Suraj Prasad Ram Vs Ram Nagina Singh And Ors.

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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S.A. No. 58 of 1991 (R)

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Ram Nagina Singh (deleted vide order dated 24.07.2023)

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Raghubans Narayan Singh, son of Late Jaimangal Prasad Singh

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Tarkeshwar Prasad Singh @ Babu Tarkeshwar Prasad Singh (died and substituted vide order dated 24.07.2023)

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3(A) Askal Devi @ Kuwar (widow) 3(B) Arun Kumar Singh (Son) Both resident of village Babhandi, P.O.-Narsinghbpur, P.S. Chainpur, District-Palamau

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3(C) Subhadra Devi (Daughter), wife of Lal Chandra Churamani Nath Sahdeo, Resident of Village+ P.O.Lalgutuwa, P.S.-Nagri, District-Ranchi

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3(D) Sunita Devi (Daughter), W/o Sunil Kumar Singh, Resident of village-Sarvodaynagar, P.O. and P.S. Kanke, District-Ranchi

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Babu Yadubansh Singh @ Yadubansh Narayan Singh (deleted vide order dated 03.08.2009)

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4(i) Urmila Devi, widow of Babu Yadubansh Singh @ Yadubansh Narayan Singh

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4 (ii) Sriram Singh

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4 (iii) Shatrughan Kumar Singh

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SI No. (ii) and (iii) both sons of Babu Yadubansh Singh @ Yadubansh Narayan Singh

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4(iv) Neetu Rai, daughter of Yadubansh Singh @ Yadubansh Narayan Singh and wife of Sri Manoj Kumar Rai

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All residents of Village-Babhandih, P.O.-Narsinghpur, P.S. Chainpur, District-Palamau (Jharkhand)

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Babu Harbansh Singh @ Haribansh Narayan Singh son of Ram Naresh Singh

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Smt. Malti Devi wife of Mahendar Singh

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Smt. Sabitri Devi wife of Madan Mohan Singh

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Smt. Srikanti Devi wife of Sri Akhilendra Prasad Singh Nos. 6 to 8 daughters of late Babu Ram Naresh Singh Residents of Village-Babhandih, P.O.-Narsinghpur, P.S. Chainpur, District-Palamau (Jharkhand)

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… … Defendants/Appellants/Appellants

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-Versus- 1. Amerika Ram son of Bhukhu Ram (died & deleted v.o.d. 14.02.2007)

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1

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1(i) Suraj Prasad Ram (died and substituted v.o.d. 07/02/2020)

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1(i) (a) Parmila Devi wife of late Suraj Pd. Ram 1(i) (b) Ranjeet Kumar Ram, S/o late Suraj Pd. Ram 1(i) (c) Chhotu Kumar Ram, S/o late Suraj Pd. Ram 1(i) (d) Chinta Kumari, D/o late Suraj Pd. Ram 1(i) (e) Janta Kumari D/o late Suraj Pd. Ram 1(i) (f) Sarita Kumari, D/o late Suraj Pd. Ram 1(i) (g) Punam Devi, D/o late Suraj Pd. Ram 1(i) (h) Mamta Devi, D/o late Suraj Pd. Ram All are residents of village-Babhandi, Kund Mohalla, P.O. and P.S. Daltonganj, Distt. Palamau

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1(ii) Kedar Ram

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1(iii) Kameshwar Ram

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1(iv) Nandu Ram, (died and substituted v.o.d. 16.10.2014)

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1(iv) (a) Kunti Kuer, wife of late Nandu Ram

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1(iv) (b) Brahamdeo Ram, son of late Nandu Ram 1(iv) (c) Bishundeo Ram, son of late Nandu Ram 1(iv)(d) Jitu Ram, son of late Nandu Ram 1(iv) (e) Kapil Kumar, son of late Nandu Ram

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Resp. Nos. 1(i) to 1(iv) are all sons of Amerika Ram

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1(v) Kalawati Devi, daughter of Amerika Ram and wife of Murari Ram

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Residents of village-Babhandi, P.S.-Chainpur, District-Palamau 1(vi) Kulwanti Kuer, wife of late Umesh Ram 1(vii) Rajendra Ram 1(viii) Kiran Kumari 1(ix) Khusbu Kumari 1(x) Lali Kumari

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Minor son and daughters of Late Umesh Ram being represented through their mother and natural guardian Kulwanti Keur, All resident of village Babhandi, P.S. Chainpur, District Palamau

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2. Nirmal Ram, son of Sukhdeo Ram, resident of village Babhandi, P.S. Chainpur Kund Mohalla P.S. Daltonganj

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… … Plaintiffs/Respondents/Respondents 3. Most. Janakraj Kuer widow of Late Bisheswar Dayal Singh, Resident of village-Sotamdabra, P.S. Lesliganj, District Palamau

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… … Defendant/Respondent/Proforma-Respondent

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S.A. No. 69 of 1991 (R)

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1. Amerika Ram, son of Bhukhu Ram (died and substituted v.o.d. 24.08.2007)

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1(i) Suraj Prasad Ram, son of late Ameriaka Ram ( (died and substituted v.o.d. 07.02.2020)

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1(i) (a) Parmila Devi wife of late Suraj Pd. Ram

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1(i) (b) Ranjeet Kumar Ram, S/o late Suraj Pd. Ram

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1(i) (c) Chhotu Kumar Ram, S/o late Suraj Pd. Ram 1(i) (d) Chinta Kumari, D/o late Suraj Pd. Ram

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1(i) (e) Janta Kumari D/o late Suraj Pd. Ram

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1(i) (f) Sarita Kumari, D/o late Suraj Pd. Ram

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1(i) (g) Punam Devi, D/o late Suraj Pd. Ram

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1(i) (h) Mamta Devi, D/o late Suraj Pd. Ram

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All are residents of village-Babhandi, P.O. & P.S. Chainpur, at present at Kund Mohalla, P.O. and P.S. Daltonganj, Distt. Palamau

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1(ii) Kedar Ram, son of late Ameriaka Ram

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1(iii) Kameshwar Ram, son of late Ameriaka Ram (deleted and substituted v.o.d. 07.07.2025)

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1(iii) (a) Sunita Devi, daughter of Late Kameshwar Ram and wife of Babu Lal Ram, resident of Purana Khashi Market, Muhalla Hamidganj, P.O. & P.S. Daltonganj, District Palamau

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1(iii) (b) Rinki Devi, daughter of Late Kameshwar Ram and wife of Anand Kumar, resident of Bhatti Muhalla, P.O. & P.S. Daltonganj, District Palamau

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1(iii) (c) Gayatri Kumar, daughter of Late Kameshwar Ram, resident of Purana Khassi Market, Hamidganj, P.O. & P.S. Daltonganj, District Palamau

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1(iii) (d) Anita Devi, daughter of Late Kameshwar Ram, resident of near Navketan Cinema Hall, Nawatoli, P.O. & P.S. Daltonganj, District Palamau

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1(iii) (e) Chanda Kumari, daughter of Late Kameshwar Ram, resident of Purana Khassi Market, Hamidganj, P.O. & P.S. Daltonganj, District Palamau

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1(iv) Nandu Ram, son of late Ameriaka Ram (died and substituted v.o.d. 16.10.2014)

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1(iv) (a) Kunti Kuer, wife of late Nandu Ram

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1(iv) (b) Brahamdeo Ram, son of late Nandu Ram 1(iv) (c) Bishundeo Ram, son of late Nandu Ram 1(iv)(d) Jitu Ram, son of late Nandu Ram 1(iv) (e) Kapil Kumar, son of late Nandu Ram

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1(v) Kalawati Devi, daughter of Late Amerika Ram and wife of Murari Ram

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Residents of Village Babhandi, P.S. Chainpur, Distt. Palamau 1(vi) Kulawanti Kuer, wife of late Umesh Ram 1(vii) Rajendra Ram

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1(viii) Kiran Kumari 1(ix) Khusbu Kumari 1(x) Lali Kumari

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Minor son and daughters of Late Umesh Ram being represented through their mother and natural guardian Kulwanti Keur, All resident of village Babhandi, P.S. Chainpur, District Palamau

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2. Nirmal Ram, son of Sukhdeo Ram Resp. No. 1 and 2 are residents of village Babhandi, P.S. Chainpur, at present at Kund Mohalla, P.S. Daltonganj, District Palamau … … Plaintiffs/Respondents/Appellants

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Versus-

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Ram Nagina Singh (deleted vide order dated 24.07.2023)

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Raghubans Narayan Singh, son of Late Jaimangal Prasad Singh

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Babu Tarkeshwar Pd. Singh (died and substituted vide order dated 24.07.2023)

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3(A) Askal Devi @ Kuwar (widow)

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3(B) Arun Kumar Singh (Son)

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Both resident of village Babhandi, P.O.-Narsinghbpur, P.S. Chainpur, District-Palamau

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3(C) Subhadra Devi (Daughter), wife of Lal Chandra Churamani Nath Sahdeo, Resident of Village+ P.O.Lalgutuwa, P.S.-Nagri, District-Ranchi

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3(D) Sunita Devi (Daughter), W/o Sunil Kumar Singh, Resident of village-Sarvodaynagar, P.O. and P.S. Kanke, District-Ranchi

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4. Babu Yadubansh Singh @ Yadubansh Singh (deleted vide order dated 07.07.2025)

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4(i) Urmila Devi, widow of Babu Yadubansh Singh @ Yadubansh Narayan Singh

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4 (ii) Sriram Singh

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4 (iii) Shatrughan Kumar Singh

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4

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SI No. (ii) and (iii) both sons of Babu Yadubansh Singh @ Yadubansh Narayan Singh

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4(iv) Neetu Rai, daughter of Yadubansh Singh @ Yadubansh Narayan Singh and wife of Sri Manoj Kumar Rai

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All residents of Village-Babhandih, P.O.-Narsinghpur, P.S. Chainpur, District-Palamau (Jharkhand)

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Babu Harbansh Singh @ Haribansh Narayan Singh son of Ram Naresh Singh

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Smt. Malti Devi wife of Mahendar Singh

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Smt. Sabitri Devi wife of Madan Mohan Singh

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Smt. Srikanti Devi wife of Sri Akhilendra Prasad Singh Nos. 6 to 8 daughters of late Babu Ram Naresh Singh Residents of Village-Babhandih, P.O.-Narsinghpur, P.S. Chainpur, District-Palamau (Jharkhand)

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… … Defendants/Appellants/Respondents

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CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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In S.A. No. 58 of 1991(R)

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For the Appellants : Mr. Tirtha Nandan Jha, Advocate For the Respondents : Mr. Kundan Kr. Ambastha, Advocate : Mr. Anurag Chandra, Advocate : Mr. Sumit Kumar, Advocate

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In S.A. No. 69 of 1991(R)

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For the Appellants : Mr. Kundan Kr. Ambastha, Advocate : Mr. Anurag Chandra, Advocate : Mr. Sumit Kumar, Advocate For the Respondents : Mr. Tirtha Nandan Jha, Advocate ---

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52/5^th December 2025

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1. Heard the learned counsel appearing on behalf of the parties.

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2. S.A. No. 58 of 1991 (R) has been filed by the contesting defendants and S.A. No. 69 of 1991 (R) has been filed by the plaintiffs.

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3. The 1^st appellate court’s judgment is dated 16.03.1991 (decree singed on 25.03.1991) passed by the learned 6^th Additional District Judge, Palamau at Daltonganj in Title Appeal No. 23 of 1980, whereby the 5

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learned 1^st appellate court has allowed the appeal and confirmed the judgment dated 20.03.1980 (decree signed on 01.04.1980) in part passed by the learned Additional Munsif, Palamau in Title Suit No. 51 of 1977.

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4. The substantial question of law in S.A. No. 58 of 1991(R) was framed vide order dated 23.08.1991 which relates to Plot No. 210 of Khata No. 88 and Plot No. 610, 667 and 254 of Khata No. 89. The substantial question of law reads as follows: -

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“Whether the learned Court of appeal below should have passed the impugned judgment with regard to Plot no. 210 of Khata No. 88 and Plot Nos. 601, 667 and 254 of Khata no. 89 without considering the oral and documentary evidences on record?”

