Unknown vs The State Of Bihar (Now Jharkhand) ...
2022 Latest Caselaw 2932 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
          Second Appeal No. 145 of 2007

1(a)   Lakhpati Devi
1(b)   Raman Raj Singh
1(c)   Radha Mohan Singh
1(d)   Umesh Singh
1(e)   Bharat Singh                                   ....   .... Appellants
                               Versus
The State of Bihar (now Jharkhand) represented by
Deputy Commissioner, East Singhbhum               ....  ....   Respondent
                               ------

CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

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For the Appellants              : Mr. Amar Kumar Sinha, Advocate
                                  Mr. K.K. Ambastha, Advocates
For the Respondent              : Mr. Mukesh Kr. Sinha, Sr. S.C.-I

C.A.V. ON 07.04.2022                            PRONOUNCED ON 01 .08.2022

1. The plaintiff is in appeal before this Court against the judgment and decree of dismissal of the suit and its affirmance by first Court of Appeal.

2. The plaintiff filed the suit for declaration of right, title and interest and for permanent injunction restraining the defendant from interfering with peaceful possession of the plaintiff in respect of the area 1.23 acres of land under Plot No. 1446 of Khata No. 372, Thana No. 1163, Mouza Kalimati fully detailed in Schedule A of the plaint.

3. Case of the plaintiff in brief is that the suit land was settled orally by Pradhan Hindu Ho of Kalimati who was tenure holder of Mouza Kalimati and after settlement delivery of possession was made in his favour and the rent was realized from the plaintiff since the year 1948 till his tenure vested to the State of Bihar under BLR Act. In the survey of 1964, out of the said land of R.S. Plot No. 573 two plots were carved out namely 1446/93 under Khata No. 64, area 0.65 decimals and Plot No. 1446, area 1.23 acres under Khata No. 372. Plot under Khata No. 64 came in the name of Sita Ram Mistry and others and the land under Khata No. 372 was recorded in the name of Bihar Sarkar. It is contended on behalf of the plaintiff that the said entries in the name of Bihar Sarkar was wrongly made. The plaintiff filed the Title Suit No. 493/67/223/69 in the court of Munsif, Jamshedpur against Sitaram Mistry and others for declaration of title and delivery of possession of R.S. Plot No. 1446/1893 of Khata No. 64 of Mouza Kalimati. The said suit was decreed in favour of the plaintiff and was duly mutated vide Mutation Case No. 05/97-98. Thus, part of the suit land settled by the Pradhan Hindu Ho in favour of the plaintiff attained its

finality with the decree of the civil court. The present suit is with respect to the remaining part of the settled land which was filed by the plaintiff consequent upon the initiation of BPLE Case No. 19/98-99. In this BPLE proceeding continuous possession of the plaintiff for last 38 years was recognized and thereafter the plaintiff applied for fixation of Rent Case No. 20(A)/2000-01 to the LRDC, Dalbhum at Jamshedpur which is still pending.

4. The defendant State of Bihar appeared but did not file the written statement which was consequently debarred from filing the written statement.

5. Learned Trial Court dismissed the suit of the plaintiff on the ground that the land was claimed to be settled in the year 1948 but not a single document had been filed with regard to settlement or continuous possession of the suit land. It has also been held that the suit of the plaintiff is barred by limitation. From Ext.1 it was apparent that the suit property was recorded in the final publication of survey in the year 1964 and the suit ought to have been filed in the year 1976 but the present suit has been filed in the year 2003. Therefore, the suit was hopelessly barred by limitation.

6. Learned First Court of Appeal concurred with the judgment of the Trial Court and dismissed the suit. The line of reasoning for dismissing the suit was accepted. On limitation it was held that the right to sue accrued to the plaintiff in the year 1966 and not in the year 2002 as claimed by the plaintiff. Plaintiff was fully aware about the so called wrong entries as he had filed the suit against one Sita Ram Mistry and ors in the year 1967 being Suit No. 493/67 on the ground of wrong entry made in the record of right and second right to sue accrued to the plaintiff on the institution of B.P.LE Case No.19 in the year 1998-99. Therefore, it was factually incorrect to assert that the right to sue accrued in the year 2002.

