Sona Devi v. The State of Bihar (now Jharkhand)

favour of Sri Nalini Kishori Ghatwalin widow of Sahebram Singh, Reshni Kumari Ghatwarin widow of Chutu Singh, Upasi Ghatwarin wife of Dukhi Singh, Smt. Kumar Chatwarin wife of Kangalu Singh an area of 27.68 acres of land of the said mauza by registered deeds. However, Raja Manmohan Singh made a raiyati settlement of the rest of the bakast land of Mauza Tentulia i.e. 317.82 acres under Khewat Nos. 4/9 and 4/10, Khata Nos.34 to 61 and 35 acres under Khata No.1 in favour his son Rameshwar Narayan Singh Tikait (father of the original plaintiff-Ramakant Singh Tikait) by a deed of settlement dated 08.04.1934 and put the father of the original plaintiff in possession thereof and after settlement, Rameshwar Narayan Singh Tikait paid rent and he was granted rent receipts by the Raja. 7. The plaintiffs are concerned with the property covered by the so-called settlement deed dated 08.04.1934. However, during the course of hearing, the learned counsel for the appellants submitted that the settlement deed is dated 09.04.1934 and not 08.04.1934 and the date has been wrongly mentioned in Paragraph-5 of the plaint. 4

8. Further case of the original plaintiff was that that right from the date of settlement in the year 1934, the father of the original plaintiff entered into an agreement for sale for 312.82 acres of land with different persons for valuable consideration in the year 1940 and received payment in advance by way of part performance of the agreement to sale as the possession was delivered to the respective persons and those persons have constructed their residential houses over their properties and they are also living on the same. 9. Further case of the original plaintiff as per the plaint was that pursuant to the said settlement in favour of the father of the original plaintiff by Raja Manmohan Singh Tikait, a jamabandi bearing Jamabandi No.61 was opened in his name and the father of the original plaintiff paid rent against the raiyati settlement and one of the rent receipts granted to the father of the original plaintiff for payment of rent was of the year 1937 (Bangla Sambat 26th Pous 1340 BS). 10. In the year 1346 Bangla Sambat (about January 1939), Raja Manmohan Singh appointed Sri Kamal Lal Marwari as Managing Agent for collection of the rent. The father of the original plaintiff also paid rent to the said Managing Agent against Jamabandi No.61. 11. Further case of the original plaintiff was that there was a loan of Rs.35,000/- against Raja Manmohan Singh Tikait from Maharaj Jyoti Prasad Singh and others and by virtue of power under Section 2 of Chotanagpur Encumbered Estate Act, 1876, the Estate of Raja Manmohan Singh was taken over by the Wards and Encumbered Estate by Notification No.1021W dated 13.07.1939 and the General Manager of the Wards and Encumbered Estate, Manbhum was entrusted with the management of Bharamahal Estate. 12. A reference of the Notification No.1021W dated 13.07.1939 has been made and it has been stated in the plaint that the proprietary interest of Raja Manmohan Singh and Zamindar of Bharamahal Estate and the management of the said Estate vested in the Manager of Wards and Encumbered Estate. The Wards and Encumbered Estate of Bharamahal Estate continued under the management of the aforesaid 5 Manager even after the enactment of Bihar Land Reforms Act, 1950 and in this context, a reference has been made to a memo issued by the Deputy Commissioner as contained in his Letter No.51W dated

29.10.1956 stating that the Estate of Bharamahal has not been vested under Bihar Land Reforms Act, 1950 as there was no notification under the Land Reforms Act for vesting. 13. Consequently, the predecessor-in-interest of the plaintiffs continued to be the Estate in respect of the Jamabandi No.61 during the period of management of the Encumbered Estate till 1956. The notification under Land Reforms Act, 1950 was made applicable to the district of Manbhum sometimes in the year 1956. The plaintiffs’ predecessor-in-interest in the capacity of raiyat started making payment of rent with respect to Jamabandi No.61 to the State of Bihar and Jamabandi No.61 was opened pursuant to the Bihar Land Reforms Act, 1950. 14. It was the specific case of the original plaintiff that by acceptance of rent from the plaintiffs’ predecessor for Jamabandi No.61, which continued till the date of settlement in favour of the father of the original plaintiff in 1934, the raiyati right of the original plaintiff’s ancestors was duly accepted and acknowledged by the State of Bihar. The father of the original plaintiff died on 11.04.1969 and the plaintiff stepped into the shoes of his father and succeeded his properties including Jamabandi No.61. 15. Further case of the original plaintiff was that in the month of October, 1983, a House Construction Cooperative Society was formed under the name and style of Tikait Manmohan Singh Cooperative House Construction Society at Chas, District- Dhanbad and the original plaintiff was a shareholder in the said cooperative society and he made a transfer of 0.39 acres of his raiyati land to the aforesaid house construction society which was a registered society under Bihar and Orissa Cooperative Society Act. 16. Further case of the original plaintiff was that one Prof. Bari House Construction Cooperative Society Ltd. purportedly purchased 6 about 10 acres of land from the aforesaid raiyat and his successor dated 07.01.1934 by virtue of a registered deed of settlement in favour of heirs and successors of Sahebram Singh and others. 17. The plaintiffs asserted that the aforesaid Prof. Bari House Construction Cooperative Society Ltd. made an application for settlement of lands, which were claimed to be the raiyati land of the plaintiffs with respect to Jamabandi No.61 and Khata No.34 to 61 of Mauza Tentulia, Chas by treating the said land to be government lands. Pursuant thereto, an enquiry was assigned to the Circle Officer and for submitting report. It was asserted by the original plaintiff that the Circle Officer, Chas without any inquiry from him submitted a report on 22.07.1983 and with respect to Jamabandi No.61, Khata No.59, it was reported that although the rent receipt was being granted in favour of the father of the original plaintiff against Jamabandi No.61, however it was suggested that khata was Abad Malik of Raja Manmohan Singh Tikait and the Circle Officer directed that the rent of the aforesaid Khata should not be accepted from the original plaintiff. The said order has been mentioned in the Jamabandi Bahi of Jamabandi No.61 and also under Memo No.1372 dated 12.07.1984. 18. Further case of the original plaintiff was that report was placed before the Land Reforms Deputy Collector, Chas, who forwarded the same to the Defendant No.3 for consideration and a proceeding was initiated for cancellation of jamabandi. It was the specific case of the plaintiff that the concerned defendants had no jurisdiction to initiate any proceeding for annulment or cancellation of Jamabandi No.61 under purported exercise of power under Section 4 (h) of Bihar Land Reforms Act. It was also stated that the raiyati settlement made in favour of the plaintiff’s predecessor-in-interest i.e. father of the original plaintiff was much prior to the cut of date mentioned in Section 4 of Bihar Land Reforms Act i.e. much prior to 01.01.1946. 19. In the said background, the original plaintiff stated that the Defendant Nos.1 to 5 had no jurisdiction to declare the raiyati land of the plaintiffs to be government land in absence of any acquisition 7 under land acquisition or other provisions of law and the plaintiff’s raiyati interest conferred by virtue of settlement dated 09.04.1934 cannot be extinguished by executive orders without any decree or declaration passed by a competent court. 20. Further case of the original plaintiff was that when the proprietary right of then ex-intermediary of the plaintiffs having not been vested under the Bihar Land Reforms Act in the State of Bihar and in absence of any notification under Section 3 of Bihar Land Reforms Act, 1950, the right of the plaintiffs over the land as raiyat cannot be affected by orders of the Executive Officer of the State of Bihar. It was also asserted that there was no allegation that the raiyati settlement done in favour of the plaintiff’s predecessor-in-interest in 1934 was with the object to defeat the provisions of the Bihar Land Reforms Act, 1950 and consequently, the report and recommendation of the Circle Officer, Chas for initiation of a proceeding for settlement and/or cancellation of the Jamabandi of the original plaintiff were illegal and vitiated. 21. The original plaintiff submitted that the Defendant Nos.1 to 5 had no jurisdiction to recommend for cancellation of jamabandi running in favour of the original plaintiff’s predecessor-in-interest consequent upon vesting of the land under Bihar Land Reforms Act, 1950 when there was no appeal against the order for not opening of jamabandi by the State of Bihar in favour of the original plaintiff’s predecessor-in-interest and the concerned defendants cannot be allowed to do indirectly which cannot be done directly. 22. Further case of the original plaintiff was that he has acquired the riyati right under Section 21 of Chota Nagpur Tenancy Act and the right cannot be affected in pursuance of Section 22 of Chota Nagpur Tenancy Act and the defendants cannot refuse to accept rent from the original plaintiff. 23. The original plaintiff also disclosed in the plaint that he had moved before the High Court under writ jurisdiction in CWJC No.120 of 1985 (R) seeking to quash the proceedings which was contemplated 8 by the Circle Officer. However, the writ court finally heard the matter on 29.04.1985 and disposed of the case with an observation that in view of the question of fact involved in the case, the plaintiff must file a title suit. The matter was taken up in appeal before the Hon’ble Supreme Court in SLP (Civil) No.10394 of 1985, which was also dismissed vide order dated 11.12.1986 with an observation that the plaintiff must file a title suit to establish right to the property-in- question and also ordered that till the filing of the suit by 05.01.1987, status quo as regard to the land be maintained. 24. Further case of the original plaintiff was that the order of cancellation of Jamabandi was passed without giving any notice to the plaintiffs and without any show cause to the plaintiff. 25. The learned counsel for the appellants at this stage has submitted that Jamabandi was cancelled vide order dated 14.08.1984, though the order has not been exhibited before the learned trial court. 26. The original plaintiff asserted in the plaint that in view of the urgency, the plaintiff was not in a position to give notice under Section 80 of Code of Civil Procedure (hereinafter referred to as CPC) to the State Government and its authorities (Defendant Nos.1 to 5) and he further asserted in the plaint itself that necessary leave be granted to the plaintiff to institute the suit without service of notice under Section 80 of CPC. 27. The learned counsel for the appellants submitted that the necessary permission was duly granted for filing the suit without giving the notice under Section 80 of CPC. 28. The learned counsel for the appellants, during the course of hearing, has gone through the order-sheet of the learned trial court and has submitted that the plaint was filed with a petition seeking exemption of serving notice under Section 80 CPC. However, no order allowing such petition has been pointed out by the learned counsel for the appellants. 29. The suit was filed on 05.01.1987. The records of the case reveal that there have been certain amendments in the plaint with respect to 9 party position and schedules of the plaint but not with respect to any pleading in the plaint. Originally six defendants were in the plaint and Defendant Nos. 1 to 5 were the State of Bihar and their authorities and Defendant No.6 was Prof. Bari House Construction Cooperative Society Ltd. who had filed an application for settlement of the suit land in its favour. Subsequently, the other defendants were also added and total defendants in the suit became nine. Upon filing an application under Order I Rule 10(2) of CPC, Defendant Nos.7 to 9 were added as defendants in the suit vide order dated 28.06.1989. Although the numbering of the defendants in the impugned judgement is incorrect inasmuch as after Defendant No.8, the Defendant No.10 has been mentioned. The defendants, who were added vide order dated 28.06.1989 claimed to be the co-owners of the suit property. Case of the Defendants-Respondents 30. The trial court records of the case reveal that altogether 3 sets of written statements were filed by the defendants, one by the Defendant Nos.1 to 5, second by the Defendant No.6 and third by the Defendant No.7 to 9. 31. The Defendant Nos.1 to 5 in their written statement stated that there is no cause of action for the suit; the suit is barred by limitation; the plaintiff has no locus standi to institute the suit against the defendants; the suit as framed is not maintainable; the suit is barred by waiver, estoppel, acquiescence; barred by the provisions of Specific Relief Act and the plaint has not been verified in accordance with law. 32. The specific objection taken by the Defendant Nos.1 to 5 was that the suit was bad for want of notice under Section 80 of CPC and it was asserted that the plaintiff was never in need of any urgent or immediate relief, and therefore, he is not entitled for the benefit of Clause 2 of Section 80 of CPC. They further asserted that the suit was instituted long back, but the plaintiff never pressed for grant of interim relief by way of temporary injunction which goes to show that there was no need for any immediate or urgent relief in the suit. 10

