Allowed

Naresh Kumar and Anr. v. Shital Prasad Ram

Patna HC10 May 2013SA/121/1995

Case brief

AI extract

What is this about?

This second appeal restored the trial court's decree in a title suit regarding disputed land. The Patna High Court held that the first appellate court erred in reversing the trial court without addressing all its reasons. It affirmed that an unregistered Kabuliyat creates no title interest and allowed the appeal based on proper court fee payment principles.

What did the court decide?

The judgment and decree of the trial court are restored and the appeal is allowed.

Naresh Kumar and Anr. Vs Shital Prasad Ram — Property and Title | Patna HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Second Appeal No.121 of 1995 =========================================================== 1. Naresh Kumar alias Naresh Kumar Sah, Son of Shri Banarsi Prasad Sah 2. Smt. Rekha Sah, Wife of Shri Ramesh Kumar Sah, both residents of Colgong(Kasba), P.S. & P.O. Colgong, Dist Bhagalpur .... .... Appellant/s Versus Shital Prasad Ram, Son of Sidha Ram, resident of Nadia Tola, P.S. & P.O. Colgong, Dist-Bhagalpur .... .... Respondent/s

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=========================================================== Appearance : For the Appellant/s : Mr. S.K.Verma, Sr. Advocate Mr. N.K.Agrawal, Sr. Advocate Mr. Jitendra Kishore Verma For the Respondent/s : Mr. B.P.Paney, Sr. Advocate Mr. Pravin Kr.Sinha

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

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ORAL JUDGMENT

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Date 10-05-2013

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The appellants in the present second appeal were plaintiffs before the trial Court and are aggrieved by the judgment and decree dated 5.5.1995 and 19.5.1995 respectively, passed by the learned First Additional District Judge, Bhagalpur in Title Appeal No. 28 of 1993, whereby while allowing the title appeal, he has reversed the judgment and decree dated 17.4.1993 and 1.5.1993 respectively passed in Title Suit No. 46 of 1996 by learned Munsif, First, Bhagalpur.

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I have heard Mr. S.K.Verma, learned Senior Counsel and Mr. Jitendra Kishore Verma with him on behalf of the appellants and Mr. B.P.Pandey, learned Senior Counsel on behalf of the respondents at length. The appellants were the plaintiffs before the trial Court and respondent, the defendant. Parties have been described in the present judgment as per their position in the Title Suit No. 46 of 1996

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The suit was filed for a declaration that the plaintiffs had got valid right, title, interest and possession over the suit land as described in Schedule II of the plaint. The plaintiffs also sought for a declaration that the survey entry made in the name of the defendant with respect to the suit land was wrong, incorrect and without jurisdiction. The suit land has been described in Schedule II of the plaint as follows:-

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“Land measuring .0085 Hector of basobas land equivalent 2 1/8 decimal situated on Nadiya Tola Kahalgaon forming part of L.S. Khesra No. 982 of L.S. Khata 113, corresponding to P.S. Khesra No. 202 Kha, Ga of P.S. Khata No. 138 being part of original holding No.155 present holding nos. 155 and 155 ka of ward No.3 situated within kahalgaon Municipality, DistrictBhagalpur, bounded as follows:-

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North South East West Part of P.S. Road Part of P.S. House & Gali Plot No. 203 Plot No.203 of Defendant Plot No. 202ka”

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As per the plaintiffs‟ case, L.S. Khesra (Last Survey Khesra) 982 having area of 31 Decimals, equivalent to 12 kathas 5 dhurs situated in Nadiya Tola Kahalgoan Municipality as recorded in

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last cadestral survey khatiyan and the maps, having actual area at the spot only as 28 and half decimal, belonged to Asha Lata Dasi, widow of late Dhirendra Nath and daughter of late Banwari Lal Khan. She had been coming in possession over the said land with house thereon all along, through her tenant State of Bihar and realizing rent as absolute owner and landlord of the said property. Her name stood recorded in Municipal records as well as in the records of the State of Bihar.

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Narrating the story as to how Asha Lata Dasi acquired title over the said property, the plaintiffs averred that in Title Suit No. 51/1961/47 of 1964, title of Asha Lata Dasi was declared and symbolic possession of the property described in Schedule I of the plaint was delivered to her in Execution Case No. 15 of 1965 through Court on 5.11.1965, as the property was under occupation of the Police Department of State of Bihar, let out on rent and a town out post had been running thereon. Asha Lata Dasi and her two sons, namely, Panchanan Soubi and Ajit Kumar Sobui sold away the property, fully described in Schedule I of the plaint to Plaintiff no.1/appellant no.1 for valuable consideration through two registered sale deeds dated 30.7.1981 and 6.8.1981 in his favour and in favour of his brother‟s wife, namely, Rekha Sah, plaintiff no.2/appellant no.2. The property so purchased was described in Schedule I of the Plaint.