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5. So far as S.A. No. 69 of 1991(R) is concerned, the substantial question of law has been framed on 13.08.2025. The substantial question of law relates to Plot No. 144 of Khata No. 116, Plot No. 151 of Khata No. 120, Plot No. 623 and 749 of Khata No. 121 and Plot No. 251 of Khata No. 122. The substantial question of law is quoted as under:

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“Whether the judgment of the learned court below allowing appeal with respect to plot Nos. 144 of Khata No. 116, Plot No. 151 of Khata No. 120, Plot No. 623 and 749 of Khata No. 121 and Plot No. 251 of Khata No.122 of Village Bhabhandi is based on no evidence and is perverse?”

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6. The suit was filed for the following reliefs: -

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(a) That it be adjudicated and declared that the lands in suit, fully described in Schedule at the foot of this plaint, situated in village Babhandih, P.S. Chainpur, District Palamau, are the lands owned and possessed by the plaintiffs and their title and possession has not been affected by any order passed by the Revenue Courts.

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(b) That the possession of the plaintiffs over the lands in suit be confirmed.

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(c) That the plaintiffs be awarded full costs of the suit.

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(d) That the plaintiffs be awarded any other relief or reliefs to which they may further be deemed entitled.

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7. The schedule of the property which is also the suit property is also quoted as under:

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Schedule

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Particulars of the lands in suit, situate in village Babhandih, P.S. Chainpur, District Palamau.

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Khata	Plot No.	Area in acres	Kind.
no.
88	210	0.07	Dhan 3
89	667	4.60	Tanr 3 Western side
89	601	0.55	Tanr 2
89	254	0.06	Dhan 3 House
116	144	0.20	Dhan 2
120	151	0.21	Dhan 2
121	623	0.09	Tanr 2
121	749	0.31	Tanr 2
122	251	0.09	Dhan 3
		Total 6.18 acres.

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8. Case of the plaintiffs

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a. As per the plaint, Mosomat Janakraj Kuar - the proforma defendant no. 4 was the ex-intermediary of village Babhandih, P.S. Chainpur, District Palamau, who, in Partition Suit No. 24 of 1930 amongst the co-sharers of the landlord was allotted a separate Takhta bearing no. 4. Besides other lands, the schedule property of the plaint was allocated to her. She was defendant no. 1 in Partition Suit No. 24 of 1930.

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b. It is the case of the plaintiffs that the defendant no. 4 was allotted, inter alia , plot nos. 210, 667, 601 and 254 and Raiyati

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Khata No. 116, 120, 121 and 122. It was their further case that the raiyats of the Raiyati khata had abandoned their holding and therefore, plot No. 144 of Khata No. 116, Plot No. 151 of Khata No. 120, Plot No. 623 and 749 of Khata No. 121 and Plot No. 251 of Khata No.122 came in exclusive possession of the proforma defendant no. 4. She had filed her return under section 3-B of Bihar Land Reforms Act, 1950 (hereinafter referred to as the BLR Act) and the suit land was her Bakast land and in her Khas possession. Proforma defendant no. 4 had also filed form -K for assessment of rent under BLR Act. It has been stated in the plaint that application of proforma defendant no. 4 in Form-K must have been considered for initiation of an assessment of rent case. The proforma defendant no.4 had also constructed a house in a portion of plot no. 254 which was also sold to the plaintiffs.

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c. However, in the meantime, proforma defendant no. 4, through registered sale-deed dated 15.09.1962 sold plot no. 210, 667, 601, 254, 144, 151, 623, 749 and 251 to the plaintiffs and put the plaintiffs in possession.

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d. It was further case of the plaintiffs that immediately after purchase, the plaintiffs filed an application for assessment of rent in their favour as successor-in-interest of proforma defendant no. 4 which was registered as Case No. 275 of 196263, but the case remained pending and the plaintiffs did not receive any notice or intimation. The plaintiffs were of the view that assessment of rent in course of time must have been made in their favour. However, they came to know in the year 1970 that assessment of rent was not made as the file was missing. Consequently, the plaintiffs filed a petition for expeditious

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assessment of rent and as per the plaintiffs, the new application should have formed a part of the earlier Case No. 275 of 196263, but it was registered as a mutation case no. 345 of 1970-71. It was also reported to the plaintiffs by the Revenue Officials that the principal defendants somehow got the rent of the land in the suit assessed in their name without any basis, although the principal defendants had no right, title or possession with respect to the suit land.

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e. In such circumstances, it has been alleged that under misconception of law the Circle Officer, instead of assessing the rent in favour of the plaintiffs, rejected the petition filed by the plaintiffs on the pretext that the rent of the land with respect to the suit property was already assessed in A.R. Case No. 5 and 6 of 1961-62 in the name of the principal defendants.

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f. The case of the plaintiffs is that no return under section 3-B of BLR Act or application in Form-K under BLR Act was filed by the principal defendants, and as such, there could have been no occasion to assess the rent in favour of the principal defendants and the principal defendants had no basis to claim right and title over the suit land.

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g. It was alleged that the assessment of rent in favour of the principal defendants was without any basis and was against the provision of law and was, therefore, void ab -initio. It was asserted by the plaintiffs that such void order need not be setaside and therefore, the plaintiffs did not file any appeal against the assessment of rent in favour of the defendants said to have been made in A.R. Case No. 5 and 6 of 1961-62.

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h. However, the plaintiffs preferred appeal against the order of the Circle Officer refusing to assess rent in favour of the plaintiffs

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which was numbered as Case No. 345 of 1970-71 before the learned Additional Collector, Palamu but the appeal was also dismissed on 17.09.1975.

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i. The plaintiffs asserted that the assessment of rent in the name of principal defendants and the order of Revenue authorities even in Revenue Appeal passed by the Additional Collector, Palamu has not affected the right, title and possession of the plaintiffs over the suit land, but in order to get the matter settled, the plaintiffs found it necessary to file the suit.

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9. The contesting defendant nos. 1 to 3 and the proforma defendant no. 4 filed their respective written statements.

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10. Case of contesting defendants.

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i. The contesting defendants filed written statement and inter-alia stated that proforma defendant No.4 was never in possession over the suit land or any land in the concerned village Babhandih. She was a widow prior to the year 1922 and her son had died at an early age due to which she left the village and settled down in the village Dabra and was never allowed to return back to the village Babhandih.

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ii. It was asserted that Babu Ram Naresh Singh and Babu Jaymangal Prasad Singh were in possession right from the year 1930 and on death of Babu Jaymangal Prasad Singh, his sons defendant Nos.1 and 2 and their mother came in possession along with Babu Ram Naresh Singh over the entire suit property and they remained in possession to the knowledge of the plaintiffs and also to the knowledge of proforma defendant No.4. It was asserted that neither the plaintiff nor the proforma defendant No.4 had any kind of concern in the suit property.

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iii. It was further case of the contesting defendants that the return and Form-K alleged to have been filed by the proforma defendant No.4, if filed and if revenue authority would have found them in possession, they must have been assessed for rent in terms of Sections 5, 6 and 7 of the B.L.R. Act. However, since the proforma defendant no.4 had no possession over the suit property even on the date of vesting, that is, 26.01.1955, therefore, rent was not assessed in her name. Consequently, proforma defendant no. 4 had no right to execute any sale deed in favour of the plaintiffs.

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iv. It was also asserted that the suit lands were in possession of these contesting defendants and in possession of Most. Uttimraj Kuer and widow of Late Jaymangal Singh but she was not made party in the case due to which the case suffered from nonjoinder of necessary party.

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v. It was their case that since the defendants were found in peaceful possession of the suit property, the rent was assessed in their favour vide Case No.V of 1961-62 and also in Case No.VI of 1961-62. It was also was asserted that in Case No.1168 of 1955-56 and in case No.1169 of 1955-56, the order was passed in favour of the defendants by the Collector under the B.L.R. Act and the State Government also realized the rent and granted rent receipt to the principal defendants to the knowledge of the plaintiffs and also proforma defendant.

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vi. It was asserted that though the plaintiffs claimed to have purchased the property in the year 1962 but before that year the rent was already fixed in the name of the contesting defendants but no appeal under Section 8 of the B.L.R. Act was filed either by the proforma defendant no. 4 or by the plaintiffs.

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vii. With this background, it was alleged that the plaintiff is not entitled to any relief and their claim was hopelessly barred by virtue of Section 35 of the B.L.R. Act.

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viii. It was their further case that the plaintiffs had applied for mutation in their name in the year 1962-63 and not for assessment of rent and their case was registered as Mutation Case No.275 of 1962-63 and the defendants were found in possession. It has also been asserted that the enquiry committee also found the defendants in possession even during Bujharat operations and the Circle Officer rejected the prayer of the plaintiffs for mutation on 28.08.1963 which became final.

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ix. It was also alleged in the written statement that the plaintiffs could have brought the Karamchari in collusion, who submitted the report in Case No.345 of 1770-71 for fixation of rent, but upon objection made by the principal defendants, the prayer for mutation was rejected vide order dated 20.09.1971 by the Circle Officer, against which, the plaintiffs had filed the appeal before the Additional Collector, Palamau which was dismissed on 17.09.1975 in Appeal Case No. XV/74 of 1971-72.

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x. The statement with respect to the house standing on plot No.254, it was asserted that the same was constructed by the principal defendants. It was asserted in paragraph No.31 that proforma defendant no. 4 was ousted from the village in the year 1930 and she had not returned in the village, therefore, the question of her possession over the suit land does not arise.

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11. Case of proforma defendant no. 4.

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A. The defendant No.4 had supported the case of the plaintiff by asserting that she was the ex-intermediary of the village and got the suit land in her exclusive share and possession on the basis

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of Partition Suit No. 24 of 1930. She was the co-sharer of landlord. The defendant was allotted the land vide Takhta No.4. She asserted that on the eve of vesting, the defendant No.4 had filed return under Section 3B of B.L.R. Act and mentioned all the plots of the suit in the return and the suit land was shown as her bakast land in khas possession. She had also filed Form-K for assessment of rent and she was peacefully cultivating the land prior to transfer made in favour of the plaintiffs. She asserted that she transferred the suit land in favour of the plaintiff by way of registered deed of sale dated 15.09.1962 for valid consideration and the plaintiffs were in possession and she had also constructed one house in Plot No.254, which was also ultimately transferred in favour of the plaintiffs in which the plaintiffs are residing.

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B. The statement of the contesting defendant Nos.1 to 3 that the proforma defendant No.4 was ousted from the village since 1930 and that she had not returned to the village was emphatically denied. It was further asserted that she always remained in the village Babhandi and got the cultivation without any interference from the defendant Nos.1 to 3 and predecessor in interest.

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C. It was also asserted that the defendant had transferred the lands in the suit to the plaintiff with free consent and after receiving the consideration amount of the sale deed. It was denied that the defendant No.4 had settled down in the village Dabra. It was also asserted that defendant no. 1 to 3/ their predecessor in interest had no concern with the land of the proforma defendant no. 4. It was asserted that then the defendant No.4 was a widow

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having religious temperament by nature but on that basis, it cannot be said that she could not transfer the property.

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12. The trial court decreed the suit . The learned 1^st appellate court allowed the appeal in part by holding as follows: -

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“15. In view of the discussion made above, I find and hold that Mosomat Janak Raj Kuar was in khas possession of the land of plot no. 210 of khata no. 88, plot no. 667, 601 and 254 of khata no. 89. I, however, find that Mosomat Janak Raj Kuar was not in possession of plot no. 144 of khata no. 116, plot no. 151 of khata no. 120, plot no. 623 and 749 of khata no. 121 and plot no. 251 of khata no. 122 at the time of vesting of intermediary interest in the State of Bihar. This issue is thus answered accordingly.

