Rukmini Devi v. Gopaljee Singh

.... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE VIJAYENDRA NATH ORAL ORDER 4 15-03-2013 Heard Mr. Waliur Rahman, the learned counsel for the appellants. Mr. J.K. Verma, the learned counsel appearing on Patna High Court SA No.510 of 2012 (4) dt.15-03-2013 2 behalf of the contesting respondents is also present.

The defendants are the appellants in this appeal assailing the judgment and decree of the appellate court below affirming the decree in the suit in favour of the plaintiffs.

The plaintiffs filed the suit for declaration that the order dated 24.03.1982 by the circle officer for grant of purcha in favour of the defendants under the Bihar Privileged Persons Homestead Tenancy Act for the suit property was illegal, void, inoperative and without jurisdiction, and further sought the relief for declaration of title over the suit property and for recovery of possession after evicting the defendant from the same. The plaintiffs have claimed the suit land and house to be their ancestral property and have further claimed to have put the defendants in permissive possession over the same. The defendants, on the other hand, contested the claim of the plaintiffs and set up their own independent title over the suit property and justified their possession on that basis. The defendants have asserted to have obtained a ‘Basgit parcha’ in their favour for the suit land and house under the Bihar Privileged Persons Homestead Tenancy Act.

The trial court, after considering the pleadings and evidence of the parties, did not believe the case as set up by the Patna High Court SA No.510 of 2012 (4) dt.15-03-2013 3 defendants and decreed the suit. In appeal, the appellate court after re-appraisal of evidence, has concurred with the findings of the trial court and has dismissed the appeal by the impugned judgment and decree.

Mr. Rahman, the learned counsel for the appellants has strenuously argued that the primary relief in the suit was the adjudication of the validity of the Parcha granted under the Bihar Privileged Persons Homestead Tenancy Act to the defendants and therefore the State of Bihar was a necessary party to the suit. It has been urged that the grant of purcha to a privileged person under the above said Act is the act of the State and the validity of the said purcha for want of jurisdiction or for any other reason pertaining to its illegality cannot be decided in absence of the state authorities who issued the purcha as parties. The reliance has also been placed upon the judgment of the Apex Court in the case of Mehar Chand Das Vs. Lal Babu Siddique 2007 (4) BBCJ 119 in support of this submission. Criticizing the impugned judgment further, the leaned counsel has submitted that the plaintiffs have failed to assail the entries in the recent survey khatiyan in the name of predecessor of the defendants and therefore in view of the statutory presumption of correctness which is attached to such entries, the plaintiffs would not be entitled to the relief for Patna High Court SA No.510 of 2012 (4) dt.15-03-2013 4 declaration of their title. The learned counsel has also submitted that both the courts below ignored these crucial aspects as well as the material evidence and have wrongly decreed the suit.

It is manifest from the impugned judgments as well as the submissions of the learned counsel for the appellants that the plaintiffs have firstly prayed for the relief for declaration of the Basgit purcha granted under the Bihar Privileged Persons Homestead Tenancy Act in favour of the defendants for the suit land and house to be illegal, void and without jurisdiction and thereafter have sought the relief for declaration of title and recovery of possession over the suit land and house. However, as noticed by both the courts below, the defendant nos. 1 and 2 who have been examined as D.W. 12 (A) and D.W. 13 have in their depositions categorically disowned the purcha in question and have asserted their independent title over the suit land and house. The testimonies of the D.W. 12 (A) Grija Devi and D.W. 13 Rukmani Devi, as placed by the learned counsel for the appellants show that the defendants have denied to have obtained the purcha in question.

The learned counsel has further submitted that in view of the entry in the recent survey khatiyan of the names of the defendants for the suit land it was incumbent upon the plaintiffs to seek the relief against those entries. It transpires that the plaintiffs have prayed for the general relief for declaration of title and recovery of possession over the suit land and house. It is the case of the plaintiffs that the recent survey plot no. 150, which is the suit land, has been carved out of cadastral survey plot no. 129 which was recorded in the name of the ancestors of the plaintiffs. The defendants have, however, claimed that the R.S. plot no. 150 has been carved out of C.S. plot no. 156 and it is their ancestral land. On behalf of the plaintiffs C.S. khatiyan (Ext.-8) of the C.S. plot no. 129 has been produced as evidence which shows that it has been recorded in the name of Laxman Raut, the ancestor of the plaintiffs.

The issues arising between the parties are concluded by concurrent finding of facts which are based upon the appreciation of evidence led by the parties. Patna High Court SA No.510 of 2012 (4) dt.15-03-2013 8

For the aforesaid premised reasons, there is no substantial question of law arising for consideration in this appeal, which is, accordingly, dismissed. Devendra/- (Vijayendra Nath, J)