ARUN KUMAR v. THE STATE OF BIHAR

originally and admittedly belong to one Sri Jai Singh. After his death his son Sri Basudeo Singh inherited the land and thereafter Jitendra Mohan Singh being the only son of Basudeo Singh inherited the entire lands. Petitioner’s case is that the lands belong to him and the respondents have staked a claim on the basis of the ‘Marfati’ rent receipts, through which he claims possession of 2 the land. The claim of the petitioner is that the ‘Marfati’ receipts have been issued through the respondent in the name of the petitioner’s ancestor Basudeo Singh and as such the receipts by themselves would not clothe the respondent with title or possession. The petitioner also claims that his name finds place in the revenue records and that a demand case was instituted in which the name of Basudeo Singh was recorded and he was shown to be in possession of the disputed lands. On the basis of the aforesaid facts, it is the claim of the petitioner that he not only holds a valid title of the said lands but he is also in possession and has valid rent receipts in his favour. The respondent’s case is that Basudeo Singh owned the aforesaid lands and because he was facing difficult times he often took money from the respondent which was paid by cheques to the respondent. The cheque numbers and the amount are mentioned in the order of the D.C.L.R. annexure-B application. The respondent’s case is that the money was paid on the understanding that Basudeo Singh would transfer the said lands in 3 question in favour of the respondent. It is claimed that as a consequence of payment made to Basudeo Singh through different cheques Basudeo Singh allowed him to pay the rent receipts and as such Marfati rent receipts were paid by the respondent through Basudeo Singh and the respondent is in possession of the said lands since 1998. Two applications were filed by the petitioner one before the District Magistrate and the other before the Commissioner. The District Magistrate referred the matter firstly to the Halka Karamchari and thereafter the matter went up to the Circle Officer. The Circle Officer came to a finding that the Marfati receipts had been wrongly issued and a case under Section 420 would be made out against the respondent. On the other hand the D.C.L.R. by annexure-B came to a finding that since the respondent had paid a certain amount of money through various cheques to the petitioner, there is reason to believe that the money was paid as an advance for the purpose of registering a sale deed in favour of the respondent. The D.C.L.R. also came to a 4 finding that the villagers have stated that the respondent had been in possession since 1994 although the D.C.L.R. has not examined any of the villagers or mentioned their names to justify this finding. The D.C.L.R. further found that the demand register in the name of the petitioner/his father is incorrect as there is no corresponding case to justify the entry of the petitioner’s name in the said revenue records. On the basis of these facts the D.C.L.R. has come to a conclusion that the respondent is in possession since 1994. From perusal of the orders of the Circle Officer and the D.C.L.R. the facts that emerge are (a) that the petitioner forefather had valid title over the said lands. (b) that rent was being paid by Basudeo Singh and his name finds place in register II. (c) that Marfati receipts were issued by the revenue authorities in favour of the respondent. The finding of the Court of the D.C.L.R. which this Court cannot accept for the purpose of holding either party in possession is because of insufficient material to show that the petitioner had issued cheques in 5 favour of Basudeo Singh for the purpose mentioned i.e. as an advance for executing the sale deed. This fact has to be proved by evidence. The cheques etc. have also to be verified and produced before the Court to come to a valid finding that the payments were made for the purpose as claimed by the respondent. This Court can also not accept the finding of the D.C.L.R. without any back up material and evidence with respect to the fact that the respondents are or were in possession of the disputed lands. These questions cannot be decided by the writ Court. Therefore, this Court cannot pass any final order regarding the prayer made in the writ application. Having stated the facts, this Court finds that there are two remedies available to the petitioner/respondent. The petitioner would be at liberty to move the Collector against the order of the D.C.L.R. or in the alternative either party may file a title suit for the purpose of confirmation of their possession. A party claiming an adverse possession has to show in Court that his possession was adverse to the knowledge of the 6 respondent and the revenue authorities can only prima facie issue rent receipts which would not adjudication respect possession claimed on the basis of adverse possession. With the aforesaid observations, this writ application is disposed of. Sanjay (Sheema Ali Khan, J.)