Dismissed¶48

Md. Gafur @ Ghafur and Ors. v. Md. Ainuddin and Ors.

Patna HC12 Feb 2024SA/229/2015

Case brief

AI extract

What is this about?

Second Appeal dismissed at stage of hearing under Order XLI Rule 11 CPC for want of substantial question of law; concurrent findings of courts below on declaration of title, bataidar/bataidari claim, occupancy/statutory raiyat status after vesting of Zamindari, Ladavinama dated 04-06-1965 (Ext. B), registered sale deed dated 30-12-1975 (Ext. C), khatiyan/Revisional Survey entry, presumption of due execution of registered document unrebutted; references to Bihar Tenancy Act S.48D and S.48E (sikmi right) and Ceiling Act s.10(2); Patna High Court; Khatim Reza, J.; heard ex parte as respondents appeared through no counsel.

What did the court decide?

No substantial question of law is involved in the instant Second Appeal. ¶48

Md. Gafur @ Ghafur and Ors. Vs Md. Ainuddin and Ors. — Patna HC (2024) — LawSathi Research

¶1

IN THE HIGH COURT OF JUDICATURE AT PATNA SECOND APPEAL No.229 of 2015 Against the Judgment and Decree dated 25-07-2015 passed by learned District Judge, Purnea, in Title Appeal No. 26 of 2012 dismissing the appeal and thereby confirming the Judgment and Decree dated 01-05-2012 passed by Munsif Sadar, Purnea in Title Suit No 37 of 2007 dismissing the plaintiffs-appellants suit.

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=============================================== 1. Md. Gafur @ Ghafor

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Md. Basir

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Md. Jalaluddin

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All sons of Thithur Mian @ Thitharu Mian, Residents of Village Chakla, P.S. K. Nagar, District- Purnea.

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Sudama Khatoon wife of Md. Shamsuddin Resident of village and P.S. Shri Nagar (K. Nagar), District- Purnea.

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Md. Mansoor

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Md. Zabbar

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Md. Mehruddin

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Md. Saharuddin

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All sons of late Khalil ( All are legal heirs of late Zariwan Khatoon) Residents of Village- Rahuwa, P.S. Sadar District- Purnea.

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... ... Plaintiffs- Appellant/s

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Versus

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Md. Ainuddin son of late Amiruddin @ Fajiruddin

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Md. Aftab son of late Jainuddin

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Rabisa Khatoon wife of Late Jainuddin

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All resident of village Jotal Khai Tola, P.S. K. Nagar P.O. Rahuwa, District- Purnea

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... ... Defendants-Respondent/s

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=============================================== Appearance : For the Appellant/s : Mr. Mukesh Kumar Jha, Advocate For the Respondent/s : None. =============================================== CORAM: HONOURABLE MR. JUSTICE KHATIM REZA ORAL ORDER

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6 12-02-2024 Heard learned counsel for the appellants. No one ap-

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pears on behalf of the respondents.

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Patna High Court SA No.229 of 2015(6) dt.12-02-2024 2/10

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This Second appeal has been filed by the plaintiffsappellants against the judgment of affirmance.

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The matter arises out of Title Suit No. 37 of 2007, which was filed by the plaintiffs- appellants for declaration of title of the plaintiffs as rightful raiyat of the suit land being descendant of recorded raiyat. The said suit was dismissed by the learned Munsif Sadar, Purnea, vide Judgment and Decree dated 01-05-2012, which was challenged by the plaintiffs in Title Appeal No. 26 of 2012. After hearing the parties and considering the materials on record, the learned District Judge, Purnea, dismissed the appeal vide judgment and decree dated 25-07-2015. Against the aforesaid judgment and decree of the learned court of Appeal below, the instant Second Appeal has been preferred.

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The case of the plaintiffs- appellants is that the predecessor of plaintiffs was Bataidar under the ex-landlord/ khewatdar Sk. Saidur Rahman of the suit land, since Sk. Saidur Rahman was a big Zamindar of the area, having rent-bearing and non-rent bearing immovable properties in the area, where the suit land situated under ‘Budhaili Estate’. During vesting of Zamindari, the State of Bihar found the predecessor of the plaintiffs, namely, Thitharu Mian, was in possession over the suit land, and as such, treated the predecessor of plaintiffs as statu-

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Patna High Court SA No.229 of 2015(6) dt.12-02-2024 3/10

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tory raiyat and duly granted him status of ‘occupancy raiyat’. The Revisional Survey record of rights was prepared and published after acquisition of occupancy right to the said Thitharu Mian. Therefore, the R.S. record of right appertaining to suit land was duly recorded in the name of Thitharu Mian and since then he is duly recorded raiyat of the suit land.