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By virtue of such sale deeds, name of the plaintiffs were recorded in Kahalgaon Municipality as well as in the sirista of the State of Bihar and the receipts were being issued in the name of the plaintiffs and they had been in possession of tax and rent receipts. The plaintiffs further pleaded that revisional survey was conducted in Kahalgaon under Bihar and Orissa Municipal Survey Act in or about the year 1978 and being fully satisfied with the title and possession of said Asha Lata Dasi, the plaintiffs vendor; recorded the said L.S. Khesra No. 982 corresponding to P.S. Khesra No. 203, fully described in Schedule I of the plaint in the name of Asha Lata Dasi. The purcha was issued in her name for an area of.1095 Hectares equivalent to 27 ½ decimal.

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During the survey operation the defendant filed false objection claiming an area of .0120 Hector of land equivalent to 3 decimal of L.S. Khesra No.982 on the sole basis of a “ Kabuliat” said to have been executed by the defendant himself on 5.9.1949 in favour of the ex-landlord. The plaintiffs pleaded that the said “ Kabuliat” was on a khista paper, created solely for the purpose of dishonestly claiming an area of .0120 Hectares equivalent to 3 decimal of L.S. Khesra No.982. The Survey authority, on the basis of such false claim and forged, fabricated and manufactured “Kabuliyat” wrongly recorded the name of the defendant in respect of area .0120 Hectares

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( 3 decimal) of land of P.S. Khesra No. 203, of Kahalgaon Municipality and directed to include .0085 Hectares of land of P.S. Plot No. 203 already recorded in the name of Asha Lata Dasi of which purcha had already been issued in the name of Asha Lata Dasi, in the name of the defendant. On the strength of such wrong order of the Assistant Settlement Officer of Kahalgaon Municipality passed in objection case No. 21 of 1980, the survey khatiyan was corrected and area of .0085 Hectares of P.S. Khesra no. 203 being the suit land, was included in P.S. Khesra No. 202 and survey map was accordingly, prepared by deleting an area of .0085 Hector from south west portion of Khesra No. 203 and included in P.S. Khesra No. 202ka by marking it as previous Khesra No. 202 kha and Ga.

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As per the plaintiffs‟ case, they got the spot verification with reference to cadestral survey and revisional survey map by an Amin whereupon they learnt that though the area of L.S. Khesra No. 982 according to Khatiyan and the map should have been 31 decimals but it was actually 28 ½ decimals at the spot and P.S. Khesra Nos. 202 and 203 had been carved out from L.S. Khesra No. 982. The plaintiffs‟ realized that the defendant had illegally occupied an area of 7/8 decimals of land before the purchase made by the plaintiffs from Asha Lata Dasi and her two sons and had constructed a house over part of it and part of it was being used as „Gali‟ in which the

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defendant had been living. The land upon which the defendant had already constructed a house illegally and was using as Gali was numbered as Khesra no. 202 ka having an area of 7/8 decimals only and the Khatiyan ought to have been prepared with respect to 7/8 decimals only which is P.S. Khesra No. 202ka. The plaintiffs asserted that having already occupied illegally an area of 7/8 decimals as mentioned above, the defendant in order to encroach upon further area of land of said L,S. Plot No. 982 wrongly, dishonestly claimed an area of .0085 Hectares of land of L.S. Khesra No. 982 corresponding to P.S. Khesra No. 203 and filed objection during the revisional survey operation wrongly and got an area of .0085 Hectares(.2 1/8 decimal) of land entered in his name along with P.S. Khesra No. 202 ka and got the map corrected accordingly. Presently area of P.S. Khesra No. 202 kha and Ga had been recorded in the name of the defendant and final map was showing an area 00120 Hectares ( 3 decimal) though the defendant had been in illegal occupation of only 7/8 Decimals and plaintiffs had been coming in possession over 28 ½ decimals of land of L.S. Khesra No. 983 and 194 PS. Khesra No. 202 Kha and Ga and 203ka, Kha and Ga and as such area of Khesra No. 203 ought to have been recorded as 28 ½ decimals and Kathiyan had been prepared for the same area in the name of Asha Lata Dasi, the plaintiffs‟ vendor. As such wrong survey entry was casting cloud and affecting the title

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of the plaintiffs, they took recourse to filing the suit for seeking relief as mentioned above.

