Dismissed

Indradeo Sah v. State of Bihar and Ors.

Patna HC14 Jul 2014SA/152/2010

Case brief

AI extract

What is this about?

The Patna High Court dismissed this second appeal challenging title to land settled by a former estate landlord. Upholding concurrent findings that the State held title via vesting, the Court held the appeal lacked substance as findings were not perverse.

What did the court decide?

None granted. Appeal dismissed for failure to demonstrate that concurrent findings of fact were wholly perverse.

Indradeo Sah Vs State of Bihar and Ors. — Landlord and Tenant | Patna HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.152 of 2010

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====================================================== Indradeo Sah S/O Dular Sah @ Dular Kanu R/O Vill.- Gopalpur, P.S. Mejorganj, Distt.- Sitamarhi .... .... Plaintiff/Appellant/Appellant Versus 1. The State Of Bihar through the Collector, Sitamarhi 2. Anchal Adhikari, Mejorganj, Distt.- Sitamarhi … …Respondent/Respondent 1^st Party 3. Matuki Paswan S/O Kuer Paswan R/O Vill.- Gopalpur, P.S.- Mejorganj, Distt.- Sitamarhi 4. Ram Prasad Paswan @ Prasad Paswan S/O Kuer Paswan R/O Vill.Gopalpur, P.S.- Mejorganj, Distt.- Sitamarhi 5. Chhathu Paswan S/O Kuer Paswan R/O Vill.- Gopalpur, P.S.- Mejorganj, Distt.- Sitamarhi 6. Ram Janam Paswan S/O Raghunath Paswan R/O Vill.- Gopalpur, P.S.Mejorganj, Distt.- Sitamarhi 7. Ram Govind Paswan S/O Raghunath Paswan R/O Vill.- Gopalpur, P.S.Mejorganj, Distt.- Sitamarhi 8. Shambhu Paswan S/O Anant Paswan R/O Vill.- Gopalpur, P.S.Mejorganj, Distt.- Sitamarhi 9. Jura Paswan S/O Anant Paswan R/O Vill.- Gopalpur, P.S.- Mejorganj, Distt.- Sitamarhi 10. Kanta Paswan S/O Tapasi Paswan R/O Vill.- Gopalpur, P.S.Mejorganj, Distt.- Sitamarhi 11. Bhulan Paswan S/O Tapasi Paswan R/O Vill.- Gopalpur, P.S.Mejorganj, Distt.- Sitamarhi 12. Sujit Paswan S/O Jagdish Paswan R/O Vill.- Gopalpur, P.S.- Mejorganj, Distt.- Sitamarhi 13. Upendar Paswan S/O Jagdish Paswan R/O Vill.- Gopalpur, P.S.Mejorganj, Distt.- Sitamarhi 14. Saya Devi W/O Late Jagdish Paswan R/O Vill.- Gopalpur, P.S.Mejorganj, Distt.- Sitamarhi 15. Mina Devi D/O Late Jagdish Paswan R/O Vill.- Gopalpur, P.S.Mejorganj, Distt.- Sitamarhi 16. Lal Babu Paswan S/O Late Jagdish Paswan R/O Vill.- Gopalpur, P.S.Mejorganj, Distt.- Sitamarhi .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. S.P. Singh Sr. Advocate Ratan Kumar Sinha ====================================================== CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL ORAL ORDER

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Patna High Court SA No.152 of 2010 (13) dt.14-07-2014

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The plaintiff of the suit is the appellant of the present appeal filed under section 100 of the Code of Civil Procedure aggrieved by the judgment and decree dated 28.01.2010 and 15.02.2010, respectively passed in Title Appeal No.60 of 2005/08 of 2006 by the learned Addl. District Judge F.T.C. 3, Sitamarhi affirming the judgment and decree passed by the learned Sub Judge Sitamarhi in Title Suit No.209 of 1994.

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13 14-07-2014

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For the sake of convenience, this Court would refer the parties as they stood before the trial court.

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The plaintiff filed the suit for declaration of his title and confirmation of possession over the suit land and further for setting aside the wrong entry made in the name of the State of Bihar as the settlement of the suit land was made by the State of Bihar on the basis of those entries. The case of the plaintiff, in short, is that his father got settlement of the suit land from the ex landlord of Bettiah Estate in the year 1947 which was a Gairmazrua Malik land of C.S.P. Nos.303 & 73. After vesting of Zamindari return was filed in the name of the father of the plaintiff who continued in possession. Out of the suit land some land was transferred by the plaintiff. Again in the year 1953 the plaintiff and his brother sold 10 katha of land to one Kedar Jha by registered deed inasmuch as the plaintiff donated a portion of

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Patna High Court SA No.152 of 2010 (13) dt.14-07-2014

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land to the State Government for the purpose of school. Part of the land was acquired by the State for construction of road for which compensation was paid. The remaining portion of the suit land during the course of revisional survey was wrongly recorded in the name of the State of Bihar showing forceful possession of the plaintiff over the R.S.P. Nos.578 and 285 measuring an area of 28 decimals and 22 decimals respectively. In the consolidation proceeding a petition for correction of wrong survey entry was filed and rejected whereagainst an appeal before the DDC was filed which was allowed. No appeal/revision thereagainst was preferred. The State Government on the basis of the wrong entry settled the land with the defendant 2^nd set. As soon as the plaintiff became aware of such settlement he filed an objection which was dismissed and hence suit.