33. The Defendant Nos.1 to 5 further stated that the plaint itself is liable to be returned for a fresh presentation after due compliance of the mandatory provision of law and raised objections that the suit is grossly undervalued, court fee is insufficient and the description of the suit land is vague and incorrect. They also took the plea of res- judicata, however, no foundational fact with regard to res-judicata was mentioned. 34. The Defendant Nos.1 to 5 also gave para-wise comments to the plaint. They asserted that the plaint is not accompanied with the alleged raiyati settlement of the year 1893 and the last survey settlement has not accepted the alleged settlement of the year 1893 in favour of Chamtu Singh or his descendants. They denied the statements of the plaintiff made in Para-1 of the plaint and stated that if there was any settlement in the year 1893 of the land-in-question, the survey records finally published in the year 1922 must have mentioned name of the settlee, and in absence of such entry in the survey records, the normal presumption would be that there was no settlement at any point of time. They further asserted that the cadastral survey settlement operation held in the year 1922 had accepted the descendants of Chamtu Singh as Khewatdar of Khewat Nos. 4/1 to 4/10 entered in Khewat No.20 to 60 of Mauza Tentulia and therefore, it cannot be said that Chamtu Singh was holding raiyati right over the land-in-question. With respect to Khata No.61, it was stated that in the record of rights, it was recorded in the name of Sheikh Imam Bux under Khewat No.5. Raja Manmohan Singh was recorded as khewatdar of 35 acres of land in the nature of “Gair Abad Malik” of Khata Nos.1 and 2. They denied all other statements contrary to the aforesaid facts. 35. The Defendant Nos.1 to 5 called for strict proof of the contentions of the plaintiff made in Para-2 of the plaint and with respect to Para-3 of the plaint, they stated that the alleged registered surrender deed dated 25.11.1933 is not a surrender of any raiyati interest, but it was surrender of tenure interest held by the khewatdars. 11 They further stated that none of the lands within Khata No.20 to 60 under Khewat Nos. 4/1 to 4/10 was the Bakast land of Raja Manmohan Singh and neither the plaintiff’s father, nor the plaintiff was ever in possession of any part thereof at any point of time. They denied all other statements contrary to the aforesaid facts. 36. With reference to Para-4 of the plaint, the Defendant Nos.1 to 5 stated that after surrender of tenure right by the khewatdars in the year 1933, they remained no more tenure holders and the right of availing privilege of not paying rent on “Abad Malik Bakast” land and “Gair Abad Malik” in their possession was seized. They further stated that rent of the other lands measuring a total area of 27.88 acres comprising in Khata Nos.20 to 33 was fixed, and other registered deeds of raiyati settlements were also made with respect to other properties, which were followed by payment of rent to Raja Manmohan Singh, Ex-landlord and to the General, Encumbered Estate before vesting of zamindari and their transferee raiyats are paying rent to the Government of Bihar after vesting of zamindari till date. 37. The Defendant Nos.1 to 5 categorically denied the statements made in Paragraph-5 of the plaint and stated that the raiyati settlement said to have been made by Raja Manmohan Singh in favour of his son namely, Rameshwar Narayan Singh Tikait with respect to 317.82 acres of land under Khewat Nos. 4/9 and 4/10 in Khata Nos.34 to 61 and 35 acres in Khata No.1 and Khewat No.2 was collusive and anti- dated settlement incapable of creating any raiyati right and unless the plaintiff files the alleged deed of settlement dated 08.04.1934, it was not possible for the Defendant Nos.1 to 5 to explain the position and they reserve their right to file additional written statement as and when the said documents are produced by the plaintiff before the court. They further asserted that neither the plaintiff, nor his father was at any point of time in possession of any portion of the aforesaid land claimed by him. The stated that the lands of Khata Nos. 34, 36 to 58 are raiyati lands and were recorded in the names of the concerned raiyats and the lands in Khata No.59 are Gair Abad Malik land and 12 those in of Khata No.60 are Gair Abad Sarbasadharan lands and those in Khata No.61 are Abad Malik lands of different tenure holders. They claimed that no part of the land shown in the schedule of the plaint was settled either in the name of the plaintiff, or in the name of his father. 38. With refence to Para-6 and 7 of the plaint, the Defendant Nos.1 to 5 stated that neither the plaintiff, nor his father, nor his alleged transferees were in possession of any part of the land, nor they have constructed any building over the same for residential purposes. In reply to Para-8 of the plaint, they stated that the relevant rent receipts are not annexed with the plaint and even if any rent receipt has been granted by the karamchari or the revenue employees, the same will not take away the right of the Government. They denied the statements made in Para-9 of the plaint. 39. With refence to Para-10 of the plaint, the Defendant Nos.1 to 5 stated that the Estate Bharamahal of Raja Manmohan Singh was taken over by Wards and Encumbered Estate and the Manager was entrusted with the management of the same till 28.11.1957 after which it vested in the State of Bihar free from all encumbrances. There was neither any existence of Notification No.1021W dated 13.07.1939, nor the existence of Chota Nagpur Encumbered Estate Act, 1975 under which the State of Bharamahal was taken by the Ward and Encumbered Estate Manbhum. They stated that the Estate of Bharamahal had already been vested in the State of Bihar with effect from 28.11.1957. With reference to Para-11 of the plaint, they stated that there was no existence of Manbhum district in the year 1979. 40. With respect to Para-12 of the plaint, the Defendant Nos.1 to 5 stated that they reserve their right to file additional written statement when the letter in question will be filed by the plaintiff and in absence of the letter, they were not in a position to either accept or deny the same. With reference to Para-13, 14, 15 and 16 of the plaint, the Defendant Nos.1 to 5 raised a serious objection in connection with non-filing of the documents mentioned in the plaint alongwith the 13 plaint and they repeatedly stated to reserve their rights to respond to the same as and when such documents were to be filed before the court. They denied the existence of such documents and stated that if such documents were at all existing, the same were collusive and they also denied that any rent was ever collected from the plaintiff and his father on behalf of State of Bihar and that no rent receipt was granted to them at any point of time. They asserted that the plaintiff had succeeded in getting one Jamabandi No.61 opened under Khata No.59 in collusion with the revenue karamchari without any order from the competent authority, nor there was any basis of showing collection of rent. The matter was enquired into thoroughly and lastly the said fabricated jamabandi was cancelled on 14.08.1984 under the orders of the competent authority. 41. With reference to Para-17 and 18 of the plaint, the Defendant Nos.1 to 5 stated Tikait Manmohan Singh Cooperative House Construction Society at Chas was established in the year 1983 and the statements made in connection with the same are internal matter of the plaintiff and the society and the transfer of 0.39 acres of land by the plaintiff to the aforesaid society cannot be ascertained, unless full details are furnished by the plaintiff. They also asserted that even if it was done, the same will not take away the right of the State, nor could establish any title in favour of the plaintiff on account of such transfer. 42. With respect to Defendant No.6 mentioned in Para-19 and 20 of the plaint, the Defendant Nos.1 to 5 stated that the Defendant No.6 had purchased some land from the established raiyat or their successors of Khata Nos. 22 to 33 and a proposal for settlement of land with Respondent No. 6 was made for 10.65 acres in Khata No.59 which was adjacent and surrounded by the other lands of the said society and the same was under the process of settlement. They also stated that the land of Khata No.59 is Gair Abad Malik land and are under the physical possession of the State of Bihar and the plaintiff has no right, title or possession over any part of such land, they further stated that thorough inquiry in connection with claim was made and 14 thereafter, the jamabandi was cancelled which was fraudulently opened. 43. The filing of the writ petition and pursuing the matter upto the Hon’ble Supreme Court is not in dispute. However, with regard to the direction of the Hon’ble Supreme Court mentioned in Paragraph- 42 and 43 of the plaint, Defendant Nos.1 to 5 stated that they are not aware of such direction and reiterated that the notice under Section 80 of CPC was mandatory and the original plaintiff should have complied to the same before filing the suit. 44. However, during the course of hearing and upon a query, the learned counsel for the appellants fairly submitted that the order passed by the Hon'ble Supreme Court has not been exhibited before the learned trial court. Even the order passed by the learned writ court in CWJC No.120 of 1985 (R) has also not been exhibited before the trial court. With respect to valuation, the Defendant Nos.1 to 5 stated that the market value of the property was more than Rs.35,000/- per acre and unless the suit is valued afresh, it could not proceed. 45. So far as Defendant No.6 is concerned, the written statement of Defendant No.6 was in the same line as that of the State. The learned counsel appearing on behalf of Respondent No.6, who was Defendant No.6 in the suit, confirmed this fact during the course of hearing that the stand of Defendant No.6 was almost on the same line as that of the State and during the course of hearing also, he adopted the arguments placed on behalf of the State. 46. So far as the written statement of Defendant Nos.7 to 9 is concerned, they primarily claimed that they are the descendants of the common ancestors with respect to the properties recorded under Khewat Nos. 4/1 to 4/10 of Mauza Tentulia having area of 345.50 acres under the then Raja Kunj Bihari Singh Tikait of Bharamahal estate. It was their specific case that the properties held and possessed by Raja Manmohan Singh were never settled in favour of the father of the plaintiff by virtue of the deed / paper dated 08.04.1934 or any date whatsoever. The paper, if any, showing the alleged settlement in 15 favour of the father of the plaintiff is fraudulent, collusive and a manufactured document. They stated that by virtue of the alleged settlement, the father of the original plaintiff did not and could not acquire any manner of right, title, interest in respect of the properties. 47. A reference was also made with respect to one Title Suit No.16 of 1986 filed by them for partition of their shares in the properties, which was pending. They stated the genealogy of Kunj Bihari Singh, the then proprietor with further division of share of the property. They denied the claim of the plaintiff in entirety with respect to the suit property and the basis of such claim. They stated that the plaintiff had no right whatsoever to transfer the alleged property in favour of the society in the style of Tikait Manmohan Singh Cooperative Society and such transfer, if any, is illegal and inoperative. They categorically stated that the plaintiff or his father never held or possessed any portion of the suit property in exclusion of the other descendants of Manmohan Singh and that too the alleged Jamabandi No.61 and the plaintiff was not the exclusive owner of the property. 48. On the basis of the pleadings of the parties, the learned trial court framed as many as eleven issues for consideration, which are as follows: (i) (ii) (iii) (iv) (v) Is there any cause of action for present suit? Is the suit maintainable in the present form? Is the suit barred by limitation? Is the suit barred under the provision of specific relief act? Is the suit barred under the principal of waiver, estoppel and acquiescence? (vi) Is the suit properly valued? (vii) Is the suit barred for non-compliance of Section 80 CPC? (viii) Whether any deed of settlement was executed on 8.4.1934 and whether by the said deed of settlement any raiyati interest in respect of the land mentioned there in was create in favour of settlee? (ix) Whether Jamabandi No.61 was validly opened and whether order dated 14.8.84 cancelling the said jamabandi is illegal and without jurisdiction? Is the plaintiff entitled to get declaration and relief of permanent injunction and or mandatory injunction as prayed for in the plaint? (x) 16 (xi) Is the plaintiff entitled to get any other relief?

