Dismissed

Shri Kailash Sah and Ors. v. Maneshwar Pd. and Ors.

Patna HC25 Feb 2013SA/105/2011

Case brief

AI extract

What is this about?

The Patna High Court dismissed a second appeal claiming a title dispute over agricultural land claimed to be ancestral. Rejecting the argument that civil suits under the Bihar Privileged Persons Homestead Tenancy Act were barred, the court upheld the lower courts' findings that the suit was maintainable and the plaintiffs held title.

What did the court decide?

Second Appeal No. 105 of 2011 is dismissed.

Shri Kailash Sah and Ors. Vs Maneshwar Pd. and Ors. — Land Acquisition | Patna HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Second Appeal No.105 of 2011

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Shri Kailash Sah son of Gujeshwar Sah

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Shushma Devi wife of Kailash Sah

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Both resident of village- Dorpur, P.S. Nanpur, District-Sitamarhi. …Defendants… Appellants...... .... Appellants Versus

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1. Maneshwar Prasad son of Anand Sah. 2. Lalbabu Sah son of Maheshwar Pd. 3. Smt. Siv Sundar Dei wife of Sri Ghandeshwar Prasad All of village Manan Khodu Tola Bavang P.S. Jale District

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Dharbhanga. …Plaintiffs/Respondents/Respondent 1^st party.

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1. Rambharosh Sah son of Gugeshwar Sah Resident of village- Dorpur, P.S. Nanpur, District-Sitamarhi.

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Respondent No. 2/Appellant No. 2/Respondent 2^nd party.

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====================================================== Appearance : For the Appellant/s : Mr. Yogendra Prasad Sinha Mr. Nirmal Kumar Sinha-3 For the Respondent/s : Mr. T.N. Matin, Sr. Adv.

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Mr. Manish Kumar No. 13

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Mr. Rohit Kumar

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====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH

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ORAL ORDER

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10 25-02-2013 Heard learned counsel for the appellants and learned Senior counsel appearing on behalf of the respondents.

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The defendants have filed the present Second Appeal under Section 100 of the Code of Civil Procedure (hereinafter referred to as the „Code‟) which has been placed before me for hearing under Order 41 Rule 11 of the Code.

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The appellants are aggrieved by the judgment and decree dated 27.11.2010 and 09.12.2010 respectively passed by learned District Judge Sitamarhi in Title Appeal No. 72 of 2007 whereby

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he has dismissed the appeal and affirmed the judgment and decree dated 01.08.2007 and 13.08.2007 respectively passed by learned Munsif, Pupri at Sitamarhi. The suit land as described in the plaint appertains to Khata No. 536 Khesra No. 2278 measuring 6 decimal and Khesra No. 2279 measuring 11 decimal. The plaintiffs-respondents filed the title suit before the Court below for declaration of their title and recovery of possession over the suit land and further for a declaration that the appellants were not the privileged persons and that no Basgit Parcha was granted in their favour under Bihar Privileged Persons Homestead Tenancy Act, 1947. Few facts are not in dispute.

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The Appellant Kailash Sah was the owner of the suit land and by registered sale deed dated 19.08.1981, it was transferred in the name of plaintiff / respondents. The plaintiffs claimed that they came in possession immediately thereafter and got their names mutated and started paying rent thereof. The plaintiffs pleaded in the plaint that the appellants-defendants in collusion with and in connivance of the adversaries of the plaintiffs started preparing forged and fabricated documents and in that course got a forged and fabricated Basgit Parcha prepared. On the strength of said Basgit Parcha the defendants got the plaintiffs dispossessed from the disputed land on 28.04.1993 with the aid of Police after

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institution of proceeding under Section 144 of the Code of Criminal Procedure, 1973 and forcibly constructed thatched house thereon.

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The appellants-defendants in their written statement while raising the issue of maintainability of suit did not deny the fact that a registered sale deed was executed in favour of the plaintiff by defendant No. 1 on 19.08.1981 but a plea was taken on behalf of the defendants that defendant No. 1 was in habit of intoxication and the plaintiffs taking advantage of the habit of the defendant No. 1 got the said registered sale deed executed in their favour. On such ground it was pleaded that the said registered sale deed was obtained fraudulently and the same was illegal, void and inoperative. The defendants further developed a case that Basgit Parcha was issued in their favour as they had no other homestead land except the suit land in village Dorpur. It was pleaded that if the sale deed dated 19.08.1981 was found to be genuine and valid and for consideration then in that case also Basgit Parcha issued in favour of the appellants-defendants would be treated to be genuine as they were in possession thereof and were paying rent on the basis of Basgit Parcha.

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On the basis of rival pleadings, the learned Trial Court framed all together nine issues including issue Nos. (VI), (VII)

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and (VIII) which read as follows:-

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(VI) Are the defendants privileged Raiyat?

