Mst. Sharma Debya Widow Of Late ... vs The State Of Bihar
2022 Latest Caselaw 5041 Jhar

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       IN THE HIGH COURT OF JHARKHAND AT RANCHI
                       S.A. No. 613 of 2015
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1. Mst. Sharma Debya widow of Late Prafullya @ Prafulla
2. Amaresh Singh
3. Ram Shankar Singh
Both sons of late Prafulla Kumar Singh
4. Smt. Prabha Singh daughter of late Prafulla Kumar Singh and wife
     of Ramanandan Singh
5. Smt. Amarabati Devi daughter of late Prafulla Kumar Singh and
     wife of Sumant Chandra Singh
6. Smt. Alka Devi daughter of late Prafulla Kumar Singh and wife of
     Rajendra Singh
7. Smt. Bhagawati Devi, daughter of late Prafulla Kumar Singh and
     wife of Nabin Chandra Singh
8. Smt. Mira Devi daughter of late Prafulla Kumar Singh and wife of
     Bharat Chandra Singh
9. Smt. Monita Devi daughter of late Prafulla Kumar Singh and wife of
     Kamalesh Prasad Singh
10. Parul Debya widow of late Nibaran Chandra Singh
11. Shyam Sankar Singh
12. Saroj Kumar Singh, both sons of late Nibaran Chandra Singh
13. Amina Devi, daughter of late Nibaran Chandra Singh, W/o Bejo
     Durlah Singh, R/o Village Mahuda, P.O. Mahuda, P.S. Pindrajora,
     Dist. Bokaro
14. Bandana Devi, daughter of late Nibaran Chandra Singh and wife of
     Madhu Sudan Singh
15. Rekha Devi, daughter of late Nibaran Chandra Singh and wife of
     late Mahadeb Singh
16. Astami Devi, daughter of late Nibaran Chandra Singh and wife of
     Baski Singh
17. Asha Devi, daughter of late Nibaran Chandra Singh wife of Dilip
     Singh
18. Pankaj Kumar Singh
19. Shibnarayan Singh sons of late Mahadeb Singh
20. Mst. Urmila Deba W/o late Amulya Ratan Singh
21. Mst. Sarama Debya wife of Amullya Ratan Singh
22. Mritunjay Singh
23. Bhagirath Singh
24. Birinchi Narayan Singh sons of late Amullya Ratan Singh
25. Pratima Singh daughter of late Amullya Ratan Singh and wife of
     Jagatpati Deo
26. Koushalya Singh daughter of late Amullya Ratan Singh and wife of
     Bhutnath Singh
27. Hira Bala Singh daughter of late Amullya Ratan Singh and wife of
     Hari Kanta Roy
28. Alpana Singh daughter of late Amullya Ratan Singh and wife of
     Susanta Singh
   All R/o Village Bharra, P.O. & P.S. Chas, District Bokaro (Jharkhand).
                                            ...      Appellants
                             -versus-
1. The State of Bihar, at present State of Jharkhand, The Secretary to
   the Govt. of Jharkhand State cum Legal Advisor (J) Jharkhand
   Ranchi.
2. The Deputy Commissioner, Bokaro P.O. & P.S. and District Bokaro.
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      3.  The Circle Officer, Chandankiyari, P.O. & P.S. Chandankiyari,
        District Bokaro.
      4. The District Fishery Officer, Bokaro, P.O. & P.S. and District
        Bokaro.
      5. Sri Suresh Chandra Mahato son of Jagannath Mahato, resident of
        village Batbowa, P.O. Adarkuri, P.S. Chandankiyari, District Bokaro.
      6. Smt. Nirmala Singh wife of Sri Sriram Chandra Singh resident of
        Village Turidih Mohda, P.O. & P.S. Pindrajora, District Bokaro.
      7. Smt. Alta Singh wife of Sri Maheshwar Prasad Singh, resident of
        Village Maheshwari, P.O. & P.S. Sanha @ Sonho, District Munger
        (Bihar).
      8. Smt. Bhabani Singh wife of Sri Arjun Singh, resident of Village
        Katka, P.O. & P.S. Balidih, District Bokaro.
                                                  ...     Respondents
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             CORAM : HON'BLE MR. JUSTICE ANANDA SEN
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            For the Appellants :     Mr. Rupesh Singh, Advocate
                                     Mr. Amrendra Pradhan, Advocate
            For the Respondent: Mr. Nawal Kishor Pandey,
                                     A.C. to S.C. (L&C.) I
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                                    ORDER

