Most. Jatan Devi wife of Late Dulli Ydav & Ors. v. Smt. Budhimati Devi wife of Bahadur Yadav

whereby he has affirmed the judgment dated 28.09.2007 and the decree dated 11.10.2007 passed in T.S. No. 20/90 by learned Munsif, Civil Court, Barh, Patna. 2 Patna High Court SA No.571 of 2010 (6) dt.07-03-2013

4. The plaintiff Smt. Budhmati Devi (respondent No. 1 in the present appeal) filed a Title Suit No. 20/90 claiming that she had purchased 7 decimal of land at Mauza Pandarak Dargahitola, Than No. 10, Tauzi No. 8389, Khata No. 969, Khesra No. 1020 (hereinafter referred to as the „suit land‟) from Muktinath Jha on

24.02.1978 and thereafter she remained in continuous possession over the suit land. The land was recorded as Raiyati land in survey Khatiyan. Subsequently, she learnt that Circle Officer, Pandarak (respondent No. 2) had opened Case No. 2/78-79 under the Bihar Privileged Persons Homestead Tenancy Act, 1947 on

18.03.1980 and issued Parcha in favour of one Duli Yadav without any notice to the plaintiff and without observing the procedure prescribed. The plaintiffs claimed that the said Duli Yadav attempted to forcibly evict the plaintiff from suit land and occupy the same. She objected to it and after giving notice to the Circle Officer, Pandarak and the District Magistrate, Patna under Section 80 of the Code of Civil Procedure, as the cause of action had arisen, filed the suit.

5. The suit was filed for a declaration of title and confirmation of possession over the suit land as also for cancellation of the Parcha as void, forged and fabricated document and beyond jurisdiction of Circle Officer, Pandarak.

6. The appellants are the heirs of said Duli Yadav. The 3 Patna High Court SA No.571 of 2010 (6) dt.07-03-2013 written statement was filed on behalf of the defendants stating inter alia that the suit land originally bearing S.P. No. 1020 belonged to Muktinath Jha and in the year 1949, the Government of Bihar acquired 5 decimal out of 7 decimal of land for development of Barh-Mokama Road. The defendants further pleaded that north portion of survey plot no. 1021 belonging to Duli Yadav was also acquired by the State Government of Bihar in the same year. One Ram Prakash Singh had settled 6 decimal of land each with his landless labours Ako Yadav and Wazir Yadav in the year 1940 for residential purpose. The .12 decimal of land as aforesaid, according to the defendant was adjacent South to survey plot No. 1020 over which Ako Yadav and Wazir had constructed residential house. Further case of the defendant was that in the year 1949, the Government of Bihar acquired 5 decimal of S.P. No. 1020 abutting the road side for development of Barh- Mokama Road. Both Ako Yadav and Wazir Yadav had requested Muktinath Jha to settle rest two decimal of survey plot No. 1020 besides their residential house and for passage to Barh-Mokama Road and accordingly Muktinath Jha gave 1 decimal of land to Ako Yadav in East and one decimal of land to Wazir Yadav in West which remained in their use for nearly 40 years. It was also pleaded that Ako Yadav and Wazir Yadav approached the daughter of Ram Prakash Singh who was his sole heir to execute 4 Patna High Court SA No.571 of 2010 (6) dt.07-03-2013 any document to secure their occupancy right and accordingly executed a sale deed on 10.07.1978 in favour of Ako Yadav and Wazir Yadav. Likewise, they approached Muktinath Jha to execute any deed of disposal of 2 decimal land of the said S.P. No. 1020 but he evaded. Thereafter, both Ako Yadav and Wazir Yadav got Purcha issued on 13.05.1980 to Ram Jatan Yadav and Pano Gope and also issued rent receipt in favour of Duli Yadav son of Wazir Yadav. The defendants claimed that Muktinath Jha fraudulently executed a sale deed in favour of the plaintiff- respondent No. 1 without any consideration on 24.02.1978 which was sham, fraudulent and inoperative. The Trial Court on the basis of the written statement framed eight issues including Issues No. v, vi, vii and viii which read thus:- “v. Is the defendant No. 3 eligible for getting purcha under the provisions of Bihar State Privileged Persons Homestead Tenancy Act and accordingly the purchase dated 13.05.1980 issued by the C.O. Pandarak is valid documents. Is the title and possession on the disputed land of that defendant valid? vi. Has the plaintiff got her title and possession over 1 dec. suit land on the basis of registered Kewala dt. 24.02.78 executed by Muktinath Jha regarding the suit land? vii. Has the C.O. Pandarak any right to issue any purchase regarding the Raiyati land? viii. Had Muktinath Jha any right to execute sale deed of the acquired land by the Govt. and whether it is a valid document?”

7. Learned Trial Court on the basis of evidence available on 5 Patna High Court SA No.571 of 2010 (6) dt.07-03-2013 record decided the issue No. v in plaintiff‟s favour to the effect that Duli Yadav had already homestead land and, therefore, he was not entitled to grant of Basgit Parcha under the Bihar Privileged Persons Homestead Tenancy Act, 1947.