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16……..I find that the plaintiffs-respondents have failed to prove otherwise their title and possession over the land appertaining to khata no. 116, 120, 121 and 122. It, however, appears that there has been sufficient evidence both documentary and oral to show that proforma defendant no. 4 Janak Raj Kuar has been in possession of plot no. 210 of khata no. 88, plot no. 667, 601, 254 of khata no.89 by virtue of partition decree (Ext. 6) and takhta made thereafter (Ext. 7) and remained in possession till the vesting of zamindari, as it would appear from the zamindari Return (Ext.4). The plaintiff-respondent by purchase of the aforesaid land through sale deed dated 15.9.62 have come in possession of the above and thus perfected their title and possession over the same.

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17. In the result, I find that the plaintiffs-respondents have got title and possession over the land of plot no. 210 of khata no. 88, and plot no. 667, 601 and 254 of khata no. 89 situated in village Bhabhandi, P.S. Chainpur, District Palamau. The plaintiffsrespondents have got no title or possessioin over the land of plot no. 114 of khata no. 116, plot no. 151 of khata no. 120, plot no. 623 and 749 of khata no. 121 and plot no. 251 of khata no. 122. It is accordingly, ordered that the appeal be and the same is allowed in part but without costs. ”

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Arguments of the principal defendants and appellants in S.A No. 58 of 1991 (R) and contesting respondents in S.A No. 69 of 1991 (R)

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13. The learned counsel for the principal defendants has referred to paragraph 9 of the appellate court’s judgment, wherein two points were formulated for consideration. The learned counsel has referred to paragraphs 10 to 13 to submit that the findings in connection with the property relating to Khata Nos.116, 120, 121, and 122 are in favour of the contesting defendants, wherein it has been held that defendant no.4 (Janak Raj Kuar) was not in possession of the aforesaid properties.

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14. He has submitted that in paragraph 13, the oral evidence of the plaintiffs has been considered, but the oral evidence of the plaintiffs was common with respect to all the properties; therefore, the findings in paragraph 13 on the basis of oral evidence of the plaintiffs could not have been confined only to lands of Khata Nos.116, 120, 121, and 122.

¶174

15. The learned counsel for the principal defendants has referred to paragraphs 14 and 15 of the appellate court’s judgment, which essentially deals with the suit property other than khata nos.116, 120, 121 and 122. He submits that the learned 1^st appellate court has only considered the partition decree in Partition Suit No.24 of 1930 (Exhibit 6) and Partition Sheet (Exhibit 7) and the Zamindari Return (Exhibit 4), which showed that the property was in possession of the proforma defendant no.4, but there is no discussion of other evidence on record, and the learned 1^st appellate court has jumped to the conclusion in a cryptic manner that proforma defendant no. 4 was in khas possession of the remaining land, i.e. plot no.210 of Khata No.88, Plot Nos.667, 601 and 254 of Khata No.89. The 1^st appellate court has further recorded that proforma defendant no.4 was not in possession of plot no.144 of Khata No.116, plot no.151 of Khata

¶175

15

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¶177

No.120, plot no.623 and 749 of Khata No.121 and plot no.251 of khata no.122 in connection with which the findings were already recorded in paragraphs 10 to 13.

¶178

16. The learned counsel for the principal defendants has then referred to the decision of the learned 1^st appellate court with respect to point no. II and submitted that it has been held that the plaintiffs failed to prove their title and possession over the properties relating to khata nos.116, 120, 121 and 122 of their vendor-defendant no.4 on the date of vesting of intermediary interest in the State of Bihar i.e. on 26.01.1955. It has been held that consequently, the plaintiffs cannot derive any title by virtue of the sale deed dated 15.09.1962 executed by proforma defendant no.4 in favour of the plaintiffs with respect to the properties relating to khata nos.116, 120, 121 and 122. The 1^st appellate court then went on to consider that the plaintiffs had filed a petition for assessment of rent in their favour as successor-in-interest of proforma defendant no.4 and it has been asserted that after filing the petition for assessment of rent the case records were found missing and therefore in the year 1970 the plaintiffs filed another petition which was registered as Mutation Case No.345 of 1970-71, but the same was rejected as the rent was already assessed in the name of the defendants in A.R. Case No.5 and 6 of 1961-62. Consequently, the plaintiffs preferred an appeal against the said order passed in A.R. cases, which was also dismissed by the Additional Collector on 17.09.1975. The court recorded that the principal defendants proved certain documents, such as order sheet of A.R. Case No.19 of 1955-56 (Exhibit D/2), M-role (Exhibits E and E/1) and rent receipt (Exhibit C series), to prove that assessment was done in favour of the principal defendants long before filing of the suit.

¶179

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¶181

17. It is submitted that the assessment of rent also showed that the defendants were in possession of the suit property for more than 12 years and the vendor of the plaintiffs i.e. proforma defendant no. 4, had not raised any objection to the assessment of rent in favour of the principal defendants, and consequently, the court held that the suit itself was barred under Section 34 of Bihar Land Reforms Act. The court recorded that the evidence adduced on behalf of the plaintiffs was also unsatisfactory regarding their possession or the possession of their vendor (proforma defendant no.4).

¶182

18. It was also observed that if the disputed land was in khas possession of proforma defendant no.4, she might have filed an application for assessment of rent, but the same was not done; rather a petition for mutation was moved.

¶183

19. The court ultimately came to the conclusion that the plaintiffs failed to otherwise prove their title and possession over the land in khata nos.116, 120, 121 and 122. The learned counsel submits that so far as this finding is concerned, the defendants have no grievance.

¶184

20. However, the learned court thereafter held that there has been sufficient evidence, both documentary and oral, to show that proforma defendant no.4 was in possession of the other properties and this was held by referring to Exhibits 4, 6 and 7 and the court was of the view that by virtue of these exhibits, it was clear that the plaintiffs by virtue of the sale deed dated 15.09.1962, came in possession of the land and had perfected their title and possession over the same. The learned counsel has submitted that the findings in connection with plot no.210 of Khata no.88, plot nos.667, 601 and 254 of khata no.89 are perverse. The learned counsel has submitted that the materials on record, particularly the oral evidence, have not been properly considered and neither proforma defendant no. 4 nor the plaintiffs were in possession

¶185

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¶187

of the aforesaid property on the date of vesting and the principal defendants were in possession of the suit property.

¶188

21. The learned counsel has referred to the judgement of remand to the 1^st appellate court passed in second appellate jurisdiction on 18.11.1988 in Appeal from Appellate Decree No.66 of 1981 (R). He has submitted that the High Court had formulated the point for consideration while remanding the matter to the learned 1^st appellate court, as mentioned in paragraph 15 of the order of remand, which is quoted as under: -

¶189

“Therefore, the question, which arises for consideration was as to whether and if so when Janak Raj Kuer came in possession of the property forcibly or otherwise before the vesting of zamindari or not?”

¶190

22. This Court in Second appeal had directed the 1^st appellate court to give findings upon hearing the parties with regard to whether the plaintiffs were entitled for decree as prayed, in view of the fact that Janak Raj Kuar (proforma defendant no.4) was in khas possession of the property in question on the date of vesting of zamindari in the State of Bihar or not, or whether she was otherwise entitled to a decree as against the defendants. It was observed that finding on this point was not given.

¶191

23. The learned counsel for the principal defendants has submitted that upon remand, the approach of the learned 1^st appellate court in recording the finding of possession on the basis of zamindari return (Exhibits 4), partition sheet (Exhibit 6) and takta (Exhibit 7) was not sufficient to come to a finding as to who was in actual physical possession of the suit property on the date of vesting. The property was found in the possession of the contesting defendants and accordingly rent was fixed in their name in the year 1961-62 and their name was entered in the rent book and they have been paying rent to

¶192

18

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¶194

the State and the rent receipts were exhibit- C/3 to C/14. The property remained in their possession from 1930 to 1955. After the abolition of Jamindari, Jamindar had furnished form-K and in A.R. cases rent was to be assessed.

¶195

24. Upon query from the learned counsel appearing on behalf of the contesting defendants as to how they are claiming title and possession with respect to the suit property, the learned counsel has submitted that proforma defendant no. 4 was a relative of the contesting defendants and after allocation of Takhta in the year 1930, proforma defendant no. 4 left the village for all times and thereafter contesting defendants/their predecessor in interest came in possession of the suit property and they have been in possession right from the year 1930. It further transpired that it is not in dispute that proforma defendant no. 4 was alive at least till 1962 when she executed the registered sale deed in favour of the plaintiffs. The learned counsel for the defendants has referred to Section 7-E of Bihar Land Reform Rules, 1950 and he submits that upon enquiry the principal defendants were found in possession of the suit property and ultimately, they were recognized as raiyats and rent receipt was issued and their possession was regularized by the State by accepting the rent. The learned counsel has also referred to paragraph no. 12 of the order of remand passed in Appeal from Appellate Decree No. 66 of 1981 (R) and has submitted that what was required to be examined is as to whether the proforma defendant no. 4 was in possession of the property on the date of vesting in terms of Section 6 of the Bihar Land Reforms Act read with Section 2(K).

¶196

Arguments of the plaintiffs -appellants contesting respondents S.A No. 58 of 1991 (R) and appellants in S.A No. 69 of 1991 (R)

¶197

19

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¶199

25. The learned counsel for the plaintiffs has submitted that Section 2(k) of Bihar Land Reforms Act defines the term “khas possession” and the term has been used in connection with proprietor of the tenure holder of any land for agriculture or horticulture purpose. He submits that the contesting defendants neither come under the definition of proprietor nor come under the definition of tenure holder. Tenure holder has also been defined under Section 2(r) and submits that the defendants were rank trespasser over the property.

¶200

26. Learned counsel for the plaintiff has referred to the judgment passed by Hon’ble Supreme Court reported in 1975 Supreme (SC) 339 [Gurucharan Singh vs. Kamla Singh and others] and has referred to paragraph 21 onwards to submit that a trespasser has no right to the property and he cannot be recognized as a raiyat. Learned counsel has submitted that the contesting defendant were neither the tenure holder nor the proprietor of the property and therefore, he was a trespasser.

¶201

27. Learned counsel has also referred to the judgments passed by Hon’ble Supreme Court reported in (1996) 6 SCC 223 [Smt. Sawarni vs. Smt. Inder Kaur and Others] and has referred paragraph 6 thereof to submit that mutation of a property in the revenue record does not create or extinguish title nor has any presumptive value on title, it only enable the person in whose favour mutation is ordered to pay the land revenue in question.

¶202

28. Learned counsel has relied also upon the judgment passed by Hon’ble Supreme Court reported in (2004) 10 SCC 779 [Karnataka Board of Wakf vs. Government of India] paragraph 11 to submit that basic ingredients for hearing adverse possession has been mentioned therein. He has also submitted that the plea of adverse possession has been rejected by the learned trial court, but the learned 1^st appellate

¶203

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¶205

court held that the defendant had perfected title by virtue of adverse possession because he was found in possession for a period of more than 12 years.

¶206

29. Learned counsel has submitted that the basic ingredients for claiming adverse possession are not satisfied and he has also submitted that there is no foundational pleading for claiming adverse possession. He then referred to the judgment passed by Hon’ble Supreme Court reported in (2011) 11 SCC 402 [Mritunjoy Sett (D) By LRs. Vs. Jadunath Basak (D) By LRs.] referred to paragraph 16 to submit that the admission made in the court is a relevant piece of evidence. Learned counsel submits that D.W.13 in his cross examination has stated that there was no documentary evidence with regard to possession from 1932 to 1955 so far as contesting defendants are concerned.

¶207

30. Further the learned counsel has relied upon the judgment passed by Hon’ble Supreme Court reported in (2009) 5 SCC 713 [Vimal Chand Ghevarchand Jain and Others vs. Ramakant Eknath Jajoo] and has referred paragraph 13 to submit that the registered sale deed carries a presumption that the transaction was a genuine one. Learned counsel has submitted that the plaintiff purchased the entire suit land from proforma defendant No.4 by virtue of registered sale deed of the year 1962 and the same sale deed was never challenged before the competent court of civil jurisdiction seeking cancellation of the same. 31. He has then referred to the judgment passed by Hon’ble Supreme Court reported in 2025 Supreme (SC) 1181 [Basheera Khanum vs. The City Municipal Council and Another] and has referred paragraph 28 to submit that a valid registered document conveying immovable property cannot be annulled by any procedure other than a civil suit.

