Janardan Pathak v. The State Of Bihar & Ors.

of 2009, whereby he has affirmed the judgment and decree dated

17.9.2009 passed by the learned First Munsif, Ara in Title Suit No. 26 of 1995 and dismissed the first appeal, is under challenge in the present appeal filed on behalf of the appellant who is son of the original plaintiff before the trial Court.

3. Title Suit No. 26 of 1995 was instituted in the Court of learned Munsif, Ara at the instance of the appellant‟s father (original plaintiff) for a declaration of title, confirmation of 2 Patna High Court SA No.479 of 2011 (6) dt.31-01-2013 possession over the suit land as mentioned in Schedule appended to the plaint and further declaration that the State of Bihar did not have any right title and interest over the suit land. He further prayed that State of Bihar should not settle the same to any third person. Subsequently the plaint was amended with introduction of additional relief on 5.5.2001 to the effect that the respondent no.3/defendant no.3, Anchal Adhikari, Charpokhari had no right to settle Schedule I properties in favour of the respondent nos. 4 and 5/ Defendant nos. 4 and 5 and that the order passed in Bandobasti case No. 5/1997-98 dated 21.4.1998 was illegal and the order in Encroachment Case No. 2/1995-96, asking appellant to remove the encroachment was inoperative and without jurisdiction as there was no notice served upon the appellant.

4. The case of the original plaintiff as developed in his plaint was that the suit land described as Old Plot No. 665, old Khata no. 96 admeasuring 4 decimals was homestead land of the plaintiff‟s grandfather late Ramdut Pathak whose name figured in possessory column of cadestral Khatiyan. However, in the revisional survey Khatiyan, new Khata No. 421, new Keshra No. 1004 admeasuring 2 decimals had been carved out from four decimals of old Khata No. 96 and Old Keshra No. 665 and entered 3 Patna High Court SA No.479 of 2011 (6) dt.31-01-2013 in the name of State of Bihar.

5. A written statement was filed on behalf of the State of Bihar, making averment that the suit land was encroached upon by the plaintiff and it was neither homestead nor raiyati land of the plaintiff and he had no right title and interest over the property. The respondent nos. 4 and 5 herein, who were made defendant nos. 4 and 5 in the suit also filed their written statement to the effect that they had taken settlement of survey Khata No. 421, Keshra No. 1004 admeasuring 2 decimals and contended that the nature of the land was „Gairmajura Malik‟ and was not homestead of grandfather of the original plaintiff as alleged in the plaint. It was further pleaded on behalf of the defendants/respondents that neither the grandfather of the plaintiff nor the defendants had at any point of time possession over the suit land. The private respondents claimed that they had obtained purcha from the State of Bihar as they were landless people under the Bihar State Privileged Persons Homestead Tenancy Act. On the basis of the rival pleadings and contentions, the trial Court framed altogether eight issues including issue nos. 5 and 6 which are as follows: “5. Whether the plaintiff had got right title and possession over the suit land?

6. Whether the defendant no.1 had the authority to Bandobast the suit land in favour of defendant nos. 4 and 5?” 4 Patna High Court SA No.479 of 2011 (6) dt.31-01-2013

6. From the judgment and decree of learned trial Court, it appears that the evidence was led on behalf of the plaintiff both oral and documentary. However, on the basis of the material available on record, learned trial Court came to specific finding that the plaintiff failed to produce any concrete evidence in support of his title over the suit land. Learned trial Court took into account the fact that no rent receipts or Zamindari return was filed in support of the claim that the land belonged to his grandfather and continued in possession of the family since then. He also took note of a vital fact that the plaintiff‟s son himself had made an application to the State of Bihar for settlement of the suit land in his favour and posed a question that if the suit land belonged to grandfather of the original plaintiff where was need of a son to apply for settlement to the land in his favour.

7. An appeal was preferred under Section 96 of the Code before learned Additional District Judge, Bhojpur at Ara vide T.A. No. 128 of 2009. Leanred First Appellant Court also after scrutinizing the evidence came to the finding that the appellant did not have right title nor the possession over the suit land and thus concurred with the findings of the learned trial Court while dismissing the appeal preferred by the appellant. 5 Patna High Court SA No.479 of 2011 (6) dt.31-01-2013

8. Appearing on behalf of the appellant Mr. Anis Chandra Sinha, learned counsel has submitted that the first appellate Court did not properly scrutinize the evidence available on record. He submits that there is non consideration of evidence on the part of the first appellate Court. He, accordingly, submits that the substantial question of law which is involved in the present appeal is as to whether the concurrent findings of the courts below are based on irrelevant consideration.

9. This is not in dispute that there is a concurrent findings of fact by the Courts below to the effect that the appellant could not prove his title over the suit land. There is also finding that the appellant could not establish the fact that he/his ancestors were in possession over the suit land. It is well settled that this Court in exercise of power under Section 100 of the Code has to be slow in interfering the concurrent findings of fact unless such findings are shown to be perverse, based on no material or contrary to the material available on record.

10. I do not find that the appellant has made out any such case that such findings are perverse. On perusal of the judgment of the trial and the judgment of the appellate Court under appeal it appears that the findings are based on appreciation of evidence available on record. No substantial question of law, in 6 Patna High Court SA No.479 of 2011 (6) dt.31-01-2013 my view, is involved in the present appeal to be determined nor such substantial question of law has been raised which would merit admission of this appeal.

11. The second appeal is, accordingly, dismissed. There shall be no order as to costs. (Chakradhari Sharan Singh, J) Arun Kumar/-