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It is further case of the plaintiffs that the said Thitharu Mian and their descendants are poor, rustic, illiterate and ignorant person, hence he got no knowledge about the technicalities of revenue and settlement procedures. It is further submitted that Sk. Saidur Rahman, who is Khewatdar/Zamindar of the suit land had several immovable properties in the locality, which exceeds the limit decided to be held by an individual raiyat under the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter referred to as ‘ the Ceiling Act’) and, therefore, a Ceiling proceedings was initiated against the said Sk. Saidur Rahman, but he never claimed the suit land under the said proceedings as he has got reason to believe that the suit land does not belong to him in view of vesting of the suit land in the State of Bihar. Neither at the stage of proceedings under section 10(2) of the Ceiling Act nor at any subsequent stage of the Ceiling proceeding initiated

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Patna High Court SA No.229 of 2015(6) dt.12-02-2024 4/10

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between Sk. Saidur Rahman and his family members the suit land was ever claimed by Sk. Saidur Rahman and his family members and virtually they admitted right, title, interest and possession of the plaintiff over the suit land. All of a sudden, the defendants started giving threat of dispossession of the plaintiffs under the pretext that the rent receipt being granted in favour of the defendants. Upon inquiry, it comes that wrong and collusive Jamabandi was created in favour of the defendants without any legal basis, which is void in the eye of law. The plaintiffs have full right, title, interest and possession over the suit land. Hence, a suit has been filed by the plaintiffs- appellants for declaration of their title as rightful raiyat of the suit land being descendants of recorded raiyat.

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On summon, defendants have filed written statement besides the objection relating to maintainability, limitation, waiver and acquiescence. The defendants have denied the case of plaintiffs and stated that the description of the suit land given in Schedule-A read with para 1 of the plaint is vague and incomplete; the boundary of the suit lands is not mentioned in the plaint. It is true that said Sk. Sadiur Rahman was a big cultivator, but he never possessed khewat land nor he was the big Zamindar of the area.

¶32

Patna High Court SA No.229 of 2015(6) dt.12-02-2024 5/10

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It is false that predecessors of the plaintiffs were bataidar under Sk. Saidur Rahman; the plaintiffs deliberately omitted to disclose the name of so called predecessors of the plaintiffs, who were said to have been cultivating any land far less the suit land on Adhi batai under Sk. Saidur Rahman. It is true that during the Revisional Survey, the record of right of the suit land was prepared in the name of Thitharu Mian, but the same was prepared by the Survey Authorities in collusion with Thitharu Mian. The father of plaintiff Nos. 1 to 3 i.e., Thitharu Mian, never cultivated the suit land, and there is no averment or assertion of the plaintiffs in the plaint that Thitharu Mian ever paid rent either in cash or on produce of the suit land to Sk. Saidur Rahman or his son Samidur @ Samiur Rahman. When Samidur @ Samiur Rahman became ready to file suit against Thitharu Mian, Thitharu Mian apprehending the fact that he is not in cultivating possession of the suit land either under Sk. Saidur Rahman or his son Samidur @ Samiur Rahman, voluntarily executed a registered deed of Ladavinama on 04-06-1965, admitting the right title, interest and possession of the Samidur @ Samiur Rahman and also the fact that he is not in cultivating possession over the suit land. The said Samiur Rahman, who was in possession of the suit land, sold the same to Defendant

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Patna High Court SA No.229 of 2015(6) dt.12-02-2024 6/10

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No.1, namely, Md. Ainuddin and Md. Jainuddin, father of the defendant no.2 and husband of defendant no.3 for valuable consideration through registered sale deed dated 30-12-1975, and put the purchasers in possession. Since from the date of purchase, the defendant No. 1 and Md. Jainuddin, and after his death, his legal heirs, the defendant Nos. 2 and 3, are coming in possession over the suit land as absolute owner of the same. The name of defendants were mutated in the revenue records after due verification, and, thus, defendants are paying rent of the land to the State of Bihar.

