Ram Swarup Ray v. Bhupendra Yadav

trial Court are as follows:- “Khata No. Khesra No. Area 35 1 03..05..00

35. 150 02..00..00 ____________________ Total 05..05..00.”

4. As per plaintiffs’ case the plaintiff no.1, namely, Hirday Ray acquired the suit property from ex-landlord through 3 Patna High Court SA No.113 of 2011 (8) dt.22-04-2013 oral settlement. However, while filing return at the time of vesting of Zamindari the ex-landlord did not mentioned this fact. It was in such circumstance that the plaintiff had to file a petition for correction of Jamabandi before the Circle Officer, Choutham under the district of Khagaria. According to the plaintiff, after an enquiry and also consideration of objection raised by the defendant no.1 the Circle Officer Choutham recommended for correction of Jamabandi and creation of Jamabandi in favour of the plaintiffs. While making such recommendation, the Circle Officer, Choutham relied upon the land receipts issued by the ex- landlord.

5. The Deputy Collector Land Reforms, Khagaria thereafter confirmed the report of the Circle Officer for correction of Jamabandi relating to the land in question in favour of the plaintiffs.

6. The defendant no.1 thereafter approached the Court of learned Additional District Judge, Khagaria by filing an appeal against the order of the learned Deputy Collector Land Reforms, ( DCLR), Khagaria. The order of the DCLR, whereby the correction of Jamabandi was confirmed, was set aside and appeal was allowed remanding the matter back to the DCLR, Khagaria. It further appears that on remand learned Deputy Collector Land 4 Patna High Court SA No.113 of 2011 (8) dt.22-04-2013 Reforms, Khagaria by his order dated 21.12.1985 cancelled the Jamabandi created in favour of plaintiffs by virtue of his previous order. The plaintiffs filed appeal, bearing Appeal No. 15 of 1985- 86 before the Additional Collector, Khagaria who confirmed the order of the learned DCLR, Khagaria. It is in this background that the plaintiff filed the title suit for declaration of title over the suit property and for setting aside the order dated 25.9.1991 passed by the Learned Additional Collector, Khageria in Jamabandi Appeal No. 15 of 1985-86,

7. As has been noted above, the plaintiff claimed his title over the suit property on the ground of oral settlement said to have been made by the ex-landlord in his favour and the land receipts granted by the ex-landlord. This is not in dispute that over and above these two documents the plaintiff did not bring on record any other documentary evidence to establish his title over the suit property.

8. It seems that the defendants did not appear in the suit proceeding in spite of valid service of summons. The suit was, accordingly, tried ex-parte. It also appears that the Pleader Commissioner was appointed in this case by the trial Court who submitted his report before the Court after inspection of the suit property. 5 Patna High Court SA No.113 of 2011 (8) dt.22-04-2013

9. In course of trial, the plaintiff examined witnesses and filed documents. Altogether three witnesses were examined including the plaintiff himself being P.W.3. P.W.1 was a formal witness who proved rent receipts before the Court bearing Exts. 1 to 1/d issued by the Government of Bihar in the name of all the sons of plaintiff No.1. P.W.2 was the Pleader Commissioner who proved his order-sheet, record map, writ along with plaint which were marked as Exts. 4,5,6,2 and 3 respectively. The certified copy of the order of learned Additional District Magistrate, Khagaria in Jamabandi correction Appeal Case No. 15 of 1985 was marked as Ext.8. The order of Anchal Adhikari, Khagaria was marked as Exts. 9 and 10.

10. Learned trial Court after assessing and scrutinizing the evidence, both oral and documentary adduced at the time of trial, as has been noted above, came to the finding that the plaintiff could not prove his own case though the case was tried ex-parte and accordingly, dismissed the suit vide judgment and decree dated 1.12.1993 and 14.12.1993 respectively.

11. An appeal was preferred against the said judgment and decree of the trial Court vide Title Appeal No.1 of 1994 before learned Additional District Judge FTC-III, Khagaria. Learned first appellate authority on the basis of reappraisal of 6 Patna High Court SA No.113 of 2011 (8) dt.22-04-2013 evidence available on record and on the basis of his own independent finding held that there was no infirmity in the judgment of the trial Court and the plaintiff could not prove his title over the suit property. The learned first appellate Court, accordingly, dismissed the first appeal vide judgment and decree dated 25.11.2010 and 3.12.2010 respectively which is under challenge in the present second appeal.