¶208

21

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¶210

32. Learned counsel has referred to another judgment reported in (2009) 6 SCC 160 [Abdul Rahim and Others vs. Sk. Abdul Zabar and Others] paragraph 19 and submit that a registered document whether void or voidable is governed by Article 59 of the Limitation Act and the suit should be filed within 3 years from the date of knowledge. He submits that the registered sale deed herein was never challenged.

¶211

Rejoinder arguments of the principal defendants and appellants in S.A No. 58 of 1991 ( R ) and contesting respondents in S.A No. 69 of 1991 ( R )

¶212

33. The learned counsel for the defendants has stated that the entire suit property is covered inter alia vide assessment of rent in ExhibitD, Exhibit-D/1, Exhibit-E and Exhibit-E/1, which are relating to Case No.1168 of 1955-56, Case No.1169 of 1955-56, Suo Moto Case No.V of 1961-62 and Suo Moto Case No.VI of 1961-62 and has submitted that the case number and corresponding khata number and plot number are as under:

¶213

Exhibit	Case Number	Khata Number	Plot Number	Area (Acres)
Exhibit-D	Case No. 1169 of 1955-56	89	667	3.86
Exhibit-D/1	Case No. 1168 of 1955-56	89	667	3.86
Exhibit-E	Suo Moto Case No. V of 1961-62	88	210	—
Exhibit-E	Suo Moto Case No. V of 1961-62	89	601	—
Exhibit-E	Suo Moto Case No. V of 1961-62	116	144	—
Exhibit-E	Suo Moto Case No. V of 1961-62	120	151	—
Exhibit-E	Suo Moto Case No. V of 1961-62	121	623	—
Exhibit-E	Suo Moto Case No. V of 1961-62	121	749	—

¶214

22

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¶216

Exhibit	Case Number	Khata Number	Plot Number	Area (Acres)
Exhibit-E	Suo Moto Case No. V of 1961-62	122	251	—
Exhibit-E/1	Suo Moto Case No. VI of 1961-62	88	210	—
Exhibit-E/1	Suo Moto Case No. VI of 1961-62	89	601	—
Exhibit-E/1	Suo Moto Case No. VI of 1961-62	116	144	—
Exhibit-E/1	Suo Moto Case No. VI of 1961-62	121	623	—
Exhibit-E/1	Suo Moto Case No. VI of 1961-62	121	749	—
Exhibit-E/1	Suo Moto Case No. VI of 1961-62	122	251	—

¶217

34. Learned counsel has submitted that it has been wrongly recorded in paragraph 12 of the trial court judgment that from perusal of the order in Assessment Case No.1168 & 1169 of 1955-56 Exhibit-D & Exhibit-D/1, it is clear that the land of plot No.667 was only assessed through A.R. Case . Learned counsel has submitted that the learned Trial Court has completely ignored the assessment of rent vide Exhibit-E and Exhibit-E/1, which was arising in Suo Moto Case No. V of 1961-62 and Suo Moto Case No.VI of 1961-62 and if all the exhibits, that is, Exhibit-D, Exhibit-D/1, Exhibit-E and Exhibit-E/1 are considered , the entire property was covered.

¶218

35. The learned counsels of both the parties have placed the oral evidence with respect to possession with particular reference to the possession on the date of vesting.

¶219

Findings of this Court.

¶220

36. The suit property is in khata nos. 88, 89, 116, 120, 121 and 122.

¶221

37. So far as substantial question of law framed in S.A. No. 58 of 1991 (R) filed by the contesting defendants is concerned, the same is related to khata nos. 88 and 89 . So far as substantial question of law framed in

¶222

23

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S.A. No. 69 of 1991 (R) filed by the plaintiffs is concerned, the same is related to khata nos. 116, 120, 121 and 122 .

¶225

38. It is an undisputed fact on record that proforma defendant no. 4 was ex-intermediary of village Babhandi and was allotted a separate takhta bearing no. 4 in partition Suit No. 24/1930. The takhta, interalia , included the properties which are subject matter of the suit property. 39. It was the specific case of the plaintiffs that proforma defendant no. 4 remained in possession of the suit property which was her bakast land and she was in khas possession. She had also constructed a house in a portion of plot no. 254 which formed a part of the suit property. It was their specific case that proforma defendant no. 4 filed Form-K for assessment of rent under Bihar Land Reforms Act i.e. Exhibit-4, however, no rent was assessed. The Bihar Land Reforms Act came into force on 26.01.1955. However, the proforma defendant no. 4 sold the entire suit property to the plaintiffs by registered sale deed dated 15.09.1962 and thereafter, the plaintiffs filed application for assessment of rent in their favour as successor-in-interest of proforma defendant no. 4 which was registered as Case No. 275/1962-63 as the plaintiffs were under the impression that the assessment of rent must have been made in course of time. However, when no further intimation was received in connection with Case No. 275/1962-63, they filed another application for assessment of rent which was numbered as Case No. 345 of 1970-71 and the said application was rejected by the Circle Officer on the pretext that the rent of the lands in suit has already been assessed in A.R. Case No. V & VI of 1961-62 in the name of the principal defendants.

¶226

40. It was the specific case of the plaintiffs that the principal defendants neither filed any return under Section 3-B of the Bihar land Reforms Act nor filed any application in Form-K and there was no occasion for assessment of rent in favour of principal defendants. Therefore, it was the

¶227

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case of the plaintiffs that assessment of rent in the name of principal defendants was without any basis and was void-ab-initio . However, when the Circle Officer refused to assess rent in favour of the plaintiffs on the ground that the rent was already assessed and standing in the name of principal defendants, the plaintiffs filed appeal in connection with the order passed in Mutation Case No. 345/1970-71, but the appeal was also dismissed on 17.09.1975 and ultimately, the plaintiffs had no option but to file the suit for the aforesaid relief.

¶230

41. The contesting defendant nos. 1 to 3 and proforma defendant no. 4 have filed their separate written statement.

¶231

42. The contesting defendants in their written statement asserted that the suit is not maintainable, barred by law of limitation, bad for nonjoinder of necessary party and also barred by waiver, estoppel and principles of acquiescence.

¶232

43. It was the specific case of the contesting defendants that the proforma defendant no. 4 was never in possession of the suit property and she was a widow prior to 1922 and her son died in an early age and ultimately proforma defendant no. 4 left the village and settled in another village called Dabra. It was their specific case that the contesting defendants were in possession of the suit property right from the year 1930 and they remained in possession to the knowledge of the plaintiffs and also to the knowledge of the proforma defendant no. 4. They also asserted that if the return and Form-K have been filed by the defendant no. 4 before the revenue authority and if the revenue authority would have found the possession of the proforma defendant no. 4 over the suit land, she must have been assessed rent in her favour under Sections 5, 6 and 7 of the Bihar Land Reforms Act, but as the proforma defendant no. 4 having no possession over the suit property on the date of vesting i.e. on 26.01.1955, there was no occasion to assess rent in her favour. It was their

¶233

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specific case that the rent was assessed in their favour in A.R. Case No. 1168 of 1955-56 and 1169 of 1955-56 and further in Case No. V & VI of 1961-62 and the order was passed in favour of the contesting defendants. However, it is not in dispute that the Case No. 1168 of 1955-56 and 1169 of 1955-56 was in relation to khata nos. 89 plot no. 667. The contesting defendants also asserted that karmchari of the Circle had submitted a report in Mutation Case No. 345/1970-71 for fixation of rent in favor of the plaintiffs, but upon objection by the principal defendants, the prayer seeking mutation was rejected vide order dated 20.09.1971 by the Circle Officer against which the appeal was also dismissed on 17.09.1975. It was specifically asserted that with respect to house on plot no. 254, the same was constructed by the principal defendants. It was specifically asserted in paragraph 31 of the written statement filed by the contesting defendants that proforma defendant no. 4 was ousted from the village Babhandih way back in the year 1930 and was never returned in the village and therefore question of her possession over the suit property does not arise. 44. The case of the proforma defendant no. 4 was that she remained in exclusive possession of the suit property pursuant to allotment of property in Partition Suit No. 24/1930. She had filed Form-K for assessment of rent and was peacefully cultivating the land prior to its transfer made in favour of the plaintiffs vide registered sale deed dated 15.09.1962. She also constructed one house in plot no. 254 which was ultimately transferred in favour of the plaintiffs in which the plaintiffs were residing. The statement made by the contesting defendant nos. 1 to 3 in their written statement that, proforma defendant no. 4 was ousted from the village since 1930 and that she had not returned to the village, was specifically denied. It was asserted by proforma defendant no. 4 that she always remained in village Babhandih and she has got the cultivation works peacefully without any interference from the defendant nos. 1 to 3 and their predecessor-in-

¶236

26

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interest. It was asserted that the principal defendants have no concern with the land of the proforma defendant no. 4 and that proforma defendant no. 4 was a widow having religious temperament by nature and it did not mean that she could not transfer the property to the plaintiffs.

¶239

The trial court.

¶240

45. The learned trial court has framed the following issues for consideration: -

¶241

“1. Is the suit framed as maintainable?

¶242

2. Have the plaintiffs any cause of action to sue?

¶243

3. Is the suit barred by limitation, waiver, estoppel, acquiescence and under Section 34 of the Specific Relief Act?

¶244

4. Is the suit land raiyati land of the plaintiff?

¶245

5. Have the defendants perfected their right, title, interest and possession over the suit land by adverse possession?

¶246

6. Is the Court fee paid sufficient?

¶247

7. To what relief or reliefs, if any to which the plaintiffs are entitled?”

¶248

46. Issue nos. 4, 5 and 7 were taken up by the learned trial court together. The learned trial court recorded that admittedly defendant no. 4 was the vendor of the plaintiffs and the defendant no. 4 had title and possession over the suit land till 1930 and consequently, the onus was on the principal defendants to establish their title and possession over the suit land. It was also observed that D.W.-13 has clearly admitted in paragraph 3 of his cross-examination that the suit land was their ancestral property and they had acquired it from proforma defendant no. 4 by oral gift and the learned trial court recorded that thus there was no doubt that proforma defendant no. 4 had title and possession over the suit land. Thereafter, the learned trial court observed that the principal defendants also claimed right, title by way of adverse possession and further observed that it was to be examined as to whether the principal defendants had continuous and

¶249

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hostile possession against the proforma defendant no. 4 for more than 12 years from the date of filing of the suit.

¶252

47. The learned trial court then considered the materials on record and observed that the principal defendants have failed to adduce a chit of document from 1930 to 1955 regarding their title and possession over the suit land and further observed that defendant no. 3 in his crossexamination admitted that he had obtained the suit land from the proforma defendant no. 4 in the year 1930 on the basis of oral gift, but there was no documentary evidence with respect to oral gift. It was also observed that the principal defendants have stated that they had filed Zamindari Return in Form-K showing the land in their khas possession, but no such document was produced before the court. The learned court then went on to observe that the plaintiffs filed and proved Zamindari Return (Exhibit4) showing that proforma defendant no. 4 had shown plot no. 210, 254, 601, 665, 667, 668 and 293 in her khas possession. However, in column 13 of the Zamindari Return (Exhibit-4), she had indicated that the property in dispute under khata no. 160, 120, 121 and 122 were in possession of the raiyat.

¶253

48. The learned court further observed that so far as the aforesaid raiyati khatas are concerned, the case of the plaintiffs was that the defendant no. 4 had not stated as to when the raiyats had abandoned the village. The learned court also observed that the plaintiffs failed to adduce any evidence on the point of abandonment, but the defendant no. 3 had admitted in his examination that the defendant no. 4 was in possession of these lands. The learned court ultimately held that it could be safely held that the defendant no. 4 was in possession of the suit land at the time of vesting. Thus, the learned trial court returned a specific finding that the proforma defendant no. 4 was in possession of the suit property at the time of vesting.

