Displaced owner challenged tenant's title via a second appeal, questioning the jurisdiction of the Civil Court in light of fraud alleged in the grant of tenancy rights. The Court held the appeal was devoid of merit and dismissed it.
The appeal was dismissed as it was found to be devoid of merit.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.171 of 2010
====================================================== 1. Chiranjiv Khan 2. Deonjiv Khan Both sons of Late Haldhar Khan, resident of village/Mauza Kishunganj, P.S.- Kishunganj, District- Madhepura. .... .... Appellant/s Versus 1. Umakant Mishra 2. Shobha Kant Mishra 3. Navkant Mishra All sons of Lakshmikant Mishra 4. Sanjula Devi, wife of Late Mahakant Mishra 5. Shanti Devi, w/o- Mahanand Jha All residents of Pararia, P.S.- Bihariganj, District- Madhepura 6. Kranti Devi, wife of Chandrakant Choubey, d/o- Late Bhawani Mishra, r/o- Jhalari, P.S.- Udakishunganj, District- Madhepura. 7. Gita Devi, wife of Santosh Jha, d/o- Late Bhawani Mishra, R/oRampati,, P.S.- Singheshwar, District- Saharsa. 8. Munna Kumar Mishra 9. Sanjiv Kumar Mishra Both sons of Late Mahakant Mishra 10. Gunjan Devi, wife Pintu Mishra All residents of P.S-District- Saharsa. .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. K.K.Sinha ====================================================== CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL ORAL ORDER 12 07-07-2014 Defendants of Title Suit No. 10 of 1991 have filed the present appeal under Section 100 of the Code of Civil Procedure against the judgment and decree dated 16.02.2010 and 26.02.2010 respectively passed by learned 1st Additional District Judge, Madhepura in T.A. No. 22 of 2006 setting aside the judgment and decree dated 20.9.2006 and 16.10.2006 respectively passed by learned Trial Court in T.S. No. 10 of 1991.
For the sake of convenience, the parties shall be
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referred to by their status at the trial.
The original plaintiff Bhawani Mishra filed the suit for declaration of title and confirmation of possession in respect of the suit land and also prayed for a declaration that entry of the suit land in R.S. Khatyan in the name of father of the defendants as Sikmidar is illegal and not binding on her. A further declaration was sought that basgit purcha issued in the name of defendants in respect of suit land was inoperative, illegal and void not binding the plaintiff. She further sought a declaration that defendants are month to month tenant under the plaintiff and they are liable to pay the arrears of rent to the plaintiff and to vacate the suit premises within a stipulated period to be fixed by the Court failing which possession of the suit house be delivered to the plaintiff through the process of a Court. The plaintiffs also sought a direction to hand over the possession of the land adjacent to the house by removing the house of the defendants constructed during the pendency of the suit by encroaching lands of the original plaintiff. It is alleged that her husband namely Laxmi Kant Mishra died in 1983 leaving behind her (original plaintiff) and four sons in the state of partition.
