Gulab Sah v. The State of Bihar through Collector, Bhagalpur

mentioned in Schedule A of the plaint belonged to the plaintiffs and the suit land mentioned in Schedule B of the plaint belonged to the plaintiff 1st set. A further prayer was made for declaring the survey entry in respect of suit land in favour of the State as illegal and void and not binding on the parties. It was the case of the plaintiffs before the trial Court that the Schedule A land was their ancestral land and a residential house existed thereon since the time of the ancestors. The Schedule A land admeasured 13 decimals in R.S. Plot No. 6313 and R.S. Khata No. 3408 which is stated to have been carved out from the 3 Patna High Court SA No.72 of 2012 (9) dt.26-11-2013 Plot Nos. 4110 and 4111 admeasuring 10 decimals situated in Mauza Kharik Anchal and P.S. Naugachhia District Bhagalpur. In so far as Schedule B land is concerned, plaintiffs claimed their title by virtue of purchase through seven sale deeds from the Tatma family who according to the plaintiffs, were settlees over the said lands. The Schedule B lands admeasured 32 decimals in Plot Nos. 6274 and 6275 admeasuring 11 decimals each as well as 5 decimals of R.S. Plot No. 6345 towards South of Khata No. 3408 and 5 decimals of R.S. Plot No. 6278 situated at Mauza Kharik District Bhagalpur. Thus whereas the plaintiffs claimed title over Schedule A lands by inheritance, they claimed title over Schedule B lands by virtue of the seven sale deeds executed in between 25.11.1940 to 24.6.1968 by the Tatma family. The plaintiffs’ claimed a possession of the land in the aforementioned manner and according to them, the cause of action for filing the suit arose on 2.1.1993 when they were refused rent receipts on grounds that the survey entry was in the name of State of Bihar. The plaintiffs after serving notice on the Collector, Bhagalpur and the C.O. Naugachhia on 24.9.1993 filed the suit in question for the reliefs as detailed hereinabove. Whereas State through the Collector and the Circle Officer were arraigned as defendant 1st set, one Laxman Sharma was 4 Patna High Court SA No.72 of 2012 (9) dt.26-11-2013 arraigned as defendant No.3 being the defendant 2nd set. The defendant 1st set i.e. State and its authorities filed a written statement contesting the claim set up in the suit on merits as well as on limitation. The State denied that Schedule A land was the ancestral property of plaintiffs and they also denied the fact that Schedule B land belonged to any Tatma family. According to the State, the land in question was Gairmajarua land and thus was rightly recorded in the name of State of Bihar. The possession of the plaintiffs over the suit land or existence of house was also denied. The defendant 2nd set i.e. Laxman Sharma also filed a separate set of written statement contesting the suit. On the basis of rival pleadings, the trial Court has framed seven issues for adjudication which are as follows:

1. Whether the suit as framed is maintainable?

2. Whether the plaintiffs have cause of action?

3. Whether the suit is barred by law of Limitation?

4. Whether the suit is bad for defect of non-joinder and mis-joinder of essential parties?

5. Whether the suit land mentioned in Schedule A belongs to all the plaintiffs and the suit land mentioned in Schedule B of the plaint belongs to plaintiffs 1st party only? 5 Patna High Court SA No.72 of 2012 (9) dt.26-11-2013

6. Whether the entry made in the R.S. Khatiyan are wrong and illegal and not binding upon the plaintiffs?

7. Whether the plaintiffs are entitled to get any relief or reliefs if any? The trial Court on the basis of oral and documentary evidence led by the contesting parties dismissed the suit on merits as well as on grounds of being barred by limitation. It was held that the plaintiffs had failed to lead evidence in support of title in relation to either of the two properties at Schedule A and Schedule B as well as to establish as to how the cause of action arose in 1993 when the final publication of the revisional survey was made in the year 1978. The plaintiffs being aggrieved, preferred Title Appeal No. 83 of 2005 and which again was dismissed by the 3rd Additional District Judge, Naugachhia vide judgment and decree dated