RESERVED ON 30.06.2022 PRONOUNCED ON 13.12.2022

Appellants have preferred this second appeal, challenging the judgment and decree dated 31.08.2015 (decree signed on 11.09.2015) passed by the District Judge IV, Bokaro in Title Appeal No.43 of 2012, by which the Judgment and decree dated 20.10.2012 (decree signed on 30.11.2012) passed by the Civil Judge, Bokaro in Title Suit No.37 of 1999, holding the plaintiff-appellants not entitled for any relief and dismissing the suit filed for declaration of title of plaintiffs over the property described in Schedule 1 of which property in Schedule 2 of the plaint is part, has been upheld and thereby the appeal has been dismissed.

2. Appellants herein were plaintiffs before the Trial Court, who preferred Title Suit No. 37 of 1999, praying therein for declaration of title over the properties described in Schedule 1 of which the property described in Schedule 2 is a part and for confirmation of possession over the same on a finding that the auction held with respect to the property described in Schedule 2 by the defendant No.4 is absolutely illegal, fraudulent, collusive, arbitrary, without jurisdiction, void and not binding on the plaintiff.

3. The plaintiff-appellants' case in brief is that the tank known as Charkunia Bandh, as described in Schedule 2, previously belonged to Banmali Singh Choudhary and C.S. Khewat No.2 was recorded in his name during last C.S. operation. Banmali Singh Choudhary settled his half share of the said

property in favour of Sahadeb Singh, Mahadeb Singh and Bamdeb Singh who were sons of late Nakul Chandra Singh in the year 1944 on receipt of Salami of Rs.99 with an annual rent of ¼ of Sear of Ghee or its equivalent value of 1- 4-0 in permanent Raiyati right, for which Banmali Singh Choudhary granted an Amalnama dated 12.07.1944 in favour of the settlees and realized rents from them. Banmali Singh Choudhary later executed and registered a Patta dated 17.06.1953 corresponding to 3rd Ashar, 1360 B.S. in favour of plaintiff Nos.1 to 3 and 5 with respect to his half share in the said property. These properties, being C.S. Plot Nos.1667, 1668, 1669, 1271 and 1272 of Mouza Sarbowa are suit properties described in Schedule 1 and Schedule 2. It is the case of the plaintiff-appellants that plaintiff No.3 took settlement on behalf of his brother, i.e., plaintiff No.4 as well. The further case in the plaint is that in the year 1995- 96 the plaintiff came to know that out of the property described in Schedule 1 of the plaint, the tank was intended to be put in auction by the Bihar Fishery Officer to which the plaintiffs submitted an application following which no auction or settlement was done by the Fishery Officer. It is further case of the plaintiffs that on 23.07.1999, properties in Schedule 1 of the plaint of which schedule 2 is a part, was put on auction and defendant No.5 was selected as the highest bidder. It is the case of the plaintiffs that the said auction which was held on 23.07.1999 is illegal, fraudulent, void, without jurisdiction, inoperative and not binding on the plaintiffs who are still in possession of the tank. It is their case that due to the auction cloud has been casted upon the title of the plaintiffs and hence they were compelled to file the suit.

4. Defendants Nos.1 and 2 filed their joint written statement opposing the maintainability of the suit on several grounds. They stated that after vesting of the estate of the ex-landlord with the Government, the suit property was neither found settled to any raiyat nor was in personal use of ex- landlord Banmali Singh Choudhary and thus the same was entered in government register as sairat. In 1981-82 the same was auctioned at Rs.13665/- but in the year 1992 the sairats were transferred and put into control and possession of Fisheries Department after the direction of the government and are currently managed by the Fisheries Department, who time to time auction the same and collect the revenue. The tank in question is now under control and possession of the defendant No.4, the Fisheries Officer which was transferred from the Office of defendant No.3, the Circle Officer, Chas along with several other government sairats vide letter No.459 and 867 dated 28.09.1992 and since then the tank is being settled from time to time with the persons who are found entitled to the open auction.