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The learned Trial Court, after considering the averments of the parties and materials on record, has held that in the instant case, the onus to prove that Sk. Saidur Rahman was the khewatdar/Zamindar of the said suit land lies on the plaintiffs, the plaintiffs have not proved the same by any positive evidence and also held that the plaintiffs failed to prove the induction of their predecessors in interest as bataidar over the suit land, though it has been pleaded by the plaintiffs that the Thitharu Mian was the Adhi bataidar of the suit land, but during the evidence the plaintiffs showed their ignorance about the nature of bataidari. There is no evidence adduced on behalf of the plaintiffs to show that the said Thitharu Mian or the present plaintiffs

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Patna High Court SA No.229 of 2015(6) dt.12-02-2024 7/10

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have ever contacted the defendants either for fixation of the fair rent or any exemption for that. Except oral evidence, there is nothing on record to reflect the possession of the plaintiffs over the suit land. The learned lower court, after considering the evidence of the parties, has held that the Thitharu Mian was ever raiyat of the suit land under Sk. Saidur Rahman and Exhibit A series primarily shows that defendants are in possession of the suit land. The said Thitharu Mian has admitted in Exhibit B that “…. the vendor of the defendants are in possession of the suit land and his name has been wrongly entered in the Khatiyan during Revisional Survey”. Under the aforesaid circumstances, the plaintiffs have failed to prove that the said Thitharu Mian was the bataidar of Sk. Saidur Rahman, and, accordingly, the suit was dismissed.

¶39

Being aggrieved and dissatisfied with the said judgment and decree, the plaintiffs- appellants filed Title Appeal bearing Title Appeal No. 26 of 2012. After hearing the parties, the learned lower appellate court affirmed the judgment of the learned Trial Court.

¶40

Learned lower appellate court found and held that as per the plaintiffs in Column 8 of Exhibit 1, it is clearly mentioned that the holder of the land under Exhibit 1, i.e., Thitharu

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Patna High Court SA No.229 of 2015(6) dt.12-02-2024 8/10

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Mian is holding the land as batai 5/20 and after vesting of zamindari, he got the status of statutory raiyat. The Plaintiff No. 1 (PW3), has deposed on behalf of all the plaintiffs and stated the aforesaid facts in para 3 of his examination- in-chief, but in para 18 of his cross-examination, he has stated that “suit land was settled as sikmi; he does not know about the Ladavinama dated 04-06-1965, executed by Thitharu Mian in favour of Samidur @ Samiur Rahman (DW7) (Ext. B). The original copy of registered sale deed is dated 30-12-1975 executed by Samidur @ Samiur Rahman (DW-6) in favour of defendants (Ext.C). It is further held that the plaintiffs have failed to prove their possession over the suit land by cogent and convincing evidence. Exhibit C is the registered sale dated 30-12-1975. The plaintiffs have asserted that Exhibit B is the forged document. This issue has been dealt with by the lower appellate authority. There is a presumption that a registered document has been validly executed and the onus of proof will be on those who want to offset the above presumption. This presumption has not been rebutted by the plaintiffs during the trial. So far the effect of Exhibit B on the merit of the case is concerned, this document was executed by the person from whom the plaintiffs are said to have derived their interest in the subject matter of the suit. Exhibit A series

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Patna High Court SA No.229 of 2015(6) dt.12-02-2024 9/10

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shows that defendants are in possession of the suit land. In Exhibit B, it has been admitted by said Thitharu Mian that “the vendor of the defendants were in possession of the suit land and his name has been wrongly entered in the khatiyan during Revisional Survey.

¶45

Considering the aforesaid materials on record, the learned lower Appellate Court affirmed the judgment of the learned Trial Court. Both the learned Courts below, after considering the pleadings and evidence of the parties, came to a definite conclusion that the plaintiffs have failed to establish their case as bataidar since the suit is for declaration of rightful raiyati right only and in the instant case there was no case of any proceeding under Section 48D of the Bihar Tenancy Act. Moreover, a Sikmi right of a Raiyat is first to be determined under Section 48E and only then this right as occupancy right can be decided under Section 48D. There is no case of the plaintiffs with regard to Sikmi raiyat or kaimi Raiyat. Hence, the learned courts below came to the conclusion that the plaintiffs have failed to prove that the said Thitharu Mian was the bataidar of Sk. Saidur Rahman. However, the learned courts below have held that the claim of title and possession by the plaintiffs is inferior to that of the defendants, and the preponderance of proba-

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Patna High Court SA No.229 of 2015(6) dt.12-02-2024 10/10

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bility regarding title and possession is in favour of the defendants.

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Considering the aforesaid facts and circumstances as well as the materials on record, this Court does not find any illegality in the impugned judgment and decree of the learned courts below, nor does it find any substantial question of law involved in the instant Second Appeal, which is, accordingly, dismissed at this stage of hearing under Order XLI, Rule 11 of the Code of Civil Procedure.

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Pending Interlocutory Applications, if any, shall stand disposed of.

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(Khatim Reza, J)

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shyambihari/-

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Md. Gafur @ Ghafur and Ors. v. Md. Ainuddin and Ors.

Case brief

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Md. Gafur @ Ghafur and Ors. v. Md. Ainuddin and Ors.

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