7. The instant appeal has been admitted to be heard on the following substantial questions of law:

I. Whether both the courts have committed error of law in holding that the suit for declaration is barred by limitation? II. Whether the court of appeal below is correct in law in holding that a suit for declaration with injunction is not maintainable without seeking relief of confirmation of possession?

8. With regard to the limitation matter it is argued that under Article 58 of the limitation Act, limitation will run from the date when the right to sue accrues first. The cause of action arises only when the denial occurs and the plaintiff has

knowledge of the same. It is argued that mere publication in the record of right does not give rise to cause of action and limitation shall not run from that date.

Reliance has been placed in i. 1930 0 Supreme (SC) 61 ii. 1992 0 Supreme (Gau) 113 iii. 1996 0 Supreme (SC) 1179 iv Daya Singh v. Gurdev Singh, (2010) 2 SCC 194 :

9. A similar view was reiterated in C. Mohammad Yunus v. Syed Unnissa [AIR 1961 SC 808] in which this Court observed: (AIR p. 810, para 7) "7. ... The period of six years prescribed by Article 120 has to be computed from the date when the right to sue accrues and there could be no right to sue until there is an accrual of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that right."

The Hon'ble Supreme Court held that the cause of action for the purposes of Article 58 of the Act accrues only when the right asserted in the suit is infringed or there is at least a clear and unequivocal threat to infringe that right. Therefore, the mere existence of an adverse entry in the revenue records cannot give rise to cause of action.

10. On the other hand it is argued on behalf of the state that suit of the plaintiff is not maintainable on merit and is also barred by limitation. On merit, claim of title is made on the basis of oral settlement without any evidence in support of it that after the said settlement the plaintiff ever came in possession of it. Not a chit of paper has been filed on behalf of the plaintiff on the claim of title on the basis of settlement and subsequent possession. Two revenue receipts, which is hardly legible, purported to be issued by the ex-tenure holder has been filed on the basis of which the claim of title and possession is made. The plaintiff had full knowledge of the final publication of record of right in the year 1966, but for reasons best known to him no suit was filed within the period of limitation with respect of this land when the suit without impleading state as a party was filed against one Sita Ram Mistry.

11. Having heard the rival submission on the substantial question of law on the point of limitation, there cannot be any doubt over the settled legal position of law that the question of limitation is mixed question of law and fact. Not only in a suit for declaration of title under Section 34 of Specific Relief Act, but also in a suit for declaration of title and permanent injunction Article 58 will apply which provides three years when the right to sue first accrues. When the right to sue commences

shall depend on the facts and circumstance of each case. It is also well settled that the right to sue would accrue when the plaintiff gets knowledge of the denial of title or by infringement of any right. It is true that mere adverse entry in the record of right does not give rise to any cause of action. But here the question is not of any adverse entry as there had never been any entry in the name of plaintiff at all.

The claim of title is on the basis of oral settlement and the petitioner's name had never been entered into the record of rights. There is no evidence that after vesting with coming into force of the Bihar Land Reform Act in 1956 the plaintiff was ever accepted as a tenant and rent was received from him.

12. In 1964, land survey operation was conducted and in the final publication in the year 1966 the suit land was recorded as Govt land gairabaad Bihar Sarkar. Plaintiff had full knowledge about the entries which were made after 1964 survey. As per the plaintiff's case itself in the survey of 1964, out of the said land of R.S. Plot No. 573 two plots were carved out namely 1446/93 under Khata No. 64, area 0.65 decimals and Plot No. 1446, area 1.23 acres under Khata No. 372. Plot under Khata No. 64 came in the name of Sita Ram Mistry and others and the land under Khata No. 372 was recorded in the name of Bihar Sarkar. The plaintiff filed Title Suit No. 493/67/223/69 in the court of Munsif, Jamshedpur against Sitaram Mistry and others for declaration of title and delivery of possession of R.S. Plot No. 1446/1893 of Khata No. 64 of Mouza Kalimati but omitted to file any suit with respect to land appertaining to Khata no372. Under these circumstances can the plaintiff feign ignorance about the wrong entry and wait for more than three decades to file suit claiming it inter alia on the ground of adverse possession? I am of the view that he cannot for the reason that this was fully within his knowledge and yet he failed to bring the suit and therefore the suit is barred by limitation.