49. The trial court decided all the issues against the plaintiffs- appellants. The main issue which fell for consideration was Issue Nos.8 and 9. The learned trial court decided the Issue Nos. 8 and 9 at Paragraph-12 and the rest issues at Paragraph Nos. 13 to 16 of the Judgment, which are as under: “12. Issue No.8 & 9: Whether any deed of settlement was executed on 8.4.1934? and whether by the said deed of settlement any raiyati interest in respect of the land mentioned therein was created in favour of the settlee? Whether jamabandi no.61 was validly opened and whether order dtd.14.8.84 cancelling the said jamabandi is illegal and without jurisdiction. That these two issues are main issues for the suit. Hence taken together for discussion. That plaintiff claimed Raja Manmohan Singh Tikait made raiyati settlement of land in favour of his son or father of plaintiff namely Rameshwar Narayan Singh by executing deed of settlement on 18.4.1934 in respect of 317.82 are of land under khewat no.4/9 and 4/10 khat no.34 to 61 and 35 acres of mouza no.1 in total area 352.82 acre with rightful settlement. The question is here whether Raja Manmohan Singh create aforesaid settlement of land of 352.82 acre. The land was transferable or not? That case of the plaintiff Rajakunj Bihari Tikait by grant of jodpeta about the year 1893 had made raiyati settlement in respect of 345.50 acre of land of khewat no.4/1 to 4/10 khata no.20 to 61 and 35 acres of khata no.1 under khewat no.2 of mouza Tetuliya in his favour. That Chamtu Singh was Khewatdar not raiyat. That plaintiff admitted at para 2 of the plaint that after death of Chamtu Singh his sons Saheb Ram Singh and other became Khewatdar son of raiyat. Therefore, son of raiyat can never khewatdar. It is proved that Chamtu Singh was Khewatdar that defendant no.1 to 6 as well as 7 to 10 pleaded in their written statement Chamtu Sing was a Khewatdar. That defendant no.7 to 10 claimed land on the basis of decendant of late Kunj Bihari Singh and para 1 of ws 7 to 10 disclosed that Chamtu Singh and his descendant possessed the property recorded under Khewat no.4/1 to 4/10 in tenure right. That the plaintiff has not brought on record the allotted jodpatta which he claims the land was settled but Chamtu Singh in raiyat right. That defendant no.1 to 5 in their written statement at para 12 disclosed that there was no raiyati settlement made in 17 favour of Chamtu Singh and such settlement in the year 1893 recorded during last survey record prepared and finally published in the year 1922. That cadastral survey settlement and operation held in the year 1922 as exhibited the descendants of Chamtu as a Khewatdar of Khewat no.4/1 to 4/10 entered in Khata no.20 to 60 mouza Tetuliya. Therefore, Chamtu Singh was not exhibited as raiyati right over the land in question. That was of 1 to 5 disclosed that land of khata no.61 was recorded in the name of Shekh Imam Prakash under Khewat no.5 and 35 acres of land of Khata no.4 was recorded under Khewat no.2 of Raja Manmohan of gar abad malik land. That the case of the plaintiff in respect of land under Khata no.20 to 61 surrendered the land. Those khatas of Raja Manmohan Singh and further descendants of Chamtu Singh surrendered the land of registered deed of surrender dtd. 23.11.33 in favour of Raja Manmohan Singh Tikait. That the plaintiff has failed to establish that riayati interest in the land of khata no.22 to 61 was surrendered to the land lord and land khata no.20 to 61 was available to Raja Manmohan Singh to make further settlement. That case of the plaintiff and defendants are same regarding raiyati settlement of 27.68 acres of land twice. The ex khewatdar to Nalini Kishori Ghatwarin wife of Saheb Ram Singh, Reshmi Kumari Ghatwarin wife of Chamtu Singh, Upasi Ghatwarin wife of Bhikhu Singh, Kumari Ghatwarin wife of Kanglu by 5 registered deed of settlement no.93, 94, 35, 98 and 104 of the year 1934 dtd. 7.1.34. That plaintiff admitted the aforesaid registered sale deed settlement in his plaint. That land measuring 532.82 acres out of 317.82 under khewat no.4/9 and 4/10 of khata no.34 to 61 and 35 acres land under khata from unregistered deed settlement dtd. 8.4.1934. That aforesaid settlement deed which is unregistered and produced before court only phot copy which is marked Ext.4. That the plaintiffs are unable to whatever that the original copy of Ext. 4 under what circumstances not produced before the court. That Ext.5, Ext 11, Ext. 11/A, Ext.11/B lawyer of Gangadhar successor appointed himself chairman of the trustee committee of raiyati land in respect of suit land and Ext.5/C was settled by patta dtd.9.4.34 for maintenance of Kunwar Yuvraj Singh. That pw 1 deposed para 2 at page 4 in his deposition that every key of his house. Whether documents copy of Sarita Devi and Sapan and they were under lock the house that any leaving acquisition against defendant no.7 to 10 and defendant 18 no.7 to 10 removed the original documents. That is false story. That the phot copy of Ext. 4 unregistered settlement deed is not admissible in the eye of evidence. There is no oral evidence produced by the plaintiff that the original documents handed over to Gangadhar by the plaintiff. That pw 7 son of original plaintiff deposed at para 21 in his deposition and admitted that he is not seen documents of land and he does not know about the acquire land and he is not whispering a single word about anything over the documents to Gangadhar Singh by his father and there is no any FIR lodged regarding the theft of document. That on examining of photo copy of unregistered patta Ext.4 dtd. 8.4.1934 that there is deed 9.4.34 available. That back side of this paper impression of 3 different papers. The Hindi translation of Ext.4 which is supplied by the plaintiff is on record. That Ext.4 is clearly hit by the section 17 of the registration act (XVI of 1908) due to unregistered Ext. 4 as per law and not in admissible in evidence u/s 49 of registration act. That pw 7 at para 2 clearly deposed that he has not seen any document of land and he unable to say that how to acquire land. That due to unregistered deed of settlement dtd. 8.4.34 which is hit by registration act. Therefore, land was never settled in raiyati right to father of plaintiff and so plaintiff is not a raiyat of the suit land. He has got no possession over the land and so there was no ground for opening the jamabandi of land and thus opening was not legal and proper and illegally opened jamabandi has been cancelled by the order dtd. 14.8.1984 not illegal. That considering the all facts and above discussion these two issues have been decided against the plaintiff.