5. On the basis of the pleadings of the parties, following issues were framed by the Trial Court :-

I. Whether the suit is maintainable in its present form? II. Whether the plaintiff has got valid cause of action to bring this suit?

III. Whether the suit is barred by limitation? IV. Whether the suit is bad for non-joinder and mis-

joinder of the parties?

V. Whether the plaintiffs have got legal and valid title over the suit tank described in schedule II of the plaint which is a part and parcel of schedule I of the plaint?

VI. Whether the suit tank vested to the State of Bihar under the provision of B.L.R. Act? VII. Whether the District Fishery Officer, Bokaro has any legal right to settle the suit tank in favour of defendant No.5?

VIII. Whether the plaintiffs are in possession of suit tank during the time of their ancestors and are entitled for declaration of confirmation of possession over the suit tank?

IX. Whether the plaintiffs are entitled for the relief or reliefs as claimed for?

X. Whether the suit tank along with Plot No.1271 & 1272 or Schedule 'I' land vested in the State of Bihar/ Jharkhand as per B.L.R. Act?

6. Plaintiffs-appellants, in support of their case, examined four witnesses :-

P.W.1 Rati Kant Manjhi P.W.2 Satish Singh P.W.3 Suchand Mahto and P.W.4 Pankaj Kumar Singh

7. Plaintiffs-appellants, in support of their case, also got exhibited the following documents :-

Exhibit 1 : Registered Patta No.9551 dated 18.06.1953 by which lessor Banmali Singh Chaudhary settled 1 acre 49-1/2 decimal of land of Charkunia Bandh and its Ail to the lessee namely

Prafullya Kumar Singh, Niwaran Chand Singh, Amulya Ratan Singh and Pankaj Kumar Singh for the consideration of Salami Rs.1199/-. Exhibit 2 : Unregistered Hukumnama dated 12.07.1944 by which the lessor is Banmali Singh Chaudhary and the lessee are Sahdeo Singh, Mahadeo Singh and Bamdeo Singh. By the above Hukumnama, District Manbhum, Pargana Khaspale, Mauza Sandboa, Khewat No.2, Khata No.154, Plot Nos.1667, 1668, 1669 Charkunia Bandh and its Ail area 2.37 decimals and plot Nos.1271, 1272 Gair Abad area 62 decimal total 2.99 decimal out of which 149 ½ decimal was settled for the consideration of Salami Rs.99 and one Pave Ghee or rent of Rs.ek rupya char anna, had been settled in favour of lessee. Exhibit 3 to 3/d : Zamindari rent receipts Exhibit-4 to 4/f : Rent receipts.

8. Defendants Nos.1 to 4 examined following two witnesses in support of their case: -

D.W.1 Dhruv Prasad D.W.2 Rajkumar Turi

9. Defendants have also got exhibited the following documents, in support of their case: -

Exhibit A : Signature of the C.O. on letter No.459 dated 22.04.1993. Above letter was written by the Anchal Adhikari, Chandankiyari to the District Fishry Officer cum Chief Executive Officer, Dhanbad with respect to the transfer of Shairats and has informed that as per direction the Sairat list were prepared and sent for needful along with a supplementary list. Exhibit A/1 : Hand writing of Sagar Ali on list. In the above Sairat list, serial number 20 Charkunia Bandh is mentioned which is situated in Khata No.154, Plot Nos.1667, 1668, 1669, measuring an area of 2.47 acre.

Exhibit B : Certified copy of Khatian. Above Khatiyan is of Khewat No.2, Khata No.154, Plot Nos.1667, 1668, 1669, which is shown in Khatian as Gair Abad Malik Additionally, letter No.459 dated 22.04.1993 and List of Shairat were marked as 'X' and 'X/1' for identification.