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The defendant contested the suit by filing his written statement disputing the averments made in the plaint. The defendant claimed that the plaintiff had no right title and possession over the suit land, rather the defendant had acquired the suit land along with other land measuring 3 decimals by virtue of deed of “Kabuliyat” which he had executed in favour of the ex-landlord of Balwadda Estate. The defendant contended that total area of whole plot No. 982 belonged to Amrendra Nath Deo and 3 decimal of the said plot was acquired by the defendant on which he constructed a house on a portion and came in possession. According to him, remaining properties of said Amrendra Nath Deo were sold and purchased by Asha Lata Dasi and she came in possession over which Colgong T.O.P. was situated. The defendant, denying the claim of the plaintiffs/appellants asserted that his building was separate from rest of L.S. Plot No. 982 and was not the subject matter of the suit brought by Asha Lata Dasi. On the basis of auction sale nor she could purchase 3 decimal of land of the defendant on which he had raiyati interest. He, accordingly, asserted that the survey entry thus made was just and valid. He pleaded that on the basis of title and possession the Survey Authorities and Municipality recorded his name with respect to different new plot

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such as new Plot No.202 Kha and 202 Gha besides new Plot No. 202. The defendant also raised in its written statement objection on maintainability of the suit on various grounds including the same being hit by Section 34 of the Specific Relief Act.

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On the basis of the pleadings of the parties learned trial Court framed following seven issues which are as follows:-

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“(1) Whether the suit, as framed, is maintainable?

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(2) Is the suit barred by the law of limitation?

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(3) Have the plaintiffs got valid cause of action for the suit?

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(4) Is the suit hit by the principles of waiver, estoppel and acquiescence?

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(5) Is the suit barred under the provision of Section 34 of the Specific Relief Act?

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(6) Has the plaintiff got valid right, title and possession over the suit land and the survey entry made in the name of the defendant as wrong, illegal and not binding on the plaintiff?

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(7) Are the plaintiffs entitled to any other relief or reliefs, as claimed?”

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From the judgment of the learned trial Court it appear

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that the issue nos. 2, 4 and 5 were not pressed by the defendant and were answered accordingly, in favour of the plaintiffs.

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From the contention of the rival parties which have been noticed hereinabove, apparently issue No.6 was the main issue which the trial Court was called upon to adjudicate. After framing of the issues the parties led their respective evidence, both oral and documentary. On the basis of analysis of such evidence learned trial

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Court came to a finding that the plaintiff had purchased the suit land alongwith town out post holding and other lands from the rightful owner, namely, Asha Lata Dasi by virtue of two sale deeds, Ext.4 and Ext 4/A. Learned trial Court further held that the said sale deeds executed in favour of the plaintiffs were acted upon. Relying upon the Municipal rent receipts and the Government rent receipts ( Ext.1 and Ext.2), which were documents of possession over the suit land, learned trial Court held the title and possession in favour of the plaintiffs. On the basis of analysis of the evidence learned trial Court also came to a finding on the basis of Ext.3 ( Purcha) that initially total area of suit land was 0.1095 Hectares. The Survey Authorities in collusion with defendant taking undue advantage of absence of the plaintiffs‟ vendor, wrongly and illegally got .0085 Hectares included with the land held and possessed by the defendant. Learned trial Court, accordingly, held that the plaintiffs had got right title and possession over the suit land along with land and holding standing over plot no. 982 and new plot Nos. 203 ka, 203kha and 203 Ga and survey entry made in the name of the defendants were wrong illegal.

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Aggrieved by the judgment and decree of the learned trial Court the defendant/respondent preferred the appeal mainly on the following grounds:-

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“1. The trial Court, without payment of ad valorem Court fee wrongly declared the title as well as confirmed the possession over the suit land.

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2. The learned Trial Court failed to appreciate the evidence produced by the defendant and failed to over look the relevant facts available on record and

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3. Since the plaintiffs were not in possession over the suit land yet a declatory suit was filed without seeking recovery of possession and, therefore, the suit was barred under Section 34 of the Specific Relief Act.”

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On the basis of the grounds for appeal and evidence on

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record and contention of the parties, learned first appellate Court

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formulated following three points for consideration:-

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“Point No.(I):-Whether the plaintiff/respondent has right, title and interest over the suit property described in Schedule 2 of the plaint?

