Tenancy Act in Case No. 210 of 1975-76 regarding the suit land was vitiated by fraud and was 2 without jurisdiction and on this basis the defendants had acquired no title and also for a decree of recovery of possession of Schedule-III land of the plaint, which is a portion of Schedule-II land of the plaint and for other ancillary reliefs.

4. The said suit was decreed on contest with cost by the learned Subordinate Judge-II, Lakhisarai, vide judgment and decree dated 16.08.2003. Against the aforesaid judgment and decree of the trial court, the defendants filed Title Appeal No. 28 of 2003, which was dismissed on contest with cost by the learned Additional District Judge-cum-Fast Track Court No.II, Lakhisarai, vide his judgment and decree dated 13.07.2005.

5. From the arguments as well as from the materials on record including the judgments and decree of the learned courts below, it is quite apparent that both the learned courts below after considering the pleading and evidence of the parties came to the conclusion that the claim of the defendants- appellants was based on Ext.A, the original Will dated

24.11.1926 executed by Somni in favour of Smt. Pano Devi, who is alleged to be the daughter of Dilia, but the claim of Dilia, Ponia and Damri Mahton was finally discarded by the High Court in the year 1943 in a second appeal and hence now the defendants are not entitled to raise the claim on the basis of Will dated 24.11.1926 and they will not get any right and title in the said property on the basis thereof due to the specific decision of the High Court. In the said circumstances, the plaintiffs were found to be having full right and title over the land in dispute. 3

6. The learned courts below on the basis of pleadings and evidence of the parties also came to the conclusion that Damani Mahto and Damari Mahto was one and the same person and also found that by the judgment of the Patna High Court, Khartar Mahto was declared entitled to have his title and possession over plot no.1920 after the death of Mostt. Dilia and hence the report of the Anchal Nirikshak and Karamchari was violative and against the judgment of the High Court. It was also held that the purcha claimed by the defendants was based on the aforesaid illegal report of the authorities concerned and hence it was vitiated by fraud and legally could not and did not confer any right or title to any person.

7. The learned courts below clearly came to the concurrent findings of facts that the plaintiffs have throughout claimed their possession over the entire land of plot no.1920 as the possession of Damari Mahton was found to be permissive in nature and on its basis the said Damari Mahton or his heir or successor cannot acquire any title by adverse possession as it is established by law that the permissive possession can never be adverse to the interest of the other party. In the said circumstances, it was rightly held that the possession of the defendants was not adverse possession and they cannot acquire right, title and interest on the basis of such possession and the plaintiffs would be deemed to be in possession of the suit land detailed in Schedule II of the plaint as well as Schedule III of the plaint. 4

8. So far the question of non-joinder of State as a the suit raised by the defendants-appellants concerned, the learned court of appeal below quite legally held in paragraph 14 of its judgment that the Anchal Adhikari being a public servant and passing the concerned order in such capacity is not a necessary party to the suit because no claim or relief has been sought by the plaintiffs against the concerned officer of the State Government.

9. From the pleadings of the parties, it is also quite apparent that no relief was sought against the State Government or its authorities and the question in issue was merely the legality or otherwise of the report of the Anchal Nirikshak and Karamchari as well as the Purcha issued by the Anchal Adhikari and the defendants miserably failed to prove their genuineness, nor they could produce the said authorities as their witnesses, where the plaintiffs fully proved them to be illegal and fraudulent in view of the said judgment of this Court.

10. In view of the aforesaid facts and 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. MPS/ ( S. N. Hussain, J. )