13. Further, survey operation follows an elaborate procedure giving parties concerned to raise objection against draft and final publication. After preliminary publication draft record of right is published under Section 83 of the CNT Act to consider the objection with respect to any entry made. After considering such objections final publication of record of right is made. Under Section 87 of the CNT Act a suit may be instituted before a revenue officer at any time within three months from the date of the certificate of final publication of the record of Rights under Sub- section 2 of Section 83 for the decision of any dispute regarding an entry which a revenue officer has made in, or any omission he has made in the record of rights. Whether such dispute be-

(e) as to any question relating to the title in land or to any interest in and as between the parties to the suit; or

(f) as to any other matter; and the revenue officer shall hear and decide the dispute.

Here the plaintiff has not filed any objection at any stage or has taken recourse to different statutory provision for raising objection to the said entries. Commencement of limitation in a suit for declaration depends primarily on the facts and circumstance of the case which depends from case to case.

14. A brief discussion on the merit is called for to fully appreciate the facts of the case. The foundation of claim of title of the plaintiff is based on oral settlement made by the ex-landlord at the twilight stage of coming into force of the Bihar land Reforms Act and abolition of intermediary interest of the tenure-holders. Settlement of land by the tenure-holder was an attribute of right of the tenure-holder to bring uncultivated area under cultivation and thereby augment the land revenue to be paid. Settlement being in the nature of agricultural lease it was necessarily to be registered under Section 17 (1) (b) of the Indian Registration Act and if it was not registered it cannot be accepted as a document of title. It has been held in Mt. Ugni v. Chowa Mahto, AIR 1968 Pat 302 at page 307 a settlement need not be in all case be registered and if there is evidence of possession followed by settlement, then it can be accepted as a valid document of creation of raiyati interest. Their lordship held as under:

8. On the basis of the aforesaid principle, the Patna High Court has, in several decisions, held that, if a person claims to have obtained raiyati interest by virtue of an unregistered document and further asserts that he came into actual possession of the same and has continued in such possession and that his payment of rent has been accepted by the landlord, his title to raiyati interest must be recognised, even though the unregistered lease is inadmissible as evidence of title. The leading judgment in support of this view is AIR 1924 Pat 641. In that decision, the learned Judges, after stating at pages 642 and 643 that a lease of immoveable property, if reduced to writing, must be registered, and, if not registered, oral evidence as regards the terms of the document will be inadmissible by virtue of Section 91 of the Evidence Act, further pointed out at in page 643 that, "if the subsequent acts of the parties themselves disclose a state of affairs consistent only with the existence of agreement mutually recognised and acted upon as if the instrument were binding then, although the written document may be defective as a valid and finally concluded agreement, such defects may be supplied by the subsequent acting and conduct of the parties". In Mohammad Hanif v. Khairat Ali, AIR 1941 Pat 577, on which Mr. Prem Lall for the appellants relied, it was held that an unregistered written lease will not suffice to give title unless the lessee has been put in possession of the land. Fazl Ali, J. (as he then was), who heard the case on a difference of opinion between Meredith, J. and Agarwala, J. took care to specially lay down at page 591:

"The plaintiff, having specifically pleaded that there was written unregistered lease in his favour, cannot be allowed to set up the case of an oral lease though he could

have, even apart from the unregistered lease relied on his tenancy right, if he had been let into possession."

17. The unregistered hukumnama, though inadmissible, could be looked into to show the nature and character of possession. Oral evidence of the terms of the lease will not be admissible; but, independent of the hukumnama, the rent receipts themselves indicate the rate of rent, the area and the nature of the right of the lessee. Hence, independent of the hukumnama, the terms of the raiyati settlement were inferable from other pieces of evidence, which were rightly relied on by the lower appellate court. There is no error of law that would justify our interference in second appeal.