12. Learned counsel appearing on behalf of the appellants has submitted, inter alia, that the learned Courts below fell into a serious error of law by placing reliance upon the contents of Ext.8 which was the order dated 25.9.1991 passed by learned Additional Collector, Khagaria in Jamabandi Correction Appeal No. 15 of 1985-86 as this was the order under challenge and the same was not brought as evidence. Learned counsel has urged that the Courts below just went into the facts mentioned in the said order and relying upon such facts unsuited the plaintiff. Learned counsel has further submitted that the findings of the Courts below are based on surmises and conjectures and findings are, therefore, perverse. He would further submit that the first appellate Court dismissed the appeal without complying with the provisions of Order 41 Rule 31 of the Code of Civil Procedure and has placed reliance on a judgment of 7 Patna High Court SA No.113 of 2011 (8) dt.22-04-2013 this Court reported in AIR 1951 Patna 502 ( Shailajananda Pandey Vs. Lakhichand Sao) which according to him lays down the duties of the first appellate Court. He has further submitted that there was sufficient material on record to prove title of the plaintiff over the suit property and adds this was an exceptional circumstance where this Court in exercise of power under Section 100 of the Code of Civil Procedure should reappraise the evidence after calling for the records and come to finding of fact on such basis.

13. He has also placed reliance on various judgments of the Supreme Court reported in AIR 1992 SC 1604 (Jagdish Singh Vs. Natthu Singh) and AIR 2000 SC 426 ( Ishwar Dass Jain vs. Sohan Lal) to submit that non-consideration of evidence is a substantial question of law and according to him the present second appeal needs to be admitted on this score alone. He has submitted that the appellate Court has not considered some of the exhibits including exhibits 9 and 10 and, therefore, the judgment of the first appellate Court according to him is perverse.

14. Before I deal with the submissions made on behalf of the appellants in the present second appeal certain facts from the judgments of the first appellate Court need to be referred to. As has been noted, the original plaintiff claimed that the land was 8 Patna High Court SA No.113 of 2011 (8) dt.22-04-2013 settled in his favour by the ex-landlord Moti ul-Rehman and ex- landlord Babu Rajendra Prasad. He also claimed that Zamindari receipts vide Nos. 1354, 1356 and 1360 were issued by the ex- landlord. He further claimed that when he went to pay the rent, he learnt that ex-landlord had not mentioned his name in Zamindari return and accordingly, he filed Jamabandi Case No. 1 of 1981-82. There is absolutely no statement as regards payment of rent from the vesting of Zamindari till 1981-82 when he is said to have gone to deposit the rent.

15. As has been noted above, on his application for correction of Jamabandi the learned Deputy Collector Land Reforms, Khagaria ordered for creation of Jamabandi whereafter he is said to have paid rent. However, the said order of the DCLR was subsequently set aside by the appellate authority i.e. Additional Collector, Khagaria and the matter was remanded back. On remand the learned Deputy Collector Land Reforms, Khagaria cancelled the Jamabandi created in favour of the plaintiff. The plaintiff filed an appeal before the Additional Collector, Khagaria against the order of DCLR cancelling Jamabandi in favour of the plaintiff which too was dismissed by order dated 25.9.1991 (Ext.A). Learned first appellate Court referring to Ext.8 has mentioned that Jamabandi with respect to the suit property was 9 Patna High Court SA No.113 of 2011 (8) dt.22-04-2013 created in the name of defendant no.1 in Rent Fixation Case No. 212 of 1964-65 and on this basis also learned Additional Collector, Khagaria had rejected appeal.

16. Coming to the merits of the finding of the learned trial Court and the learned first appellate Court, it will appear that the Courts below specifically considered the plea as to whether the land was taken in oral settlement from ex-landlord by the ancestor of the plaintiff. Learned First Appellate Court considered one additional issue as to whether the identity of the disputed land was clear, as described in plaint over which the plaintiffs claimed their title. From the judgment of the first appellate Court it will appear that there was absolutely no documentary evidence produced before the trial Court by the plaintiffs in support of the fact that the land was taken in oral settlement from the ex- landlord, except the rent receipts. Learned first appellate Court, referring to such rent receipts observed that they did not contain khata number and, therefore, it was not possible to decipher from the said land receipts as to land of which kahata number the Jamabandi receipts pertained to.

17. On the question of identity of suit land as described in the plaint, learned first appellate Court came to a finding that no boundary was given in the plaint. In the absence of which it was 10 Patna High Court SA No.113 of 2011 (8) dt.22-04-2013 difficult to identify the suit land over which the plaintiff claimed title. Learned first appellate Court came to a finding that unless there was specific identification of the suit land, no title could be declared. Learned first appellate Court dealt in detail on the question of identification of the suit land and came to a finding of fact that the description was vague and accordingly, dismissed the appeal.

