Md. Ajimuddin & Ors v. Ali Bhanth

The plaintiff filed the aforesaid suit for declaration of his title and confirmation of possession. The plaintiff’s case in short is that Jamtalli Mian obtained settlement of 1 biggha 8 katha 13 dhur land of old plot No.587 by Rashidi settlement from the ex. landlord in the name of his brother-in-law, namely, Alijam Mian who was a benamidar. Jamtalli Mian came in possession and the ex. landlord 2 Patna High Court SA No.576 of 2011 (6) dt.09-07-2013 submitted return in the name of Alijam Mian. After vesting, Jamabandi has been opened in the name of the plaintiffs. In the revisional survey, the new plot No.1269, 1270 and 1271 which were carved out of old plot No.587 was recorded in the name of defendant wrongly. The further case is that Jamtalli Mian further took Rashidi settlement of 2 biggha 14 katha 15 dhur of plot No.907 and 908 and came in actual possession of the same. Return was also submitted and after vesting, the plaintiffs are paying the rents to the State of Bihar. In the revisional survey, the new plot No.1773 has been carved out from old plot No.907 has been wrongly recorded in the name of defendant. When the plaintiffs were absent, the survey entry was made in the name of the defendant.

#4. The defendants respondent filed contesting written statement. According to them one Khoru Bhant was the owner of 1 bigha 8 katha of old plot No.587 and 2 biggha 6 katha of old plot No.907. The cadastral survey record was prepared accordingly in his name. Khoru Bhant died issueless leaving behind his brother Satu Bhant who inherited the lands. At the time of vesting of Jamindari, the ex. landlord submitted return in the name of Satu Bhant and, therefore, his name was recorded in the Sherista of State of Bihar. In revisional survey in the year 1970 finding the possession of the Satu Bhant, his name was recorded. He died leaving behind his 4 sons and after partition, the suit land fell in the share of Alijam Bhant.

#5. The trial Court recoded the finding that there was no 3 Patna High Court SA No.576 of 2011 (6) dt.09-07-2013 Satu Bhant in the village and accordingly decreed the plaintiff’s suit. The defendant then filed title appeal before the lower appellate Court. The lower appellate Court on the basis of material recorded the finding that the plaintiffs have failed to prove their title and suit is also barred by the provision of Benami Transaction and Prohibition Act, 1988 and accordingly allowed the appeal.

#6. The learned counsel, Mr. Suman Kumar, appearing on behalf of the appellant submitted that the lower appellate Court has wrongly not relied ext.2 and 2/A which are the documents showing settlement of land. The learned counsel further submitted that the lower appellate Court has wrongly disbelieved these documents ext.2 and 2/A on the ground that in the year 1954 and 1955, the ex.landlord had no authority to make any settlement. According to the learned counsel, there is no bar to make settlement by ex.landlord. The learned counsel secondly submitted that the lower appellate Court has wrongly held that the suit is barred by Benami Transaction & Prohibition Act, 1988 because the suit was not between real owner and the benamidar. Moreover, that part of the finding will affect only the property which was acquired in the name of Alijam Mian and with respect to the property acquired by Jamtalli Mian. Thirdly, the learned counsel submitted that the lower appellate Court is not justified in not relying on ext.6, i.e., Register-II which was open in the name of Jamtalli Mian and on the basis of which the rent receipt ext.1 series were issued and likewise the lower appellate Court has wrongly not relied ext.‘C’, i.e., the order passed in rent fixation case No.32 of 4 Patna High Court SA No.576 of 2011 (6) dt.09-07-2013 2001-2002 and the ext.7, i.e., C.S. Khatiyan showing the name of Foru Bhant recorded as Bataidar. Therefore, he could not have obtained Raiyaiti interest, so ex. landlord settled land in favour of the plaintiffs.

#7. On the other hand, the learned counsel for the respondent submitted that none of the grounds raised by the learned counsel for the appellant are substantial question of law. The lower appellate Court has considered all the evidences including ext.6 ext.7 ext.‘C’ and the rent receipt and, thereafter recorded the finding. The lower appellate Court has given reason for not relying on the said exhibits. So far ext.2 and 2/A are concerned, the learned lower appellate Court had rightly not relied upon the said documents because those are only rent receipt of the year 1954-55. According to the learned counsel, the plaintiff is claiming that Alijam Mian was benamidar of Jamtalli Mian, therefore, this claim of plaintiff is barred under Section 4 of the Benami Transaction and Prohibition Act.