8. As regards the issue whether respondent no. 1 had got title and possession over 1 decimal suit land on the strength of registered sale deed dated 24.02.1978 and whether the said Muktinath Jha had any right to execute sale deed of the land in question, learned Trial Court came to the finding, after considering all the oral and documentary evidence available on record, that respondent no. 1 had the right, title and interest over the suit land and that the defendants / appellants had no possession over the suit land.

9. Learned Trial Court also came to the conclusion that said Muktinath Jha had the right to execute the sale deed with respect to the suit land. The Trial Court answering issue No. vii also held that the Circle Officer did not have the authority in the facts and circumstance of the case to issue Parcha in favour of the defendant under Bihar Privileged Persons Homestead Tenancy Act, 1947. Accordingly, vide dated 28.09.2007, the suit was decreed in favour of the plaintiff / respondent No. 1 and right, title and possession of the plaintiff over the suit land was confirmed and Parcha dated 13.05.1980 of the suit land issued by the Circle 6 Patna High Court SA No.571 of 2010 (6) dt.07-03-2013 Officer, Pandarak was cancelled.

10. An appeal was preferred under Section 96 of the Code which was registered as Title Appeal No. 3/07 in the file of learned Additional District Judge III, Barh, Patna.

11. On the basis of the points raised in the memo of appeal and the judgment of learned Trial Court as well as evidence on record, learned First Appellate Court formulated the points for consideration including the following which are relevant and need to be referred:- “III. Is the Purcha dated 13.05.1980 a valid document issued in favour of eligible persons in accordance with provision of Bihar Privileged Persons Homestead Tenancy Act, is he accordingly entitled and in possession of the suit land? Is the sale deed dated 24.02.1978 executed by Muktinath Jha valid one?” Has the plaintiff got right, title and possession over the 1 decimal of land as claimed in the plaint? Whether Muktinath Jha was entitled to execute any sale deed regarding Govt. acquired land under law and accordingly the same is legal document?” IV. V. VI.

12. Learned First Appellate Court dealing with point No. III as noted above came to the finding that Duli Yadav, father of the appellants No. 2 to 6 was not a landless person in 1980 at the time of issuance of Parcha (Exhibit-7) rather he owned house. Learned First Appellate Court also came to the conclusion that Parcha so issued was not in requisite form as prescribed under Bihar 7 Patna High Court SA No.571 of 2010 (6) dt.07-03-2013 Privileged Persons Homestead Act, 1947 and the same was on a plain paper. Learned First Appellate Court also came to the conclusion that no information was sought nor enquiry as required under Section 5(4) of the Act was undertaken and accordingly it held that Duli Yadav was not entitled to be granted Parcha in the manner it was done and accordingly it was not valid.

13. Dealing with point no. IV, V and VI, learned First Appellate Court came to a finding that the defendants failed to prove that the said 7 decimal of disputed land was acquired by the State Government of Bihar. The First Appellate Court accepted the plea of the plaintiff that only 5 decimal of land was acquired.

14. Learned First Appellate Court concurred with the finding of the Learned Trial Court to hold that respondent No. 1 / plaintiff had the right, title, interest and possession over the suit land.

15. Learned counsel for the appellant on the other hand has submitted that the Courts below did not take into account in its correct perspective the aspect that only 1 decimal out of 7 decimal of land was left from acquisition which portion was being used by the appellant for their ingress and outgress. Learned Counsel for the appellant submits that the Courts below have committed error in coming to the finding of fact that Muktinath Jha had, at the time of execution of sale deed in 1978, right, title and possession 8 Patna High Court SA No.571 of 2010 (6) dt.07-03-2013 over the suit land.

16. Having heard learned counsel for the appellant and after having gone through the judgment and decree passed by the Courts below there is no dispute over the fact that Duli Yadav, whose heirs are the plaintiff herein, had got issued Basgit Parcha in his favour under Bihar Privileged Persons Homestead Tenancy Act, 1947, though he was not eligible, without following any procedure prescribed under the Act or the Rules framed thereunder. Learned counsel for the appellant could not raise any issue over this aspect and thus so far as the findings of the Courts below that the issuance of Parcha was illegal and unauthorized, the same is unquestionable.

17. Learned counsel for the appellant has also not been able to point out as to how the findings of the Courts below are contrary to the material available on record. From the perusal of the judgments under challenge, I find that the evidence, both oral and documentary have been considered both by the Trial Court and the First Appellate Court. The finding arrived at by the Courts below therefore, cannot be said to be without any evidence or material.

18. Learned counsel for the appellant has also not been able to point out as to which finding of the First Appellate Court is without any evidence. 9 Patna High Court SA No.571 of 2010 (6) dt.07-03-2013

19. In such view of the matter, the judgment and decree under challenge of the learned First Appellate Court cannot be said to be perverse. I am of the opinion, the present Second Appeal, does not involve any substantial question of law warranting interference by this Court in exercise of power under Section 100 of the Code more so when there is concurrent finding of fact that Muktinath Jha had the right, title and interest to transfer the suit land in favour of the respondent No. 1, the plaintiff and that the suit land was not within acquisition by the State of Bihar.

20. Accordingly, I find no merit in the present Second Appeal and the same is, accordingly, dismissed. Saif/- (Chakradhari Sharan Singh, J.)