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Point No.(II):-Whether the plaintiff/respondent is liable to pay ad valorum Court fees? And

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Point No.(III):-Whether the suit is barred by Section 34 of the Specific Relief Act?”

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Apparently Point no.1 was the main point for determination before the learned first appellate Court. Considering Point no.1, on the basis of analysis and appreciation of evidence, learned first appellate Court came to a finding that the plaintiffs failed to prove that they acquired title and interest over the suit property by way of the sale deed executed in their favour by Asha Lata Dasi. It also came to a finding that defendant/appellant was in actual physical possession over Plot No.202 Ka, Kha and Ga from the time of vesting of the State. Learned first appellate Court held suit to be barred under

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section 34 of the Specific Relief Act while dealing with Point No.3 as according to him the plaintiff was found to be not in possession over the suit property and he had not prayed for recovery of possession. Learned first appellate Court decided point no.2 also against the plaintiff as according to him only declatory Court fee was paid, though the plaintiffs had prayed for consequential relief by way of permanent injunction, restraining the defendant from interfering with their possession.

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Dealing with the main controversy between the contesting parties formulated as point no.1, learned appellate Court on the basis of his appreciation of evidence came to a finding that the plaintiffs/appellants had not been able to prove that they acquired title and interest over the suit property through sale deed executed in their favour by Asha Lata Dasi, which was with respect to only plot No. 203 ka, kha and Ga. Learned first appellate Court, accordingly, set aside the judgment of the trial Court and dismissed the suit vide impugned judgment and decree dated 5.5.1995 and 19.5.1995 respectively, against which the present second appeal has been preferred.

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The second appeal was admitted vide order dated 30..6.1997 as this Court felt that the appeal was required to be heard on the substantial question of law formulated in paragraph 11 of the

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memo of appeal. The substantial question of law as formulated in paragraph 11 of the memo of appeal are as follows:-

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“(i) Whether the Court of appeal below could reverse the judgment of the trial Court without considering all the reasons for decreeing the suit?

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(ii) Whether while reversing the judgment of the lower Court, the Court of appeal could ignore and by-pass the materials relied upon by the Lower Court?

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(iii) Whether a High Court could take up any issue which was given up/not pressed in the trial Court?

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(iv)Whether an unregistered Kabuliyat without accompanying with rent receipt could create any interest in any land in law?

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(v) Whether the defendant can raise any question of Court fee in the appellate Court?”

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Mr. B.P. Pandey, learned Senior Counsel appearing on behalf of the respondent, however, at the very outset submitted that the present appeal does not in fact involve any substantial question of law and deserves to be dismissed on this ground alone.

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In support of the appeal Mr. Jitendra Kishore Verma, learned counsel appearing on behalf of the appellants has submitted with reference to the judgment of the trial Court, the reasons assigned therein and the document available on record, that the judgment of the first appellate Court is perverse as it has not taken into account relevant material available on record before setting aside the judgment of the trial Court and it has failed to meet the reasons assigned by the trial Court in decreeing the suit in favour of the

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plaintiffs. He further submitted that a finding of the first appellate Court on the question of possession over the suit land was based on conjectures and surmises and therefore, the findings of the first appellate Court were unsustainable. He further submitted that the first appellate Court took up such issues also which were given up by the defendant/respondent at the stage of trial. He has vehemently submitted that the only source of title which the defendant relied upon in course of trial was an unregistered deed of “Kabuliyat” granted by the defendant himself and there was no other documentary evidence on the basis of which the defendant could claim title over the suit property. On the other hand, according to him, the plaintiffs/appellants had brought on record the unimpeachable documentary and oral evidence to establish that the plaintiffs acquired title over the suit property by virtue of the purchase made by them from Asha Lat Dasi through sale deeds executed on 29.7.1981.

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I will be dealing with and answering the substantial questions of law which were treated to have arisen in the present second appeal at the time of its admission one by one.

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Substantial Questions of Law (I)

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(i) Whether the Court of appeal below could reverse the judgment of the trial Court without considering all the reasons for

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decreeing the suit?

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From the material on record, it will appear that the dispute revolves around the land measuring an area .0085 Hectares of basobas land equivalent to 2¹ /8 decimal which forms part of L.S. Khesra No. 982 of L.S. Khata No. 113 corresponding to P.S. Khesra No.202 Kha, Ga of present survey Khata No. 138. The plaintiffs claimed it to be part of original holding No.155 and present holding No.155 and 155 Ka of Ward No.3 situated within Kahalgoan Municipality, Bhagalpur.

