Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.264 of 2009 ====================================================== 1. Maheshwar Sah 2. Chaitu Sah; both sons of late Ganga Sah resident of village Makdumpur Sankhi, P.S. Riga, Distt- Sitamarhi 3. Smt. Phool Devi wife of Ram Ekbal Sah and D/o late Gangaram Sah, resident of village Pre Nagar, P.S. Runni Saidpur, Distt- Sitamarhi. 4. Smt. Mantoon Devi wife of Ram Nandan Sah D/o late Ganga Ram Sah, resident of village Pat Daura, P.S. Bajpatti, Distt- Sitamarhi 5. Bineshwar Sah 6. Nageshwar Sah both sons of late Ram Deo Sah resident of village Makdumpur Sankhi Distt Sitamarhi. .... .... Appellant/s Versus Dukha Sah Son of late Ram Khelawan Sah resident of village Makdumpur Sankhi, Distt Sitamarhi. .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Sachchidanand Chaudhary Mr. Alok Kumar Jha ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL ORDER 13 08-05-2013 1. This is a second appeal against the judgment and decree dated 12.2.2009 passed in T.A. No. 18 of 2001 by learned Additional District Judge, FTC VII, Sitamarhi, whereby he dismissed the first appeal of the appellants and affirmed the judgment and decree dated 18.4.2001 and 28.4.2009 respectively passed by learned Munsif, Sitamarhi in T. S. No. 90 of 1994.The parties in the present order, have been described as per their position in the suit. 2
Legal Reasoning
Patna High Court SA No.264 of 2009 (13) 2 / 11 2. The appellants are heirs of the original plaintiffs before the trial Court. The suit was filed for declaration of plaintiffs‟ title over Schedule II land of the plaint, recovery of possession along with the mesne profit and further declaration that the order passed by the Deputy Director, Consolidation dated 19.7.1989 in Consolidation Appeal No. 34 of 1988 was illegal and without jurisdiction. 3. As per the plaintiffs‟ case in the suit, C.S. Plot No 1085 measuring 1 Acre 30 decimal appertaining to Khata No. 151 was recorded in C.S. Khatiyan as „Gairmazura Malik‟. The plaintiffs‟ ancestor occupied 4 kathas equivalent to 19 decimals of land in the said plot and had constructed a residential house over it with the permission of the ex-landlord and they continued in possession. After death of the plaintiffs‟ ancestor the plaintiffs came in possession. During the revisional survey operation, the said portion of land measuring 19 decimal being R.S. Plot No. 1582 was carved out but it was recorded in the name of State of Bihar, whereas in the remark column name of the plaintiffs were mentioned on the basis of their actual physical possession over the land. So as to avoid any future trouble or litigation the plaintiffs applied for Basgit purcha under the Privileged Persons Homestead Tenancy Act, 1947( hereinafter referred to as the Act) 3 Patna High Court SA No.264 of 2009 (13) 3 / 11 as they were privileged persons within the meaning of the Act and having their residence only on the said portion of the land. On the basis of their application the Anchal Adhikari, Riga, the Collector under the Act, registered case No. 160/65-66 and after proper enquiry granted Basgit purcha and fixed rent. They started paying rent and receiving rent receipts. According to the plaintiffs, they thus, became raiyat of the State of Bihar and acquired possession over the said area of 19 decimal. 4. The dispute arose as the ascendants of the defendant/respondent started laying claim over the land on the basis of the settlement of the ex-landlord who filed a case before Consolidation Officer, Riga vide No. 239 of 1976. The claim was allowed vide order dated 22.5.1976 but according to the plaintiffs in the case before the Consolidation Officer, Riga R.S. Plot Nos. 1585,1586 and 1587 were claimed but not R.S. Plot No. 1582 which belonged to the appellants/plaintiffs. As subsequently the father of original defendant Ram Khelewan Sah started making claim over R.S. Plot No. 1582, the plaintiff was compelled to prefer revision against the order dated 22.5.1976 passed by Consolidation Officer in case No.239 of 1976; vide Revision Case No. 1446 of 1983 before the learned Joint Director, Consolidation, Bihar, Patna. Learned Joint Director remanded the matter back to 4 Patna High Court SA No.264 of 2009 (13) 4 / 11 the Consolidation Officer with an observation that Basgit purcha so granted would remain as that was and the defendant would be compensated for that. On remand, the case was registered as case No. 55 of 1986 before the Consolidation Officer, Riga who after hearing the parties and making local inspection found 16 decimal of R.S. Plot No. 1582 in possession of the plaintiffs and vide order dated 2.1.1988 allowed 16 decimal of R.S. Plot No. 1582 to be recorded in the name of the plaintiffs and the defendant family was given some other land. On the basis of the order dated 2.1.1988, chak Khatiyan in respect of 16 decimal of land were prepared in the name of the plaintiffs as mentioned in Schedule I of the plaint. The descendants of said Ram Khelewan Sah preferred appeal against the order dated 2.1.1988 before the Deputy Director, Consolidation. Learned