Kulwa Devi vs Bishwanath Singh
2023 Latest Caselaw 2455 Jhar

                              1               Second Appeal No. 163 of 2006


       IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   Second Appeal No. 163 of 2006
1.     Kulwa Devi
2.     Sumitra Devi
3.     Yasoda Kuar (died)
4.     Kameshwar Mahto
5(a). Basmati Kuer
5(b). Girendra Kumar Singh
5(c). Dhirendra Kumar Singh
5(d). Meera Devi
5(e). Asha Devi
5(f). Ranju Devi
6.      Bindeshwar Mahto
7.      Chandradeo Mahto
8.       Dewanti Kuar
9.      Ranjana Kumari
10.     Bandana Kumari
11.     Chandana Kumari
12.     Mahendra Deo Mahto
13(i). Ramdas Mahto
13(ii). Ram Dayal Mahto
13(iii). Briksh Mahto
13(iv). Nan Deo Mahto
13(v). Arvind Mahto
13(vi). Balo Devi
13(vii). Pramila Devi
14(a). Narendra Singh
14(b). Sushila Devi
14(c). Kamila Devi
14(d). Chinta Devi
14(e). Ranti Devi
14(f). Pratima Devi
14(g). Lalita Devi
15(a). Dharmendra Kr. Singh
15(b). Shila Devi
15(c). Mamta Devi
15(d). Vinita Devi
16.      Bindhyachal Mahto
17.      Raj Kumar Mahto
18.      Arjun Mahto
19.      Surendra Mahto
20(a). Sanjay Kumar
20(b). Renu Devi
20(c). Premlata Kumari
20(d). Baby Devi
20(e). Kalinda Devi
20(f). Rabinta Devi
21.       Baij Nath Mahto                    ... Appellants
                           -Versus-
1.       Bishwanath Singh
2.       Sakuntala Devi
                                                         2               Second Appeal No. 163 of 2006


                3.        Sriwanti Devi
                4.        Moti Raj Kuar (Deleted)
                5.        Naresh Singh
                6.        Pravesh Singh
                7(a).     Mithilesh Singh
                7(b).     Mukta Devi
                8.        Revalkal Kuar (Deleted)
                9.       Sunil Kumar Singh
                10.      Pushpa Devi
                11.      Nirmala Devi
                12.      Kamakhya Narayan Singh
                13.      Rajendra Singh
                14.      Ganesh Singh
                15.      Bidyarthi Singh
                16.      Bachu Singh
                17.      Indu Devi
                18.      State of Bihar (now State          of   Jharkhand) through Deputy
                         Commissioner, Palamau                         ... Respondents
                                                -----

            CORAM:            HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
                                                -----
            For the Appellants            : Mr. Manjul Prasad, Sr. Advocate
                                            Mr. Baban Prasad, Advocate
                                            Mr. Praveen Kumar Verma, Advocate
                                            Mr. Akhouri Prakhar Sinha, Advocate
                                            Mr. Arbind Kumar Sinha, Advocate
            For the Respondents           : Mr. Amar Kumar Sinha, Advocate
                                            Mr. K.K. Ambastha, Advocate
                                            Mr. Sudhansu Kumar Deo, Advocate
                                                -----

20/28.07.2023           Heard Mr. Manjul Prasad, learned senior counsel assisted by

Mr. Baban Prasad, Mr. Praveen Kumar Verma, Mr. Akhouri Prakhar Sinha and

Mr. Arbind Kumar Sinha, learned counsel for the appellants and Mr. Amar

Kumar Sinha assisted by Mr. K.K. Ambastha and Mr. Sudhansu Kumar Deo,

learned counsel for the respondents.

2. Being aggrieved and dissatisfied with the judgment and decree dated

24.03.2006 passed by the learned 4th Additional District Judge, Palamau at

Daltonganj in T.A. No.20 of 1999 setting aside the judgment and decree

dated 15.04.1999 (decree sealed and signed on 17.05.1999) passed by the

learned Sub-Judge No.1, Palamau at Daltonganj in Title Suit No.89/1988,

the present second appeal has been filed by the plaintiffs/ respondents/

appellants.

