Dismissed

Birendra Pandey v. the State of Bihar through Col

Patna HC25 Sept 2013SA/3/2012

Case brief

AI extract

What is this about?

In a second appeal regarding land title, the High Court dismissed the appeal. The court held that the appellant failed to prove adverse possession due to lack of exact possession date and evidence of fraud was absent to challenge the settlement under the Bihar Privileged persons Homestead Tenancy Act, 1947.

What did the court decide?

Judgment and decree of the appellate court in partially reversing the trial court judgment insofar as Schedule-B property is concerned are upheld.

Birendra Pandey Vs the State of Bihar through Col — 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.3 of 2012

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====================================================== Birendra Pandey S/O Rama Pandey R/O Village - Basantpur, P.S. Chenari, P.O. Pandeydih, District - Rohtas .... .... Appellant/s Versus 1. The State Of Bihar Through Collector, Rohtas 2. Bira Prasad @ Birakahar S/O Murlikahar R/O Village - Basantpur, P.O. Chenari, P.S. Chenari, District - Rohtas
3. Santosh Kumar S/O Birakahar R/O Village - Basantpur, P.O. Chenari, P.S. Chenari, District - Rohtas
4. Most. Kaushelya Kuer W/O Late Rama Pandey R/O Tetari, P.O. & P.S. Sasaram, Distt. - Rohtas
5. Smt. Nirmala Devi W/O Sri Ram Pravesh Dubey R/O Tetari, P.O. & P.S. Sasaram, Distt. - Rohtas
6. Smt. Vimala Devi W/O Sri Kamlesh Dubey R/O Village - Baheri, P.O. Sahar, Distt. - Kaimur ( Bhabhua )
7. Most. Kamla Kuer W/O Late Kamlesh Tiwary R/O Village - Mahet, P.S. Chenari, Distt. - Rohtas
8. Smt. Rina Devi W/O Sachita Choudhary R/O Village - Phakalia, P.O. Ghatawan, P.S. Kudra, Distt. Kaimur ( Bhabhua )
.... .... Respondent/s
====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER

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05. 25-09-2013 Heard learned counsel for the appellant. This appeal is directed against the judgment and decree dated 22.09.2011 and 12.10.2011 passed by the 2^nd Additional District Judge, Rohtas at Sasaram in Title Appeal No. 84 of 2006, whereby the learned appellate court below has partly reversed the judgment and decree dated 25.08.2006 / 02.09.2006 passed by learned Munsif-1^st , Rohtas at Sasaram in Title Suit No. 110 of 1996, whereby the suit was decreed in favour of the plaintiff.

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Facts of the case briefly stated is that the suit in question was

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Patna High Court SA No.3 of 2012 (5) dt.25-09-2013

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filed by the plaintiff who is the appellant before this Court seeking a declaration as to their title over Schedule-A & B lands set out in the plaint together with a prayer for permanent injunction restraining the defendants from interfering with their peaceful possession. It is the case of the plaintiff that Schedule-A & B property belongs to the plaintiff no. 1. It is stated that Schedule-A property was settled in favour of the plaintiff no. 1 by the ex landlord upon payment of Salami and whereafter he came in exclusive possession of the said property. It is further stated that upon vesting of the Zamindari the name of the plaintiff no. 1 was mentioned as a settlee in the returns filed by the ex landlord and consequent whereupon his name was entered in Register-2. It is further their case that the plaintiff is regularly paying rent and receipts have been granted by the State of Bihar. Insofar as the Schedule-B property is concerned, it is the case of the plaintiff that the land was barren and that he has changed its nature by his hard labour and is in possession since 80 years to the knowledge of all. It is further their case that it is only on 15.12.1999 that they became aware that the land was recorded as Gairmajarua Malik, Bihar Sarkar in the revenue records giving a cause of action to maintain the suit. Setting up a case of settlement insofar as Schedule-A land is concerned and a title by adverse possession

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Patna High Court SA No.3 of 2012 (5) dt.25-09-2013