Deputy Director, Consolidation, however, vide his order dated 19.7.1989 allowed only 7½ decimal of land to be retained by the plaintiffs and rest was given to the Ram Lakhan Sah, the father of the defendant. The appellate order dated 19.7.1989 was challenged by the plaintiffs vide revision No. 3339 of 1989. The said revision petition also stood dismissed in default. A restoration petition was also filed but that too could not be pressed. Only thereafter the defendants started interfering with the peaceful possession of the plaintiffs 5 Patna High Court SA No.264 of 2009 (13) 5 / 11 and they forcibly dispossessed the plaintiffs from 8½ decimal of land of R. S. Plot No. 1582 from the east mentioned in Schedule II of the plaint. It was in this circumstance that the suit vide Title Suit No. 90 of 1994 was filed. 5. The defendants contested the suit and filed written statement. The defendants/respondents pleaded, inter alia, that neither the plaintiffs nor their ancestor ever occupied the said area of 4 katha of land equivalent to 19 decimal of C. S. Plot No. 1085. They pleaded that the „Gairmajarua land‟ could be settled only for agriculture purpose and not for the purpose of construction of the house. They stated in the written statement that revisional survey entry in the Khatiyan with respect to R. S. Plot No. 1582 was incorrect. They claimed that the plaintiffs suppressed certain relevant facts and stated that the plaintiffs had applied for Bandobasti before Anchladhikari, Riga for which case No. 35/86- 87 was registered after local inspection, house of the plaintiff was found over only 7 decimal of land of R.S. Plot No. 1581 and 4 decimal of R.S. Plot No. 1582 and the Anchal Adhikari recommended to LRDC for such Bandobasti which, however, was turned down by the LRDC. The plaintiffs denied the plaintiffs‟ story of issuance of purcha or grant of rent receipts. The defendant also denied the assertions in the plaint that they did not 6 Patna High Court SA No.264 of 2009 (13) 6 / 11 claim R.S. Plot No. 1582. The defendant denied that there was no such order passed by the Joint Director in case No. 1446 of 1983 allowing the defendant to remain on the said 19 decimal of R.S. Plot No. 1582 and to compensate the defendant by giving him some different land. The defendant questioned the order dated 2.1.1988 passed in Case No. 55 of 1986 of the Consolidation Officer and supported the order passed by the Deputy Collector, Consolidation in Appeal No. 34 of 1988. The defendant asserted that the plaintiffs were never in possession over eight decimal of Schedule II land which was settled in the name of father of the defendant by ex-landlord in the year 1945 whereafter the family had been coming in possession over the same continuously. They denied the story of possession and dispossession as asserted by the plaintiffs. 6. The defendant further pleaded that the Civil Court had no jurisdiction to set aside the order dated 19.7.1989 which was final. The defendant asserted that C.S. Plot No. 1085 was gairmajarua land of malik of Tauji no. 1958 under Khata No. 151 of C.S. Khatiyan, who settled its portion to raiyat for agriculture purpose and the defendant‟s father took settlement of 10 katha land in the middle of C.S. Plot No. 1085 by Rewazi measurement through rent receipt on payment of Nazrana of Rs. 50/- and the 7 Patna High Court SA No.264 of 2009 (13) 7 / 11
Legal Reasoning
then ex-landlord of Tauji No. 1058, namely, Smt. Sonman Devi granted a Khista Patta dated 5.1.1945, after settlement he started cultivating and paying rent and later on constructed pucca house over a portion of 10 katha plot and residing in it. They claimed that during the revisional survey R.S.P. No. 1485 ( 14 decimal) R.S.P. No. 1586( 14 decimal) and RSP No. 1587( 14 decimal) were properly prepared but an area of 8 decimal were wrongly included in the RSP No. 1582 which could not be detected by the defendant‟s father earlier so no steps was taken for correction of the same. After knowing about it during consolidation, the defendant took steps for correction. 7. On the basis of the rival pleadings the trial Court framed seven issues including following three:- “4. Whether the plaintiffs have got title over the suit land detailed in schedule II of the plaint? 5. Whether the order dated 19.7.1989 passed by the Deputy Director Consolidation in Consolidation appeal No. 34 of 1988 is illegal and without jurisdiction? 