10.1.2012/16.1.2012 and hence this appeal. Mr. Harendra Kumar has appeared on behalf of the plaintiffs-appellants while the defendant-respondent State of Bihar and its authorities have suo motu appeared through Mr. Niraj Kumar, learned A.C. to SC 22. It is the case of the plaintiffs as canvassed by Mr. Kumar that the very existence of the name of ancestor of the plaintiff in 6 Patna High Court SA No.72 of 2012 (9) dt.26-11-2013 the cadastral survey khatiyan in context with Schedule A land, was sufficient evidence of the fact that Schedule A land stood settled with them. It is his case that since Schedule A land was homestead land hence there was no question of issue of rent receipts but the fact that the possession of the ancestor of the plaintiffs over the land continued and even today when the plaintiffs have remained in possession of the said land, the settlement stands confirmed. It is however fairly submitted by Mr. Kumar that save and except for the entry in the cadastral survey khatiyan and the possession of the plaintiffs, there is no other evidence with the plaintiffs to support the settlement. In so far as Schedule B land is concerned, learned counsel has relied upon Exts. 5 and 5/1 which are stated to be land receipts issued by the ex landlord in the year 1352 fasli. On the strength of the two receipts, it was contended that the settlement by the ex landlord in favour of the settlees stands confirmed since the plot Nos. 4097, 4098, 4099 and 4100 which also finds mention in the receipt are now numbered as Plot Nos. 6274, 6275, 6345 of Khata No. 3408. According to the plaintiffs, the name of ancestor of the present plaintiffs Singho Sah appears on the receipts. Learned counsel also referred to Exhibits. 6, 6/1 and 6A which according to him are receipts issued after vesting of the 7 Patna High Court SA No.72 of 2012 (9) dt.26-11-2013 lands in the State of Bihar and have been issued again in the name of Singho Sah, relatable to Schedule B property. Mr. Kumar thus on the strength of the said rent receipts and the sale deeds executed by the Tatma family which were led as Ext. 2 series, submitted that these were sufficient evidence of title of the plaintiffs and that the Courts below have failed to appreciate the issue despite such evidence. Learned counsel in support of his submission has relied upon the following judgments: (a) AIR 1968 Patna 302 (Mt. Ugni & Anr. Vs. Chowa Mahto & Ors.) (b) 1999 (2)PLJR 784 (Abdul Sattar Vs. The State of Bihar) (c) AIR 1193 SC 136 (Balwant Singh & Ors. Vs. Gurbachan Singh & Ors.) Mr. Kumar referring to the judgment of the special Bench of this Court passed in the case of Ugni(supra) has made particular reference to paragraphs 10 and 16 thereof to submit that the Special Bench has held that where the continued possession of the plaintiff is proved over the suit land and is supported by rent receipts issued for the disputed land by the State upon payment of rent, a raiyati interest would be established. It was canvassed that 8 Patna High Court SA No.72 of 2012 (9) dt.26-11-2013 the Special Bench held that the rent receipts themselves would indicate the rate of land, the area, the name of lessee and hence independent of the Hukumnama, the rent receipts would also be a relevant piece of evidence. In support of his submission that the suit was not barred by limitation, learned counsel had relied upon the judgment rendered in the case of Balwant Singh(supra) and Md. Abdul Sattar(supra) to submit that it is only when the plaintiffs possession is threatened that a cause of action would arise irrespective of the date of publication of the survey entry and it may not be an obstacle for maintaining the suit. I have heard learned counsel for the parties and I have perused the judgments and decree passed by the Courts below. In so far as the claim for title over the Schedule properties is concerned, as I have already discussed that in respect of Schedule A land apart from the cadastral survey entry and claimed possession of the plaintiffs over the suit land, there is no other evidence. It was not the case of the plaintiffs that the ex- landlord had made settlement of Schedule A land with their ancestors rather they sought to claim their title on the basis of the cadastral survey entry. Another relevant feature as noticed by the Courts below is that though the Plot Nos. 4010 admeasures 1 decimal and 4011 admeasures 7 decimals, meaning thereby the total area is 9 Patna High Court SA No.72 of 2012 (9) dt.26-11-2013 only 8 decimals, the suit was filed claiming title over 13 decimals and the discrepancy was never explained. In so far as Schedule B land is concerned, the plaintiffs seek to claim title on the basis of sale deeds executed by the Tatma family in between 25.11.1940 to 24.6.1968. Again though the plaintiffs claimed that the Tatma family were settlees from the ex landlord but no evidence in support of the contention was led rather the plaintiffs sought to establish their contentions again on the basis of rent receipts. The evidenciary value of the said rent receipts have been discussed by the Court below and whereas Exts. 6 and 6/1 are receipts issued in favour of one Bhouli Sah son of Baso Sah but the said person does not find place in the family genealogy and no connection has been explained between the owner of the receipts and the plaintiffs family. Though Ext. 6A is a receipt issued in the name of Singho Sah stated to be the ancestor of the plaintiffs for an area of 4 Kathas but it does not mention any khata number or the Khesra number and thus does not reflect as to which plot the said receipt is relatable to. Exts. 5 and 5/1 admittedly are Jamindari receipts but these are the only receipts relatable to the land and have not been found by the Courts below to be sufficient enough for declaration of title. The judgment of Ugni(supra) relied upon by Mr. Kumar to support his 10 Patna High Court SA No.72 of 2012 (9) dt.26-11-2013 contention do not apply to the facts of the present case. There is neither any continuity in the receipts and even though some evidence has been led by the plaintiffs as regarding the possession but then unless it is supported by documents evincing title of the plaintiffs, the same on its own cannot come to the aid of the plaintiffs for the reliefs prayed in the suit. The suit admittedly was not filed seeking possessory title over the suit property rather it was filed seeking title on the basis of settlement and through purchases. It has been rightly held by the Courts below that until such time that the plaintiffs would prove settlement in favour of their ancestors in so far as Schedule A land is concerned and settlement in favour of their vendors, in so far as the Schedule B land is concerned, they cannot claim derivative title through their ancestors/vendors. The substantial question of law advanced by learned counsel to contend that the evidence led by the parties have not been appropriately adjudicated upon by the Courts below does not withstand the test inasmuch as there is complete lack of evidence to establish title. Even on the issue of limitation, it is noticed that whereas the Survey Khatiyan was published in the year 1978 and the plaintiffs have claimed that the cause of action arose on 2.1.1993 when they apprehended dispossession but then there is a complete absence of evidence on this and except for the 11 Patna High Court SA No.72 of 2012 (9) dt.26-11-2013 statement made in the plaint, no cogent evidence was led by the plaintiffs to support as to how the apprehension arose. In fact, P.W.2 led by the plaintiffs who is the son of one of the plaintiffs is not even aware as to who had gone to the revenue Karamchari and was refused rent receipts rather the plaintiffs has not led a single evidence as regarding the person who has been denied the rent receipts. The judgment relied upon by Mr. Kumar on the issue of limitation as noticed hereinabove again would not cover the case of the plaintiffs in absence of any explanation and evidence supporting the apprehension of dispossession. For the reasons aforementioned, this Court is not pursuaded to interfere with the concurrent judgment and decree passed by the Courts below and this appeal, failing to raise any substantial question of law, is dismissed accordingly. Bibhash/- (Jyoti Saran, J)