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This is not in dispute that total area of the said plot No. 982 was 31 decimal. The defendant, however, in his written statement denied the fact that the plaintiffs‟ vendor, namely, Asha Lata Dasi held and possessed the entire area of the said plot. As per their case, Asha Lata Dasi possessed only 10 katha and 5 dhurs equivalent to .1025 Hectares which was under the possession of the State Government on which town out post Kahalgoan was situated. Learned trial Court on the basis of the pleadings in the plaint and the written statement as also the decree passed in Title Suit No. 51/47 of 1961-64 came to a finding that total area of plot No. 982 was 31 decimal over which the plaintiffs‟ vendor could recover possession of property by eviction under the provisions of Bihar Building (Lease, Rent and

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Eviction Control Act), 1982 by virtue of the judgment passed in Title Suit No. 51/47 of 1961-64. On the basis of such evidence learned trial Court also came to a finding that the plaintiffs‟ vendor was given symbolic delivery of possession as she became the landlord as regards the holding of Plot No. 982. Learned trial Court, on the basis of such documentary evidence as well as oral evidence came to a finding that through the sale deeds Ext.5 and 4/A, the plaintiffs purchased the portion of land and holding which were under the occupation of town out post. The plaintiffs brought on record receipts in token of payment of Municipal tax paid by the plaintiffs‟ vendor and after purchase of the said plot by the plaintiffs themselves in order to establish that the sale deeds Ext. 4 and 4/A were acted upon and the plaintiffs were recognized as rightful owner of the suit property by the concerned Municipality. Learned trial Court on the basis of survey purcha issued in the name of Asha Lata Dasi came to a finding that at the time of survey proceeding Asha Lata Dasi was in possession of.1095 Hectares. Out of this old Plot No. 982 three new plots were carved out, namely, 203ka ( .0710 Hectares) 203 Kha ( .0375 Hectares) and 203ga ( .0010 Hectares) under Khata No. 113. Giving the description of each of these new plots carved out of Old Plot No. 982 in detail, learned trial Court held that the

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plaintiffs‟ vendor Asha Lata Dasi was in possession of .1095 Hectares. The dispute arose only as the area of the plaintiffs‟ vendor land was reduced to .1010 Hectares from .1095 hectares on final publication of Khatiyan and .0085 Hectares was included with the land of the defendant. It is also on record that it was done on an objection filed on behalf of the defendant in course of present survey operation before the survey authorities. The trial Court considered the specific plea of the plaintiffs that the said area of .0085 Hectares of plaintiffs‟ land was included with the land of the defendant by carving out new plot No. 202 kha and ga. As per survey purcha issued in the name of the defendant Shital Prasad Ram, the new Plot No. 202 Kha measured .0015 Hectares whereas new plot No. 202 Ga measured .0070 Hectares. This was done by way of correction in pursuance of the order passed in objection case No. 21 which was filed by the defendant against the plaintiffs‟ vendor. It was this survey entry made by the survey authorities in the year 1981 which came to be challenged in Title Suit No. 46 of 1986 as according to the plaintiffs, the defendant were forcibly and illegally attempting to encroach upon the land and dispossess the plaintiffs from the suit land. Such attempt is said to have been made on 10.11.1985 leading to initiation of proceeding under Section 144 of the Code

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of Criminal Procedure. As has been noted above, the defendant claimed his title on the basis of a “Kabuliyat” issued in favour of the ex-landlord in the year 1948-49. Learned trial Court examined the genuineness of the deed of Kabuliyat which was exhibited as Ext.B, said to have been executed by the defendant in favour of the ex-landlord and considered whether on the strength of such document the defendant could claim title over the disputed land. The deed of Kabuliyat is admittedly not registered. Learned trial Court, while considering this aspect i.e. defendant‟s claim of the title over the said property on the strength of unregistered Kabuliyat executed by the defendant himself in favour of exlandlord, took into account the following facts:-

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(i) The kabuliyat was not followed by a patta issued by the ex-landlord

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(ii) Admittedly it was not registered.

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(iii) There was no zamindari receipt filed by the defendant. (iv) The defendant could not prove that after vesting of zamindari the defendant‟s name was entered in register II in sirista of the Government.

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(v) There was absolutely no document available with the defendant in support of the case of his possession over the suit property and the earlier receipts granted by the

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State of Bihar in his name was of the year 1977-78 and Municipal receipts of the year 1983-84.