¶254

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¶255

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¶256

49. The learned trial court then considered the assessment order and the rent receipts of the principal defendants and observed that in suo-moto Case No. V & VI of 1961-62 and Case No. 1168 of 1955-56 and 1169 of 1955-56, the rent was assessed in the name of the principal defendants and the State Government granted rent receipts to the principal defendants within the knowledge of the proforma defendant no. 4 and also within the knowledge of the plaintiffs. The learned trial court ultimately held that admittedly the defendants are paying rent since 1955 and if the plaintiffs or the proforma defendant no. 4 had any right that was extinguished by way of adverse possession. The learned trial court then observed that from perusal of the order of assessment Case No. 1168 and 1169 of 1955-56 (Exhibit-D and D/1), it was clear that the land of plot no. 667 only was assessed through A.R. case and so far as plot no. 210, 601, 144, 451, 623, 749 and 251 are concerned, the rent of these plots were fixed in the name of principal defendants on suo-moto basis. The learned court posed a question that if the defendants had filed a return in Form-K at the time of vesting why the rent was fixed only in connection with plot no. 667 in the year 1955-56 in the A.R. Cases and why at that point of time, the rent was not assessed in connection with other plots. The learned court also observed that the principal defendants failed to prove a chit of paper regarding their possession over the plot no. 254 and observed that the defendants have no documentary evidence of possession except the rent receipts relating to C series.

¶257

50. Thereafter, the learned trial court observed that the principal defendants were also party in the Partition Suit No. 24/1930 in which, interalia , suit property was allotted in favor of proforma defendant no. 4. The learned court then referred to exhibit-4 Zamindari Return and then to exhibit-C series which are the chaukidari rent receipts of the village showing that the plaintiffs were residing in village Babhandi. It was also

¶258

29

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observed that one of the witnesses of the defendants, namely, D.W.-12 had also admitted this fact and ultimately held that the plaintiffs were residing in village Babhandi on plot no. 254.

¶261

51. The learned trial court further considered the oral evidence of P.W.1, 3 and 5 who were witnesses on the point of possession and observed that they have clearly stated that the plaintiffs were in possession and there was no cause to disbelieve their version in the light of the documentary evidences and the admitted fact of the defendant.

¶262

52. The learned court then considered the oral evidences of the principal defendants in support of their possession and observed that except oral evidence, the principal defendants failed to prove their title and possession on the basis of documentary evidence and observed that the oral evidence of the witnesses of the defendants cannot be accepted in the light of the documentary evidences.

¶263

53. The learned court ultimately held that merely on the basis of rent receipts the defendants cannot establish their adverse possession on the disputed land and after considering the oral and documentary evidences and the general circumstances of the case and the admitted fact that proforma defendant no. 4 was the owner of the suit land, the learned trial court held that the plaintiffs have title and possession over the suit land and decided the aforesaid issues in favor of the plaintiffs.

¶264

54. Issue nos. 1, 3 and 6 were taken up together and all the issue nos. 1, 3 and 6 were decided in favor of the plaintiffs. However, with respect to court fees, the learned court was of the view that the court fees was deficit by Rs. 1,500/- and the plaintiffs were to pay the deficit court fees.

¶265

55. So far as issue no. 2 is concerned, it was decided in favor of the plaintiffs.

¶266

30

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¶268

56. The learned court ultimately held that the plaintiffs had valid cause of action for filing the suit and accordingly decreed the suit in favor of the plaintiffs.

¶269

1^st appellate court.

¶270

57. The learned 1^st appellate court at the first instance gave concurrent findings and dismissed the appeal.

¶271

Appeal from Appellate Decree No. 66/1981 (R)

¶272

58. The matter was taken up before this Court in 2^nd appeal by the defendants which was numbered as Appeal from Appellate Decree No. 66/1981 (R). The second appeal was decided vide judgment dated 18.11.1988. The High Court in the judgement passed in the 2^nd appeal in paragraph 7 observed on the point of law that there was no escape from coming to the conclusion that in order to acquire a raiyati title on the basis of occupancy right thereof under the State of Bihar in terms of Section 6 of Bihar Land Reforms Act, a tenure holder must be in khas possession of the property in question within the meaning of Section 2(k) of Bihar Land Reforms Act so as to become a raiyat having occupancy right under the State of Bihar as contemplated under Section 6 thereof.

¶273

The High Court observed that unfortunately aforesaid aspect of the matter was not considered by the learned courts and held in paragraph 15 of the judgement that a question arises for consideration was as to whether and if so, when proforma defendant no. 4 came in possession of the property forcibly or otherwise before the date of vesting of zamindari or not and observed that the learned courts did not answer this question.

¶274

The High Court ultimately remanded the matter to the learned 1^st appellate court with a direction to give a finding as to whether the plaintiffs were entitled to a decree as prayed for in view of the fact that Janak Raj Kuer (proforma defendant no. 4) was in khas possession of the property in question on the date of vesting of zamindari in the State

¶275

31

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of Bihar or not or she was otherwise entitled to a decree as against the principal defendants. It was also directed that the learned 1^st appellate court shall also consider the matter on the basis of the materials on record and without being prejudiced by observation made by this Court.

¶278

1^st appellate court upon remand

¶279

59. Upon remand, the learned 1^st appellate court observed in paragraph 8 of the judgment that the matter has been remanded on the limited point as to whether Janak Raj Kuer, proforma defendant no. 4, was in khas possession of the suit property on the date of vesting of zamindari in the State of Bihar or not or she was otherwise entitled to a decree against the principal defendants. Consequently, the learned 1^st appellate court framed the point for decision in paragraph 9 upon remand, which are quoted as under: -

¶280

“(1) Whether Janak Raj kaur was in khas possession of the suit property on the date of vesting of the Zamindari and thus became the raiyat having occupancy right in terms of Section 6 of the B.L.R. Act?

¶281

(3) Whether the plaintiffs-respondents or their vendor Most Janak Raj Kaur were otherwise entitled to a decree as against defendants-appellants?”

¶282

60. While considering the matter upon remand, the learned 1^st appellate court observed that it was stated on behalf of the plaintiffs that the raiyat of the khata nos. 116, 120, 121 and 122 had abandoned their holding and therefore suit property in connection with these khata numbers came in possession of the proforma defendant no. 4. However, the learned court observed that in that connection there was no mention in the order as to when the respective raiyats abandoned their land and there was no chit of paper to this effect. The learned 1^st appellate court observed that from perusal of the final decree of Partition Suit No. 24/1930 (exhibit-6) takhta of proforma defendant no. 4 (exhiit-7), it was clear that apart from the

¶283

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raiyati khata nos. 116, 120, 121 and 122, the proforma defendant no. 4 was also allocated property in khata no. 88 and 89 and also observed that it was manifest that except plot no. 210 of khata no. 88 and plot no. 254, 601 and 667 of khata no. 89, the other disputed property relating to khata nos. 116, 120, 121 and 122 were not in possession of the proforma defendant no. 4 rather they were in possession of the respective raiyats.

¶286

61. Thus, the learned 1^st appellate court clearly observed that plots in raiyati khata nos. 116, 120, 121 and 122 were not in possession of the proforma defendant no. 4 and there was no material to show that these properties were abandoned by the raiyats. The learned court also observed that with respect to khata nos. 116, 120, 121 and 122, the name of respective raiyats were also mentioned in the remark column of the return and thus it was clear that at the time of vesting of zamindari, raiyats had not abandoned the land of khata nos. 116, 120, 121 and 122 and that proforma defendant no. 4 was not in possession of the suit property relating to aforesaid four khatas. The learned 1^st appellate court then observed that admittedly proforma defendant no. 4 had not filed any petition for assessment of rent in Form-K under Section 5, 6 and 7 of the Bihar Land Reforms Act in respect of the suit land and she never claimed it be in her khas possession. The learned court thereafter referred to the registered sale deed dated 15.09.1962 executed by proforma defendant no. 4 in favour of the plaintiffs and observed that in the recital of the sale deed though proforma defendant no. 4 claimed that she came in possession of the suit land, but it was neither proved from takhta of partition (exhibit-7) or even the return filed by proforma defendant no. 4 that the land of khata nos. 116, 120, 121 and 122 were in her khas possession.

¶287

62. After having held that the documentary evidences filed on behalf of the plaintiffs did not suggest that proforma defendant no. 4 was in khas possession of the suit property with respect to khata nos. 116, 120, 121

¶288

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and 122, the learned court proceeded to consider the oral evidence and observed that P.W.-1 had admitted that he never cultivated the suit land and could not speak about the possession of the plaintiffs or their vendor. The learned court then considered evidence of P.W.-4 who was 36 years of age. This witness has stated that he had no concern with the disputed land and that the house over the property was constructed about 20 years ago i.e. in the year 1957 by Ambika Ram (the plaintiff), but Ambika Ram never claimed to be in possession of the property prior to 1962 and further the case of the plaintiffs was that the house was constructed by Janakraj Kuar - proforma defendant no. 4 and consequently observed that the evidence of P.W.-4 was of no value.

¶291

63. With respect to evidence of P.W.-5, the learned 1^st appellate court recorded that in the cross-examination, this witness had stated that he attained hosh (consciousness) in the year 1958 and he had given his age to be 35 years as on 12.02.1980 and therefore, the learned court recorded that this witness was not competent to depose on the point of possession because of his age as to who was in possession of the property at the time of vesting. The learned 1^st appellate court ultimately held that the plaintiffs failed to prove either title or possession of proforma defendant no. 4 on the date of vesting of intermediary interest with respect to lands under khata nos. 116, 120, 121 and 122. The aforesaid finding was in relation to only a part of the suit property.

¶292

64. With respect to remaining part of the suit property, the finding has commended from paragraph 14 onwards from the appellate court’s judgment which was relating to land under khata no. 88 and 89 and the learned 1^st appellate court recorded that it would appear from the partition decree in Partition Suit No. 24/1930 (exhibit-6), the partition sheet i.e. takhata (exhibit-7) and zamindari rent (exhibit-4) that the land was in possession of the proforma defendant no. 4 at the time of vesting of the

¶293

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State of Bihar. The learned 1^st appellate court also observed that with regard to plea that the proforma defendant no. 4 had left the village Babhandi in the year 1922 and settled in another village Dabra, there was no evidence to that effect and further observed that even if she had left the village, her right of title over the land in village Babhandi would not seize in view of the documentary evidence on record.

¶296

65. With this short finding with respect to the remaining land under khata nos. 88 and 89, the learned 1^st appellate court held in paragraph 15 that the proforma defendant no. 4 was in khas possession of the land under plot no. 210 of khata no. 88 and plot no. 667, 601 and 254 of khata no. 89. However, the learned court found that the proforma defendant no. 4 was not in possession of plot no. 144 of khata no. 116, plot no. 151 of khata no. 120, plot no. 623 and 749 of khata no. 121 and plot no. 251 of khata no. 122 at the time of vesting of intermediary interest in the State of Bihar. Paragraph 15 of the appellate court’s judgment is quoted as under: -

¶297

“15. In view of the discussion made above, I find and hold that Mosomat Janak Raj Kaur was in khas possession of the land of plot no. 210 of khata no. 88, plot no. 667, 601 and 254 of khata no. 89. I, however, find that Mosomat Janak Raj Kaur was not in possession of plot no. 144 of khata no. 116, plot no. 151 of khata no. 120, plot no. 623 and 749 of khata no. 121 and plot no. 251 of khatta no. 122 at the time of vesting of intermediary interest in the State of Bihar. This issue is thus answered accordingly.”

¶298

66. Thus, the learned 1^st appellate court held that proforma defendant no. 4 was in khas possession with respect to the property in khata no. 88 and 89 at the time of vesting and with respect to khata nos. 116, 120, 121 and 122, the learned court held that proforma defendant no. 4 was not in khas possession of those properties at the time of vesting. Consequently, the finding in connection with khata nos. 88 and 89 was in favour of proforma defendant no. 4 and hence it was in favour of the plaintiffs and

¶299

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the finding in connection with khata nos. 116, 120, 121 and 122 was against the proforma defendant no. 4 and consequently against the plaintiffs.