18. Dealing with the submissions raised on behalf of the learned counsel for the appellants that learned first appellate Court should not have based its judgment on the contents of Ext.8 which was the order passed by the learned Additional Collector, Khagaria as the same was under challenge in the suit, I am of the view that such submission is wholly unfounded and baseless. The Courts below including the first appellate Court were testing the legality of Ext.8. It was the duty of the plaintiff to demonstrate by way of evidence before the Courts below that the contents of Ext.8 were incorrect. The learned first appellate Court rightly evaluated the contents as existing in the order of learned Additional Collector, Khagaria in the light of the evidence both oral and documentary brought on record in course of trial. I do not find any infirmity in the judgment of the first appellate Court while dealing with Ext.8 and mentioning the facts mentioned 11 Patna High Court SA No.113 of 2011 (8) dt.22-04-2013 therein.

19. As regards the plea that there has been non compliance of the provisions of order 41 Rule 31 of the Code of Civil Procedure by the first appellate Court, I am of the view that the same is equally unsustainable. Learned first appellate Court has dealt in detail the evidence both oral or documentary available on record, considered all the issues and framed additional issue also on the basis of evidence available on record. In my opinion the judgment of the first appellate Court contains the points for decision, decision thereon and reasons for the decision. The judgment of the first appellate Court fully complies with the requirement of Order 41 Rule 31 of the CPC and there is absolutely no infirmity in the judgment of the first appellate Court on this count. The judgment of this Court reported in AIR 1951 Patna 502 ( Shailajananda Pandey Vs. Lakhichand Sao) is of no avail to the appellants in the present case. The duties of the first appellate Court as described in the said judgment are mere expression of the spirit of Order 41 Rule 31 of the CPC.

20. The judgments of the first appellate Court in the present case does not lack in fulfilling the requirement of Order 41 Rule 31 of the Code of Civil Procedure as it does mention the points with the case raises, the decision thereon and the reasons 12 Patna High Court SA No.113 of 2011 (8) dt.22-04-2013 for such decisions. The plea on behalf of the appellants that the evidence of the plaintiff was not considered by the first appellate Court can also not be sustained. From the perusal of the judgment of the first appellate Court it will appear that it considered each and every evidence both oral and documentary before reaching to its conclusion. This to be repeated here plaintiffs/appellants brought on record the documentary evidence which have been mentioned in para 5 of the judgment, nor claimed his title over the suit property. He relied on Ext. 7, the rent receipts said to have been granted by the ex-landlord which admittedly does not contain khata number. There is absolutely no other documentary evidence to substantiate his plea that the plaintiffs acquired title on the basis of oral settlement made by the ex-landlord. There is no dispute about the fact that Jamabandi was created in the name of defendant no.1 in the year 1964-65. Exhibit 1 is the rent receipts in support of payment of rent for the period during which Jamabandi was ordered to be created in the name of plaintiffs by the order of DCLR which was subsequently set aside. This document, therefore, cannot be a document to prove the plaintiffs’ case of acquisition of title over the suit property. As has also been indicated above, only three witnesses were examined on behalf of the plaintiffs to prove their title over 13 Patna High Court SA No.113 of 2011 (8) dt.22-04-2013 the suit property out of which P.W. 1 is a formal witness who proved the rent receipts after creation of Jamabandi, P.W.2 is the Pleader Commissioner and P.W. 3 is the plaintiff himself. All such evidence has been considered by the learned first appellate Court as well as by the learned trial Court. In the absence of any incapable evidence available on record, it cannot be said that the findings of the learned Courts below are based on non- consideration of evidence on record. The judgment relied upon by the learned counsel i.e. AIR 2000 SC 426 ( Ishwar Dass Jain vs. Sohan Lal) and AIR 1992 SC 1604 ( Jagdish Singh Vs. Natthu Singh) cannot have any application. The findings of the Courts below in view of the facts noted above cannot be said to be based on surmises and conjectures.

21. Learned counsel for the appellants has vehemently argued that there was none to oppose the relief sought for by the plaintiffs as the defendants chose not to appear and, therefore, this being ex-parte trial the Court was bound to decree the suit in favour of the plaintiffs. This submission has been advanced to be rejected at the very threshold. The plaintiff is required to prove his own case on the basis of the evidence which he adduces in course of trial. It is only after if the Court is satisfied that he had proved his case claiming title over the suit property, even in the absence 14 Patna High Court SA No.113 of 2011 (8) dt.22-04-2013 of defendants the question of decreeing the suit in his favour would arise.

22. In view of the above, I do not find any merit in the submissions made on behalf of the appellants. This appeal does not deserve admission and his accordingly dismissed with a cost of Rs. 5,000/- (five thousand) (Chakradhari Sharan Singh, J) Arun Kumar/-