3. Title Suit No.89/1988 was instituted by the appellants herein for

declaration of land detailed in Schedule-B of the plaint, which are occupancy

raiyati land of the plaintiffs, acquired by virtue of settlement and also for

declaration that the orders of L.R.D.C. dated 22.09.1981 and order of C.O.,

Panki for staying the order dated 16.02.1981 passed in Misc. Case

No.01/1977-78 are without jurisdiction and void and do not affect in any

way the right, title, interest and possession of the plaintiffs/appellants over

the suit land. The prayer was also made for confirmation of their possession

over the suit land and if they are found out of possession, be put in

possession by evicting defendant nos.2 to 9, who are respondents herein,

through the process of the court.

4. The said suit was filed by the plaintiffs stating therein that the land

under Khata no.72 Plot No.597, total area of 163.25 acres under Khewat

no.5, Thana no.458 of village Dhuo P.S. Panki, District- Palamau was

recorded as Gairmazarua Malik Jungle Jhari during the last cadestral survey.

Plaintiff nos. 1 and 2, father of plaintiff nos. 3 to 6 (Dhanu Mahto) and

father of plaintiff nos. 7 and 8 (Kanhai Mahto), Late Bisar Mahto and

Harbansh Mahto were the settled raiyat of village Dhuo, P.S. Panki, District-

Palamau having their occupancy right in 2.36 acres of land in plot no.597.

There was a Partition Suit No.28/1923 in the court of the learned Sub-

Judge, Palamau amongst the co-sharer landlords of the village in which

Parmeshwar Dayal Singh, Nathuni Singh, Sardari Singh, Mahadeo Singh and

Kashinath Singh, the ancestors of defendant nos. 2 to 9, were allotted a

separate Takhta on an area of 39.36 acres delineated as plot no.597/B. The

landlords and extensive Bakast land in several villages which were more

than sufficient for their cultivation and, therefore, they could not have

reclaimed the land which required clearing of bushes, levelling for bringing

into cultivation which involved much manual labour and cost. As from the

land, there was no income, they settled 10 acres of land out of the said

Gairmazarua land allotted to them i.e. an area of 39.36 acres to the

plaintiffs' or their ancestor by means of Sada Hukumnama dated 26.05.1944

followed by rent receipts confirming the settlement on payment of Rs.40/-

as salami and it was agreed that the full rent of the land amounting to

Rs.45/- will be payable after three years from the date of settlement and in

the meantime, rent would be payable @ Rs.3/- per Bigha to the extent of

the area of reclamation and the plaintiffs and their ancestors were inducted

in possession of the land from the date of settlement. The description of the

land was mentioned in Schedule-A of the plaint which was not under

dispute. It was further stated that the plaintiffs and their ancestors cleared

the bushes and thorns and levelled the land and constructed reservoir for

collecting rainy water for irrigation or entire land and they reclimated the

land in three years as Dhany and Tanr land by Korkar and, thereafter, the

land became fertile. The plaintiffs and their ancestors further reclaimed the

land in continuation with 10.00 acres of already settled land and they fix the

rent and salami after completion of the reclamation in the manner as per

records of right. The settlees plaintiffs and their ancestors accordingly did

further reclamation in continuation of the lands mentioned in Schedule-A

and they reclaimed about 32 Bighas of land as paddy lands and Tanr lands

and they amalgamated the said land with their already settled land on an

area of 10.00 acres. While the defendants could make the settlement and

realise rent and salami the intermediary interest vested into the State of

Bihar and accordingly the right to settle the lands and realise the rent and

salami vested into the State of Bihar and all the remaining land described in

Schedule-B became cultivable and under the possession of the plaintiffs.

After vesting of the intermediary interest into the State of Bihar, the

plaintiffs and their ancestors made application before the Circle Officer,

Panki for settlement of about 32 Bighas of land in the name of Harbansh

Mahto, Bisar Mahto and Lalpat Mahto and Dhanus Dhary Mahto having

equal share each in three sets. Those applications were delineated as

Settlement Case No. V/5, V/6 and V/7 of the year 1962-63 respectively. The

Circle Officer called for the report from the K.C. And C.I. after inquiry and in

the meanwhile issued Ishtehar inviting objections if any in the settlement.