¶302

67. While deciding 2^nd point for determination, the learned 1^st appellate court held that in view of the findings in connection with point of determination no. I, the plaintiffs cannot derive any title by virtue of sale deed dated 15.09.1962 with respect to the property in khata nos. 116, 120, 121 and 122. The learned court thereafter observed that the plaintiffs claimed to have filed a petition for assessment of rent in their favour as successor-in-interest of proforma defendant no. 4 which was not allowed by asserting that the case record were missing and thereafter they filed a petition which was registered as Mutation Case No. 345/1970-71, but the same was rejected as the suit land was already assessed in the name of the principal defendants. However, during the course of hearing, it has been pointed out that the case being A.R. Case No. V & VI of 1961-62 has only been mentioned, but there was other two cases i.e. Exhibit-D and D/1 being Case No. 1168 of 1955-56 and 1169 of 1955-56 both relating to khata no. 89 and the M-role in connection with these cases have been exhibited as Exhibit-E and E/1 and the rent receipts as Exhibit-C series. The learned court also observed that the assessment of rent also showed that the principal defendants were in possession of the suit land for more than 12 years and the vendor of the plaintiffs i.e. proforma defendant no. 4 had not filed any objection to the assessment of rent in favor of the defendants. It was also observed that the evidence adduced on behalf of the plaintiffs was also not satisfactory about their possession or the possession of their vendor. The learned 1^st appellate court ultimately recorded a finding that the plaintiffs have failed to prove otherwise their title and possession over the land relating to khata nos. 116, 120, 121 and 122. However, there was sufficient evidence both documentary and oral to

¶303

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show that proforma defendant no. 4 was in possession with respect to the properties in khata nos. 88 and 89 by virtue of partition decree (exhibit-6) and takhata (exhibit-7) and ultimately held that the plaintiffs by purchase of the aforesaid lands through sale deed dated 15.09.1962 had come in possession of the said land and have perfected their title and possession over the same.

¶306

68. Thus, the learned 1^st appellate court, while deciding the two points of determination as framed pursuant to the order passed in Appeal From Appellate Decree no. 66 of 1981 (R), held that the plaintiffs have got title and possession over the suit land under khata nos. 88 and 89 on the date of vesting and the plaintiffs have got no title or possession over the suit land under khata nos. 116, 120, 121 and 122.

¶307

69. Consequently, both the plaintiffs and the principal defendants became aggrieved by the impugned judgment passed by the learned 1^st appellate court and therefore, the aforesaid present two second appeals have been filed which have been admitted by framing one substantial question of law in each case as quoted above.

¶308

70. In view of the scope of order of remand passed in Appeal from Appellate Decree no. 66 of 1981 (R), the crucial question is as to whether the proforma defendant no. 4 was in possession of the suit property on the date of vesting and the cut-off date i.e. the date of vesting is 25.09.1955. There can be no dispute that it is for the plaintiffs to establish their case and any lacuna in the case of the contesting defendants will not give any advantage of the plaintiffs. So, it is for the plaintiffs to establish that on the date of vesting, proforma defendant no. 4 was in possession of the suit property.

¶309

71. This Court finds that the possession is to be examined both in the light of oral as well as documentary evidences which have been placed on record. This Court finds that the entire suit property is in two different

¶310

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plots; one is relating to khata nos. 116, 120, 121 and 122 and other is relating to khata nos. 88 and 89. This Court also finds that the learned 1^st appellate court has considered the evidences placed on record both oral and documentary while considering the possession with respect to khata nos. 116, 120, 121 and 122 on the date of vesting, and on the basis of documentary evidences including the return filed by proforma defendant no. 4 has recorded that as per the return itself she had shown that the property in khata nos. 116, 120, 121 and 122 were in possession of raiyats. Thus, essentially, as per the return itself, proforma defendant no. 4, the vendor of the plaintiffs, admitted that she was not in possession with respect to khata nos. 116, 120, 121 and 122.

¶313

72. The proforma defendant no. 4 had also filed a separate written statement before the learned trial court and had taken a stand that the raiyats of khata nos. 116, 120, 121 and 122 had abandoned their holding and accordingly plot no. 144 appertaining to khata no. 116, plot no. 151 appertaining to khata no. 120, plot no. 623 and 749 of khata no. 121 and plot no. 251 of khata no. 122 came in possession of this defendant no. 4. The defendant no. 4 exclusively and peacefully cultivated the land. Similar stand was taken by the plaintiffs also who purchased the land from proforma defendant no.4 in the year 1962.

¶314

However, such a stand of proforma defendant no. 4 is contrary to her return under Bihar Land Reforms Act which was filed on the date of vesting. Further, no evidence has been pointed out by the learned counsel for the plaintiffs, either oral or documentary, which could reveal that the said raiyats had abandoned the property with respect to the aforesaid four khatas nos. 116, 120, 121 and 122 and the proforma defendant no. 4 had commenced cultivation over the same. This Court finds that it was never the case of the plaintiffs and the proforma defendant no. 4 that anything was incorrectly recorded in the return. This Court also finds that apart

¶315

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from the aforesaid position, the learned 1^st appellate court has also considered the oral evidences placed on record and has ultimately come to a finding that khata nos. 116, 120, 121 and 122 was not in possession of the proforma defendant no. 4 on the date of vesting and on her own showing, it was in possession of the raiyats. Apart from the aforesaid, the proforma defendant no.4 never deposed in the court in support of her said stand taken in the written statement.

¶318

73. Specific references have been made to Section 2(k) and Section 6 of the Bihar land Reforms Act with respect to the consequence of possession of intermediary on the date of vesting and for that purpose reference has been made to the judgment passed by the Hon’ble Supreme Court in the case reported in (1976) 2 SCC 152 (Gurucharan Singh vs. Kamla Singh & Others). Paragraph 21 and 22 of the aforesaid judgment are quoted as under: -

¶319

“ 21. Section 6 does not stop with merely saving lands in khas possession of the intermediary (erstwhile proprietor) but proceeds to include certain lands outstanding on temporary leases or mortgages with others, as earlier indicated. These are private lands as known to the Bihar Tenancy Act, privileged lands as known to the Chota Nagpur Tenancy Act, lands outstanding with mortgagees pending redemption and lands which are actually being cultivated by the proprietor himself. Ordinarily what is outstanding with lessees and mortgagees may not fall within khas possession. The legislature, however, thought that while the permanent tiller's rights should be protected and therefore, raiyats and under-raiyats should have rights directly under the State, eliminating the private proprietors, the zamindar or proprietor also should be allowed to hold under the State, on payment of fair rent, such lands as have been in his cultivatory possession and other lands which were really enjoyed as private or privileged lands or mortgaged with possession by him. With this end in view, Section 6(1) enlarged its scope by including the special categories. The word ‘include’ is generally used in interpretation clauses in order to enlarge the meaning of the words or phrases occurring in the body of the statute. It is obvious that Section 6(1) uses the word ‘including’ to

¶320

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permit enlargement of the meaning of khas possession for the limited purpose of that section, emphasising thereby that, but for such enlargement, the expression khas possession excludes lands outstanding even with temporary lessees. It is perfectly plain, therefore, that khas possession has been used in the restricted sense of actual possession and to the small extent it had to be enlarged for giving relief to proprietors in respect of ‘private’, ‘privileged’ and mortgaged lands inclusive expressions had to be employed. Khas possession is actual possession, that is a foothold on the land, an actual entry, a possession in fact, a standing upon it, an occupation of it, as a real, administrative act done.

¶323

Constructive possession or possession in law is what is covered by the sub-clauses of Section 6(1). Even so, it is impossible to conceive, although Shri Misra wanted us to accept, that possession is so wide as to include a mere right to possess, when the actual dominion over the property is held by one in hostility to the former. Possession, correctly understood, means effective, physical control or occupation:

¶324

The word possession is sometimes used inaccurately as synonymous with the right to possess. ( Words and Phrases, 2nd Edn., John B. Sounders, p. 151).

¶325

In the Dictionary of English Law (Earl Jowitt) 1959 at p. 1367 “possession” is defined as follows:

¶326

“Possession, the visible possibility of exercising physical control over a thing, coupled with the intention of doing so, either against all the world, or against all the world except certain persons. There are, therefore, three requisites of possession. First, there must be actual or potential physical control. Secondly, physical control is not possession, unless accompanied by intention; hence, if a thing is put into the hand of a sleeping person, he has not possession of it. Thirdly, the possibility and intention must be visible or evidenced by external signs, for if the thing shows no signs of being under the control of anyone, it is not possessed; . . .

¶327

In the end of all, however, the meaning of ‘possession’ must depend on the context. (ibid, p. 153)

¶328

May be, in certain situations, possession may cover right to possess. It is thus clear that in Anglo-American jurisprudence also, possession is actual possession and in a limited set of cases, may

¶329

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include constructive possession, but when there is a bare right to possess bereft of any dominion or factum of control, it will be a strange legal travesty to assert that an owner is in possession merely because he has a right to possess when a rival, in the teeth of owner's opposition, is actually holding dominion and control over the land adversely, openly and continuously. Admittedly, in the present case, the possession of the plaintiff had ceased totally at least two years before the vesting under Section 4 took place. This situation excludes khas possession.

¶332

22. We have the uniform authority of this Court to hold that the possession of a trespasser, by no stretch of imagination, can be deemed to be khas possession or even constructive possession of the owner. In Surajnath Ahir this Court considered the definition of khas possession in the Act in the context of Section 6 and after adverting to Brij Nandan Singh v. Jamuna Prasad , on which Shri Misra placed massive reliance, observed:

¶333

Reliance was placed by the High Court on the case reported as Brij Nandan Singh v. Jamuna Prasad for the construction put on the expression ‘khas possession’ to include subsisting title to possession as well and therefore for holding that any proprietor, whose right to get khas possession of the land is not barred by any provision of law, will have a right to recover possession and that the State of Bihar shall treat him as a raiyat with occupancy right and not as a trespasser. We do not agree with this view when the definition of ‘khas possession’ means the possession of a proprietor or tenure-holder either by cultivating such land himself with his own stock or by his own servants or by hired labour or with hired stock. The mere fact that a proprietor has a subsisting title to possession over certain land on the date of vesting would not make that land under his ‘khas possession’.

¶334

The attempt to distinguish this decision on the score that the observation is obiter does not appeal to us and the rule laid down there is in conformity with the principle as we have earlier expounded. The law has been indubitably laid down in Ram Ran Bijai Singh where a Bench of five Judges of this Court discussed khas possession in Section 2(k) and the scope of Section 6 of the Act. The same Full Bench case earlier referred to was pressed before the learned Judges, and overruling that case,

¶335

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Ayyangar, J. speaking for the Court, stated the law in these unmincing words:

¶338

“Mr Sarjoo Prasad however relied on certain observations in the judgment of the Full Bench of the Patna High Court in Sukhdeo Das v. Kashi Prasad where the learned Judges appear to consider the possession even of a trespasser who has not perfected his title by adverse possession for the time requisite under the Indian Limitation Act as the khas possession of the true owner. We consider that this equation of the right to possession with ‘khas possession’ is not justified by principle or authority. Besides this is also inconsistent with the reasoning of the Full Bench by which constructive possession is treated as within the concept of khas possession.

¶339

The possession of the contesting defendants in the present case was in their own right and adverse to the plaintiffs, even on the case with which the appellants themselves came into court. * * * In this context the plea made by the plaintiffs relevant to the character of the possession of the contesting defendants assumes crucial importance, for if they were admittedly trespassers then they could not be said to hold the property on behalf of the mortgagors and the entire basis of the argument as to the property being in the khas possession of the plaintiffs would disappear. ... It was on the basis of their possession being wrongful that a claim was made against them for mesne profits and it was on the footing of their being trespassers that they were sued and possession sought to be recovered from them. In these circumstances we consider that it is not possible for the appellants to contend that these tenants were in possession of the property on behalf of the mortgagor and in the character of their rights being derived from the mortgagor.” The Court rejected the theory that the possession of a trespasser was that of the owner. Other decisions of the Patna High Court and this Court were referred to at the Bar but the position having been made unmistakable by the two cases just mentioned, we do not wish to burden this judgment with case law any further.”

