Dismissed

Ram Bachan Giri v. State of Bihar and Ors.

Patna HC15 Apr 2013SA/442/2011

Case brief

AI extract

What is this about?

In this second appeal, the Patna High Court dismissed the appellant's challenge to a title judgment. The court held that lower courts did not act perversely in rejecting the appellant's claim of possession, noting contradictory admissions regarding land surveys and time-bar defenses.

What did the court decide?

No relief. The second appeal is dismissed as it has no merit and does not involve a substantial question of law.

Ram Bachan Giri Vs State of Bihar and Ors. — Property and Title | Patna HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.442 of 2011

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====================================================== Ram Bachan Giri S/o Late Sukhdeo Giri, resident of village Alipur, PS Ramgarh, District Kaimur at Bhabhua

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.... .... Appellant Versus 1. State of Bihar through Collector, Kaimur at Bhabhua, PO & PS Bhabhua, District Kaimur at Bhabhua 2. Anchal Adhikari, Ramgarh, PS Ramgarh, District Kaimur at Bhabhua .... .... Respondents ====================================================== Appearance : For the Appellant : Mr. Mahesh Pd. II, advocate Mr. Rewati Kant Raman, advocate For the Respondents : Mr.

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

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Heard learned counsel for the appellant.

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7 15-04-2013

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In the present second appeal the appellant, who was plaintiff before the trial court, is aggrieved by the judgement and decree dated 26-05-2011 passed by learned Additional District Judge, Fast Track Court- II, Bhabhua in Title Appeal No. 67/ 2008/ 24/2010 whereby he dismissed the appeal and affirmed the judgement and decree dated 24-09-2008 passed by learned Additional Munsif- II, Kaimur at Bhabhua in T.S. No. 96/2001/ 6/08.

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The appeal has been placed before me for hearing under Order 41 Rule 11 of the Code of Civil Procedure.

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The plaintiff brought the suit for declaration of his title and confirmation of his possession over the suit land admeasuring 34 decimals appertaining to plot No. 439.

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The plaintiff’s case before the trial court was that he owned the suit property which according to him was ancestral property adjacent to the suit property. He owned R.S. plot No. 440

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area 8 decimals which also was his ancestral property. The said R.S. plot No. 439 was recorded in the name of his forefather in C.S. survey record. According to him, due to mistake of survey authorities, R.S. plot 440 was recorded as Gair Mazarua Malik in C.S. khatiyan bearing C.S. khata No. 28 plot 317, though the exlandlord never came in possession over the property.

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According to plaintiff, he filed a petition before the Circle Officer, Ramgarh for fixation of rent over the suit land who also, upon enquiry, found the plaintiff’s possession over the suit land but for certain reasons could not fix the rent. He also filed a petition before the Chakbandi Officer, Ramgarh for opening a khata vide case No.3/89-90 who too found possession of the plaintiff, upon enquiry, but could not open khata for want of documentary proof. He, however, recorded the disputed land in the name of State of Bihar. No further step was taken by the plaintiff thereafter. In the meanwhile, Chakbandi of Mauza Alipur was confirmed. In this way a wrong record of survey authority and Chakbandi authority cast cloud over the plaintiff’s title over the suit land. The plaintiff/ appellant after service of notice upon the respondents under section 80 of the Code of Civil Procedure filed the suit in such circumstance.

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The defendants, namely, Collector, Kaimur at Bhabhua and Anchal Adhikari, Ramgarh, Bhabhua, filed their written statement denying the plaintiff’s right, title and possession over the suit property. They pleaded, inter alia, that the suit was not only time barred, even the notice under section 80 of the Code of Civil Procedure was not validly served upon them. They pleaded that the suit land was recorded in C.S. khatiyan as Gair Mazarua Malik showing it to be vacant ( parti ) land and, therefore,

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denied possession of plaintiff’s forefather over the suit land. They also pleaded that the suit land was rightly recorded by the revisional survey authorities showing it in the name of Bihar Sarkar. The Chakbandi court too recorded the disputed land in the name of Bihar Sarkar. They also pleaded that there was absolutely no evidence that the ex-landlord ever issued any receipt of settlement in his favour. They disputed the plaintiff’s possession over the disputed land.

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Learned trial court on the basis of pleadings framed six issues including issues No. iii and iv which are the main issues and are being quoted hereinbelow:-

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“(iii) Whether the plaintiff has acquired right, title and possession over the suit land?

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(iv) Whether the plaintiff is on part possession on the suit land by constructing pucca house and remaining portion of the land is possessed by him by making boundary? ”

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With reference to the issues so framed, the parties adduced their evidence, both oral and documentary. On the basis of appreciation of such evidence on record, learned trial court held that the plaintiff failed to prove his right, title and possession over the disputed land. While holding so, learned trial court also recorded that the suit was hopelessly time barred as there was no document to show that the plaintiff ever raised any objection against revisional survey entries which were published in the year 1970.