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insofar as Schedule-B land is concerned, the suit was set out together with a prayer for injunction. The defendants including the State of Bihar and its functionaries appeared and filed their pleadings. The suit was decreed in favour of the plaintiff. The State as well as the private defendants being aggrieved by the judgment and decree dated 22.02.2003 passed by Munsif-1^st Sasaram in Title Suit No. 110 of 1996 preferred separate appeal giving rise to Title Appeal Nos. 35 of 2003 and 45 of 2003. The learned Additional District and Sessions Judge, F.T.C.-V, Rohtas at Sasaram vide judgment and decree dated 31.5.2005 allowed the appeals thus reversing the judgment and decree passed by the trial court and the matter was remitted back to the trial court for disposal in accordance with law. It is a matter of record that no appeal was preferred by the appellant as against the judgment and decree passed in Title Appeal Nos. 35 of 2003 and 45 of 2003. Upon remand of the matter, the trial court by the judgment and decree dated 25.8.2006 again decreed the suit in favour of the plaintiff. The private defendants who are settlees by the State of Bihar under the provisions of Bihar Privileged persons Homestead Tenancy Act, 1947 (hereinafter referred to as ‘the Act’), preferred Title Appeal No. 84 of 2006 and the learned 2^nd Additional District Judge, Rohtas at Sasaram vide judgment and decree dated

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Patna High Court SA No.3 of 2012 (5) dt.25-09-2013

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22.09.2011 has partly reversed the judgment and decree of the trial court. While upholding the findings of the trial court as regarding the suit property described in Schedule-A, the learned appellate court has reversed the judgment of the trial court insofar as Schedule-B property is concerned and while upholding the claim of the defendants-appellants in Title Appeal the appellate court below has held their right, title and interest over the Schedule-B property to the extent of six decimals as per the purcha issued by the State of Bihar under the Act. The plaintiffs being aggrieved by the part of the judgment passed by the appellate court below as regarding the Schedule-B property is in appeal before this Court.

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I have heard learned counsel for the appellant and I have perused the materials on record. Learned counsel appearing on behalf of the appellant has submitted that even while it has been the consistent plea of the plaintiffs that they have been in possession of Schedule-B property since last 80 years, the learned appellate court below has committed a serious error in reversing the findings of the trial court as regarding the Schedule-B property. It is further submitted by learned counsel that the settlement in favour of the defendant appellant was an illegal and fraudulent act.

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Although record of this appeal manifests that no substantial

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Patna High Court SA No.3 of 2012 (5) dt.25-09-2013

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question of law has been framed by the appellant but learned counsel was permitted to frame his issue arising in the present appeal during the course of arguments. Of the two issues framed which have been taken note of hereinabove, insofar as the issue of adverse possession is concerned, the judgment and decree of the courts below manifests that there has been variance in the stand taken by the appellant. Whereas in the plaint it has been stated by the plaintiffs that they have been in continuous possession of the Schedule-B land since last 80 years but during the course of deposition the plaintiff no. 1 who has deposed as P.W. 9 has stated that he is in possession of Schedule-B land since more than 50 years. Thus no definite stand has been taken by the plaintiffs as regarding the exact date on which they came over the possession of the Schedule-B property. It is by now well settled that a party claiming title by adverse possession has to set out the exact date since when he claims possession over the schedule property which is conspicuously missing in the present case and even the evidence are not supportive thereof. A title by adverse possession is an issue of fact and has to be proved by leading evidence. The plaintiffs have completely failed in this endeavour as is reflected from the judgment of the appellate court. Even the so called challenge to the settlement of the private defendants

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Patna High Court SA No.3 of 2012 (5) dt.25-09-2013

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under the provisions of the Act does not withstand the bar created under Section 18 of the Act for all that the plaintiffs have claimed, is to declare the settlement as a fraudulent act. It is again a matter of record that no evidence was led by the plaintiffs to establish any fraud. In absence of any evidence to prove any fraudulent act on the part of the Collector, the plaintiffs cannot be permitted to question the same by filing the suit. The appellate court below relying upon the provisions of Section 18 of the Act as also taking note of the fact that there was complete absence of evidence to establish fraud, has rejected the plea of the plaintiffs and has upheld the settlement to the extent of 6 decimals. The judgment and decree of the appellate court in partially reversing the judgment and decree of the trial court insofar as Schedule-B property is concerned, while upholding the claim of the plaintiffs as regarding Schedule-A property suffers from no legal infirmity and this appeal failing to raise any substantial question of law is dismissed accordingly.

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(Jyoti Saran, J)

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S.Sb/-

Birendra Pandey v. the State of Bihar through Col

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Birendra Pandey v. the State of Bihar through Col

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