Dismissed

Smt Shanti Devi v. Awadh Kishore Trivedi and Ors.

Patna HC5 Dec 2012SA/167/1991

Case brief

AI extract

What is this about?

In a second appeal under the Bihar Tenancy Act, the Patna High Court held that a suit for correction of revenue records under Section 106 is declaratory and focuses solely on possession, not title. The court dismissed the appeal, ruling that the substantial questions raised regarding non-joinder, unregistered gifts, and land area were not substantial questions of law in this context.

What did the court decide?

Second Appeal No.167 of 1991 dismissed with a finding that no merit is apparent in the appellant's submissions.

Smt Shanti Devi Vs Awadh Kishore Trivedi and Ors. — Landlord and Tenant | Patna HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Second Appeal No.167 of 1991 Against the Judgment and Decree dated 11.12.1990 passed by Special Judge, Gaya in Revenue Appeal No.7 of 1987 whereby the lower appellate Court dismissed the appeal and confirmed the Judgment and Decree dated 23.2.1987 passed by Revenue Officer, Gaya in suit No.5711 of 1981. ================================================== Smt Shanti Devi .... .... Appellant/s Versus Awadh Kishore Trivedi & Ors .... .... Respondent/s ================================================== Appearance : For the Appellant/s : Mr. Puskar Narayan Shahi, Sr. Advocate Mr. Patanjali Rishi, Advocate Mr. Gaurav Kumar Mishra, Advocate Mr. Sanjeet Kumar Sngh, Sr. Advocate For the Respondent/s : None. ==================================================

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Dated : 5^th day of December, 2012

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P R E S E N T

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CORAM : THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO

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CAV J U D G M E N T

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Patna High Court SA No.167 of 1991 dt.05-12-2012

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Mungeshwar 1. The defendant has filed this second appeal against the Sahoo, J. Judgment and Decree dated 11.12.1990 passed by the Special Judge, Gaya in Revenue appeal No.7 of 1987 whereby the lower appellate Court dismissed the appeal and thereby confirmed the Judgment of the trial Court dated 23.2.1987 passed by Revenue Officer, Gaya in suit No.5711 of 1981.

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2. The plaintiffs-respondents filed the aforesaid suit before Revenue Officer under Section 106 of the Bihar Tenancy Act for correction of the Revenue record regarding the suit property measuring 28 decimal. The plaintiff‟s case in short is that the suit property was settled by the ex. landlord in favour of the father of the plaintiff. After settlement, Parwana was issued and rent receipt were also issued. After vesting of Jamindari, the father of the plaintiff was mutated in the State of Bihar and was obtaining rent receipt. Subsequently, their father gifted the property to the mother of the plaintiff. Since after gift the Jamabandi is in the name of the mother. However, in the recent survey, instead of recording the name of the plaintiff, the suit land has been recorded wrongly in the name of the defendants but the plaintiffs are in possession of the property.

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3. The defendants appeared and filed written statement alleging that the suit land was settled by the ex.landlord in favor of Bindeshwary Sharma, Advocate. The ex.landlord also granted receipt in his name. The said Bindeshwari Sharma, Advocate, sold the property by registered sale deed in the name of the father of the defendant. Therefore, the property has been rightly recorded in the name of the defendant.

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4. Both the parties adduced evidences oral and documentary. On the basis of the evidences available on record, the Revenue Officer

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Patna High Court SA No.167 of 1991 dt.05-12-2012

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recorded the finding that the plaintiff is in possession of the property and accordingly, held that the entry was wrong and the suit was decreed. The appellant filed appeal before the Special Judge under the Bihar Tenancy Act. On consideration of the evidences oral as well as documentary, the lower appellate Court also recorded the finding that the plaintiff are in possession and the defendant failed to prove their possession. Accordingly, the title appeal was dismissed.

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5. At the time of admission on 30.4.1992, the following substantial question of law was formulated :-

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“In view of the finding that on the basis of ext. „A‟ the appellant has purchased 79 decimal in R.S. plot No.641, whether his title could have been declared only with regard to 24 decimal”?