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Defendant nos. 1 and 2(the settles) filed written statement opposing the relief. According to the defendant(s), C.S.P. Nos. 73 and 303 were Gairmajura land of Zamindar namely Bettiah Raj who had no right to settle the land in favour of the plaintiff inasmuch as no document was filed to support the case of the plaintiff that the same was settled and the name of the settlee was recorded in the „sirista‟ of ex landlord and rent thereof was received . There is also no evidence that the name of the plaintiff

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Patna High Court SA No.152 of 2010 (13) dt.14-07-2014

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was ever recorded in the records of right of the State after vesting of Zamindari. The return filed in favour of the plaintiff was denied. The defendant(s) also denied the sale deed executed by the plaintiff in favour of Kedar Jha in 1953. The defendant(s) alleged that it was well within the knowledge of the plaintiff that Khatiyan was prepared in the name of the State of Bihar. The jurisdiction of the consolidation court to pass any order was disputed. The land admittedly being the Gairmajarua land till the vesting of Zamindari vested in the State of Bihar under section 4 of the Bihar Land Reforms Act.

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On a consideration of the case of the parties, the learned trial court framed diverse issues. Issue nos. III,IV and V being the core issues framed by the learned trial court are enlisted hereinbelow:-

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“(III) Whether the plff. has got right, title, interest and possession over the subject land?

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(IV) Whether the settlement order passed by defdt. Ist party in favour of defdt. 2^nd party is legal, forcible and within jurisdiction?

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(V) Whether R. S. Khatiyan as prepared is correct?”

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Patna High Court SA No.152 of 2010 (13) dt.14-07-2014

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The learned trial court while considering the issue no. III found that the Estate of Bettiah during the relevant time was under court of wards and therefore had no jurisdiction to settle even orally the suit land without the consent of the court of wards. While considering issue No. IV it held that the same was barred by limitation. Dealing with issue No. V the learned trial court on the basis of the evidence on record held against the plaintiff. The suit was accordingly dismissed.

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Aggrieved by the judgment and decree passed by the learned trial court the plaintiff filed appeal. Considering the submissions of the plaintiff the learned lower appellate court formulated two points viz. whether the plaintiff-appellant had right, title and interest over the suit land and whether the suit as framed was barred by limitation. Both the points formulated were answered against the plaintiff and the judgment and decree passed by the learned trial court was affirmed. Aggrieved thereby, the present appeal has been filed.

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Heard Mr. Ratan Kumar Sinha in support of the appeal. It has been submitted that the judgment under appeal is vitiated on account of non consideration of Ext. 3/b, Ext.9, Ext. 13 and Ext. 14 in right perspective. Ext. 3/b is the sale deed executed in 1953 by the plaintiff in favour of Kedar Jha. Ext.9 is the order passed

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Patna High Court SA No.152 of 2010 (13) dt.14-07-2014

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by the consolidation authority. Ext. 13 is the notice issued to the plaintiff in land acquisition case whereas Ext.14 is the document showing payment of compensation for acquisition of the land of the plaintiff. Counsel for the appellant has also in this regard relied on Ext. 12 which is the document by which certain portion of the land covered by oral settlement was donated in favour of the State of Bihar.

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On conspectus of the pleadings, the learned trial court framed diverse issues of which issue Nos. II, IV, and V were found the core issues. The trial court concluded that that most important and vital point to be considered and decided in the case was whether the plaintiff had valid title on the basis of oral settlement made by the ex landlord. In order to appreciate the fulcrum of dispute on this point issue no. III was first addressed in the light of the evidence adduced by the parties. The learned trial court found that, according to the plaintiff, in the year 1947, i.e. Fasali 1354, the father of the plaintiff had taken settlement of 08 kathas of land in C.S.P. No.303 and 01 bigha, 06 katha and 03 dhurs in C.S.P. No.73 for agricultural purposes from the ex landlord who had granted receipts. In this way, the father of the plaintiff claimed to be in possession of 02 bigha, 02 katha and 03 dhurs of land under C.S.P. Nos. 73 and 303. The trial court,

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Patna High Court SA No.152 of 2010 (13) dt.14-07-2014