13. Issue no.1 Is there any cause of action for the present suit. That Khewat and raiyati holding are two different things. Khewat is not the matter of past before abolition of jamindari. It was in existence the owner of khewat was called khewatdar by jodpatta for lease of land for agricultural purpose. Raiyat interest in the land is created jodpatta does not creat tenureship interest in the land of lease of tenure right. Tenureship interest is only created. That jamabandi no.61 was opened by BLR act 1950. Once jamabandi no.61 was opened by Government authority. So, no any reason to cancel of jamabandi no.61. That plaintiff added relief for permanent mandatory injunction but there is no building and without building such type of relief does not arise. Therefore, plaintiff 19 has no any valid cause of seeking relief for mandatory injunction. That the Ext.4 which is unregistered settlement deed and hit by registration act therefore no question arises to cause of action to file the suit by the plaintiff. Therefore, this issue has been decided against the plaintiff.

14. Issue no.2, 3, 4, 5: Is the suit maintainable in the present form? Is the suit barred by limitation? Is the suit barred under the provisions of Specific relief act? Is the suit barred under the principles of waiver, estoppel and acquiescence? That for those issues it is decided that no cause of action for suit and plaint not based sufficiently stamped. That suit is not maintainable for the want of necessary party. That Ext.12 is clear that father of the plaintiff Rameshwar Narayan Tikait died leaving behind 2 sons namely Ramakant Singh and Yuvraj Singh pw2 and 2 daughters. So on the aforesaid facts the plaintiff’s claim baseless owner of property and during the course of trial and argument it is clear that these issues are against the plaintiff.

15. Issue no.6: Is the suit properly valued? That plaintiff has filed this suit for declaration of raiyati right in respect of suit land and the government has no right to make settlement and order dtd. 14.8.1984 for cancellation of jamabandi no.61 is illegal. That defendant no.1 to 5 disclosed in their ws that suit land Rs.35000 per decimal and according to plaintiff himself vide para no.35 of the plaint the circle officer which ahs fixed valuation at the rate of 35 thousand per acre. That the disputed land measuring area of 345.82 acres land and at the time of filing the suit is more than 1 crore. Therefore, the suit property is not properly valued by the plaintiff and due to that the case of the plaintiff suffers and this issue decided against the plaintiff. That issue no.7 is the suit barred by non- compliance of 80 CPC. That on the record no documentary proof is available on the record whether notice u/s 80 CPC was given to the defendant no.1 to 5 and there is no proof of urgency of institution of institution of the suit. Therefore, the suit of the plaintiff is barred u/s 80 of CPC.

16. Issue no.10 and 11 are taken together. Is the plaintiff entitled to get declare and relief of permanent and/or injunction as prayed for in the plaint?, Is the plaintiff entitled to get relief? That is established that plaintiff has no raiyati interest in respect of suit land. On the basis of unregistered 20 deed is through Ext.4 and not rightful owner and not entitled to any consequential relief. Therefore, these issues have been decided against the plaintiff.”

50. The learned trial court dismissed the suit of the plaintiffs on contest without cost with the observation that Exhibit-4 unregistered settlement deed is hit by the Registration Act and through this settlement deed, the plaintiffs have no right, title and interest over the land-in-question. Arguments on behalf of the appellants 51. The learned counsel for the appellants, during the course of hearing, submitted that the main issues were Issue Nos.8 and 9 and non-filing of the original documents, particularly the rent receipts said to have been issued prior to vesting. He submitted that the deed of settlement dated 08.04.1934 (actual dated 09.4.1934) was well explained by virtue of the evidence of PW-1. He further submitted that PW-1, who claimed to be the authorized agent and also the lawyer- cum-legal advisor of Mahur Raj family since 1949, was in possession of the various documents including the unregistered patta dated

09.04.1934 and also the original rent receipts. He has deposed that during his absence from 22.02.1991 to 13.03.1991, when he was hospitalized in Purulia Nursing Home and when he returned back, he found that the documents were missing. He has further deposed that on 14.03.1991, he had sworn an affidavit before the notary public with respect to loss of documents which was marked Exhibit-2. The learned counsel submitted that Exhibit-2 was more than sufficient read with the evidence of PW-1 to say that the documents, on the basis of which, the original plaintiff was claiming title over the suit property i.e. the settlement dated 09.04.1934, was lost. He further submitted that the photocopy of the said document was exhibited and the same was marked without any objection and consequently, those documents ought to have been taken into consideration for the purposes of deciding the case. 21

52. The learned counsel further submitted that had those documents been taken into consideration, then there was no reason not to decree the suit in favour of the plaintiffs. The learned counsel also submitted that a photocopy of the Letter No.51W dated 29.10.1956, which was referred to in the plaint, was also produced and marked ‘X’ for identification, but the same was also not taken into consideration to decide the case. The learned counsel also referred to Paragraph-17 of the present memo of appeal and submitted that plaintiffs had filed certain certified copies of Manbhum Settlement Case No.125 of 1934- 35 alongwith the petition for marking the same, but the said document has neither been marked, nor has been taken into consideration. However, from perusal of Paragraph-17 and during the course of argument, it appeared that the statement was vague as no specific date of such filing was mentioned. However, the learned counsel for the appellants while looking into the order sheet submitted that the facts mention in Paragraph-17 was referred to by the learned trial court in the order dated 06.11.1992. The fact remains that all the evidences were adduced after 06.11.1992, but none of the witnesses of the plaintiffs has exhibited the order of Manbhum Settlement Case No.125 of 1934-1935 and even from the records as received from the learned trial court, no such document has been found on record. However, it is not in dispute that the said document was not marked as an exhibit by any of the witnesses. 53. The learned counsel for the appellants also pointed out by referring to Paragraph-13 of the memo of appeal that there was no requirement for a patta to be registered when it comes to agricultural land. However, he did not dispute during the course of hearing that the so- called patta dated 09.04.1934 and also the couple of rent receipts which were said to have been issued prior to vesting and said to be in Bangla language were never produced in original before the learned trial court and the photocopies only were produced. 22