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6. The learned senior counsel, Mr. Pushkar Narayan Shahi at the time of hearing submitted that some other substantial question of law were also involved in this second appeal in addition to the substantial question of law formulated. According to the learned counsel, ext.‟A‟ is the registered sale deed whereby the appellant‟s father has purchased the land measuring 79 decimal. In such circumstances, the appellate Court could not have recorded the finding that the defendant has got only 24 decimal of land. Therefore, the substantial question of law is liable to be answered in favour of the appellant. So far the other substantial question of law are concerned, the learned counsel submitted that during the pendency of the suit, amendment application was filed wherein the plaintiff alleged that their mother is insane person. The plaintiff are not claiming title on themselves and their mother has not been made party, particularly when their mother is alive on the date of institution of the suit. Therefore, the suit itself was not maintainable. Secondly, the learned

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Patna High Court SA No.167 of 1991 dt.05-12-2012

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counsel submitted that according to the plaintiff themselves, the property was gifted by unregistered gift deed to their mother by their father. It is settled law that gift by unregistered gift deed is impermissible. Therefore, no finding could have been recorded in favour of the plaintiff. Thirdly, the learned counsel submitted that unregistered gift deed has been relied upon by the appellate Court and recorded the finding of possession. According to the learned counsel, all these questions are liable to be answered in favor of the appellant.

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7. On the other hand, as stated above, nobody appears on behalf of the respondent.

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8. It may be mentioned here that the suit was filed by the plaintiff under Section 106 of the Bihar Tenancy Act. Both the Courts below recorded the finding that the plaintiffs are in possession of the suit property which has wrongly been recorded in the name of the defendant. So far substantial question of law formulated is concerned, it may be mentioned here that from the Judgment of the original Court as well as appellate Court, I do not find that any title has been declared either in favor of the defendant or in favour of the plaintiff.

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9. So far the question that the appellant‟s father had purchased 79 decimal is concerned, it may be mentioned here that the appellant has purchased the land from the settlee of the ex.landlord. The present case was filed under Section 106 of the Bihar Tenancy Act.

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10. In the case of Nand Kumar Rai Vs. State of Bihar 1974 P.L.J.R. 27, Full Bench of this Court has held that a suit under Section 106 is in the nature of a declaratory one and the whole object is only to secure a prompt correction of an erroneous record. In a suit under

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Patna High Court SA No.167 of 1991 dt.05-12-2012

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Section 106, therefore, the correctness of the entry made by the Revenue Officer has to be judged with reference to the factum of possession and not of title. Therefore, so far the scope of suit filed under Section 106 of the Bihar Tenancy Act is concerned, the authorities are required to see the possession only. So far title is concerned, the authorities have no jurisdiction to look or decide the same. In the present case on consideration of the evidences available on record, both the Courts below concurrently recorded the finding that the plaintiff have proved their possession over the suit land and on the contrary the defendants failed to prove possession. So far this finding is concerned is concurrent finding of fact.

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11. So far the points raised by the appellant is concerned, since the scope itself is to see the possession only, in my opinion, the suit will not be bad for non-joinder of their mother because in the suit under Section 106 Bihar Tenancy Act, title is going to be declared. So far the second point is concerned, it may be mentioned here that we are not considering the title of the parties. Whether the property was gifted by unregistered gift deed or not and, therefore, whether title passed or not is a foreign question in the suit filed under Section 106 of the Bihar Tenancy Act. The other aspect of the matter is that even if it is held that title did not pass to their mother then the property remain the property of their father and on the death of their father, the plaintiff will be the owner. The same will not go to the defendant.

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12. So far the third point raised by the appellant, is concerned, it may be mentioned here that only on the basis of unregistered gift deed, the finding of possession has not been recorded . From perusal of the Judgments of both the Courts below, it appears that the Courts below

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Patna High Court SA No.167 of 1991 dt.05-12-2012

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relied upon oral evidence also regarding possession and other documentary evidences including the rent receipt etc. Now, therefore, in this second appeal, sufficiency or otherwise or adequacy or inadequacy of the evidences for recording the finding of possession cannot be said to be a substantial question of law. It is not the case of the appellant that on the basis of other evidences, oral and documentary, no finding can be recorded that the plaintiff are in possession of the property. In my opinion, therefore, all the points raised by the appellant are not at all substantial question of law involved in this second appeal for decision.

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13. So far the substantial questions of law formulated is concerned also I find that none of the Courts below have declared title of the defendant over 24 decimal only. The Courts below have recorded categorical finding that the plaintiffs are in possession of the property. Therefore the substantial question of law formulated does not arise for consideration in this second appeal.

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14. In view of the above discussion, I find no merit in this second appeal and accordingly, this second appeal is dismissed.

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(Mungeshwar Sahoo, J.)

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Patna High Court, Patna The 5^th December, 2010 Sanjeev/N.A.F.R.

Smt Shanti Devi v. Awadh Kishore Trivedi and Ors.

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Smt Shanti Devi v. Awadh Kishore Trivedi and Ors.

Case brief

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