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however, found that R.S. Plot Nos.671/1155, 585 and 578 were not carved out from C.S.P. Nos.73 and 303. The case of the plaintiff that the suit land was settled on payment of „Nazrana‟ by the father of the plaintiff was required to be proved but no paper/document worth the name was filed by the plaintiff to establish the said factum. There was no evidence either on the point that the father of the plaintiff had paid „Nazrana‟ or the rent to the ex landlord against the rent receipts. In this context, the learned trial court referred to the deposition of P.W.11 who admitted in cross examination that settlement was not made before him and as such he had not seen any paper relating to the settlement. The trial court found that the plaintiff did not examine himself in the case to prove the case at the trial. His non examination was treated as an adverse circumstance by the learned trial court. Dealing with return (Ext.11) the court below found that it was not a substantive piece of evidence of title. It was only a corroborative evidence. The sale deed (Ext. 3/b) and the gift deed (Ext.12) made by the plaintiff would only demonstrate the conveyance of part of the land under C.S.P. No.303 and C.S.P. 659 and recitals therein would show that the plaintiff was in possession of the land. The plaintiff did not assert his title in the aforesaid deed(s) as to the manner in which the vendor acquired

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Patna High Court SA No.152 of 2010 (13) dt.14-07-2014

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title over the same. The plaintiff being alive had not turned up to support the assertion made in the aforesaid deed. The lower appellate court on reappraisal also found that entry in the records of right only gives rise to a presumption which was rebuttable. The genuineness of Ext. 3/b was also found doubtful since the plaintiff transferred 10 kathas of land in C.S.P. No.303 whereas in the plaint it was stated that C.S.P No.558 was carved out from the aforesaid land which was disputed by the defendant(s). Dealing with the award (Ext. A) in relation to C.S.P. Nos. 671/1155 along with other land it was found that a notice was given to the plaintiff by the District Land Acquisition Officer and the award was prepared in the name of the plaintiff. The lower appellate court found that any person in exclusive possession of the land sought to be acquired is prima facie entitled to compensation. In this regard, the learned lower appellate court has referred to the ratio laid down in AIR 1967 S.C. 1134. It was thus concluded that payment of compensation in the land acquisition proceeding would not necessarily mean that the person receiving compensation had unquestionable title over the land. Similarly, the learned lower appellate court dealt with Ext. 9 and Ext. 9/a which are the orders passed in the consolidation proceeding allowing the appeal of the plaintiff against the order

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Patna High Court SA No.152 of 2010 (13) dt.14-07-2014

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passed by the Consolidation Officer in Consolidation Case No.137 of 1985 whereby the lands of R.S.P. Nos. 671/1155,578,585 were directed to be expunged from khata no.236 standing in the name of the State of Bihar. The case of the defendant/respondents that after confirmation of Chak the Deputy Director of Consolidation had no jurisdiction to pass any such order in violation of section 10A of the Consolidation Act was accepted by the court. It was not a case of simple partition. Ext. 9 was therefore found of no consequence to decide the claim of the plaintiff. Even otherwise a serious question of title could have been raised before the civil court only. The learned appellate court further found that the procedure/process adopted by the consolidation authority was grossly contrary to the provisions of the Consolidation Act. The learned lower appellate court therefore held that those orders passed by the consolidation authority were manifestly not in accordance with law and thus binding on the defendants. The learned lower appellate court also found that according to the case of the plaintiff also the land under C.S.P Nos. 73 and 330 was Gairmajarua land and was recorded as such under C.S. Khata No.77 and in terms of the provision contained in section 3 of the Bihar Land Reforms Act upon vesting of Zamindai those lands vested in the State of Bihar

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Patna High Court SA No.152 of 2010 (13) dt.14-07-2014

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and accordingly R.S. khatiyan was rightly prepared in the name of the State of Bihar. Having held as above, the appeal was dismissed.

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In view of aforesaid the submissions of the appellant that relevant document as noticed hereinabove were not considered by the court below in right perspective are not well founded. Concurrent findings of fact recorded by the two courts below on crucial issues/points cannot be interfered with by this court unless the appellant is able to demonstrate that they are wholly perverse. Reference in this regard may be made to the case of Viddyadhar vs. Manik Rao, (1999) 3 SCC 573 and the case of Abdul Rahim vs. Karnataka Electricity Board, (2007) 14 SCC 138 wherein it has been held that the High Court in a second appeal should not disturb the concurrent findings of fact unless they are demonstrably shown to be perverse being based on no evidence or that on the evidence on record no reasonable person could have come to that conclusion. Simply because another view based on evidence on record is possible the High Court would not be entitled to exercise the jurisdiction under Section 100 of the Code of Civil Procedure.

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The contention of the appellant that relevant document filed on their behalf were not considered by the court below is not

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Patna High Court SA No.152 of 2010 (13) dt.14-07-2014

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supported by the consideration made in the judgment under appeal. The conclusions drawn therefrom would not be a question of substantial nature for consideration by this Court.

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The appeal is found devoid of raising any substantial question of law. Dismissed.

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(Kishore Kumar Mandal, J)

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HR/-

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Indradeo Sah v. State of Bihar and Ors.

Case brief

What is this about?

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Indradeo Sah v. State of Bihar and Ors.

Case brief

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