54. With respect to requirement of notice under Section 80 of CPC, no argument was advanced by the learned counsel for the appellants. Although there is a finding by the learned trial court that the suit was barred on account of non-furnishing of notice under Section 80 of CPC to the Defendant Nos.1 to 5. 55. However, at the time of dictation of the judgment, the learned counsel for the appellants submitted that an application for leave to file the suit without furnishing notice under Section 80 of CPC was filed and it has been stated in the memo of appeal that such leave was granted. However, from the records of the case, the learned counsel for the appellants has not been able to point out any order by which such leave was granted and consequently, it appears that the case proceeded without granting leave of filing the suit in absence of notice under Section 80 of CPC. 56. During the course of arguments, it also appeared that the order of the Hon’ble Supreme Court was not exhibited before the learned trial court, although it was pleaded in the suit that interim injunction in favour of the original plaintiff was granted by the Hon’ble Supreme Court only till 05.01.1987 which is the date on which the suit was filed and that was the reason for not furnishing notice under Section 80 of CPC. However, the said order of the Hon’ble Supreme Court was not brought on record and consequently, this fact could not be proved by the plaintiffs. The fact also remains that the plaintiffs did not move for any immediate relief of temporary injunction before the learned trial court for a considerable period and this fact has been taken care of by the learned trial court and it has been held that the suit of the plaintiffs was barred on account of non-filing of notice under Section 80 of CPC. 57. The learned counsel also submitted that Exhibit-6 and Exhibit- 6/A are the two rent receipts whose photocopies were produced and exhibited before the learned trial court, but on account of non- production of their originals, the learned trial court has not considered the same. The learned counsel submitted that the Exhibits- 4, 6 and 23 6/A if taken into consideration was sufficient to establish the case of the appellants. 58. The learned counsel also submitted that Exhibit-7 was also produced which was office copy of the letter to Manmohan Singh by Babu Ramanand, General Manager of Manbhum Encumbered Survey Estate and as per the said letter, the fact that the property was under the Manbhum Encumbered Survey Estate stood established. He submitted that this letter is dated 03.08.1939. However, the said document is in Bangla. A typed/translated copy of the same has not been furnished before this Court. Moreover, the fact remains that the entire case of the plaintiffs revolves around the unregistered settlement dated 09.04.1934, a photo copy of which was exhibited, but its original was not filed and the reason for not filing the original has been sought to be explained by Witness No.1 examined on behalf of the plaintiffs as discussed above. 59. The learned counsel also submitted that the jamabandi was opened in favour of the plaintiffs and nobody had preferred any appeal against the same and therefore, the opening of jamabandi had attained finality. However, during the course of hearing, it transpired that no order regarding opening of jamabandi was ever produced or exhibited by the plaintiffs before the learned trial court, nor the jamindari returns were filed as exhibits before the learned trial court. The appellants have also claimed that they are still in possession of the suit properties. Arguments on behalf of the Respondent Nos. 1 to 5 - State 60. The learned counsel appearing on behalf of the Respondent Nos.1 to 5 - State vehemently opposed the prayer and submitted that the learned trial court has considered every aspect of the matter as argued by the learned counsel for the appellants and has also disbelieved the story regarding loss of documents by citing numerous reasons including the fact that no FIR was lodged in connection with the loss of documents. 24

61. The learned counsel submitted that Exhibit-2 is an affidavit sworn before notary public and neither the notary public has been examined, nor his register showing the swearing of affidavit on a particular date has been exhibited before the learned trial court. 62. The learned counsel also referred to Exhibit-2 and submitted that, it is stated in Exhibit-2 that PW-1 had left huge cash amount, ornaments, utensils and when he came back, they were missing with some important files and it was apprehended that Prithviraj Singh and his associate had committed such mischief through Swapan and Sabita. The learned counsel submitted that serious allegations were made in the affidavit sworn before notary public vide Exhibit-2, but PW-1 did not choose to take any step to lodge any FIR, although the persons who could be accused in the case were specifically mentioned in the affidavit. 63. The learned counsel further submitted that once the learned trial court has taken a view based on appreciation of materials on record, the said appreciation cannot be ignored even by the first appellate court and in order to reverse the finding by the first appellate court, reasons are required to be assigned. He submitted that since the reasons are sound reasons, there is no occasion to differ with the findings recorded by the learned trial court. He also submitted that in absence of production of original settlement deed dated 09.04.1934 whose existence was vehemently opposed by the Defendant Nos.1 to 5 in their written statement and also in absence of the original rent receipts filed before the authorities and further in absence of any order regarding opening of jamabandi or filing of any document particularly the return filed by the landlord at the time of vesting, the plaintiffs have failed to establish their case as pleaded in the suit and therefore, the plaintiffs were not entitled for any relief in connection with right, title, interest or possession with respect to the suit property. 64. After hearing the arguments advanced on behalf of the parties and considering the facts and circumstances of this case, the following points of determination arise in the present case: 25 (I) Whether any deed of settlement was executed on

09.04.1934 and whether by the said deed of settlement, any raiyati interest in respect of the land mentioned therein was created in favour of the settlee? (II) Whether the Jamabandi No.61 was validly opened and whether the order dated 14.08.1984 cancelling the said Jamabandi was illegal and without jurisdiction? (III) Whether the suit was properly valued? (IV) Whether the suit was barred for non-compliance of Section 80 CPC? (V) Whether there was any cause of action for the suit filed by the original plaintiff? (VI) Whether the appellants are entitled to get declaration and relief of permanent injunction and/or mandatory injunction as prayed for in the plaint or whether they are entitled to get any other reliefs? Finding of this Court 65. After hearing the learned counsel appearing on behalf of the parties and going through the records of the case, this Court finds that in course of trial, the plaintiffs examined nine witnesses in support of their case. PW-1 is Gangadhar Sinha, PW-2 is Kunwar Yuvraj Singh who is the brother of the original plaintiff namely, Tikait Ramakant Singh, PW-3 is Baikunth Singh, PW-4 is Chunu Lal Singh, PW-5 is Sudhir Goswami, PW-6 is Ras Bihari Singh, PW-7 is Raj Kumar Tikait Thakur Mani Singh, PW-8 is Bibhuti Nath Tiwary and PW-9 is Sahdev Singh. 66. PW-1, in his examination-in-chief, deposed that he is the authorized agent of the plaintiff and he is the lawyer-cum-legal advisor of Mahur Raj Family since 1949. He exhibited the amended plaint of the plaintiff relating to Defendant No.1 to 6 only as Exhibit-

1. He further deposed that by jot patta of 1893, Tikait Kunj Bihari Singh settled about 350 acres of land with specific boundary to one Chamtu Singh, but his successors neither could make Korkar of the 26 settled lands, nor paid the fixed rent. As a result, Sahebram Singh and his co-sharers surrendered the entire land recorded in Khata No.20 to 61 comprising about 350 acres of land to Tikait Manmohan Singh. Out of the settled land, Manmohan Singh settled about 20 acres comprising of Khatiyan No.20 to 33 to the wives of Sahibram Singh and others namely, Reshmi Ghatwarin, Upasi Ghatwarin and two others on 07.01.1934 by five registered patta deeds and settled the remaining 317 acres to his second son namely, Rameshwar Narayan Singh by patta dated 09.04.1934. He identified the photocopy of the patta scribed in the pen of Umesh Chandra Ghosal and identified and witnessed by Ajodhyanath Raj Hans, Manager and Amokhtar of Tikait Manmohan Singh. He further deposed that the original document of the patta and other original documents were in his custody and during his absence from 22.02.1991 to 13.03.1991 being hospitalized in Purulia Nursing Home, he detected that these documents were missing from his house. On 14.03.1991, he and Tikait Ramakant Singh had sworn an affidavit before notary public at Chas regarding missing of the originals of the aforesaid documents. The affidavit was typed by Joy Sinha and his signature and the signature of Tikait Ramakant Singh was identified by G.C. Mahto, Advocate. He exhibited the affidavit as Exhibit-2. He further exhibited the certified copies of the order-sheets dated 28.03.1992 of T.S. 16/90 and T.S. 17/90 in respect of missing of the original documents as Exhibit-3 & 3/A. He further deposed that the patta dated 09.04.1934 was in the pen of deed writer Umesh Chandra Ghosal of Purulia and signed by Tikait Manmohan Singh on each and every page and Ayodhya Ranhans of Ranipokhar had signed on it as witness and on the last page, General Manager, Encumbered Estate of Manbhum had accepted the deed on

14.09.1940. He exhibited the photocopy of patta dated 09.04.1934 as Exhibit-4. He also exhibited the photocopy of patta deed dated

19.04.1938 in the pen of Umesh Chandra Ghosal of Purulia and signed by Ayodhya Nath Rajhans as witness as Exhibit-4/A. He exhibited the photocopy of deed of family settlement dated 25.04.1955 as Exhibit-5 27 and deposed that it is in the pen of deed writer Pelaram Mahato and Ayodhya Nath Rajhans signed on it as witness. He deposed that the original deed was signed by Tikait Manmohan Singh in his presence and Ayodhya Nath Rajhans and Pelaram Mahto had also made their signatures on it in his presence. He also exhibited the photocopy of deed of agreement and Family settlement dated 25.03.1960 between Tikait Rameshwar Narayan Singh and Shobha Kumari Devi signed by them as Exhibit-5/A. He further deposed that the father of Defendant Nos.7 and 8 made their signatures on it as witnesses and Ayodhya Nath Rajhans also signed as witness on it and the original deed was typed in his office under his dictation. He exhibited the photocopy of another deed of family settlement dated 25.03.1960 between Tikait Rameshwar Narayan Singh and Shobha Kumari Devi as Exhibit-5/B and deposed that the deed is in the pen of Pelaram Mahato and it was written in his presence and Ayodhya Nath Rajhans and Nand Lal Singh signed as witness. He also exhibited the photocopy of agreement executed on 31.12.1982 between Sobha Kumari Devi, Tikait Ramakant Singh and Kunwar Yubraj as first party and Gangadhar Singh, Advocate as second party and signed by all the parties as Exhibit-5/C and deposed that it was typed in his office under his dictation and D.P. Singh has made his signature on it as witness. He further deposed that the original documents of Exhibits- 4 to 5/C were in his custody and their photocopies were copied in his presence from the original for producing them before Hon’ble High Court in 1984-85. He exhibited the photocopy of the rent receipt granted by Ayodhya Nath Rajhans as Exhibit-6 and photocopy of rent receipt granted by Kanai Lal Marwari as Exhibit-6/A. He deposed that the originals of the rent receipts were in his custody and he had handed over to Shri D.P. Singh, Secretary of Raja M.M. Singh, H.C.T.C., who had lost it. He further deposed that by Notification No.1021W dated