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An appeal was preferred against the judgement of the trial court vide Title Appeal No. 67/ 2008/ 24/ 2010.

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On the basis of grounds taken in the memo of appeal and the evidence on record, learned first appellate court

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formulated two points for consideration :-

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“(a) Whether the appellant has been able to prove his right, title and possession over the disputed land admeasuring 8 decimals on the basis of it being his ancestral land?

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(b) Whether a pucca house constructed by the appellant is there on the suit land and he is using the remaining land by raising boundary?”

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Learned first appellate court also, after appreciating the evidence on record, concurring with the findings of fact arrived at by the trial court, recorded its independent finding that the plaintiff failed to prove his right, title and possession over the suit land. Considering point (b), as indicated above, learned first appellate court came to the finding that plea of the plaintiff was contradictory and he was not able to prove his possession over the suit property even on the basis of preponderance of probabilities. Learned first appellate court, accordingly, rejected the appeal.

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Learned counsel for the appellant has vehemently argued that learned trial court as well as first appellate court refused to consider the positive evidence of the plaintiff’s witnesses to support his possession over the suit property. He submitted that all these witnesses consistently deposed that the suit property was in possession of the plaintiff from time immemorial. He submits that learned first appellate court as well as trial court brushed aside the evidence showing plaintiff’s possession over the suit property on irrelevant considerations and, accordingly, the findings are perverse which, according to him, raises a substantial question of law within the meaning of Section 100 of the Code of

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Civil Procedure.

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He has placed reliance upon a judgement of this court reported in 2012 (4) PLJR 791 ( Jai Narain Mahton & Ors. v. Gopal Rai & Ors .) in order to contend that if the findings recorded by the courts below are perverse then the High Court can interfere and in exceptional circumstances the High Court can also re-appreciate the evidence on record.

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This is an admitted position that the plaintiff claimed title over the suit property on the ground that his forefather had been coming in possession over the same since before cadestral survey operation and an entry in C.S. khatiyan showing it to be Gair Mazarua Anabad was incorrect. The plaintiff also claimed that inspite of such entry he continued in possession and was in possession during revisional survey operation but even the revisional survey entry was wrongly made showing it to be in possession of Bihar Sarkar. On the one hand, while the plaintiff claimed title over the suit property on such plea, the plaintiff filed an application for settlement of the land before the Circle Officer on the other. It is the plaintiff’s case that the Halka Karmchari found the plaintiff to be in possession over the suit land.

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This is also not in dispute that even the Chakbandi Officer had recorded the disputed land in the name of Bihar Sarkar.

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Learned counsel for the appellant has referred to the oral evidence brought on record on behalf of plaintiff in course of trial. He would submit that all the witnesses supported the plaintiff’s case of his possession over the suit property. It seems that on appreciation of evidence on record keeping in mind the documentary evidence, particularly, the entries made by the

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revisional survey authorities, learned trial court as well as first appellate court did not believe the oral evidence, the same being contradictory and no independent witness coming forward to support the appellant’s claim of his possession over the suit property. From the judgment of learned trial court, it appears that it held that there was no paper on record to show that the plaintiff ever raised any objection against the revisional survey entries which was published in the year 1970. Learned trial court found the suit to be time barred. From the judgement of learned first appellate court, it will appear that it found contradictions in the statements of PW 1, PW 3 and the plaintiff/ appellant himself which has been discussed in paragraph 13 of the judgement of the first appellate court.

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In view of above, the judgement of learned first appellate court under challenge cannot be said to be perverse on the basis that views which learned first appellate court took was wrong, according to appellants. The findings being concurrent in nature need no interference, in the facts and circumstances of the case, in exercise of power under section 100 of the Code of Civil Procedure. The judgement of this court relied upon by learned counsel for the appellant will have no application in the present case as it does not constitute exceptional circumstances for interference in exercise of power under section 100 of the Code of Civil Procedure.

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This has been kept in mind that stand of the appellant has been shifting right from the very beginning as regards his nature of title over the suit property. On the one hand, he claimed to be in possession over the suit property from before cadastral survey operation, on the other hand, he applied for

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settlement of the land in his favour before the Circle Officer. On the one hand, he pleaded that entries in C.S. khatiyan and R.S. khatiyan were incorrect, contrary to the actual possession, on the other hand, the Chakbandi Officer has found the land to be in possession of Bihar Sarkar.

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Learned trial court has recorded in its judgement that the plaintiff was not claiming right and title by adverse possession and this aspect has not been disputed on behalf of the appellant.

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In view of above, the second appeal is dismissed as it has no merit and it does not involve any substantial question of law.

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(Chakradhari Sharan Singh, J)

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BKS/-

Ram Bachan Giri v. State of Bihar and Ors.

Case brief

What is this about?

What did the court decide?

Ram Bachan Giri v. State of Bihar and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Cases cited

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