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Learned trial Court assigning such reasons came to a finding that defendant did not have valid document of title and possession and also came to a finding that the receipts seem to have been obtained by fraud.

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Learned trial Court considered the oral evidence on record including evidence of defendant witnesses and the plaintiffs witnesses and came to a finding that the plaintiffs had purchased the suit land along with Town Out post holding and other lands from the rightful owner, namely, Asha Lata Dasi by virtue of sale deed Ext.4 and 4/A. With reference to Ext.1 series, the municipal receipt and Ext.2 series, the Government rent receipts, learned trial Court held that the plaintiffs were in possession of the suit land. Relying upon Ext.3 the purcha, learned trial Court came to a finding that initially the total area of suit land was 0.1095 Hectares but the survey authorities being in collusion with the defendant taking undue advantage of the absence of plaintiff‟s vendors, wrongly and illegally reduced it to .1010 and included rest .0085 Hectares with the land held and possessed by the defendant.

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To answer the first substantial question, as to whether the first appellate court reversed the judgment of the trial Court

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without considering all reasons for decreeing the suit or in the absence of such consideration the judgment of the first appellate Court cannot be sustained, this is to be noted from the judgment of the first appellate Court it will appear that Point no.1 relates to the question of right title and interest of the respective parties. From the judgment of the first appellate Court, it appears that the appellate Court placed heavy reliance on the Khatiyan or entries in the Khatiyan which were made in pursuance of an order passed by the survey authorities ( Ext.k), whereby the plot no. 202 kha and Ga measuring .0085 Hectares was directed to be included in the name of the defendant. Learned first appellate Court, while considering the entries in the Khatiyan viewed them as having presumptive value, in proof of the defendant‟s possession over the suit land. Learned first appellate Court dealt with Kabuliyat executed by defendant in his judgment but it did not deal with the reasons assigned by the trial Court for not treating it to be a sufficient evidence of defendant‟s title over the suit land.

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Appearing on behalf of the appellants, Mr. Jitendra Kishore Verma has submitted that it was obligatory upon the first appellate Court to have dealt with, discussed and met the reasons assigned by the trial Court for decreeing the suit before reversing the judgment and decree passed by the trial Court. He submits that the

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learned first appellate Court failed to consider that the Kabuliyat was not registered and in the absence of registration it had no evidentiary value. He has further submitted that either Kabuliyat should have preceded with a Patta or there would have been a Patta followed by the Kabuliyat by the ex-landlord. In the absence of any such document, the first appellate wrongly relied upon the same. He has relied upon a Division Bench judgment of this Court reported in 1940 Patna 37 ( Surja Mohan Vs. Rama Prasad) to contend that Kabuliyat could not be used in evidence, the same being unregistered. Relevant portion of the said judgment at page 38 is being quoted hereinbelow:-

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“ At the outset it must be observed that neither of the parties in the Court below urged, nor the learned subordinate judge took into consideration that the Kabuliat ( Ext.1) could not be used in evidence in order to determine the nature and terms of the tenancy created admittedly on 18^th March, 187; because it is unregistered. Similarly the patta ( although it has not been produced) being unregistered could not be considered by virtue of Section 49, Registration Act, to determine the terms upon which this tenancy was created.”

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Learned counsel has further submitted that the first appellate Court did not consider the reasons assigned by the learned trial Court to the effect that there was no documentary evidence of possession of the defendant over the suit land prior to 1978 and thus the judgment of learned first appellate Court could not be upheld.

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Mr. B.P. Pandey, learned Senior Advocate

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appearing on behalf of the respondent while supporting the judgment of the first appellate Court has submitted that the plaintiff/ appellant had to prove his own case which he failed to do and learned trial Court wrongly decreed the suit in favour of the plaintiff on the ground of evidence of defendant‟s witnesses. He submitted that on the basis of the independent appreciation of evidence available on record, learned first appellate Court, which is last Court of facts, came to the finding, rightly, that the plaintiff could not prove their title over the suit land and, accordingly, upset the judgment and decree of the learned trial Court. He has submitted that the evidence adduced in course of trial on behalf of the plaintiff was contrary to the pleadings and after taking into account all such materials, learned first appellate Court rightly dismissed the suit. He has also submitted that the learned trial Court did not take into account the report of the survey knowing pleader Commissioner which was an important piece of evidence in support of defendant‟s possession over the suit land.

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On perusal of the rival pleadings and on consideration of the evidence adduced by the contesting parties in course of trial as well as the judgment of the first appellate Court, I am of the view that the learned first appellate Court failed to meet with the reasons assigned by the learned trial Court while decreeing the suit in favour

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of the plaintiff.

