Kaiyum Khan v. Samid Khan

affirmed.

2. The appellants are defendants before the lower court and the respondent is the plaintiff in Title Suit No. 135 of

3. The plaintiff filed Title Suit No. 135 of 2000 for declaration of right, title and possession over the suit land as mentioned in Schedule-1 of the plaint.

4. The case of the plaintiff is that the suit land is the Patna High Court SA No.466 of 2017(7) dt.08-10-2024 purchased land of the plaintiff from Bibi Mehroon Nishan vide sale deed no. 5798 dated 22.02.1957 measuring 4 kathas 1 dhur land and after purchase, the name of the plaintiff was mutated in revenue record of State of Bihar having Jamabandi No. 1146 and obtained receipt on payment of rent. Further case of the plaintiff is that subsequently Achamit Mandal had also sold 3 kathas land of plot no. 47 to the plaintiff through registered sale deed no. 2246 dated 11.04.1969 and the plaintiff had acquired right, title and possession of the said and he mutated the same in his name having Jamabandi No. 37 and after payment of rent up-to-date, rent receipt was issued. The plaintiff since then is in peaceful possession over the suit land area 7 katha 1 dhur. It is further contended that during the revisional survey operation and chakbandi survey operation, the concerned authority found right title and possession of the plaintiff over the suit land and entered the name of the plaintiff in revisional as well as chakbandi khatiyan, and at the time of chakbandi operation, the defendants had filed an objection being Objection Case No. 1099 of 1985 against the plaintiff before the Consolidation Officer, Pipra in respect of the suit land and the same was rejected on 16.11.1987. Then the defendants/appellants filed an Appeal No. 173 of 1987 before the Assistant Director Patna High Court SA No.466 of 2017(7) dt.08-10-2024 Consolidation, Saharsha and the same was rejected on

28.12.1988 and threreafter the defendants filed Revision Case No. 947 of 1989 / 134 of 1997 in which the learned Director, Consolidation, set aside the order on 27.03.1999 / 31.03.1999 for which the plaintiff preferred Civil Writ bearing CWJC No. 8570 of 1999 before this Court which was disposed of with observation that the plaintiff would go before the competent Civil Court without prejudiced to the order passed by the authorities under the Consolidation Act and accordingly, the plaintiff filed the present suit.

5. On summon, the defendants appeared and filed their written statement and raised objection with regard to the maintainability of the suit. Further case of the defendants is that the suit land bearing C.S. Plot No. 47 is recorded in C.S. Khatiyan in khas possessinon of Lalman Mandal and Giridhari Mandal (both are full brothers) and Kuhuk Lal Mandal and Subhaklal Mandal (both are full brothers) and they were members of joint Hindu Family. The said Lalman Mandal and Kuhuk Lal Mandal had sold the suit property of plot no. 47 area 8 katha 8 dhurs to Sinehi Mandal through unregistered sale deed on 25.01.1907 and accordingly, the said Sinehi Mandal was in possession over the suit land. Later on, the said Sinehi Mandal Patna High Court SA No.466 of 2017(7) dt.08-10-2024 sold the suit land to Suajali Khan (grandfather of the defendants) through registered sale deed no. 1499 dated

06.04.1912 and after the said purchase, Suajali Khan came in possession over the suit land by mutating the same in his name in the revenue records of ex-landlords and landlord submitted Return in the name of Suajali Khan as his raiyat and after vesting of Jamabandi Return, Jamabandi No. 147 was created in the name of Suajali Khan in revenue records of the State of Bihar and rent receipts were issued in his name. But, in the year 1963-64, unfortunately the old rent receipts were burnt. During the survey operation, father and grandfather of the defendants died and the defendants were minor and as such, they could not able to represent their case before the survey authorities. During consolidation survey operation, the said plot was wrongly entered in the name of plaintiff for which the defendants filed Objection Case No.1099 of 1985 before the Consolidation Officer, Pipra which was rejected and then the defendants filed an appeal being Appeal No. 113 of 1987 before the Deputy Director Consolidation, Saharsha, and the same was also rejected and thereafter the defendants filed Revision No. 947 of 1989 before the Director of Consolidation, Patna which was transferred to Joint Director, Consolidation Purnea bearing Case Patna High Court SA No.466 of 2017(7) dt.08-10-2024 No. 134 of 1997 and the same was decided in favour of the defendants vide order dated 27.03.1999 / 31.03.1999. However, the plaintiff preferred Civil Writ No. 8570 of 1999 before this Court and the same was disposed of with a direction to go before the competent Civil Court and hence, the plaintiff has filed the frivolous suit.