It is alleged in the plaint that in the year 1958, a family partition amongst heirs of late Laxmi Kant Mishra i.e. the
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original plaintiff and her four sons had orally taken place and later on, a memorandum of partition was drawn on 05.09.1958. Accordingly, all parties to the partition came in separate exclusive possession over the land of their respective share. After the death of the husband the original plaintiff, she and her sons got a registered deed of partition prepared which was executed and registered on 9.6.1975. The original plaintiff was given 5 kathas 12 dhurs and 12 dhurkies of land in her exclusive share which contained the existing house and the vacant land wherein she has been living and no other person had any concern with the suit premises. Further case of the plaintiffs was that defendants are members of joint Hindu family and defendant no. 1 is the Karta whereof. The father of the defendants died in 1969 in the state of jointness with his sons. The defendants are permanent residents of another village called Chainpur and they have ancestral homestead lands at their native place. They also own and possess land and house at village Gwalpada. The father of the defendants had affinity with the husband of the plaintiff and he wanted to live at Kishunganj for the purpose of education of his children. The husband of the original plaintiff and the father of the defendants jointly approached the original plaintiff for providing accommodation to the father of the defendants on rent and she
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agreed and inducted Late Haldhar Mishra at monthly rent of Rs. 10/-. It was agreed by father of the defendants that he would hand over the suit house to the original plaintiffs if required by her. The defendants, therefore, continued in that house as month to month tenant and there was cordial relation between the family of the plaintiffs and Haldhar Mishra. Reposing faith in the defendants, the original plaintiff during R.S. operations entrusted the defendant the duty of getting her property duly recorded in her name but when R.S. Khatiyan was prepared and published, she came to know that Haldhar Mishra had dishonestly got recorded sikmi rights over her 11 decimals of land. When questioned, Haldhar Mishra advised her to institute a case under Section 106 of the B.T. Act wherein he would support her claim resulting in correction. The plaintiffs instituted a proceeding under Section 106 of the B.T. Act. The defendants cunningly took the soon of the original plaintiff in their collusion and applied before the Circle Officer, Kishunganj on 27.12.1976 for issuance of basgit purcha in their name over the land appertaining to plot no. 137/124 stating therein that the grandfather of Ramesh Mishra had provided land to them for their residence around 35 years ago. The basgit purcha for 11 decimals of land was got issued by playing fraud. She further averred that the sons of the original
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plaintiff were inimical to her. She asserted that no notice was ever issued to the original plaintiff. It was only issued to Ramesh Mishra, one of the sons of the plaintiff. She further alleged that basgit purcha was issued without complying the prescribed procedure of law and the same was not binding on the plaintiff(s). She further claimed that on 15 dhurs of suit land, there is house of the plaintiffs in which defendants are residing as tenants and 6 decimals of land was vacant and during the pendency of the suit, the defendants encroached the same and constructed house thereon. Subsequently, the defendants stopped payment of rent since December, 1986. In the month of November, 1990, the plaintiffs asked the defendants to vacate the house and also to pay the arrears of rent which was refused. It was, thus, averred that the defendants are defaulter in payment of rent and liable to be evicted. Since they refused hence the suit.
The defendants appeared and contested the suit. A written statement was filed wherein besides the objections as to the maintainability of the suit, a claim was raised that suit is barred by Section 18 of the Bihar Privileged Persons Homestead Tenancy Act. The claim of the plaintiffs that defendants were tenants was denied. The defendants also denied any partition in the family of late Laxmi Kant Mishra and that he died in state of partition with
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his wife and sons. The defendants averred that till life time of Laxmi Kant Mishra (husband of original plaintiff ), the family was joint and he was ‘Karta’. The case of the plaintiffs of oral family partition in 1958 followed by memorandum of partition on 5.9.1958 was denied. They also denied that on 9.6.1975 there was a registered partition amongst the original plaintiff and her sons. The defendants further stated that Laxmi Kant Mishra till 1976-77 sold his joint property to several persons through registered sale deed(s). The story of allotment of 01 bigha 8 kathas 5 dhurs land in old Khata no. 150, plot nos. 124, 125 and 5 kathas 12 dhurs and 12 dhurkies in plot no. 126 being allotted to original plaintiff was denied. The defendants also denied that original plaintiff constructed some house on 5 kathas 12 dhurs and 12 dhurkies of land. The case put up by the plaintiffs that defendants were month to month tenant was also denied. The defendants took a plea that father of the defendants had constructed a house on the suit property in 1941 and began to live therein for which husband of the original plaintiff never raised any objection. During R.S. operation, the survey authorities rightly recorded the name of the defendants finding their title and possession which was published on 11th October, 1977 which was within the knowledge of the original plaintiff but she did not raise any objection within 12
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years. The defendants, therefore, claimed to be the privileged tenants and that defendant no. 3 had purchased one and a half bigha land in 1977 whereas defendant no. 1 is landless. The defendants pleaded in the written statement that there was relationship of ‘ bahnoi’’ and ‘ shala’ between the husband of the original plaintiff and the father of the defendants and in the year 1941 finding the suit land completely vacant the father-in-law of the original plaintiff orally sold the suit land to the father of the defendants for a consideration of Rs. 80/- and came in possession whereof and the father of the defendants had constructed his house and began to live therein with his family. Payment of monthly rent was denied. Specific case of the defendants further was that a request was made to the original plaintiff and his son(s) to execute sale deed in respect of the suit property since the same was orally sold to the father of the defendants which was denied on the pretext that entries in the R.S. Khatiyan had already been made in favour of the defendants. Considering the attitude of the husband of the plaintiff, the defendants applied for ‘ basgit purcha’ and after due inquiry, the ‘ basgit purcha’ was issued to the defendants. The suit as framed was barred under Section 18 of the Bihar Privileged Persons Homestead Tenancy Act.
