Damodar v. Jawahar

.... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Sunil Kr. Singh For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE V. NATH ORAL ORDER 5 18-01-2013 Heard the learned counsel for the appellants. The intervenor-defendants in the suit are the appellants against the judgment and decree of reversal by which the appellate court below has set aside the dismissal of the suit. Patna High Court SA No.560 of 2010 (5) dt.18-01-2013 2 The plaintiffs filed the suit for declaration of their title and possession over the suit land mentioned in schedule 4 of the plaint and further for direction for correction of recent records of rights accordingly. The plaintiffs’ case is that the suit land was the part of the land earlier recorded in the cadastral survey khatiyan as Gairmazarua malik land in CS plot no. 926 of CS Khata No. 123, and the same was taken in settlement along with other lands by Jai Narain Sah from the ex-landlord. On the basis of the return filed by the ex-landlord, the Jamabandi was opened in the name of Jai Narain Sah by the State of Bihar with regard to the land taken by him in settlement. By sale deed dated 30.10.1967 the plaintiff nos. 1 and 3 purchased part of the suit land from Jai Narain Sah and came in possession of the same. Later on, an area of 13 katha out of the same C.S. plot 926 was further purchased by the plaintiff no. 1 in the name of his son plaintiff no. 2 from the sole successor of late Jai Narain Sah. It is the case of the plaintiffs that plot nos. 1101 and 1086 were carved out with regard to the entire settled land of Jai Narain Sah from plot no. 926 but the name of Jai Narain Sah came to be recorded in the recent survey khatiyan for plot no. 1101 only and in the remark column Banwari Mandal was shown to be in illegal possession. The other plot no. 1086 was Patna High Court SA No.560 of 2010 (5) dt.18-01-2013 3 wrongly recorded in the name of State of Bihar which has proposed to settle the said land by settlement case no. 12 of 2001-

02. It is further case of the plaintiff that the aforesaid two plots should have been recorded in the name of the plaintiffs as they have got title and are in possession over the same. The State of Bihar impleaded as defendant 1st set and the heirs of Banwari Mandal impleaded as defendant 2nd set in the suit did not file written statement nor contested the suit. However, the defendant nos. 5, 6 and 7 got themselves impleaded as intervenor-defendants and they contested the suit by filing written statement. They have denied the settlement by the ex-landlord in favour of Jai Narain Sah and thus denied the title and possession of Jai Narain Sah over the suit land. It is their case that the recent survey plot no. 1086 has been correctly recorded in the name of the State of Bihar and the possession of Banwari Mandal has been correctly shown in the remark column over recent survey plot no. 1101 as he was a landless person and was in possession over 22 decimal of C.S. plot no. 926 having a ‘Phus’ hut over the same. The intervenor-defendants have claimed their title and possession on the basis of the registered sale deed executed by the heir of Banwari Mandal. The intervenor-defendants have further claimed that the intervenor-defendant no. 5 is a physically handicapped Patna High Court SA No.560 of 2010 (5) dt.18-01-2013 4 and landless person and therefore the State of Bihar has settled one acre of RS plot no. 1086 with him through settlement case no. 12 of 2001 and accordingly he is in possession. The trial court, after scrutiny of the evidence of the parties, came to the finding that the plaintiffs failed to prove the settlement of the land with Jai Narain Sah and as such had not acquired any title through purchase from Jai Narain Sah or his sole heir. The trial court however also further concluded that the intervenor-defendants had also not acquired valid title over the land recorded in RS plot no. 1101 on the basis of their purchase from the heirs of Banwari Mandal as his title over the land of the RS plot no. 1101 could not be established, and further the settlement of land by the State of Bihar for RS. plot no.1086 had been made during the pendency of the suit. The suit was also held to be barred by limitation as the same has been filed 25 years after the final publication of the recent survey khatiyan. Thus, on the basis of these findings, the suit was dismissed. The plaintiffs filed T.A. No. 53 of 2007 assailing the judgment and decree. No appeal or cross objection was filed by the intervenor-defendant nos. 5, 6 and 7 against the adverse findings with regard to their title in the suit land. The appellate Patna High Court SA No.560 of 2010 (5) dt.18-01-2013 5 court on reappraisal of the evidence has come to the finding that the plaintiffs have succeeded in establishing the settlement of the suit land with their vendor Jai Narain Sah by the ex-landlord. It has also come to the finding that the Ext. C/1 (sale deed) and