Chorma, P.S.-Basantpur, District-Siwan. vs All Sons of Late Adyanath Tiwari.

Patna High Court SA No.291 of 2010 (10) dt.16-01-2013

27. Rambachan Sahani. All sons of Late Phulena Sahani.

28. Dhurea Kumari. 29. Turiya Kumari. 30. Sheojhariya Devi. All D/o Late Phulena Sahani.

31. Mahendra Sahani, Son of Bisheshwar Sahani. 32. Chhotelal Sahani, Son of Yodha Sahani. 33. Musafir Sahani, son of Pachu Sahani. 34. Subhawati Devi, D/o Pachu Sahani. 35. Manohar Sahani. 36. Jamadar Sahani. 37. Bhuar Sahari. 38. Chanchali Sahni. All S/o Late Gulabchand Sahani. 39. Bhuti Sahani, Son of Iswar Sahani. 40. Kalawati Devi, D/o Sheodayal Mallah. 41. Rati W/o Faudar Mallah. 42. Parbatiya W/o Chhathu Mallah. All D/o Late Ishwar Mallah.

43. Sheo Shankar Sahani, Son of Late Ramchandra Sahani. 44. Chanmatiya Devi. 45. Bachia Devi. 46. Gulabi Devi. 47. Laljharia Devi. All D/o Late Ramchandra Sahani.

48. Lakharaj Sahani. 49. Mukharaj Sahani. 50. Bidya Sahani. 51. Harihar Sahani. All S/o Late Ramkaran Sahani.

52. Ramnath Sahani, Son of Late Khedu Sahani. 53. Sheobanshi Sahani, Son of Late Khedu Sahani. 54. Sudama Sahani, Son of Late Hawaldar Sahani. 55. Kalawati Devi. 3 Patna High Court SA No.291 of 2010 (10) dt.16-01-2013

56. Chinta Devi. Both D/o Late Hawaldar Sahani. 57. Dular Sahani, Son of Late Guli Sahani. 58. Chhathu Sahani. 59. Bharbetan Sahani, Son of Ramanand Sahani. 60. Dewanti Devi, W/o Late Ramanand Sahani. 61. Shobha Devi. 62. Rambha Devi. 63. Rambha Devi. 64. Neha Kumari. 65. Niva Kumari. 66. Sita Kumari. 67. Rita Kumari. 68. Baba Kumari. 69. Galu Kumari. All D/o of Ramanand Sahani. 70. Raja Sahani, Son of Gali Sahani. Resident of village and P.O.-Chorma, P.S.- Basantpur, District-Siwan.

71. Geerja Devi, W/o Late Rajendra Singh. 72. Meera Devi. 73. Surati Kumari. 74. Suchita Kumari. All D/o Late Rajendra Singh, Resident of Village-Bankajeew, P.O.- Chorma, P.S.-Basantpur, District-Siwan. -----------------Plaintiff-Respondents-Appellants Versus

1. Most. Shanti Kuar, W/o Adyanath Tiwary. 2. Suresh Tiwari. 3. Subhash Tiwari. 4. Ghanshyam Tiwari. 5. Vijay Tiwari. 6. Ajay Tiwari. 7. Uday Prakash Tiwari. All Sons of Late Adyanath Tiwari.

8. Indumati Devi. 4 Patna High Court SA No.291 of 2010 (10) dt.16-01-2013

9. Usha Devi. 10. Meera Devi. 11. Chanda Devi. 12. Punam Devi. All D/o Late Adyanath Tiwari, Resident of Village-Chorma, P.O.- Chorma, P.S.-Basantpur, District-Siwan. ---------------------------------Defendants-Appelalnts-Respondents. ====================================================== Appearance : For the Appellant/s : Mr. Dhrub Narayan, Sr.Adv. Mr. Ram Chandra Sahni,Adv. For the Respondent/s : Mr. Jitendra Kishore Verma, Adv. ====================================================== CORAM: HONOURABLE MR. JUSTICE V. NATH ORAL ORDER 10 16-01-2013 Heard Mr. Dhrub Narayan , the learned senior counsel appearing on behalf of the appellants in support of this appeal. Mr. Jitendra Kishore Verma, the learned counsel for the respondents is also present.

2. The plaintiffs have filed this appeal against the judgment and decree dated 08.04.10 passed by Additional District Judge F.T.C.II , Siwan in T.A.No.81/67 reversing the judgment and decree dated 13.03.1967 in favour of the plaintiffs passed by Munisf II, Siwan in T.S.No.28/62.

3. The plaintiffs have filed the suit for declaration of their title and recovery of possession. It is the case of the plaintiffs that the suit land was under the proprietorship of Mahanth Bhikha Bandh who was the ex-landlord. The said Mahanth created a 5 Patna High Court SA No.291 of 2010 (10) dt.16-01-2013 „Thika‟ settlement in favour of Barhoga Kothi. The plaintiffs have claimed title on the basis of the settlement of the suit land made by the said „Thikadar‟ Barhoga Kothi, with the predecessors of the plaintiffs at the end of the period of „Thika‟ settlement. The plaintiffs have also asserted that the names of their predecessors had been recorded in the survey Khatian with regard to the suit land. However, they have stated that they have been dispossessed by the defendants who have been wrongly asserting their right, title and interest over the suit land.