The learned Trial Court, on a consideration of rival
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pleadings of the parties framed diverse issues and permitted the parties to lead evidence. The plaintiffs examined as many as 14 witnesses besides exhibiting host of documents including Ext.6, the carbon copy of basgit purcha . The defendants examined six D.Ws and proved Exts. A, B, C, C/1 and D. The learned Trial Court finding Issues No. I, V, VII and VIII interlinked and core issues to be adjudicated at the trial considered them together in the light of oral and documentary evidence adduced by the parties and held that during R.S. operation, name of the father of the defendants was rightly recorded as sikmidar in respect of 11 decimals of suit land which was in the knowledge of the plaintiffs. The learned Trial Court found no cogent evidence of partition in the family and allotment of separate share to the original plaintiff in 1958 and as such, the case of the plaintiffs of induction of father of defendant as tenant in 1959 was not accepted. In grant of basgit purcha , no fraud was played on the authority. The plaintiffs had also failed to prove that the defendants purchased during the relevant time more than one acre of land. Having found so in paragraph 19 of the judgment, the Trial Court held that original plaintiff was never in exclusive possession of land of her share inasmuch as she did not induct Haldhar Mishra as the tenant. The defendant was having more than one acre of land was not proved.
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Since the defendants were not having any document of title, although in possession of land, they approached for grant of basgit purcha which was issued without playing fraud. Recording of sikmi rights of the defendants in R.S. Khatiyan also gave them a legal right for getting basgit purcha . The suit was thus found barred by Section 18 of the Bihar Privileged Persons Homestead Tenancy Act.
Aggrieved by the said judgment and decree of the learned Trial Court, the plaintiffs filed appeal vide T.A. No. 22 of 2006. The learned Lower Appellate Court reappraised the evidence on record led/adduced by the parties in the light of submissions adduced by them. The learned Lower Appellate Court took notice of the relevant issues framed by the learned Trial Court and the findings recorded therein. Issue nos. V, VII and VIII were found as the core issues on which parties were at variance. Having found so, the learned Lower Appellate Court considered the submissions of the parties, particularly, the contention of the defendants that jurisdiction of the Civil Court was barred under Section 18 of the Bihar Privileged Persons Homestead Tenancy Act. Having apprised itself of the legal principles enunciated in this regard, the learned Lower Appellate Court set out to consider whether in grant of ‘ basgit purcha’ , fraud was played by the
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defendants. The learned Lower Appellate Court kept in focus the case of the parties over oral partition between sons and wife of Laxmi Kant Mishra (original plaintiff) in the year 1958 followed by a registered partition executed on 9.6.1975. The case of the plaintiffs in the light of oral evidence of P.Ws. 8 and 11 and the original plaintiff herself was accepted. The case of the plaintiffs that after partition, she constructed residential structure and inducted father of the defendant on monthly rental basis was also accepted. Referring to the case of the defendant that in R.S. Khatiyan, suit land was recorded as ‘ Sikmi Dakhalkar’ relying on which the basgit purcha was got issued by the defendants was found wholly unsustainable in law being the result of fraud. Such basgit purcha was got issued on the pretext that father-in-law of the original plaintiff had sold the land orally for a sum of Rs. 80/whereon they were living by constructing Phus house. The learned Lower Appellate Court further found that in the basgit purcha’ case, Bhawani Mishra, the original plaintiff was never noticed by the Circle Officer. In the enquiry, one Ramesh Mishra, son of the original plaintiff who was said to have been gained over by the defendant was only noticed. Ramesh Mishra in the light of the evidence on record, particularly, batwaranama followed by registered deed of partition was not the owner of the suit property.