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(VII) Have the plaintiffs right and title over the suit land?

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(VIII) Are the plaintiffs entitled for declaration of title and

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recovery of possession over the disputed land?

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As would appear from the judgment of learned First

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Appellate Court that initially the suit was partially decreed declaring the defendants not to be privileged persons and accordingly Basgit Parcha issued under the Bihar Privileged Persons Homestead Tenancy Act, 1947 was held to be illegal by judgment and decree 16.09.1998 passed by the then Munsif at Sitamarhi. On an appeal preferred by the plaintiffs vide Title Appeal No. 10/99, the Court of A.D.J., F.T.C.-III, Sitamarhi, vide judgment dated 22.04.2006 remanded the matter back to the Trial Court for passing a judgment afresh. It was in that background that the Trial Court passed the judgment and decreed the suit on contest in favour of the plaintiffs / respondents by the judgment and decree dated 01.08.2007. Against this judgment and decree of the Learned Trial Court dated 01.08.2007, the title Appeal No. 72 of 2007 was preferred by the defendants. The appeal came to be dismissed by the judgment and decree dated 27.11.2010 and 9.12.2010 which is under challenge in the present Second Appeal.

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Learned Trial Court on the basis of the evidence

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available on record, dealing with issue No. VI came to specific finding that the appellants / defendants were not privileged persons within the meaning of Bihar Privileged Persons Homestead Tenancy Act, 1947 and that the so called Basgit Parcha was obtained by fraud. Dealing with Issue No. VII learned Trial Court held on the strength of registered sale deed dated 19.08.1981 that the plaintiffs who are respondents in the present appeal had right, title and interest over the suit land.

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The First Appellate Court on the basis of the grounds taken on behalf of the appellants and on the basis of materials available on record framed two points for consideration, namely:-

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I. Whether the sale deed dated 19.08.1981 executed by defendant Kailash Sah in favour of plaintiff Lal Babu Prasad and others is forged and fabricated or it is genuine and the plaintiffs acquired right title and interest on the basis of the same?

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II. Whether the Basgit Parcha issued in favour of the defendants is legal, void and effective.

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Learned First Appellate Court concurring with the

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findings of the Trial Court came to his own finding in paragraph 16 of the judgment that plaintiffs / respondents acquired right and title over the suit land on the basis of registered sale deed and got their names recorded in the consolidation records and also paid rent to the State of Bihar after due mutation.

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Dealing with the claim of issuance of Basgit Parcha as

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raised by the appellants-defendants, learned First Appellate Court referred to the pleadings on behalf of the plaintiff that the same was issued without adopting any procedure and complying the provision of law and further there was no record in the Anchal Office with respect to issuance of Basgit Parcha and due to nondenial of this fact by the defendants came to the conclusion that the defendants could not prove their case by adducing oral and documentary evidence.

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Learned First Appellate Court took note of the fact that on the one hand the defendants claimed the suit land to be their ancestral land while on the other they claimed that they were privileged tenants. Both the claims were treated contradictory to each other by the First Appellate Court.

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Assailing the judgments of learned Trial Court and learned First Appellate Court, learned counsel appearing on behalf of the appellants submits that the First Appellate Court based its findings only on oral evidence without considering the documentary evidence available on record.

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He submits that present appeal involves substantial question of law to the effect that the suit itself was not maintainable in terms of the provision under Section 18 of the Bihar Privileged Persons Homestead Tenancy Act, 1947. He

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would further submits that if plaintiff had any grievance against issuance of Basgit Parcha he had the remedy before the Collector under Section 21 of the Act and suit in no case was maintainable.

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So far as the contention made on behalf of the plaintiff regarding maintainability of the suit is concerned, reference may be made to Section 18 of the Act which reads as follows:-

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“18. Order under this Act to be final- The orders passed under this Act shall be final. Subject to the provisions of Section 21, all orders passed by the Collector in any proceeding under this Act shall be final, and no suit shall lie in any Civil Court to vary or set aside any such order except on the ground of fraud or want of jurisdiction.”

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It is clear from the said Section as quoted above that a

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suit can be maintained to set aside any order passed under the Act on the ground of fraud or want of jurisdiction.

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In the present case the appellant could not prove before the Courts below that Basgit Parcha under the Act was in fact ever issued. The appellant/defendant could not make out a case that the said Basgit Parcha was issued in accordance with the provisions contained under the Act and Rules framed thereunder.

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In this connection, learned counsel appearing on behalf of the plaintiffs-respondents has rightly placed reliance on a judgment of this Court reported in 2001(4) P.L.J.R. 39 Vijay Shanker Choube v. Ram Sewak Kuer to contend that the suit was

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very well maintainable as the said Parcha could not be said to have been issued under the Act.