¶340

74. The aforesaid said judgement was also followed in the case of Baleshwar Tewari v. Sheo Jatan Tiwary reported in (1997) 5 SCC 112 , wherein it has been ultimately held that the intendment of ‘khas

¶341

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possession’ is referable to the intermediary who must be in actual possession, i.e., one foot on the land, and the other on the plough in the field and hands in the soil; although hired labour is also contemplated. The extract of the said judgement relevant for the purposes of the present case is quoted as under: -

¶344

“9. This was reiterated by a Bench of two Judges in Ramesh Bejoy Sharma v. Pashupati Rai held as under:

¶345

“The word used in Section 6 is not ‘possession’ but it is qualified by the adjective ‘khas possession’ its equivalent being ‘actual possession’ as the word is understood in contradistinction to the word ‘constructive possession’. Frankly speaking the law has still not provided clear and unambiguous definition of the jurisprudential concept of possession. Number of angular approaches to the problem of possession can be referred to with confidence. Here we are concerned with what is called ‘khas possession’ in a statute for ushering agrarian reforms and, therefore, the purpose and object behind the legislation must inform the interpretative process. The interpretation must tilt in favour of the actual cultivator, the tiller of the soil. Dealing with this expression, this Court in Gurucharan Singh v. Kamla Singh has observed as under:

¶346

‘There are, therefore, three requisites of possession. First, there must be actual or potential physical control. Secondly, physical control is not possession, unless accompanied by intention; hence, if a thing is put into the hand of a sleeping person, he has not possession of it. Thirdly, the possibility and intention must be visible or evidenced by external signs, for if the thing shows no signs of being under the control of anyone, it is not possessed; …’ In the end of all, however, the meaning of ‘possession’ must depend on the context, (Ibid p. 153) May be, in certain situations, possession may cover right to possess. It is thus clear that in AngloAmerican jurisprudence also, possession is actual possession and in a limited set of cases, may include constructive possession but when there is a bare right to possess bereft of any dominion or

¶347

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factum of control, it will be a strange legal travesty to assert that an owner is in possession merely because he has a right to possess when a rival, in the teeth of owner’s opposition, is actually holding dominion and control over the land adversely, openly and continuously.’

¶350

After thus observing this Court approved the ratio extracted above in Surajnath Ahir case as also the ratio in Ram Ran Bijai Singh case.” 10. In Labanya Bala Devi v. State of Bihar Patna Secretariat after extracting the definition held thus:

¶351

“… The saving by Section 6(1)(b) is only of the lands actually used for agricultural purposes in a State or a tenure of a lessee or a temporary lessee and directly in his possession and cultivated by himself with his own stock or by his own servants or by hired labour or with hired stock that the land stands excluded and raiyati rights has been confirmed statutorily subject to the terms contained therein.”

¶352

11. In Brighu Nath Sahay Singh v. Mohd. Khalilur Rahman another Bench considered the definition of “khas possession” in Section 2(k) and held as under:

¶353

“A reading of Section 2(k) read with Sections 4 and 6 of the Act, clearly envisages that the intermediary must, as on the date of vesting, be in possession of the land used for agricultural purpose or horticulture purpose as a tenureholder by cultivating such land or carrying on horticulture operations thereon by himself with his own stock or by his own servants or by hired labour or with hired stock.”

¶354

12. Thus, it could be seen that though the definition of “intermediary right” as used in Section 6(1)(a) of the Act, is inclusive of the yearly cultivation and intermediary becomes owner of such land subject to payment of rent determined, the intendment of khas possession is referable to the intermediary who must be in actual possession, i.e., one foot on the land, and the other on the plough in the field and hands in the soil; although hired labour is also contemplated. The emphasis is on the

¶355

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point that the possession is actual possession and admits of no dilution except to the extent specified under Section 6, i.e., itself by an inclusive process, permits and the animation of retention of possession always must be manifested. It must also be read with Bihar Tenancy Act wherein “khas possession” has been dealt with.

¶358

13. It is true that the inclusive definition in Section 6(1)(a) would also include yearly lease but it indicates that the possession should always be retained by the intermediary and the tenant must have no security of his tenancy right. But when the tenant remained continuously in possession of the land well over years, right from 1925 as found by the trial court, admittedly, the possession was taken in execution of the decree in 1979 and the necessary animus possidendi was absent.”

¶359

75. The aforesaid judgment passed in the case of Gurucharan Singh (supra) has been relied upon by both the learned counsels for the parties. The learned counsel for the plaintiffs has relied upon this judgment to submit that a trespasser will not have any right over the property and the contesting defendants is neither the proprietor nor the tenure holder and even in the return, the name of the contesting defendants as raiyats has not been mentioned. On the other hand, it is the case of the contesting defendants that the claim of the plaintiffs would depend upon the physical possession of the property on the date of vesting and if proforma defendant no. 4 was not in physical possession of the property on the date of vesting, she cannot transfer any valid title in favour of the plaintiffs and consequently the plaintiffs have failed to prove their case. He has also submitted that the plaintiffs have to stand on their own legs.

¶360

76. After going through the aforesaid judgment passed in the case of Gurucharan Singh (supra) followed in the case of Baleshwar Tewari (supra) read with Sections 2K and 6 of the Bihar Land Reforms Act,1950, this Court finds that the law is well-settled that khas possession on the

¶361

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date of vesting essentially relates to physical possession over the property or physical control or occupation of the property and further the case has to be seen in the light of the order of remand in the 1^st round of 2^nd appeal involved in this case as fully discussed above.

¶364

77. The proforma defendant no. 4 did not lead any evidence before the learned trial court so as to support her stand in the written statement that she was in khas possession of the suit plots in khata nos. 116, 120, 121 and 122 on the date of vesting. Admittedly, rent was never assessed in the name of the proforma defendant no. 4 under the provisions of Bihar Land Reforms Act and therefore the proforma defendant no. 4 cannot claim the status of a Raiyat upon vesting in connection with the suit plots in khata nos. 116, 120, 121 and 122. Further, the contesting defendants, who were found in actual physical possession of the property on the date of vesting, were recognised as raiyat with respect to the suit plots in khata nos. 116, 120, 121 and 122 vide Suo-Moto Case no. V and VI of 1961-62 and neither the said orders were challenged under Section 8 of Bihar Land Reforms Act nor were specifically challenged in the relief of the suit nor any relief was sought seeking declaration that the proforma defendant no. 4 had acquired the status of raiyat with respect to the said property. The plaintiffs simply sought declaration of their title on the basis of registered sale deed executed in the year 1962 by proforma defendant no. 4. 78. In view of the aforesaid facts and circumstances and the judgments passed in the case of Gurucharan Singh (Supra) followed in the case of Baleshwar Tewari (supra) , this Court is of the considered view that there can be no doubt that the proforma defendant no. 4 was not in khas possession of the property relating to the suit plots in khata nos. 116, 120, 121 and 122 on the date of vesting and did not acquire the status of raiyat under Bihar Land Reforms Act, 1950 and therefore the proforma

¶365

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defendant no. 4 could not have pass any good title in connection with the suit plots in khata nos. 116, 120, 121 and 122 in favour of the plaintiffs. 79. This Court is of the considered view that the aforesaid finding of the learned 1^st appellate court in connection with suit plots in khata nos. 116, 120, 121 and 122 cannot be said to be perverse and the findings are held to be supported by evidences on record. Accordingly, the findings do not call for any interference.

¶368

80. Consequently, the substantial question of law as framed in S.A. No. 69 of 1991 (R) is answered against the plaintiffs by holding that the findings in the judgment of the learned 1^st appellate court while allowing the appeal with respect to plot no. 144 khata no. 116, plot no. 151 khata no. 120, plot no. 623 and 749 of khata no. 121 and plot no. 251 khata no. 122 of village Babhandi is based on appreciation of evidences placed on record and does not call for any interference by this court.

¶369

81. The fact remains and is apparent from the aforesaid chart giving the details of exhibit E to E/1 that rent with respect to suit plot in khata nos. 116, 120, 121 and 122 were assessed in the name of the contesting defendants in Suo-Moto Case no. V and VI of 1961-62 with respect to which they were also paying rent as per annexure- C series which also shows that the contesting defendants were in possession and no relief of recovery of possession has been sought for in the suit.

¶370

82. Accordingly, S.A. No. 69 of 1991 (R) is hereby dismissed .

¶371

83. So far as the findings of the learned 1^st appellate court in relation to property under khata nos. 88 and 89, which is subject matter of S.A. No. 58 of 1991 (R) filed by the principal defendants, is concerned, this Court finds that the learned 1^st appellate court while recording the finding in paragraph 14 has not at all considered the oral evidences placed on record. The finding recorded in paragraph 14 of the appellate court’s judgment is quoted as under: -

¶372

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“14. So far the lands of plot no. 210 of khata no. 88 and plots no. 601, 667 and 254 of khata no. 89 are concerned, it would appear from the partition decree of the Partition Suit No. 24 of 1930 (Ext.6) and Partition sheet (Ext.7) and Zamindari Return (Ext.4) that the land was in possession of Mosomat Janak Raj Kaur before and at the time of the vesting of the State Bihar. The plea of the defendant was that she left village Bhabhandi in the year 1922 and settled down in village Dabara, but for this firstly there is no evidence and secondly even if she has left the village her right and title in the lands of village Bhabhandi would not seize in view of the documentary evidence on record. In view of the above fact, law is clear that Mosomat Janak Raj Kaur was entitled for assessment of rent in respect of at least the above land, as she was in khas possession of the same on the date of vesting of the intermediary interest in the State of Bihar.”

¶375

84. This Court also finds that the proforma defendant no. 4 in her return had admittedly shown the property under khata nos. 88 and 89 to be in her possession on the date of vesting. This Court further finds that in the assessment of rent in Case No. 1168 and 1169 of 1955-56 and suo-moto Case No. V & VI of 1961-62, the property relating to plot no. 524 does not find mention. However, when this was pointed out to the learned counsel appearing on behalf of the principal defendants, he has stated that since a house stands on the said property, therefore, the same does not find place in the aforesaid cases relating to assessment of rent.

¶376

85. To this, the learned counsel for the plaintiffs has stated that even over the land on which the house stands, the rent is assessed. The fact also remains that it is essentially for the plaintiffs to prove that proforma defendant no. 4 was in physical and actual possession of the property relating to khata nos. 88 and 89. The fact also remains that the proforma defendant no. 4 had interalia transferred the properties under khata nos. 88 and 89 to the plaintiffs by virtue of registered sale deed which has never been challenged by the defendants so far.

¶377

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¶379

86. With respect to the possession on the date of vesting, the oral evidence adduced on behalf of the parties assumes much relevance. So far as evidence of P.W.-1 is concerned, he has stated that the suit property is in possession of the plaintiffs and prior to that it belonged to proforma defendant no. 4. However, during his cross-examined, he has stated that proforma defendant no. 4 was living in village Dabra which is a separate village. P.W.-1 has not made any separate statement in connection with the property in khata nos. 88 and 89 rather P.W.-1 has made a statement in connection with the entire suit property. P.W.-2 has not stated anything in connection with possession of the suit property. So far as P.W.-3 is concerned, he has also not stated in connection with possession of the suit property. So far as P.W.-4 is concerned, he claims to be 36 years of age as on 21.02.1980, therefore, on the date of vesting, he was around 14 to 15 years of age. He has stated that he has seen the plaintiffs cultivating the property for last 17 to 18 years. He has also stated that over the suit property, there is a house of the plaintiffs in which they are living. During his cross-examination, he has stated that he is not able to give the khata number and plot number and boundary of the properties. He has also stated that on the house, the plaintiffs are living which has been constructed by Amerika Ram around 20 years back. He has also stated in his cross-examination that at the time of construction of house, he was 14 to 15 years of age.

¶380

87. This Court finds that it was the specific case of the proforma defendant no. 4 that she was living in the said house and P.W.-4 has specifically stated in his cross-examination that Amerika Ram had constructed the house around 20 years back. He has stated that he has been looking after the cultivation of the suit property for last 17 to 18 years and he had not seen the defendants cultivating the land. He has also stated that the house was constructed by Amerika Ram around 20 years

¶381

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¶383

back. This witness has deposed on 21.02.1980 and he was 36 years of age as per his own declaration and recorded in the evidence and further he has got no idea about the area, plot number etc. of the suit property. This witness is not a competent witness with respect to the possession of the suit property on the date of vesting. This Court finds that the evidence of this witness is not specific in connection with one or the other plot numbers of the suit property. The learned 1^st appellate court has rejected the evidence of this witness by observing that he had stated that the house was constructed on the property around 20 years back, that is, sometimes in the year 1957 by Amerika Ram although Amerika Ram never claimed the land before 1962 and further the plaintiffs claimed that the house was constructed by proforma defendant no. 4.