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On the basis of the pleadings and evidence on record it would transpire that the only source of title over the suit land which the defendant claimed was a deed of Kabuliyat issued by himself in favour of ex-landlord which was unregistered. This was a vital aspect which was required to be dealt with by both the Courts below. The Kabuliyat on which the defendant relied upon was unregistered and there was no other corroborating material to prove to such Kabuliyat. The survey entries were made on an objection filed by the defendant in favour of the defendant, which fact is not in dispute. This was done in course of survey operation. The land measuring .0085 Hectors was carved out, this is also not in dispute. The exercise of carving out the suit land from P.S. Plot No. 203 Ka, Kha and Ga and creating new Plot No. 202 Kha and 202 Ga in course of survey operation was itself in question before the trial Court in the suit. In such circumstance presumptive evidentiary value of entry made in the khatiyan was not required to be given by the first appellate Court while reversing the finding of the trial.

¶127

In view of the above, I am of the opinion that learned first appellate Court has reversed the judgment of the learned trial Court without considering all the reasons for decreeing the suit in favour of the plaintiff/appellant. In my opinion, the learned appellate

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Court cannot do so. I am also of the view that the appraisal of the evidence by trial Court in the present case cannot be said to be suffering from material irregularity or based on an inadmissible evidence. Reliance may be made in this regard to a recent judgment of the Supreme Court reported in (2013) 4 SCC 97 ( Laxmibai (Dead) through LRS. And another vs. Bhagwantbuva), wherein the Supreme Court held that appellate Court can re-appreciate the evidence where compelling and substantial reason exists. The Supreme Court relied upon previous judgment on the point as regards the duties of the first appellate Court while reversing the findings arrived at by the trial Court including case of Santosh Hazari Vs. Purushotam Tiwari reported in (2001) 3 SCC 179. In my view the first appellate Court failed to discharge the duties of considering the reasons assigned by the trial Court for decreeing the suit. The first substantial question of law is, accordingly, answered in negative in favour of the appellants.

¶131

Substantial question No.(ii)

¶132

While reversing the judgment of the lower Court, the Court of appeal could ignore and bypass the material relied upon by the lower Court?

¶133

While replying to the first substantial question of law I have taken note of the fact that the learned first appellate Court failed to consider certain aspect which were the basis for the trial Court to

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¶136

decree the suit in favour of the plaintiffs, I am of the view that the first appellate Court did reverse the judgment of the trial Court ignoring and bypassing relevant materials which were relied upon by the trial Court, which it could not do. My answer would, therefore, be in negative and in favour of the appellants.

¶137

Substantial Question No. (iii)

¶138

Whether the High Court could take up any issue which was given up/ not pressed in the trial Court?

¶139

In this substantial question of law it appears that in place of the “first appellate Court”, “High Court” has been typed out of mistake. It appears from the trial Court judgment that the defendant Respondent did not press issue Nos. 2, 4 and 5. Issue No.2 happened to be the objection on the point of limitation. Issue No.4 relates to an objection that the suit was hit by principles of waiver, acquisence and estoppel and issue No.5 an objection of entry, oral hearings and five an objection relating to bar of suit under Section 34 of the Specific Relief Act. Learned first appellate Court, however, dismissed the suit also on the ground of bar under Section 34 of the Specific Relief Act. Once the objection was dropped by the defendant himself it was not open to him to raise it before the first appellate Court and the first appellate Court was not required to consider such objection which was raised and dropped by the

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defendant, in the first appeal. On this aspect also I find the judgment of the first appellate Court is not sustainable. Reference may be made in this regard to Supreme Court judgment reported in AIR 1996 SC 869 128 ( Dr. Mahesh Chand Sharma Vs. Raj Kumari Sharma and others), wherein it has been held that a party who abandons a particular plea at a particular stage cannot be allowed to re-agitate in appeal. ( Para 32).

¶143

Substantial Question No.(iv)

¶144

Whether an unregistered kabuliyat without accompanying with rent receipt could create any interest in any land in law?

¶145

This question has been considered while dealing with substantial question No.(i). The Division Bench Judgment of this Court as reported in AIR 1940 Patna 37 ( Surja Mohan Vs. Rama Prasad) is direct answer to this question, the relevant portion of which has been quoted hereinabove. In the light of the pronouncement of this Court in case of Surja Mohan (supra), I am of the view that an unregistered kabuliyat without accompanying with rent receipts would not create any interest in land.