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The present case involves peculiar facts where there is no dispute regarding execution of registered deed of sale by the defendants in favour of the plaintiffs. The defendants case is that the plaintiff got the sale deed executed in his favour when the defendant No. 1 was state of intoxication and, therefore, the said sale deed could not be said to be genuine and operative. Disputing, therefore, the title of the plaintiff over the suit land, the defendant would thus submit that he had in fact the title over the suit land. At the same time, the defendant is trying to make out a case that Basgit Parcha was issued in his favour by the revenue authorities in exercise of power under Bihar Privileged Persons Homestead Tenancy Act, 1947. The stands of the appellant as defendant before the Trial Court are conflicting with each other could not be sustained and have been rightly rejected. There could not have been a more apparent case of fraud than this where the defendant got issued Basgit Parcha in his favour with respect to a piece of land which he initially owned and subsequently sold to the plaintiff. In my opinion, the Courts below rightly held that the suit was maintainable.

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My view is supported by the said judgment of this Court

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in case of Vijay Shanker Choube V. Ram Sewak Kuer 2001(4) P.L.J.R. 39 paragraph-9 of which is being quoted hereinbelow :-

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“9. The next point has been raised to the maintainability of the suit. It has been urged that although Section 18 of the Act creates a bar of civil suit regarding issuance of parcha but suit can be filed if fraud is alleged regarding the issuance of parcha and although the fraud has been alleged in the plaint but no specification has been given as to how the fraud has been perpetrated. In that way, a vague allegation of fraud may not be construed to give jurisdiction to the civil court to giving go-by to Section 18 of the Act. It has been held by the first appellate court on proper adjudication of the records and the evidence on record that the way the parcha had been issued giving go-by to all norms and the mandatory rules, the issuance of parcha or the order thereof is not only tainted with fraud but it is without jurisdiction also. On that point it has been submitted by Mr. Dwivedi that the learned first appellate court had no right to find out a third case for grant of relief to the plaintiffs. When such irregularities had not been specifically averred in the plaint, there was no scope to find as such by the learned first appellate court. When fraud and lack of jurisdiction has been alleged and from the circumstances and the mandatory provisions of law it could be shown that the order of issuance of parcha was not only tainted with fraud but also the same is without jurisdiction then it cannot said that a third case has been found by the learned appellate court rather it was the crux of dispute from the very beginning and on the basis of that suit has been filed. The suit as has been farmed can be construed to be a suit for recovery of possession of the plaintiffs with a

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further declaration that any parcha being issued in favour of defendant no. 2 had not given any effect to the title and possession of the plaintiffs. In that way, I do not find that the learned first appellate court has made out any third case in finding that the basgitparcha issued in the name of defendant no. 2 was not only a procured one but an ante dated also and also without jurisdiction on the face of it as the proceedings on the basis of which parcha had been issued was without jurisdiction. When a lack of jurisdiction has been pleaded then even if the fraud has not been proved then also the suit is maintainable and the bar created under Section 18 of the Act has got no bearing in the present suit itself. Then a point has been raised regarding the suit being barred for non-impleading the Anchal Adhikari as necessary party to the suit inasmuch as when a fraud has been alleged then such fraud can only be answered effectively by Anchal Adhikari alone and non-impleading him as party-defendant in the suit, the present suit should be dismissed for non-impleading of necessary party. This is a new plea taken for the first time before this Court. Neither this was there is the pleadings nor any issue was framed to that effect nor the same has been pleaded before the court below at any point of time. So in the second appeal such sort of submission cannot be entertained. On factual aspect also as the suit has been framed, the Anchal adhikari cannot be said to be a necessary party in the suit. A proceeding has been initiated for issuance of basgitparcha by the Anchal Adhikari and such proceeding was found to be without jurisdiction and hence, this plea of impleading of necessary party has got no force.”

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The plea on behalf of the appellant that the plaintiffs had

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remedy under Section 21 of the Bihar Privileged Persons Homestead Tenancy Act, 1947 is fit to be rejected for the same reason as discussed above. There being no order shown to have passed on behalf of the defendants before the Courts below under the said Act, Section 21 of the said Act cannot be invoked.

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The submission on behalf of learned counsel for the appellant that learned First Appellate Court did not consider the documentary evidence and based its findings merely on oral evidence also has no force. From the perusal of the judgment of the Trial Court and the First Appellate Court it would appear that the evidence both oral and documentary have been taken into account before reaching to the findings.

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In such view of the matter, I do not find any merit in the present appeal which according to me does not deserve admission and is accordingly dismissed.

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(Chakradhari Sharan Singh, J.)

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Saif/-

Shri Kailash Sah and Ors. v. Maneshwar Pd. and Ors.

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Shri Kailash Sah and Ors. v. Maneshwar Pd. and Ors.

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