#8. From perusal of the impugned Judgment, it appears that after considering evidences adduced by the prates, the lower appellate Court found that the plaintiffs are claiming title on the basis of Rashidi settlement of the year 1954-55. In support of their case, they produced ext.2 and 2/A which are rent receipts of the year 1954-55. It may be mentioned here that the Bihar Land Reforms Act came into force on 25.9.1950 and according to Section 4 of the Bihar Land Reforms Act, 1950, the estate vested in the State with the various interests of the intermediaries 5 Patna High Court SA No.576 of 2011 (6) dt.09-07-2013 mentioned in section 4 free from all incumbrances and such intermediaries shall cease to have any interest in such estate except the interest expressly saved by or under the provisions of the Acts. It is not the case of the appellant that the suit property was saved from vesting on the fact that the same was in possession of intermediaries or that other grounds as mentioned in Section 6 of the Bihar Land Reforms Act. The simple case is that the ex. intermediaries settled land by ext.2 and 2/A. Since after coming into force, Bihar Land Reforms Act, 1950 there were no landlord or the intermediaries as all their rights vested in the State of Bihar freee from all incumbrances. In such circumstances, there is no question of making any settlement by them arises. It is also not the case of the plaintiff that after vesting the ex. landlord became the Raiyat under the State of Bihar and Jamabandi was opened in his name. Therefore, the reason assigned by the lower appellate Court appears to be correct. In my Opinion, therefore, the ground raised by the learned counsel for the appellant relates to relying on ext.2 and 2/A or not is supported by good reasons and rightly the lower appellate Court has not relied on these exhibits. Once these exhibits are found to be not reliable, then merely on the basis of the entry of the record of right or in the Jamanbandi, decree for title cannot be granted in favor of the plaintiff.

#9. So far the submission regarding Benami Transaction of Prohibition Act is concerned, it may be mentioned here that it is the case of the appellant that Jamtalli Mian obtained settlement in 6 Patna High Court SA No.576 of 2011 (6) dt.09-07-2013 the name of Alijam Mian with respect to some property mentioned in the plaint. Therefore, a part of the claim made by the plaintiff is based on Benami Transaction. According to Section 4 of the Benami Transaction of Prohibition Act, 1988, this claim of the plaintiff is barred. It appears that the trial Court had not considered these aspects of the matter. Therefore, the lower appellate Court considering these aspects found that the trial Court Judgment and Decree is unsustainable and accordingly reversed the finding. The lower appellate Court also recorded the finding that Satu Bhant was the real heir of Foru Bhant. So far this finding is concerned, it is pure finding of fact based on ext.‘B’ series.

#10. So far the submission of the learned counsel that defendant’s ancestor was recorded as Bataidar. Therefore, he could not have acquired title is concerned, it may be mentioned that according to Bihar Tenancy Act which was amended in the year 1938, the Batidar who was in possession for more than 12 yeas would acquire occupancy right. It is not the case of the defendant that the ancestor of the defendant was ever evicted or surrendered his possession in favour of ex. landlord. No return was filed by the plaintiff.

#11. From perusal of the lower appellate Court Judgment, it appears that the lower appellate Court found that the trial Court decreed the suit on the basis of ext.2 and 2/A which are only rent receipt. The trial Court relied on them assuming that those are the settlement papers.

#12. On the basis of the aforesaid discussion, I find that the 7 Patna High Court SA No.576 of 2011 (6) dt.09-07-2013 findings recorded by the lower appellate Court is based on materials and admissible evidences and the findings are findings of fact. The lower appellate Court has rightly not relied the case of the appellant regarding settlement by ex.landlord by ext.2 and 2/A in the year 1954-55.

#13. In view of my above discussion, I find that no substantial question of law is involved in this second appeal and accordingly, this second appeal is dismissed at the admission stage itself. (Mungeshwar Sahoo, J) Sanjeev/-