15. Here in the present case the claim of title precariously rests not on any registered or unregistered settlement deed, but on an oral settlement of land in favour of the plaintiff without any supporting evidence of settlement or possession followed by it.

A detailed procedure has been laid down for determination of fair and ground rent from Rules 6 to 7-I of the Bihar Land Reforms Rules, 1951. Rule 6 provides that in determining the rent payable by a proprietor or tenure-holder in respect of lands i n his possession under Section 6, the Collector shall have regard to the average rate of rent.

Rule 7 B deals with the form and manner of application under form K by the outgoing proprietor of tenure holder of an estate or tenure vested in the State.

Rule 7 C provides that separate proceeding to be started in each case.

Rule 7 E makes provision for holding enquiry, irrespective of any claim or objection. As per this enquiry a report has to be prepared by the Collector himself or through a Circle Inspector and prepare a report to include the description and extent of lands used for agricultural or horticultural purposes, referred to in Sub- section 1 of Section 6, which are found on enquiry to have been in Khas possession of the outgoing proprietor or tenure-holder on the date of vesting.

(i) Description and extent of the proprietor's private land under a temporary lease.

(ii) Description and extent of the landlord's previous lands under a temporary lease.

(iii) Description and extent of lands used for agricultural or horticultural purposes, referred to in Clause (b) of subsection 1 of section 6.

(iv) Description and extent of lands used for agricultural or

horticultural purposes and in the possession of a mortgage, referredto in close C of subsection 1 of section 6 which are found on enquiry to have been in Khas possession of outgoing proprietor or tenure holder immediately before the execution of the mortgage bond.

(v) Description and extent of buildings or structure together with the lands on which they stand etc. Rule 7-G- The collector shall consider the report of enquiry held under rule E or F and pass an order fixing the fair and equitable rent of the lands referred to in subsection 1 of section 6 in Khas possession of the outgoing proprietor or tenure - holder.

Rule-I-The fair rent on the ground rent did remind under these rules in each proceeding together with the requisites particulars to be entered in form M - rent roll under the signature of the collector.

Rule 8 provides the provision for appeal.

It has been held in Sudarshan Nair Vs. State of Bihar 2012(2) JLJR 375 "that there is presumption of correctness to finally survey records of rights U/s. 84 of the Chota Nagpur Tenancy Act. The said entry has been made in the year 1961 but the plaintiffs failed to bring any chit of paper to rebut the said entry. The rent receipts are said to be issued by the Thikadar who had no authority to settle the land and issue rent receipts. Even the said land receipts are taken into consideration the same cannot be said to be the document of title. The plaintiffs have not been able to bring any impeachable document to show his continuous possession over the land. Learned Trial Court has based his findings on the basis of claim of settlement without any legal evidence."

16. In view of the above if the plaintiff had been settled as a raiyat by the ex- landlord the returns would have been filed showing him to be a raiyat at the time of vesting and after vesting he ought to have been accepted as a raiyat. There is no such evidence led by the plaintiff that after vesting the petitioner was accepted as a tenant and rent receipt were issued in his name. The contrary evidence is on record that in the revisional survey the land was declared as Anabad Bihar Sarkar.

17. In this view of matter I do not find any infirmity in the concurrent finding of both the courts below dismissing the suit of the plaintiff for want of any evidence and also being barred by limitation. It may be added Judgment passed in T.S no. 493/67-223/1969 Chabilal Singh Vs. Sitaram Mistry & Ors. will be of no consequence as any judgment in such matter is not judgment in rem but is a

judgement in personam. Moreover, the state was not even impleaded as a party in that suit.

Under the circumstance, both the substantial questions of law are answered against the appellants/plaintiffs.

I do not find any substantial question of law to disturb the concurrent finding of the Courts below.

Appeal is dismissed with cost.

(Gautam Kumar Choudhary, J.)

Jharkhand High Court, Ranchi Dated the 1st August, 2022 AFR / AKT