Chintahari Pandey son of late Hira Pandey v. Umashankar Pandey son of late Ram Dev Pandey

ancestor of the defendant to the ancestor of the plaintiff and further for confirmation of his possession over the same. The suit Patna High Court SA No.18 of 2010 (14) dt.28-01-2013 2 land admittedly belonged to the family of the defendant. It is the case of the plaintiff that Chandrika Pandey, ancestor of the defendant, made oral gift by way of „Dakshina‟ to his Guru Awadh Bihari Pandey, ancestor of the plaintiff, on the eve of the marriage of his only son for performing Puja Path and „Gurumukhi‟. The plaintiff has claimed that since thereafter his family has been coming in possession of the suit land as title holder and later on in Khangi partition, the suit land has come in exclusive possession of the plaintiff. On the other hand, the defendant has denied the case of the plaintiff asserting that the ancestor of the plaintiff was not the Guru of his ancestor Chandrika Pandey and the land was never given to him by oral gift as Dakshina. The defendant has also denied the possession of the plaintiff over the suit land. The case of the Khangi partition has also been denied and the objection with regard to non-joinder of necessary party has been raised on the ground that the heirs of Awadh Bihari Pandey have not been made parties in the suit. The trial court, after considering the pleading and evidence of the parties decreed the suit after concluding that the plaintiff has succeeded in proving his title and possession over the suit land on the basis of oral gift by Chandrika Pandey in favour of Patna High Court SA No.18 of 2010 (14) dt.28-01-2013 3 Awadh Bihari Pandey. It has also been held that „ Abhidhari Khata Pustika‟ prepared in the name of Brijbasi Pandey (grand father of the defendant) for the suit land is not binding upon the plaintiff and has also not created title in favour of the defendant. The trial court also held that the suit has been filed by the plaintiff in the representative capacity of his family as the plaintiff has claimed his possession only on the basis of Khangi Partition and not through partition by metes bounds. The appellate court, on reappraisal of evidence, has come to the finding that the plaintiff has not succeeded in proving his case of oral gift but has succeeded in proving his possession over the suit land since the time they have been put in possession by Chandrika Pandey and his wife or at least from 1955 as mentioned in the survey khatiyan. The appellate court has further held that the entry made in the consolidation records of right in favour of the defendant could not affect the interest of the plaintiff over the suit land. The appeal was, therefore, dismissed modifying the decree of the trial court with regard to the finding on oral gift and holding that the defendant has no right to interfere with the possession of the plaintiff over the suit land. Mr. Dwivedi, the learned senior counsel has firstly submitted that once the appellate court found the case of oral gift Patna High Court SA No.18 of 2010 (14) dt.28-01-2013 4 to be not sustainable, it ought not to have proceeded to find title of the suit land in favour of the plaintiff when no case of adverse possession has been pleaded and proved by the plaintiff. It has been urged that the finding of the trial court regarding validity of the oral gift has been upset by the appellate court and thus, there was no scope to uphold the claim of the plaintiff on the basis of possession over the suit land as according to his own case, the plaintiff could not have claimed to be in adverse possession over the suit land. It has been next submitted that the entry made in the recent survey khatiyan and preparation of Khata Pustika in the name of the defendant for the suit land has got statutory presumption of correctness which the plaintiff has failed to rebut. It has also been contended that the courts below have committed error in not framing the issue in this regard and deciding the same before the proceeding to decree the suit of the plaintiff. Elaborating his submission, the learned senior counsel has further canvassed that the leaned courts below have also not framed an issue with regard to the relationship of Guru and Chela between Awadh Bihari Pandey and Chandrika Pandey when in the facts of the case such issue was germane to the whole case of the plaintiff. Criticizing the impugned judgment, further, it has been contended that the plaintiff has omitted to implead the heirs of Awadh Bihari Patna High Court SA No.18 of 2010 (14) dt.28-01-2013 5 Pandey who was the original donee of the suit land, and thus his claim over the suit land on the basis of oral partition was not