Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.131 of 2011 ====================================================== The State Of Bihar through the Headmaster namely Navlesh Kumar Singh, Middle School, Bharrahi Bazar, Madhepura authorized by District Superintendent of Education, Madhepura to represent the case on behalf of defendant-respondent. .... .... Appellant/s Versus 1. Shankar Pd. Sah, son of late Chirukh Sah. 2. Prabhoo Nath Sah Son of Shankar Pd. Sah. 3. Ashok Kumar Sah son of Shankar Pd. Sah, all residents of village and Mauza-Tola Bharrahi Bazar, Police Station and District-Madhepura. 4. The State of Bihar through Collector, Madhepura. 5. The District Education Officer, Madhepura. .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Binod Kumar Sinha For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE VIJAYENDRA NATH ORAL ORDER 7 13-03-2013
Legal Reasoning
Heard Mr. Uday Chand Prasad, the learned counsel appearing on behalf of the appellant. The defendant in the suit is the appellant in this appeal against the judgment of reversal by which the appellate court has allowed the appeal and set aside the dismissal of the suit. The plaintiffs have filed the suit for declaration of title and confirmation of possession over the suit land and also for declaration that recent survey entry in khatiyan of the suit land in the name of the defendant is wrong and not binding on the Patna High Court SA No.131 of 2011 (7) dt.13-03-2013 2 plaintiffs. The plaintiffs’ case is that Jagdish Pd. Mandal acquired 8 kathas of land in C.S. plot no. 2907 C.S. khata no. 528 from the ex-landlord and came in possession thereof. The name of the settlee Jagdish Pd. Mandal was mutated for the said 8 katha of land in the office of the ex-landlord and Jamabandi was also created according to which Jagdish Pd. Mandal paid rent to the ex- landlord. After death of Jagdish Pd. Mandal his son Ganesh Kumar inherited the property and sold 7 katha out of the settled land to the plaintiffs by two registered sale deeds dated 15.07.1987 and put the plaintiffs in possession. It is further case of the plaintiffs that they constructed their houses and Sahan after the purchase and their names have also been mutated in register-II of the State of Bihar in Jamabandi No. 3473 and 3500 for which the State of Bihar has accepted the rent from the plaintiffs and granted the rent receipts. It is further case of the plaintiffs that during the recent survey, three plots were carved out of the C.S. plot no. 2907 out of which R.S. plot no. 2785 under R.S. Khata No. 406 area 10 decimal has been rightly recorded in the name of Jagdish Pd. Mandal, the deceased father of the vendor of plaintiffs but the other two plots i.e. R.S. plot no. 2784 area 17 decimal and R.S. No. 2786 area 8 decimal have been wrongly recorded in R.S. Khata no. 1654 in the name of Education Department, Patna High Court SA No.131 of 2011 (7) dt.13-03-2013 3 Government of Bihar. The plaintiffs have alleged that on the basis of wrong survey entry the defendant gave threat of dispossession to the plaintiffs from the suit land and hence the suit has been filed for the abovementioned reliefs. The defendant-State of Bihar contested the claim of the plaintiffs asserting that 3.73 acres of C.S. No. 2907 was Gairmazarua khas land of the ex-landlord out of which an area of 1 bigha 2 kathas 18 dhur was given through Parwangi by the ex- landlord for the construction of a primary school. It has, therefore, been claimed that the R.S. entry has been correctly made in the name of the defendant. The trial court after considering the pleadings and evidence of the parties, dismissed the suit holding that the plaintiffs had failed to establish title over the suit land and further also holding that the suit was barred by law of limitation as it was filed 20 years after the publication of the recent survey khatiyan. The appellate court, however, on reappraisal of evidence, has reversed the judgment of the trial court and decreed the suit by the impugned judgment and decree in this appeal. Mr. Uday Chand Prasad, the learned counsel appearing on behalf of the appellant has submitted that the appellate court below has not properly considered the evidence on record and has come to the erroneous finding of facts. It has been Patna High Court SA No.131 of 2011 (7) dt.13-03-2013 4 urged that the plaintiffs have failed to establish their title over the suit land which is in fact the land given by the ex-landlord for setting up a school and at present a high school is running on the suit land. It has, therefore, been submitted that substantial question of law arises for consideration in this appeal. From the facts appearing from the judgments of the courts below as well as from the submissions of the learned counsel for the appellant, it is manifest that the plaintiffs have based their claim of title and possession over the suit land through registered sale deeds executed by Ganesh Kumar son of Jagdish Pd. Mandal. The plaintiffs have asserted that Jagdish Pd. Mandal took settlement of 8 katha of land out of C.S. plot no. 2907 from the ex-landlord. The plaintiffs have produced rent receipts granted by the ex-landlord in proof of the settlement of the land with Jagdish Pd. Mandal. The fact of settlement with Jagdish Pd. Mandal has also been corroborated by Ext. 6 which shows that Jamabandi was established in the office of the ex-landlord in the name of Jagdish Pd. Mandal after the settlement. The rent receipts (Ext. 1 series) have been filed by the plaintiffs to show that after the vesting of the intermediary interest, the Jamabandi has been created in the name of Jagdish Pd. Mandal from whom the State of Bihar accepted the rent. Patna High Court SA No.131 of 2011 (7) dt.13-03-2013 5 The defendant who has claimed the suit land on the basis of Parwangi from the ex-landlord in the year 1937 for setting up a school has failed to file the original document, and the Hindi translation which has been produced before the appellate court below has been found to be not correct. The appellate court below has taken into notice the deposition of the headmaster of the school and the member of the school committee who have been examined as D.W.6 and D.W.9. Both these witnesses have accepted that the school is over 25 decimal of land surrounded by a boundary and the suit land is adjacent west of the boundary in possession of the plaintiffs. The other witnesses of the defendant have also made similar statements admitting the possession of the plaintiffs over the land west to the boundary of the school. The learned counsel for the appellant has failed to point out any evidence brought by the defendant to show that the plaintiffs have encroached upon the land which has been settled for the school and further also to show that the land of the school also extends beyond the boundary of the school. The learned counsel for the appellant has also failed to establish perversity in any manner in the findings of the appellate court below and his entire submission centers around re- appreciation of evidence. In the second appellate jurisdiction the re-appreciation of the evidence for evaluating the findings of fact Patna High Court SA No.131 of 2011 (7) dt.13-03-2013 6 is not permitted unless the findings are shown to be perverse. In this view of the matter, there is no substantial question of law arising for consideration in this appeal, which is, accordingly, dismissed. Devendra/- (Vijayendra Nath, J)