¶146

Substantial question No.(v)

¶147

Whether the defendant can raise any question of Court fee in

¶148

the appellate Court?

¶149

Referring to this question Mr. B.P. Pandey, learned

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¶152

Senior counsel appearing on behalf of the respondent has vehemently submitted that the appeal deserves to be dismissed at the threshold as the plaintiffs did not pay advolerum Court fee and according to him the learned first appellate Court has amply dealt with this aspect in paragraph 11 of the judgment. Mr. Verma appearing on behalf of the appellants/plaintiff in reply, firstly submits that the issue was not raised by the respondent-defendant before the trial Court. Referring to the Judgment of the first appellate Court, he submits that the first appellate Court did not hold that the suit itself deserved to be dismissed, rather it held that the trial Court was wrong in not realizing the advolerum court fee. He submits that it was an error of record of the first appellate Court that proper court fee was not paid for consequential relief of permanent injunction restraining the defendant from interfering with their possession. In any view, he submits that a decree cannot be set aside for default in making the deficit court fee and as relied upon a judgment of this Court reported inAIR 1973 Patna 439 ( Sita Ramji Vs. Moti Prasad). The judgment of Patna High Court in case of Sita Ramji vs. Moti Prasad relied upon an unreported judgment of the Supreme Court in Civil Appeals Nos. 1115 and 1116 of 1967 ( Mohd. Munif Khan Vs. Mohd. Shahabuddin Khan). The Supreme Court in that case (Mohd. Munif Khan Vs. Mohd. Shahabuddin) held that in an appeal filed by the defendant in

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a suit which has already been decreed by the trial Court, the High Court has no jurisdiction to reject the plaint upon the failure of the plaintiff to pay additional court fee demanded from him, because once the decree has been passed by the Court of first instance, it can be modified by the appellate Court only on the merits of the dispute or by consent of the parties.

¶156

The Supreme Court held in that case the High Court had no power to set aside the decree of plaintiff on ground of deficit in payment of Court fee. It further held that though the liability of the plaintiff to pay proper court fee was not wiped out but plaint could not be rejected either by the Court of first instance or by the appellate Court after the decree was passed in favour of the appellant. Similar view has been taken by this Court in case of Md. Moid Vs. Maha Sundari Devi reported in 2011 (3) PLJR 221.

¶157

In course of argument Mr. B.P. Pandey, learned senior counsel has submitted that the suit was miserably barred by limitation as the cause of action arose in the year 1981 when the entries were made and the suit was filed in the year 1986. He has further submitted that when vendors did not question the survey entry, it was not open to the vendees to question the same. It has been submitted on behalf of the appellant, on the other hand, referring to a Supreme Court judgment reported in AIR 2010 SC 3240 ( Daya Singh Vs.

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¶160

Gurdev Singh) that adverse entry in khatiyan itself gives no cause of action for filing the suit. Referring to paragraph 10 of the said judgment he has submitted that only when there is infringement or threat to infringement of the rights of a person the cause of action would arise and as pleaded in the plaint itself, the cause of action arose in 1985 when the defendant started disturbing the plaintiff and interfering with their peaceful possession. As regards the point that when the vendor of the plaintiff did not question the entry, the vendee is not entitled to question it after purchase, learned counsel for the appellant has referred to the date of purchase which was in July, 1981 whereas the entries were made in March, 1981. In such circumstance, he submits, if the vendor did not question such entry, such would not have stopped the plaintiff/ appellant from filing the suit. In my view the argument advanced on behalf of the appellant on these two points has substance and I am in agreement with the submission.

¶161

In view of the law laid down by the Supreme Court in case of Daya Singh Vs. Gurdev Singh ( supra), the issue of limitation was not available to the defendant/ Respondent and it cannot be said that the cause arose on the date when the entry was made. In view of the judgment of the Supreme Court, the cause of action would arise only after right of the owner is infringed or seriously threatened to be

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infringed.

¶165

For the reasons above, while answering the substantial question of law as formulated in the present second appeal, I am of the view that the judgment of the first appellate Court cannot be sustained and is, accordingly, set aside. The judgment and decree passed by the learned trial Court is accordingly, restored. The present appeal is allowed.

¶166

Parties shall bear their own costs.

¶167

(Chakradhari Sharan Singh, J)

¶168

Arun Kumar/-

Naresh Kumar and Anr. v. Shital Prasad Ram

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Naresh Kumar and Anr. v. Shital Prasad Ram

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