maintainable. The factual matrix of the case clearly unveils that the plaintiff has claimed his title and possession over the suit land on the basis of oral gift by way of „Dakshina‟ given by Chandrika Pandey, the ancestor of the defendant, to Awadh Bihari Pandey the ancestor of the plaintiff. The plaintiff has claimed that since after the said gift, the suit land has been coming in possession of his family and later on in Khangi partition, the same has come in exclusive possession of the plaintiff. Besides oral evidence, the plaintiff has also adduced documentary evidence to establish his case. Ext. 8 is a Hand note dated 07.03.1920 executed by Awadh Bihari Pandey pledging the suit land for securing money; Ext. 6 is a decree in partition suit no. 19 of 1931 passed on 11.03.1932 between the ancestor co-sharers of the family of the plaintiff wherein also the present suit land had been made subject matter of the suit and given in the share of Awadh Bihari Pandey and others; Ext. 7 is the registered deed of mortgage dated 08.07.1960 whereby Awadh Bihari Pandey had mortgaged the suit land and later on redeemed the same on 20.06.1968; Ext. 5 is the order of Survey Authority dated 01.10.1962 and Ext. 10 is the revisional Patna High Court SA No.18 of 2010 (14) dt.28-01-2013 6 survey records of right for the suit land wherein in the possession column the name of Awadh Bihari Pandey has been entered with specific mention that it is on the basis of gift. Both the courts below have scrutinized the aforesaid documentary evidence along with other evidence and have concurrently come to the finding that the suit land has been in possession of the plaintiff‟s family. It has also been held that such possession is continuing since it had been given by Chandrika Pandey to the ancestor of the plaintiff or at least from 1955 as mentioned in RS Khatiyan (Ext. 10). No assail and attack on this finding of possession has been made on behalf of the appellant. In this backdrop now, adverting to the first submission by the learned senior counsel with regard to adverse possession it would be apt to take into notice that the basis of the claim of the plaintiff is the oral gift of an old origin said to have been executed by the grand father of the defendant. The person who made the said oral gift or the person who had accepted the same are admittedly not alive nor any person as direct witness to the said oral gift could be examined. Thus, the plaintiff has failed to establish the transaction of oral gift by direct evidence but has succeeded in establishing his continuous possession over the gifted land. In such a circumstance even in case of the invalidity of Patna High Court SA No.18 of 2010 (14) dt.28-01-2013 7 the transaction, the plaintiff would be deemed to have acquired a perfectly good title over the suit property. It would be fruitful to reminisce the principle laid down by a Bench of this court in the case of Sribhagwan Singh Vs. Rambasi Kuer A.I.R. 1957 Pat. 157, where the plaintiff failed to establish his claim of title over the suit land on the basis of oral sale but succeeded in establishing his continuous possession and in that circumstances their lordships held as follows- “…………..In reply, Mr. G.P. Das, appearing for the plaintiffs-respondents, has argued that where a suit is based on title extended over more than twelve years, plea of adverse possession need not be specifically pleaded as it is included in the plea of title……………………….….………………………The contention of Mr. Das is well founded, and must be accepted. …….” It has been further laid down- “………. The position is well established that a transferee having acquired title under an invalid transaction, and continuing in possession for more than twelve years, would be deemed to have acquired a perfectly good title to the property. In the present case, although the oral sale by defendant no. 14 to the plaintiffs in 1927 for Rs. 300/- was an invalid sale, as it was not under a registered document, and, therefore, it did not amount to a legal sale of the land Patna High Court SA No.18 of 2010 (14) dt.28-01-2013 8 to the plaintiffs, it could nevertheless be referred to as explaining the nature and character of the possession of the plaintiffs thenceforth from 1927 right up to till at least the 26th June, 1947, when an adverse order was passed against the plaintiffs in the proceeding under Section 145, Criminal Procedure Code…..” The Apex Court also delved into this issue in the case of State of W.B. Vs. The Dalhousie Institute Society A.I.R. 1970 S.C. 1778 where the grant of the disputed land could not be proved but the grantee was found in open continuous and uninterrupted possession and enjoyment of the same for over 60 