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The deed of partition having been entered between the parties was found above board. The learned Lower Appellate Court thus found that the procedure adopted in grant of basgit purcha was wholly contrary to the provisions of the Act and was, therefore, fraud on the power to grant such ‘ basgit purcha’ . The learned Lower Appellate Court, in particular, took notice of the fact that although pleaded the defendants failed to prove that Manan Mishra had orally sold the land to Haldhar Khan. Having held so, the findings recorded by the learned Trial Court on all core issues were held unsustainable in law and upturned. Accordingly, the appeal was allowed. Hence the appeal by the defendants.
Mr. Sinha, learned counsel for the appellants submitted that the appeal raises a legal issue of substantial nature and that is whether the findings recorded by the learned Lower Appellate Court that the suit was not barred under Section 18 of the Bihar Privileged Persons Homestead Tenancy Act is sustainable in law in the light of evidence on record. He, however, fairly submitted that if fraud was committed in obtaining basgit purcha , the Civil Court shall have jurisdiction.
I have considered the submissions and perused the judgments rendered by the two learned Courts below. The case of the defendants is that the suit land was orally sold by the father-in-
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law of the original plaintiff and sons to the father of the defendant. The heirs of the vendor were reluctant to execute and register a sale deed and as such, they approached the authority for grant of basgit purcha relying heavily on the entries of being ‘ sikmidar’ of the suit land recorded in the R.S. Khatiyan. In essence, the said stand of the defendant suffers from inherent contradiction. A claim of basgit purcha cannot be raised with a view to get title over the suit land. Such basgit purcha can be issued only when the applicant is found to be a privileged tenant and there was a relationship of landlord and tenant between the land owner and the applicant. Another plea of the defendants that they filed application for grant of ‘ basgit purcha’ on the ground that they were recorded as Sikmidar respecting the suit land during the R.S. operation was found wholly unsustainable in law by the learned Lower Appellate Court holding that such ‘ sikmi’ right is recognized only in respect of agricultural land and not homestead land. Admittedly, the suit land is house property and land appertaining thereto. The title of the original plaintiff over the suit land by virtue of partition having taken place in the family was found proved. It was further held that admittedly no notice of basgit purcha proceeding was ever issued to and served on the plaintiff(s). One of the sons of the original plaintiff was only
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noticed and according to the plaint the son was gained over by the defendants. Section 18 of the Bihar Privileged Persons Homestead Tenancy Act bars jurisdiction of the Civil Court but it further states in case of fraud committed in grant of such purcha no such rider exists. The case of the defendants that they held title over the land by virtue of oral sale made in their favour and subsequent refusal by the plaintiff to execute registered sale deed in respect of the suit land takes away a valid claim for being declared as privileged tenant. Further, if the laid down procedure for grant of basgit purcha has not been complied with as found by the learned Lower Appellate Court then the same would amount to a fraud in grant thereof. The inherent contradiction in the stand put up by the defendant in raising such claim the findings of the learned Lower Appellate Court cannot be said to be perverse and thereby raising a substantial question of law.
This Court, in view of the aforesaid, does not find any merit in the contentions of the appellants. The appeal being devoid of merit is dismissed.
(Kishore Kumar Mandal, J)
Pankaj/-
U T
2 issues framed by the court
Whether the suit for declaration of title and eviction is barred under Section 18 of the Bihar Privileged Persons Homestead Tenancy Act when fraud was committed in the grant of basgit purcha.
Whether the findings of the Lower Appellate Court regarding fraud in the grant of basgit purcha are perverse and raising a substantial question of law.
2 provisions across 2 enactments
Chiranjiv Khan & Ors.
Bhawani Devi & Ors.
Kishore Kumar Mandal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