6. On the basis of pleadings of the parties and on scrutinizing the evidence adduced by the parties, the learned trial court has held that the documentary evidence of the defendants i.e., Exhibit-D series are rent receipts which have been obtained fraudulently only for the purpose of litigation because as per claim of the defendants, Suajali Khan purchased 8 kathas 8 dhurs land from plot no. 47 while rent receipts of the year 1985-86 shows only 3 kathas 13 dhurs land of plot no. 47 and Exhibit-F i.e., sada sale deed shows that its writing and signature on the sada sale deed appears to be written by one person and thus Exhibit-F is forged and fabricated document and on perusal of Exhibit-G, it appears that Snehi Mandal had sold the land of Khata No. 45 having plot nos. 89 and 47, but the fact is that plot no. 47 is of khata no. 124, and this fact shows that alleged sada sale deed executed by Snehi Mandal in favour of Suajali Khan is illegal, forged and fabricated deed. Patna High Court SA No.466 of 2017(7) dt.08-10-2024 Exhibit D/4 i.e., rent receipt of the year 1985-86 shows that plot no. 47 has an area of 3 katha 13 dhurs and total area of Jamabandi No. 147 is 1 bigha 12 katha 9 dhurs and these facts create suspicion over the pleadings of the defendants. On perusal of order of Miscellaneous Case No. 2 of 1983-84 dated

12.05.1984, it appears that Anchal Amin had reported that suit plot no. 47 was in possession of plaintiff. It is apparent from the evidence available on record that the plaintiff has been coming in possession over the suit land since before 12.05.1984. The plaintiff has valid right, title and possession over the suit. The suit is not barred by law of limitation. The learned trial court on the basis of evidence and materials on record decreed the suit.

7. Against the aforesaid judgment and decree of the learned trial court, the defendants/appellants filed Title Appeal No. 7 of 2009, which too, was dismissed and the judgment of trial court was affirmed against which the present appeal was filed by the defendants/appellants.

8. Learned counsel for the appellants vehemently submitted that the both the learned courts below have not properly considered the case of the parties. The courts below have not taken judicial notice of the fact that the consolidation operation has not been closed and consolidation operation is Patna High Court SA No.466 of 2017(7) dt.08-10-2024 going on. In such view of the matter, Civil Court has no jurisdiction to decide right, title and interest of the said land. The suit is not maintainable and it was liable to be abated as per Section 4(c) of the Consolidation Act. Learned counsel has relied upon the decision of Special Bench in the Case of Prabhawati Kumari v. State of Bihar & Ors. reported in (2019) 4 PLJR 430, wherein the Special Bench, in view of the decision of the Hon’ble Supreme Court, has held that on the point of abatement, under Section 4(c) of the Act, in my opinion, the law stands well settled, in view of the decision of Hon’ble Supreme Court, in the case of Paras Nath Rai & Ors. v. State of Bihar & Ors. (AIR 2013 SC 1010). By operation of statutory abatement, the whole proceeding from its inception stands abated because the Act has provided an effective alternative remedy to be pursued before an exclusive forum to remedy the grievance which could have been raised before the court.

9. Learned counsel for the appellants further submitted that both the courts below have not considered Exhibit-F and Exhibit-G as well as Exhibit-A and Exhibit-B in its right perspective. It is submitted that Exhibit-A to Exhibit-G clearly proves the possession of the appellants.

10. After considering the submissions and perusal of Patna High Court SA No.466 of 2017(7) dt.08-10-2024 the impugned judgment, it is manifest that both the courts have concurrently held that the defendants purchased plot no. 47 of Khata No. 45. In C.S. Khatiyan, Khata No. 45 has no plot no.

47. Moreover, the appellate court has held that Exhibit-F/sada sale deed is forged and fabricated. Evidence on record shows that the plaintiff has been coming in possession over the suit land.

11. So far abatement of suit under Section 4(c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 is concerned, there is no evidence on record to show that the consolidation proceeding is going on. In both the courts below, the appellants have not raised any question with regard to the abatement of the suit in view of Section 4(c) of the Act. The Objection raised by the appellants at this stage is not sustainable.

12. Considering the aforesaid facts and circumstances as well as the materials on record, it is quite apparent that the judgment and decree of the courts below are covered by the findings of facts and no question of law, much less substantial question of law arises for consideration in the instant Second Appeal which is accordingly dismissed at the stage of hearing under Order 41 Rule 11 of the Code of Civil Procedure. Patna High Court SA No.466 of 2017(7) dt.08-10-2024

13. Pending Interlocutory Application(s), if any, shall stand disposed of. (Khatim Reza, J) premchand/- U