4. The defendants categorical case is that the ex-landlord Mahanth Bhikha Bandh had made the „Thika‟ settlement in favour of Barhoga Kothi but after the expiry of the period of settlement the land was resumed back by the ex-landlord. The defendants have denied any settlement in favour of the plaintiffs and have also stated that the rent receipts and other documents of settlement of the plaintiffs are forged and fabricated documents. The defendants have claimed their title and possession through the ex- landlord Mahanth Bhikha Bandh.

5. After considering the pleadings and evidence of the parties, the trial court decreed the suit holding that the plaintiffs have the title over the suit land and are entitled to recovery of possession the defendants. The appellate court, on 6 Patna High Court SA No.291 of 2010 (10) dt.16-01-2013 reappraisal of evidence, however, has come to the conclusion that the „Thikadar‟ had no right to settle the land at the end of the period of „Thika‟, and therefore, the plaintiffs‟ basis of title is not valid. It has been further found by the appellate court below that the plaintiffs have executed deed of relinquishment in favour of the ex-landlord Mahanth Bhikha Bandh recognizing his title and possession over the suit land. The appellate court below, therefore, dismissed the suit holding that the plaintiffs have no title over the suit land and were not entitled to the relief for recovery of possession.

6. Mr. Dhrub Narayan, the learned senior counsel for the appellants has firstly submitted that the appellate court below committed error in law in not assigning reasons and meeting the reasoning given by the trial court before reversing the judgment. It has been urged by the learned senior counsel that the appellate court below has also failed to consider the entire evidence, which it was bound to do in case of reversal. It has also been canvassed that the judgments in previous suits, brought on record as Ext. 6 series have been wrongly discarded by the appellate court below. It has been contended that even though the said judgments were not with regard to the suit land or between the parties to the present suit but still the findings therein will operate as res judicata 7 Patna High Court SA No.291 of 2010 (10) dt.16-01-2013 on the issue of the title of the ex-landlord Mahanth Bhikha Bandh. On the basis of these submissions it has been urged that the substantial question of law arise for consideration in this appeal.

7. From the perusal of the judgments of both the courts below, it is manifest that the plaintiffs have accepted that Mahanth Bhikha Bandh was the ex-landlord and had given the suit land to Barhoga Kothi on „Thika‟ settlement. It is also the case of the plaintiffs that they took settlement from Barhoga Kothi at the end of the period of Thika settlement and therefore they acquired valid title and possession on that basis. The defendants denied the right of the Thika settlee to make further settlement in favour of the plaintiffs and it is their case that after the end of the „Thika‟ settlement, the ex-landlord resumed back the land. The defendants have based their title and possession over the suit land through ex- landlord Mahanth Bhikha Bandh. Ext.6 Series are the judgments passed in another suits in which the plaintiff and the defendants were not parties and the suit lands were also not subject matter of those suits. However, on behalf of the appellants, it has been contended that the issue of title of ex-landlord Mahanth Bhikha Bandh and the right of the „Thika‟ settlee Barhoga Kothi were specifically raised and decided, and therefore, the decision on the said issues in those suits would operate as res judicata. The 8 Patna High Court SA No.291 of 2010 (10) dt.16-01-2013 appellate court below in the impugned judgment has considered the judgments (Ext. 6 Series) and has come to the conclusion that these judgment are not relevant as they had not been rendered between the parties and with regard to the subject matter of the suit. The learned senior counsel has submitted that in view of the provision of Section 43 of the Evidence Act, these judgments should have been considered as relevant but has failed to point out any evidence on record from which it could be inferred that the dispute adjudicated in those judgments (Ext.6 series) was of public nature, or any such dispute is involved in the present case. As such, the appellate court below has rightly decided not to rely upon the judgments (Ext.6 Series) and has rightly come to the conclusion that the reliance placed by the trial court on these judgments was misplaced.

8. From the perusal of the impugned judgments of the appellate court below, it is clearly discernible that the findings have been recorded after considering the material evidence of the parties and in accordance with the settled principles of law. It is not required for the appellate court while reversing the judgment of the trial court to consider each and every evidence even though irrelevant or immaterial on the issues. The requirement is to consider the material and relevant evidence on record and no such 9 Patna High Court SA No.291 of 2010 (10) dt.16-01-2013 evidence could be pointed out on behalf of the appellants which has been ignored by the appellate court below. Thus the findings of the appellate court below recorded on the basis of appreciation of material evidence cannot be held to be perverse.

9. The submission on behalf of the appellants with regard to the Ladabi (deed of relinquishment) admittedly executed by the predecessors of the plaintiffs in favour of the ex-landlord is also equally misplaced. It is true that the deed of relinquishment cannot be accepted as a document creating or extinguishing a title but the relevance of such document for the purpose of recognition of an existing title cannot be ruled out. It has also been rightly noticed by the appellate court that the deeds of relinquishment can at least be used to “feed the title”. It is not the case of the plaintiffs that these deeds of relinquishment are vitiated by fraud, misrepresentation or undue influence, and it is their only case that the ex-landlord obtained those deeds for some other purposes. Similarly the reliance upon the entries in the survey Khatian for the purpose of establishing title also cannot be accepted as the survey khatian cannot be relied as a document of title. The plaintiffs have failed to produce any evidence to corroborate the validity of their settlement.

10. The issues arising between the parties have been 10 Patna High Court SA No.291 of 2010 (10) dt.16-01-2013 concluded by findings of fact by the appellate court below. There is no substantial question of law arising for consideration in this appeal, which is, accordingly, dismissed. Nitesh/- (V. Nath, J)