13.07.1939 published in Bihar Gazette dated 19.07.1939, Bharamahal Estate of Manmohan Singh was taken for management by Babu Ramanand, General Manager of Manbhum Encumbered Estate. The 28 Manager, Encumbered Estate Babu Ramanand asked Tikait Manmohan Singh to hand over charge of the Estate on 07.08.1939. He exhibited the office copy of the letter sent to Manmohan Singh for handing over the charge of the estate as Exhibit-7. He deposed that it is false to say in Para-20 of the W.S. of Defendant Nos. 1 to 5 that Bharamahal Estate being under the management of Encumbered Estate from 1939 upto 28.11.1957 was vested to the State of Bihar free from all encumbrance. He further deposed that the estate Bharamahal was never vested to the State of Bihar as would be evident from Letter No.51 dated 29.10.1956 of the Deputy Commissioner, Manbhum to Commissioner, Chhotanagpur Division pointing out that Encumbered Estate of Bharamahal never vested to the State of Bihar, not notified under the Land Reforms Act. He identified Letter No.51W dated 29.10.1956 as Identification-X. He further deposed that on 28.11.1957. Mr. T.K. Mishra, L.R.D.C., Dhanbad being appointed as Manager, Encumbered Estate, Bharamahal, took charge of the estate from Mr. Nani Gopal Kundu, General Manager, Encumbered Estate, Puluria under the direction of Mr. L.N. Singh, P.A. to the Commissioner, Chhotanagpur Division. He identified for papers produced by him as Identification- X/1, X/2, X/3 and X/4. He further deposed that since 28.11.1957, uptill now, Bharamahal estate is under the management of Encumbered Estate under L.R.D.C., Dhanbad, as the Estate has never been vested, there being never any notification of vesting of this estate under Bihar Land Reforms Act, 1950. Tikait Rameshwar Narayan Singh as raiyat of the land paid rent to the Encumbered Estate after acceptance of raiyati right by the General Manager Babu Ramanand on 14.09.1940 under Thoka No.61 of Mouza Tentulia and obtained rent receipts from Encumbered Estate. Since 01.11.1956 1956, Purulia Sub-Division within district Manbhum, except Chas and Chandankiyari P.S. was transferred to the State of West Bengal, but charge of management of this Bharamahal Estate continued under the management of Manager Encumbered Estate, Purulia from 01.11.1956 upto 28.11.1957. Under 29 such situation, Tikait Manmohan Singh left for pilgrimage for ever leaving Bharamahal Estate by declaring his only surviving son Rameshwar Narayan Singh as Raja Tikait of Bharamahal Estate during 1955. He further deposed that the plaintiffs had approached the State of Bihar and State of West Bengal several times for settling the matter and release of the Estate to Tikait Rameshwar Narayan Singh, but no relief could be availed to him. Rameshwar Narayan Singh died in 1969 and in 1960, Tikait Rameshwar Narayan Singh and Shobha Kumari Devi had settled amongst themselves and had made three family arrangements and settlements. On one settlement, arrangement of Tikait Manmohan declaring Tikait Rameshwar Narayan Singh as the sole proprietor of Bharamahal Estate was confirmed and raiyati settlement of Rameshwar Narayan over about 350 acres of land of Tentulia were confirmed as also settlement of 99 acres of land within Mouza Ranipokhar and 30 acres of Mouza Nowadih and entire khas land of Ukrid settled to Laxmi Narayan, husband of Shobha Kumari were also confirmed. The entire lands of Tentulia, Ranipokhar and Nowadih were put in charge of a house construction trustee Committee styled as Raja Manmohan Singh Housing Construction Trustee Committee with Rameshwar Narayan Singh as Chairman and he (PW-1) as Vice-Chairman of the trustee Committee and other four members. This trustee committee is in possession of the entire trustee land through different agencies like Raja Manmohan Singh Housing Construction Co-operative Society as also different personal agents. He further deposed that Bari Co- operative Housing Construction Society have settled to take settlement of about 10 acres of land from Defendant No.1 to 5 and for purpose, Circle officer, Chas cancelled the Jamabandi No.61 of Tentulia running in the name of Tikait Rameshwar Narayan Singh in the thoka bahi without any notice, information and proceeding for which the present plaintiff (original plaintiff) approached the Hon’ble High Court, Ranchi Bench in CWJC 120 ( R ) of 1985 for quashing the said cancellation order and the Hon’ble High Court by its order dated 30

20.02.1985 restrained the Defendant No.1 to 5 not to make any settlement for any land to Defendant No.6 or anybody till hearing and final decision of the Hon’ble Court. After final hearing during 1986, the Hon’ble High Court observed that as Defendant No. 1 to 6 are challenging the title of the present plaintiff, he should file a title suit and interest before the competent civil court. The Hon’ble Court further observed that though the jamabandi was cancelled without notice, it would not affect the right, title and interest of the plaintiff. Against this, the plaintiff preferred Special Leave Petition before the Hon’ble Supreme Court of India which also observed by its order dated 11.12.1986 that the plaintiff must file a title suit and further directed to maintain status quo till 05.01.1987 by which time the plaintiff must file title suit to establish his right, title and interest. He further deposed that at the instance of D.P. Singh, Secretary of Raja Manmohan Singh, H.C.T.C., there was some omission and commission and the plaint had to be cured by amendment of the plaint and the latest amendment is Exhibit-1. He further deposed that as Defendant Nos.7 to 9 intervened in the suit and they were made defendants under the order of the court and as they have filed T.S. 16/86 in the Sub-Judge Court which is now pending in the 3rd Sub- Judge Court, Bokaro, he had taken steps under Order XXII dated

02.11.1992. He exhibited the petition under Order XXII dated

02.11.1992 as Exhibit-8. He also exhibited the notice of T.S. No.16/86 alongwith copy of plaint served on him as Exhibit-9 and the certified copy of the order-sheet dated 13.02.1991 to 25.09.1991 of T.S. No.16/86 of Sub-Judge-II, Chas as Exhibit-10. He marked the certified copy of the plaint of T.S. No. 16/86 for Identification-X/5 the certified copy of W.S. filed in T.S. No.16/86 for Identification-X/6. He prayed for declaration of his title on lands of Khatiyan No. 1, 35, 59 & 60 comprising about 200 acres of land in Mouza-Tentulia which he possesses through Raja Manmohan Singh Housing Construction Trustee Committee. He further prayed that Defendant No.1 to 5 have no right to cancel his Jamabandi No.61 of 31 Tentulia and/or settle any land of Tentulia to Defendant No.6 or any body else treating it as Govt. khas land. He further prayed for injunction to restrain all the defendants not to disturb the possession of the plaintiff / M.M. Singh H.C.T.C. in any land of Tentulia. He further prayed for mandatory injunction against the Defendant No.6 to remove the structures made by its members over any lands of Khatian No.1, 35 59 and 60 comprising 200 acres of land of Mouza Tentulia described in Schedule-B of the amended plaint. 67. During cross-examination on behalf of the Defendant Nos.1 to 5, PW-1 stated that he is the authorized agent of the plaintiff. He further admitted and deposed that no notice under Section 80 of CPC was given to the Defendant Nos.1 to 5 and stated that it was because the matter was very urgent and they took leave of the court for filing of the suit under Section 80(2) of CPC. In Para-21, he admitted that in the year 1893, settlement of about 350 acres of land by Registered Jotpatta was made in favour of Chamtu Singh for the purpose of ‘Korkar’. He also admitted that the survey record of right was prepared and finally published in the year 1922 and the above lands were recorded in C.S. Khatian in the name of heirs of Chamtu Singh from Khata Nos. 20 to 60. He stated that on 25.11.1933, all the khewatdars recorded under Khewat Nos. 4/1 to 4/10 comprising of lands of Khata No. 20 to 60, about an area of 350 acres, surrendered the entire area of 350 acres in favour of Raja Tikait Manmohan Singh and the surrendered lands of about 317 acres were settled with Rameshwar Narayan Singh on 09.04.1934. He stated that the settlement was accepted by the Manager Encumbered Estate Manbhum during 1940-64 granting rent receipts and the Jamabandi No.61 was opened under the order of Manager Encumbered Estate after acceptance of settlement during 1940 and the Encumbered Estate also granted rent receipts to Rameshwar Narayan Singh. He further stated that the plaintiff has got several receipts issued from the office of the State of Bihar since 1958 upto 1984 in respect of Jamabandi No.61 i.e. for the land of Mouza Tentulia. He stated that the fact is 32 that the circle officer, privately and without knowledge of the plaintiff and without notice to the plaintiff, cancelled the Jamabandi under the influence of Defendant No.6 only with a view to settle the land area 10 acres 65 decimals to Defendant No.6. He admitted that he has not filed any rent receipt issued by the State of Bihar of the period between 1958 to 1984 and stated that all the rent receipts are lying with Shri D.P. Singh, Secretary of the Trustee Committee. He admitted that it is not a fact that all the lands bearing Khata No. 20 to 60 are bakast land, as all those lands were surrendered to Raja Manmohan Singh, who re-settled the lands of Khata No. 20 to 33 to the wives of the khewatdars who surrendered the land and the land of Khata No. 35, 59, 60 and 61 became bakst land and for the lands of Khata No. 34, 36 to 58, Manmohan Singh became the proprietor which were settled to Rasmeshwar Narayan Singh for which he is entitled to get compensation. He further stated that in the amended plaint, he has mentioned all the lands which are his bakast land, but he has not mentioned specific area of each plot separately, but total area of bakast land would be 201.53 acres. He further admitted that he has not mentioned the total area in the Schedule-B of the amended plaint. He also admitted that he has neither mentioned the area, nor boundary of lands in Schedule-B of the amended plaint. He marked the Power of Attorney for Identification-Y. 68. During cross-examination on behalf of Defendant No.6, PW-1 stated that all the documents were in his custody during 1961 to 1984, which were handed over to Mr. D.P. Singh, but D.P. Singh returned some of the original documents to him in 1988 with statement that original rent receipts are missing and two rent receipts granted by Raja before 1939 and rent receipts of the period between 1940 to 1950 granted by Encumbered Estate and the rent receipts during 1958 to 1984 granted by State of Bihar were not returned to him by D.P. Singh. He admitted that initially he had got those documents from Tikait Rameshwar Narayan Singh. 33