¶384

88. This Court is of the view that the learned 1^st appellate court has rightly made the observation in connection with P.W.-4 and since P.W.-4 has not made specific statement in connection with one or the other suit plot, therefore, this Court is of the considered view that the evidence of P.W.-4 also does not help the plaintiffs when it comes to the plots in khata nos. 88 and 89.

¶385

89. P.W.-5, namely, Nirmal Ram, has been examined on 21.02.1980 aged about 35 years on the date of examination. In his cross-examination, he has stated that he gain hosh (consciousness) sometimes in the year 1958. The learned 1^st appellate court has recorded with respect to his evidence that he is not the competent witness to say as to who was in possession of the property on the date of vesting of the intermediary interest. This Court finds that this witness has also not made any specific statement in connection with one or the other suit plot and his evidence is relating to the entire suit property. This Court is of the view that P.W.-5 is not a competent witness to say as to who was in possession of the suit property as on the date of vesting.

¶386

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¶388

90. So far as P.W.-6 is concerned, he is the tehsildar since 1948 and he simply identified the chaukidari rent receipt. This witness has not stated anything with respect to physical possession of the suit property on the date of vesting.

¶389

91. So far as P.W.-8 is concerned, the same has no relevance with respect to the possession of the suit property. 92. This Court also finds that although proforma defendant no. 4 had filed written statement, she would not have been the best witness to come forward and depose on the point of possession on the date of vesting, but after filing of the written statement, it appears that she did not participate in the learned court at all and has not laid any evidence before the learned court. However, the witnesses of the principal defendants have been crossexamined, but it is not clear at whose instance the cross-examination has been taken place.

¶390

93. So far as the witnesses on behalf of the defendants are concerned, this Court finds that defendant witness nos. 1 to 3 have not stated anything on the point of possession. So far as D.W.-4 is concerned, he is 51 years of age on the date of his deposition i.e. on 12.03.1980. This witness has stated that before he came to hosh (consciousness), Janakraj Kaur was not residing in village Babhandi, but was residing in another village called Dabra. He also deposed that principal defendants were in cultivating possession of the suit property since he gains consciousness. However, no specific date with respect to the possession of the principal defendants have been given by D.W. 4. During his cross-examination , he has stated that principal defendants have been cultivating the property for last 25-30 years, but he was unable to give the exact year. He has also stated during cross-examination that he has not seen that the plaintiffs were residing in village Babhandi, but the plaintiffs were residing in Daltonganj, but he did not know their exact location.

¶391

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¶393

94. D.W.-5 who was 53 years of age on the date of his deposition i.e. on 13.03.1980. This witness has stated that the husband and son of proforma defendant no. 4 had expired much prior he gain consciousness and the proforma defendant no. 4 was never stayed in village Babhandi and was living in another village, namely, Dabra. He has also stated that the rent was not fixed in the name of defendant no. 4 rather the rent was fixed in the name of principal defendants and the proforma defendant no. 4 was never filed any case seeking eviction of the principal defendants from the suit property. During his cross-examination, he has stated that the principal defendants have been paying rent since 1955-56. However, he is not aware as to whether principal defendants have filed any zamindari return. He has also stated that the suit property is adjoining to his property and has given the details of his own property as khata no. 125, plot no. 140 area 10 decimals.

¶394

95. Witness Nos. 6 and 7 on behalf of the principal defendants are not relevant, so far as the point of physical possession of the property is concerned.

¶395

96. D.W.-8 claims to be the purohit of the husband of the proforma defendant no. 4 and has stated that proforma defendant no. 4 never stayed in village Babhandi and she had no house in Babhandi. However, he has stated that the principal defendants were in possession of the suit property for last 15-16 years. During cross-examination, this witness has stated that he has been working as a purohit for only 15-16 years and he was not even aware about the name of the husband of the proforma defendant no. 4. Although in his cross-examination, he has stated that he was purohit in the family of Visheshwar Dayal Singh who was admittedly the husband of the proforma defendant no. 4.

¶396

97. D.W.-9 is 51 years of age on the date of deposition and he had a plot in village Babhandi which was adjoining to the plot no. 254 which is

¶397

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¶399

the suit property involved in this case. This witness has stated that the entire property was in possession of the principal defendants right since he gains consciousness. He has also stated that the proforma defendant no. 4 never stayed in village Babhandi and proforma defendant no. 4 never cultivated the suit property. He has also exhibited certain rent receipts. In his cross-examination, he has stated that around 10 katha dhan khet and remaining are tanr. He is not aware as to whether there is a house on plot no. 254. He has also stated that he gains consciousness in the year 193839 and has also stated that he knew the plaintiffs for last 20 years and it is not correct to say that the plaintiffs are living on plot no. 254. He has also stated in his cross-examination that each principal defendant is cultivating the land in different portions.

¶400

98. D.W.-10 who was 70 years of age on the date of deposition i.e. on 15.03.1980. This witness has also supported the case of the principal defendants. He has stated that he has seen the son and husband of proforma defendant no. 4 and has categorically stated that the defendant no. 4 left village Babhandi and never came back. He has further stated that the principal defendants were cultivating the property and he had never seen the plaintiffs in possession of the property. During his crossexamination, he has stated that he knew Amerika Ram, one of the plaintiffs, who got married sometimes 30 years back. He has also stated during cross-examination that he was working in the house of proforma defendant no. 4, but had no concern in the agricultural land. He has also given the name of husband of proforma defendant no. 4 as Visheshwar Dayal Singh during cross-examination and had no idea as to how much land of proforma defendant no. 4 had in village Babhandi. He has stated that proforma defendant no. 4 had cultivation in village Babhandi but after the death of her husband, she left village Babhandi and never came back.

¶401

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¶403

99. D.W.-11 has stated that Visheshwar Dayal Singh, the husband of the proforma defendant no. 4, had expired before he gains consciousness and he used to call defendant no. 4 as dadi who used to live in Dabra. He has stated that she never lived in village Babhandi from the date he gains consciousness and she was never involved in cultivation. He has also stated that the suit property was being cultivated by his brothers and his grandfather and they were also paying rent. This witness has stated that the plaintiffs were never in possession of the suit property and even on the date of vesting, the principal defendants were in possession of the property and proforma defendant no. 4 did not take any step to evict the principal defendants.

¶404

100. This Court finds that the principal defendants’ witnesses have fully supported the case of the principal defendants and they have consistently deposed that after death of husband of proforma defendant no. 4, she left village Babhandi and started living in another village, namely, Dabra. It is not in dispute that the husband of proforma defendant no. 4 and her son died much before vesting. There is consistent evidence from the side of the defendants that proforma defendant no. 4 was not in possession of the suit properties on the date of vesting.

¶405

101. This Court finds that the learned 1^st appellate court, while considering the properties in relation to khata nos. 88 and 89, has not referred to the evidence of the witnesses at all. However, upon consideration of the evidences on record, this Court is of the considered view that on the one hand , the plaintiffs through oral evidence have not been able to prove that the proforma defendant no. 4 was in physical possession or khas possession of the suit property of the aforesaid khata nos. 88 and 89 on the date of vesting and on the other hand , the principal defendants have proved that it was the principal defendants who were in possession of the said property much prior to the date of vesting and

¶406

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¶408

continued in possession. This Court also finds that there is no reason ascertainable from the records as to why the proforma defendant no. 4 did not depose before the Court, who could have been the best oral evidence on the point of possession with respect to the suit property. Admittedly, the rent was never assessed in favour of the proforma defendant no. 4 and rent receipts have been issued in favour of the principal defendants in the aforesaid two A.R. cases and remaining has been assessed in their favor by the State by suo-moto .

¶409

102. A strong objection has been raised by the learned counsel for the plaintiffs that there is no concept of assessment of rent on the basis of suomoto, but it appears that the rent was assessed primarily on the basis of physical possession of the property. However, considering the order of remand and considering the scope of the substantial question of law as framed by this Court, this Court finds that the learned 1^st appellate court has committed perversity by not referring to the oral and documentary evidences placed on record with respect to the properties in khata nos. 88 and 89 and upon consideration of the materials placed on record, this Court finds that the plaintiffs have miserably failed to prove their possession, much less the possession of proforma defendant no. 4 over the suit property on the date of vesting. There is consistent evidence on record that proforma defendant no.4 had left village Babhandi and started living in another village, namely, Dabra after the death of her son and husband much prior to the date of vesting under Bihar Land Reforms Act and was not living in village Babhandi where the suit properties are situated.

¶410

103. In view of the aforesaid facts and circumstances and the judgments passed in the case of Gurucharan Singh (Supra) followed in the case of Baleshwar Tewari (supra) , this Court is of the considered view that there can be no doubt that the proforma defendant no. 4 was not in khas possession of the property relating to the suit plots in khata nos. 88 (plot

¶411

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¶413

no. 210) and 89 (plot nos. 601 and 667) on the date of vesting and did not acquire the status of raiyat under Bihar Land Reforms Act, 1950 and therefore the proforma defendant no. 4 could not have pass any good title in connection with the suit plots in khata nos. 88 (plot no. 210) and 89 (plot nos. 601 and 667) in favour of the plaintiffs. The fact remains and is apparent from the aforesaid chart giving the details of exhibit D, D/1, E and E/1 that rent with respect to suit plot no. 210 of Khata No. 88 and suit Plot Nos. 601 and 667 of Khata no. 89 were assessed in the name of the contesting defendants in case nos. 1168 and 1169 of 1955-56 and in SuoMoto Case no. V and VI of 1961-62 with respect to which they were also paying rent as per annexure- C series which also shows that the contesting defendants were in possession.

¶414

So far as the residential house over plot no. 254 khata no. 89 is concerned, there is consistent evidence on record that proforma defendant no.4 had left village Babhandi and started living in another village, namely, Dabra after the death of her son and husband much prior to the date of vesting and there is no material from the side of the plaintiffs that they were in possession of the house over plot no. 254 khata no. 89. Rather, there is evidence from the side of the defendants that they were in possession of the entire suit plots of Khata 88 and 89 including plot no. 254 khata no. 89. It is important to note that the plaintiffs have not prayed for recovery of possession with respect to any of the suit property.

¶415

104. While answering the substantial question of law framed in S.A No. 58 of 1991 (R), this court is of the considered view that the learned 1^st appellate Court should not have passed the impugned judgment with regard to Plot no. 210 of Khata No. 88 and Plot Nos. 601, 667 and 254 of Khata no. 89 without considering the oral and documentary evidences on record.

¶416

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¶418

105. In view of the aforesaid facts and circumstances and the discussions made above, this Court is of the considered view that the learned 1^st appellate court has passed the impugned judgement with regard to Plot no. 210 of Khata No. 88 and Plot Nos. 601, 667 and 254 of Khata no. 89 without considering the oral and documentary evidences on record which has made the impugned judgement perverse with regards to the aforesaid properties.

¶419

106. In view of the aforesaid discussions, the finding of the learned 1^st appellate court that Mosomat Janak Raj Kaur (proforma defendant no.4) was in khas possession of the land of plot no. 210 of khata no. 88, plot no. 667, 601 and 254 of khata no. 89 cannot be sustained in law and is perverse and such finding is accordingly set-aside.

¶420

107. Consequently, the substantial question of law as framed in S.A. No. 58 of 1991 (R) is answered against the plaintiffs and in favour of the principal/contesting defendants.

¶421

108. S.A. No. 58 of 1991 (R) is accordingly allowed .

¶422

109. Pending I.A., if any, is closed in both the cases.

¶423

110. Let the original record be sent back to the concerned court.

¶424

111. Let a copy of this order be communicated to the court concerned through ‘e-mail/FAX’.

¶425

(Anubha Rawat Choudhary, J.)

¶426

05.12.2025