6. Whether the story of possession and dispossession as alleged by the plaintiff is true?” 8. After framing of the issues the parties led their evidence, both oral and documentary. Dealing with issue Nos. 4 and 5 and after analyzing the evidence on record learned trial Court came to a finding that the plaintiffs had got no title over the 8 Patna High Court SA No.264 of 2009 (13) 8 / 11 suit land detailed under Schedule II of the plaint. From the judgment of the learned trial Court it appears that the plaintiffs did not bring on record even the original Basgit purcha as evidence, said to have been issued in their favour which was the foundation of their case, claiming title over the suit land. It further appears that certified copy of the Basgit purcha which was exhibited as Ext.3 did not show the date of institution and the order in column 4 and 5. In view of this and other materials available on record, learned trial Court held that the plaintiffs had not been able to prove their title over the suit land, detailed under Schedule II of the plaint on the basis of the alleged purcha. In view of such finding, learned trial Court observed that the order dated 19.7.1989 passed by the Deputy Director, consolidation in Appeal No. 34 of 1988 was not required to be declared as illegal and without jurisdiction. Dealing with the story of possession and dispossession with regard to which issue no.6 was framed, learned trial Court held that the story was not true after analyzing in detail the evidence of the plaintiffs witnesses and defendant witnesses. 9. Against the judgment and decree passed by the learned trial Court Title Appeal No. 18 of 2001 was preferred by the plaintiffs/appellants which was sent to the file of the Court of Additional District Judge, FTC –VII, Sitamarhi. Learned first 9 Patna High Court SA No.264 of 2009 (13) 9 / 11 appellate Court after analyzing the evidence on record concluded that the plaintiffs could not prove as to who was the landlord from whom his father had taken settlement, whereas on the other hand, the defendants filed certified copy of Khatiyan to show that R.S. Plot No. 1085 admeasuring 1 acre 38 decimal was under possession of Mahim Singh (Ext. B/3) and after that it came in possession of Laliteshwar Pd. Singh (minor) under guardianship of his mother Sonman Devi from whom the defendant‟s father took settlement of suit land on 5.1.1945 on payment of Nazarana of Rs. 50/- which was confirmed by Smt. Sonman Devi who granted Khista Patta ( Ext.D). Learned first appellate Court concurred with the findings of the learned trial Court on the point of possession and dispossession also and dismissed the appeal. 10. The First appellate Court also considered the provisions of Bihar Privileged Persons Homestead Tenancy Act, 1947, according to which the Act does not apply to any land vested in the Government or local authority. The plaintiffs claimed that the suit land was allotted to him by the Government under Bihar Privileged Persons Homestead Tenancy Act, 1947 which was recorded in the revisional survey in the name of the State of Bihar and in such circumstance purcha under Section 3(iii) of the Act could not have been granted to him. 10 Patna High Court SA No.264 of 2009 (13) 10 / 11 11. Learned counsel for the appellants has submitted that the Courts below erred in holding that the appellants could not prove issuance of Basgit purcha in their favour in the absence of the original Basgit purcha not having been brought on record as evidence. He has submitted that certified copy of Basgit purcha was brought on record and the Courts below ought to have considered the evidentiary value of the certified copy of the document issued by the Registry office. He has also submitted that the Courts below has wrongly appreciated the evidence, on the point of possession and dispossession over the suit land as there was enough material before the Courts below to come to a finding that the plaintiffs in fact had possession over the suit land. 12. Be that as it may, the fact remains that there are concurrent findings of fact by the Courts below to the effect that the plaintiffs could not prove their title on the basis of evidence adduced by them in course of trial. Such finding is based upon analysis of evidence which have been discussed in the respective judgments. There is also a concurrent finding that the plaintiffs were never in possession over the disputed land. This finding is also based on analysis of evidence on record as would appear from the judgment of the Courts below. Learned Counsel for the appellants has not been able to point out that the findings of the 11 Patna High Court SA No.264 of 2009 (13) 11 / 11 courts below are contrary to evidence or such findings are without evidence. Counsel for the appellants has thus, failed to assert that the concurrent findings of facts of the Courts below suffered on perversity. 13. Learned counsel for the appellants has also not been able to meet the reasoning given by the learned first appellate Court that if the suit land was recorded in the name of State of Bihar in revisional survey Khatiyan, how the said land could be settled under the Bihar Privileged Persons Homestead Tenancy Act, 1947 as the said act has no application in respect of the land vested in Government or local authority. 14. In view of the above, I find that the present second appeal does not involve any substantial question of law. The disputes in the present case are purely factual and no ground has been made out by the appellants which may warrant interference with the findings of fact arrived at by the first appellate Court. The second appeal has thus, no merit and is accordingly, dismissed. (Chakradhari Sharan Singh, J) Arun Kumar