10. Trial Court, after considering the evidence, both oral and documentary, led by both the parties, held that plaintiffs have got no legal and valid title over the suit tank described in the schedule and were also not in possession of the suit tank during the time of their ancestors, consequently, they are not entitled for declaration of confirmation of possession over the suit tank and the suit tank along with Plot No.1271 and 1272 vested to the State of Bihar under the provision of the B.L.R. Act. The Trial Court further held that the plaintiffs have no right, title and possession over the suit property as claimed for, hence they have got no valid cause of action for filing this suit and thus the suit is not maintainable in its present form and the plaintiffs are also not entitled to get any relief or reliefs as prayed for. The Trial Court, thus, dismissed the suit by Judgment and decree dated 20.10.2012 (decree signed on 30.11.2012).

11. Aggrieved by the said judgment and decree dated 20.10.2012 (decree signed on 30.11.2012), plaintiff-appellants had preferred Title Appeal No.43 of 2012. By judgment and decree dated 31.08.2015 (decree signed on 11.09.2015), the District Judge IV, Bokaro, while concurring with the findings arrived by the Trial Court, dismissed the said appeal.

12. The plaintiffs-appellants, challenging the judgments and decree passed by the Trial Court and the First Appellate Court has preferred the present second appeal under Section 100 of the Code of Civil Procedure before this Court.

13. After going through both the judgments, I find that the Courts below have held that the tank in question has vested absolutely in the State of Bihar free from all encumbrances. It is the case of the plaintiffs that the tank was settled in their favour, but both the Courts have found that the ex-landlord, after vesting, was legally bound to furnish the returns regarding the said settlement made by him, from where, it could have been easily ascertained as to whether this tank was settled in favour of the plaintiffs' ancestors or not. The Courts have held that the plaintiffs neither filed copy of returns nor have filed the certified copy of the khewat to prove that the tank was settled by the landlords in favour of the plaintiffs' ancestors. In absence of production of

returns, plaintiffs' case cannot be accepted that the land was settled in favour of their ancestors by the ex-landlord. In terms of Section 4(a) of the Bihar Land Reforms Act, 1950, all the rights of the landlords were vested with the Government other than the interests of the raiyats or under raiyats.

14. The plaintiffs' case that Jamabandi was opened in their favour was also doubted by both the Courts, as the Appellate Court had called for the records in relation to Jamabandi No.163, on the prayer made by the appellants. Register-II was produced by the Karamchari and he was examined. The Appellate Court, in the judgment, has held that after perusal of Register II of Jamabandi No.163, it is not clear as to by which order, Jamabandi was opened in the name of the plaintiffs. Thus, there is a valid doubt as to whether the said Jamabandi was legally opened or not. The Appellate Court has held that Jamabandi was not opened either on the basis of the returns filed by the landlords or on the basis of the records of right.

15. Further, the evidence, which was adduced, suggests that the tank in question is recorded as Sairat in the record of Government, which has been used for rearing of fish. The Appellate Court also held that the claim of the plaintiffs that they are claiming the tank on the basis of adverse possession, is also not proved. This Court is of the opinion that the claim of title by way of adverse possession and also by way of raiyati settlement cannot co-exist.

16. Both the Courts have held that the plaintiff-appellants have failed to prove their right, title, interest and possession over the property and the property stood vested in the Government and further the claim of adverse possession fails as there are evidence to suggest that the plaintiffs are not in uninterrupted and absolute possession of the suit tank. The question of possession of a particular land is a question of fact and both the Courts below have held this point against the plaintiffs-appellants, which cannot be reopened in an appeal under Section 100 of the Code of Civil Procedure. So far as settlement is concerned, both the Courts below have held that there are no documents to show settlement by ex-landlord as Jamindari Returns were also not brought on record to suggest that the lands were settled by the erstwhile landlords.

17. On the basis of what has been held above, I find that no substantial question of law is involved in this second appeal. Accordingly, there being no merit, this second appeal is hereby dismissed.

(Ananda Sen, J.) Kumar/Cp-02