69. PW-2 is the brother and PW-7 is the son of the original plaintiff namely, Tikait Ramakant Singh. PW-3 and PW-6 are members of the family of the original plaintiff and they have supported the case of the plaintiffs. PW-4 is a relative of the original plaintiff and he has also supported the case of the plaintiffs. PW-5 is a formal witness and he was summoned in the case from Purulia Record Room alongwith the documents related to the Bharamahal Encumbered Estate. 70. PW-8 deposed that he had worked with the notary namely, Sri K. Singh. He exhibited the Affidavit dated 14.11.1993 sworn by Gangadhar Sinha and Tikait Ramakant Singh as Exhibit-11 and the Affidavit dated 25.02.1992 sworn by Gangadhar Sinha and Tikait Ramakant Singh as Exhibit-11/A. 71. PW-9 is a formal witness and he exhibited the Certificate dated

11.06.1969 issued by Sarpanch, Rani Pokhar Gram, Katchari as Exhibit-12 in which he identified his signature. He also exhibited the Certificate dated 02.04.1972 issued by Sarpanch, Rani Pokhar Gram Panchayat as Exhibit-12/A in which he identified his signature. 72. The plaintiffs exhibited the following documents: Exhibit- 1 Amended copy of the plaint Exhibit-2 Affidavit by Gangadhar Sinha Exhibit-3 & 3/A Order sheets passed in TS 16/90 & T.S. 17/90 Exhibit-4 Photocopy of patta dated 09.04.1934 Exhibit-4/A Photocopy of patta deed dated 19.04.1938 Exhibit-5 Photocopy of family settlement dated 25.04.1955 Exhibit-5/A Photocopy of deed of agreement and family settlement dated 25.03.1960 between Tikait Rameshwar Narayan Singh and Shobha Kumari Devi Exhibit-5/B Photocopy of deed of family settlement dated

25.03.1960 between Tikait Rameshwar Narayan Singh and Shobha Kumari Devi Exhibit-5/C Photocopy of agreement executed on 31.12.1982 between Sobha Kumari Devi, Tikait Ramakant Singh, Kunwar Yubraj and Gangadhar Sinha, Advocate. 34 Exhibit-6 Photocopy of rent receipt granted by Ayodhya Nath Rajhans Exhibit-6/A Photo state copy of rent receipt granted by Kamallal Marwari Exhibit-7 Office copy of letter sent to Manmohan Singh by Babu Ramanand, General Manager, Manbhum Encumbered Survey Estate Exhibit-8 Petition under Order XXII dated 02.11.1992 Exhibit-9 Notice of T.S. No.16/86 alongwith copy of plaint Exhibit-10 C.C. of order-sheet dated 13.02.1991 to 25.09.1991 of T.S. No.16/86 of Sub-Judge-II, Chas Exhibit-11 Affidavit by Gangadhar Sinha and Tikait Ramakant Singh dated 14.11.93 Exhibit-11/A Affidavit by Gangadhar Sinha and Tikait Ramakant Singh dated 25.2.92 Exhibit-11/B Affidavit by Gangadhar Sinha and Ramakant Singh dated 04.02.1991 Exhibit-12 Certificate dated 11.06.1969 issued by Sarpanch, Rani Pokhar Gram, Katchari Exhibit-12/A Certificate dated 02.04.1972 issued by Sarpanch, Rani Pokhar Gram Panchayat Identification-X Letter No.51W dated 29.10.1956 Identification- X/1, X/2, X/3 and X/4 Four papers identified by PW-1 Identification-X/5 C.C. of plaint of T.S. No. 16/86 Identification-X/6 C.C. of W.S. filed in T.S. 16/86 Identification-Y Power of Attorney of PW-1 73. The Defendant Nos.1 to 5 examined only one witness namely, Kamta Prasad Singh. In his examination-in-chief, he deposed that he had not received notice under Section 80 CPC. He further stated that raiyati settlement had taken place in 1893 and in 1924. He further deposed that the disputed land is malik land and the plaintiff does pay rent for the land. He further stated that he does not know about the documents of the plaintiff and he has not seen them. 35

74. The Defendant No.6 examined 11 witnesses. DW-1 Rajendra Choudhary, DW-2 is Vijay Kumar Singh, DW-3 is Darku Singh, DW- 4 is Bigan Singh, DW-5 is Kutubdin Ansari, DW-6 is Lukman Ansari, DW-7 is Ganga Vishnu Pd. Singh, DW-8 is Krishna Kanhaiya Prasad Rai, DW-9 is Brahmachari Panchanan Rana, DW-10 is Ramanand Prasad and DW-11 is Bhudeo Pd. Singh. 75. The Defendant Nos.7 to 9 examined 5 witnesses. DW-1 is Raj Kapoor Singh who is the Defendant No.8, DW-2 is Kashi Nath Goswami, DW-3 is Sarifudin Ansari, DW-4 is Prithvi Raj Singh who is the Defendant No.7 and DW-5 is Kashi Nath Singh. 76. The following documents were exhibited on behalf of the Defendant Nos.7 to 9: Exhibit-A C.C. of judgement dated 09.12.2007 passed in Title Partition Suit No. 16/86 Exhibit-B C.C. of decree in Title Partition Suit No. 16/86 Exhibit-C C.C. of registered Sale Deed No.1135 of 1955 Exhibit-D C.C. of vouchar of LA Case No.38 of 1962-1963 Exhibit-E C.C. of notice of GM, Ward and Encumbered Estate Exhibit-F C.C. of Deed No. 4355/1932 Exhibit-G C.C. of order-sheet of LA Case No. 880/70 Exhibit-H C.C. of Enquiry Report of Anhal Adhikari, Chas vide Letter No. 1312 dated 26.09.63 Exhibit-l C.C. of Decree in Suit No. 260/1928-29 Exhibit-J C.C. of registered Sale Deed No. 10345/1956 Exhibit-K C.C. of registered deed 311 dated 31.01.1893 Exhibit-L C.C. of Deed of Istifa No. 5018 dated 25.11.1933 Exhibit-M C.C. of registered deed of surrender dated 09.01.34. Points of Determination Nos. (I) and (II) 77. So far as the claim of the appellants for settlement by virtue of deed dated 09.04.1934 is concerned, this Court finds that it is an admitted fact even from the side of the plaintiffs that the same was an unregistered document. Admittedly, the original of the same was not exhibited before the learned trial court and the reason for not 36 exhibiting the original was Exhibit-2 wherein PW-1 had sworn an affidavit that he was admitted at Purulia on 24.02.1991 at Nursing home for operation and he came to his residence on 12.03.1991 and, S. Manna and his newly wedded wife Sabita left the house since