years. Their lordships referred to an earlier judgment in the case of Collector of Bombey Vs. Municipal Corporation of the City of Bombey A.I.R. 1951 S.C. 469 wherein it was held that in a case where possession was not referable to any legal title, it would be prima facie adverse to the legal title of the owner from the very moment such possession is taken under an invalid grant and has continued as of right uninterruptedly for a very long period. Their lordships have then held that a person in such possession clearly acquires title by adverse possession. In that case, their lordships also repelled the contention that the possession of the grantee would be taken to be only permissive as that of a licensee and no claim of grant or adverse possession could be sustainable. Patna High Court SA No.18 of 2010 (14) dt.28-01-2013 9 Tested on the anvil of the aforesaid principles, the submission on behalf of the appellant has clearly no substance. It would also be apt here to mention the repeated over cautious observation by the appellate court below in the impugned judgment that it has not decided the matter from the view point of adverse possession but has considered the case of possession on the basis of invalid oral gift and the entitlement of the plaintiff for protection of his right to possess the suit land. In fact the decree by the appellate court has also been passed on the same lines. In view of the principles of law as abovementioned and also in view of the provision of Section 27 of the Limitation Act, I do not find illegality in granting the relief to the plaintiff by the courts below on the basis of his possession. The next submission is with regard to the legal presumption with respect to the entries in the survey khatiyan and Khata Pustika. This submission loses much of its substance after the finding of long continuous possession of the plaintiff over the suit land purportedly on the basis of oral gift by the predecessor of the defendant. It is well settled that the records of right are not documents of title and an entry in the records of right neither creates nor extinguishes the title and is merely a rebuttable piece of evidence. The learned senior counsel has referred to Section 19 Patna High Court SA No.18 of 2010 (14) dt.28-01-2013 10 of the Bihar Tenants‟ Holdings (Maintenance of Records) Act, 1973 in support of his submission that the Khata Pustika in the name of the defendant shall be presumed to be correct. From the perusal of the said provision, it is manifest that such presumption with regard to entry is limited to the presumption with regard to the correction of such entry until it is proved by evidence to be incorrect in a proceeding in a civil court of a competent jurisdiction. The defendant has not adduced any evidence to show that the entry in the Khata Pustika in his name for the suit land has been made on contest and in a proceeding to which the plaintiff had been a party. Moreover, the khata Pustika (Ext. B) has been prepared in the name of Brijbasi Pandey who was dead 30 years back according to the deposition of D.W. 9 who is son of defendant. The trial court has also found that the Khata Pustika did not bear the date on which it has been prepared and has held the same to be not binding on the plaintiff. With regard to the survey khatiyan (Ext. 10) admittedly there is mention of oral gift in favour of the predecessor of the plaintiff in the remark column. It is not the case of the defendant that he has taken any step against such entry. Considering all these facts, there is no scintilla of doubt that the defendant cannot resist the relief of the plaintiff, on the basis of the entries in survey khatiyan or khata Pustika. Patna High Court SA No.18 of 2010 (14) dt.28-01-2013 11 The submission with regard to non-joinder of the parties, is also misconceived in view of the fact that the plaintiff has not claimed partition by metes and bounds but his claim of possession is on the basis of Khangi partition. Kailashpati Pandey son of late Awadh Bihari Pandey has been examined on behalf of the plaintiff as P.W. 4 and he has accepted that by Khangi partition, the suit land is in possession of the plaintiff. Admittedly, he is an heir of Awadh Bihari Pandey (the donee) and his evidence against his interest is sufficient to dispel the objection with regard to non- joinder of necessary party as raised by the defendant. From the aforesaid premised reasons and discussions, it is clear that the issues arising between the parties have been concluded by concurrent findings of fact by both the courts below. There is no substantial question of law arising for consideration in this appeal, which is, accordingly, dismissd. Devendra/- (V. Nath, J)