Ext. G (Parvana) in favour of intervenor-defendants are not valid documents sufficient to confer title on them. The appellate court has also held that the suit is not barred by limitation as the incorrect survey entry will not give a cause of action and it is actually the threat over the peaceful enjoyment of the property on the basis of the said incorrect entry which will furnish the cause of action for institution of a suit. Accordingly, by the impugned judgment and decree the appeal has been allowed and the judgment and decree passed by the trial court has been set aside and the plaintiffs have been held entitled to the decree. Mr. Ashok Kumar, the learned counsel appearing on behalf of the appellants, has submitted that there is absolute absence of a direct evidence of settlement of the suit land in favour of the plaintiffs’ vendor Jai Narain Sah and as such the appellate court below has committed error in deciding the issue of settlement in favour of the plaintiffs only on the basis of Ext. 5, 6 and 7 which only show that the original Jamabandi no. 454 has been created in the name of Jai Narain Sah. It has been further Patna High Court SA No.560 of 2010 (5) dt.18-01-2013 6 argued that the intervenor-defendants have acquired valid title over the suit land on the basis of the settlement made in their favour by the defendant-State of Bihar and also on the basis of the sale deed executed by the heir of Banwari Mandal. Criticizing the impugned judgment further the learned counsel has submitted that the creation of Jamabandi or the mutation of the name is not sufficient for establishing the title as the same are not the documents of title which must be proved through unimpeachable documentary evidence. It has thus been urged that the substantial questions of law arise for consideration in this appeal. It is manifest from the facts that the plaintiffs have claimed their title over the suit land through Jai Narain Sah who according to the plaintiffs took settlement of the suit land from the ex-landlord. The plaintiffs’ case that the ex-landlord submitted Return at the time of vesting of the intermediary estate, in the name of the settlee Jai Narain Sah is corroborated by the creation of Jamabandi no. 454 in the name of Jai Narain Sah. The Halka Karamchari has been examined as P.W. 8 by the plaintiffs and he has admitted that Jamabandi no. 454 is an original Jamabandi after vesting of the Zamindari wherein Jai Narain Sah has been accepted as a raiyat of the suit land. It would be apposite to mention here that the State of Bihar in whose name the recent Patna High Court SA No.560 of 2010 (5) dt.18-01-2013 7 survey entry of the suit plot no. 1086 has been made had not filed the written statement and did not contest the claim of the plaintiffs. On the contrary the documentary evidence of the plaintiffs brought on record clearly establish the creation of Jamabandi in the name of Jai Narain Sah for the suit land and the mutation of the names of the plaintiffs on the basis of their purchase from Jai Narain Sah. These facts corroborate the plaintiff’s case of the settlement of the suit land with Jai Narain Sah. The intervenor-defendants have claimed their title and possession over the suit land on the basis of settlement from the State of Bihar as well as purchase from the heir of Banwari Mandal whose name was recorded in the remark column of the survey khatiyan as being in illegal possession. The trial court has not accepted the claim of the intervenor defendants on the basis of their settlement as well as the purchase but the said finding was not challenged by the intervenor-defendants by filing a cross objection or appeal. Even otherwise also it is an admitted position that the settlement of plot no. 1086 in favour of intervenor- defendants has been made by the State of Bihar during the pendency of the suit wherein the title of the settler-State of Bihar over the said land was under direct assail but remained Patna High Court SA No.560 of 2010 (5) dt.18-01-2013 8 undefended as the settler-State of Bihar did not chose to contest the suit. Similar is the position with regard to the land of RS plot no. 1101 which has been recorded in the name of Jai Narain Sah but in the remark column the illegal possession of Banwari Mandal has been mentioned. The intervenor defendants have not disclosed the basis of the title of Banwari Mandal over the said land which has been transferred in favour of intervenor- defendants. The mention of illegal possession in the remark column entry in the survey records of right is alone not sufficient to confer title to the person who has been recorded to be in illegal possession. The appellate court below has meticulously analyzed the evidence on record and no perversity in its finding could be established on behalf of the appellants. In the result, it is held that no substantial question of law arises for consideration in this appeal, which is, accordingly, dismissed. Devendra/- (V. Nath, J)