24.02.1991, unlocked, the various original documents were found missing and a list of such documents was also mentioned which included the original patta dated 09.04.1934, but there was no mention of any rent receipt having been found missing including Exhibits- 6 and 6/A, whose photocopies were exhibited by the PW-1. Further, the said affidavit before notary public revealed that S. Manna and Sabita, who were in-charge of the entire residence of PW-1 wherein PW-1 claimed to have left huge cash, ornaments, utensil and house affairs and they were missing with some important files, it was apprehended as mentioned in the said affidavit before notary public that Prithviraj Singh and his associate have committed some mischief through Swapna and Sabita. However, admittedly no FIR was lodged in connection with such serious allegations made and referred to in the affidavit sworn before Notary. 78. This Court further finds that PW-1, in his evidence, has mentioned about the aforesaid Exhibit-2 in order to explain as to why the patta has not been exhibited in original. Apart from that photocopy of other documents were also marked as Exhibits citing the same reasons. So far as Exhibits- 6 and 6/A are concerned, the photocopies were exhibited by stating that the original of these were not in his custody and he had handed them over to D.P. Singh, Secretary of Raja Manmohan Singh, who had lost it. As per his deposition, numerous documents were stolen for which he relied upon Exhibit-2. Exhibits- 6 and 6/A, which were the rent receipts in Bangla said to have been issued sometimes in the year 1937 were also not produced by stating that those were lost by D.P. Singh, Secretary of Raja Manmohan Singh. However, the Secretary of Raja Manmohan Singh has not been examined as a witness in the case. A photocopy of the letter dated No.51W dated 29.10.1956 was exhibited and was marked ‘X’ for 37 identification, but original of the same was not exhibited and further the Defendant Nos.1 to 5 have categorically denied the existence of such documents in their written statement. 79. It is important to note that the Defendant Nos.1 to 5 had raised serious objection in the written statement regarding non-filing of the documents alongwith the plaint and had also stated that the objection in connection with those documents will be raised as and when the originals are produced before the Court, but originals of the most relevant documents particularly the patta dated 09.04.1934 and also the rent receipts- Exhibits- 6 and 6/A were never produced and the very basis of the claim of the plaintiffs could not be said to have proved without production of the original documents. Merely because those documents have been marked as exhibits without objection, the same does not dispense with the proof of the documents. 80. This Court further finds that the notary public was also not examined before the learned trial court. The notary public before whom exhibit-2 was said to have been sworn could have been examined or at least his register keeping a record of the affidavits sworn before him could have been exhibited, but no such steps were taken. This Court also finds that in spite of serious allegation of theft made in Exhibit-2, no FIR was instituted and Exhibits- 6 and 6/A were not mentioned in Exhibit-2 being in the list of stolen documents or articles. With respect to Exhibits- 6 and 6/A, the only explanation furnished was that it was handed over to D.P. Singh who had lost it, but neither any FIR lodged by D.P. Singh has been produced, nor D.P. Singh has been examined before the learned trial court to substantiate such a plea, nor there is any communication or document to show between PW-1 and D.P. Singh with regard to the loss of the original documents of Exhibits- 6 and 6/A. 81. This Court finds that neither the sada deed of settlement dated

09.04.1934 and the rent receipts pursuant thereto have been produced before the court, nor there is any cogent explanation for non- production of the same. 38

82. This Court has gone through the entire discussions made by the learned trial court in Paragraph-12 while deciding the Issue Nos.8 and

9. Upon perusal of the records and the materials on record, this Court finds that the learned trial court has duly considered every aspect of the matter and has rightly disbelieved the story set up by PW-1 regarding the loss of documents and justification for filing of photocopies of the said documents. 83. This Court finds that in the Full Bench Judgment passed by the Hon’ble Patna High Court in the case of Mt. Ugni and another -vs- Chowa Mahto and Others reported in 1967 SCC OnLine Pat 62, it has been held that though unregistered patta is not admissible in evidence, but if it is coupled with issuance of jamindari rent receipts, the same would be evidence with regard to the nature of possession of the property. 84. In the present case, the sheet anchor of the claim of the plaintiffs is the unregistered patta dated 09.04.1934 but the same was not exhibited in original and therefore was not proved and so was the position with respect to the rent receipts said to be issued pursuant to such settlement through unregistered settlement patta dated

09.04.1934. The plaintiffs have failed to prove their settlement through the patta dated 09.04.1934 and even they have failed to prove the possession pursuant to such patta as the original rent receipts were also not produced. Therefore, the plaintiffs have failed to prove the existence of the settlement said to have been executed on 09.04.1934 and consequently, they have failed to prove their right, title, interest and possession flowing from such settlement patta dated 09.04.1934. 85. This Court also finds that so far as the validity of opening of Jamabandi No.61 is concerned, the same was admittedly cancelled by order dated 14.08.1984. The plaintiffs have not even exhibited the order of cancellation of jamabandi. The plaintiffs have also not exhibited any order regarding opening of jamabandi in their name, nor the returns of the landlord have been exhibited which must have been filed at the time of vesting. The returns of the landlord could have 39 thrown some light with regard to the right, title, interest and possession of the original plaintiff, if any, as the plaintiffs are claiming raiyati right over the suit property. In absence of the returns coupled with order opening jamabandi in the name of the original plaintiff pursuant to vesting, merely the fact that jamabandi was opened in the name of the original plaintiff was not sufficient to establish any right of the plaintiffs with respect to the property. 86. In aforesaid circumstances, once the very basis of the right of the plaintiffs based on unregistered settlement dated 08.04.1934 was not proved, the claim of the plaintiffs with regard to right, title, interest and possession and the opening of jamabandi in accordance with the law was not established. Since the order by which the jamabandi was opened has not been exhibited, the argument of the appellants that the order opening the jamabandi could have been challenged, and was not challenged, is also not sustainable in the eyes of law. In view of the aforesaid facts and circumstances, this Court finds that the learned trial court has passed a well-reasoned judgment while deciding the Issue Nos. (viii) and (ix) which does not call for any interference. Accordingly, the Points of Determination Nos. (I) and (II) are decided against the appellants. Point of Determination No. (III) 87. So far as the Issue No. (vi) with regard to valuation of the suit is concerned, the learned trial court has recorded that as per the plaintiff himself in Paragraph-35 of the plaint, the Circle officer had fixed the valuation of the property at the rate of Rs.35,000 per acre. “35. That, on prayer being made on behalf of the plaintiff the Hon'ble High Court by its order dated 20.2.85 had ordered for injunction against the State of Bihar not to make any settlement of the land-in-question in favour of the Defendant No.6 till the matter is finally decided as in the meanwhile the Circle Officer has fixed the valuation of the lands to be settled in favour of the Defendant No.6 at 40 the rate of Rs. 35000/- per acre as salami and also prepared check slip for the said settlement.”

88. With respect to valuation of the suit stated at Paragraph-44 of the plaint, the market value of the suit land was over Rs.35,000 per acre and unless the suit is valued afresh by giving market value of the suit land, it could not proceed. This Court finds that the learned trial court has rightly taken into consideration the aforesaid aspect of the matter and has held that suit was not properly valued. Accordingly, the Point of Determination No. (III) is decided against the appellants. Points of Determination No. (IV) 89. So far as the issue of non-compliance of Section 80 of CPC is concerned, from perusal of the records of the case, this Court finds that the suit proceeded without granting leave of filing the suit in absence of notice under Section 80 of CPC and the order of the Hon’ble Supreme Court was not exhibited before the learned trial court, although it was pleaded in the plaint that interim injunction in favour of the original plaintiff was granted only till 05.01.1987 which is the date on which the suit was filed and that was the reason for not issuing notice under Section 80 of CPC. However, the said order of the Hon’ble Supreme Court was not brought on record and consequently, this fact could not be proved by the plaintiffs. The fact also remains that the plaintiffs did not move for any immediate relief temporary injunction before learned trial court for a considerable period and this fact has been taken care of by the learned trial court and it has been held that the suit of the plaintiffs is barred on account of non-filing of notice under Section 80 of CPC. This court is of the considered view that there has been non-compliance with the mandatory requirement of notice to the concerned government under Section 80 of CPC and the suit was rightly held to be not maintainable. Accordingly, the Point of Determination No. (IV) is decided against the appellants. Point of Determination No. (V) 41

90. So far as the Issue No.(i) with regard to cause of action to file the suit is concerned, the learned trial court has recorded that there was no cause of action to file the suit. However, since the jamabandi was admittedly cancelled, it cannot be said that there was no cause of action for the original plaintiff to seek a declaration of right, title with respect to the suit property. Consequently, the finding of the learned trial court with regard to the cause of action calls for interference and this issue is decided in favour of the appellants and against the respondents. Accordingly, the Point of Determination No. (V) is decided in favour of the plaintiffs-appellants. Point of Determination No. (VI) 91. This Court finds that the main points of determination having been decided against the appellants by holding that the plaintiffs have failed to prove their right, title and interest over the suit property, the appellants are not entitled to get relief of any declaration or permanent injunction and/or mandatory injunction as prayed for in the plaint. This Court is of the considered view that the learned trial court has rightly decided these issues against the plaintiffs. Accordingly, the Point of Determination No. (VI) is decided against the plaintiffs- appellants. 92. As a cumulative effect of the aforesaid findings, this Court is of the view that there is no merit in this first appeal and the impugned judgment does not call for any interference, except with regard to the Point of Determination No. (V) regarding the cause of action to file the suit by the original plaintiff. 93. Consequently, since the main points of determination have been decided against the appellants, this first appeal is hereby dismissed. 94. Pending interlocutory application, if any, is dismissed as not pressed. 95. The office is to prepare decree accordingly. Saurav/ (Anubha Rawat Choudhary, J.) 42