The lands were measured and found to be 7.70 acres in possession of each

set of the applicant in three sets. Therefore, the settlement of the same was

made which was approved by the L.R.D.C. in the name of the applicants

above name. Thereafter, the settlements were made and assessment of rent

was done by the S.D.O., Sadar on 16.02.1981 in Misc. Case No.1/1977-78

and this order of the revenue Court became final and absolute and binding

upon defendant nos. 2 to 9. But the L.R.D.C. stayed the order dated

16.02.1981 passed in Misc. Case No.1/1977-78 without hearing the

plaintiffs. The plaintiffs could know about the stay of order on 10.06.1988

when they obtained certified copy of Settlement Case No.V/7 of 1962-63.

According to the plaintiffs, the order of stay of the L.R.D.C. Staying the

order dated 16.02.1981 after seven months without hearing the plaintiffs is

without jurisdiction and void. It was also stated that Kashinath Singh,

Vindiyachal Singh, Shital Singh, Baidnath Singh, Shivnandan Singh and

Kritnarayan Singh got initiated a proceeding u/s 144 Cr.P.C. in the court of

the S.D.M., Sadar, Daltonganj on the basis of a police report with regard to

claim and possession over 39.36 acres of land of plot no.597(B) on

22.02.1971 which was numbered as Misc. Case No.134/1971. The

proceeding was converted into a proceeding u/s 145 Cr.P.C. which was later

on referred to the learned Munsif, Palamau u/s 146(1) Cr.P.C on 19.04.1974

for his opinion. The learned Munsif without considering the facts and law

and on erroneous view gave opinion vide order dated 25.08.1975 that

Kashinath Singh and others (the defendants) were in possession to the

extent of 29.36 acres of land and Lalpat Mahto and others (plaintiffs) were

in possession over 10.00 acres of land acquired by virtue of settlement on

26.05.1944. On the basis of opinion of the Munsif, the possession of

Kashinath Singh and others was declared over 29.36 acres on 21.06.1976.

Against that order, the plaintiffs filed Cr. Revision No.58/1976 before the

learned Sessions Judge, Palamau on 28.06.1976, which was dismissed on

23.07.1977, which was further challenged before this Court in Cr. Misc. Case

No.732/1977(R) and the same was ultimately converted into Cr. W.J.C.

84/1980(R) and the said writ petition was also rejected by this Court on

15.04.1988 as not maintainable. It was further stated in the plaint that the

defendants got initiated A.R. Case No.19/1965-66, 18/1965-66 and

20/1965-66 u/s 5, 6 and 7 of the Bihar Land Reforms Act for the suit land,

but on enquiry it was found that the defendants were not in possession of

any inch of the suit land and, hence, their prayer for assessment of rent was

rejected on 12.12.1970, against which, an appeal was filed by the

defendants being A/R Appeal No.104/1970-71, which was also dismissed on

24.03.1975 by the Additional Collector, Palamau, thus the claim of the

defendants was finally decided by the revenue courts against which no

appeal or revision whatsoever was filed. It was further stated in the plaint

that the defendants had always greedy eye upon the land of the plaintiffs

and they always tried to lay false claims on the land in different manner, but

they always failed. When the defendants failed in getting favourable order in

the revenue courts, they formed an unlawful assembly and tried to loot

away the crops grown by the plaintiffs. It was also stated in the plaint that

the settlee of Case No. V/5 of 1962-63 Harbansh Mahto in exercise of his

right, title, interest and possession sold his 7.70 acres of land, described in

Schedule-B item no.1 through a registered sale deed dated 24.09.1974 for

consideration with plaintiff nos. 3 to 6 and put them in possession of the

same. Similarly, Bisar Mahto the settlee of Settlement Case No. V/6 of 1962-

63, described in Schedule-B item no.11 of the plaint, sold 7.70 acres of land

to plaintiff nos. 7 and 8 through registered sale deed dated 12.11.1974 and

Lalpat Mahto sold his share of 3.85 acres to plaintiff nos. 1 and 1A through

registered sale deed on 03.10.1991. The plaintiffs have been coming in

peaceful cultivating possession even during the pendency of proceeding u/s

145 Cr.P.C with which the defendants have had nothing to do. It was also

stated that the order dated 21.06.1976 passed in proceeding u/s 145

Cr.P.C., order dated 23.07.1977 passed in Cr. Revision No.58/1976 and order

dated 26.09.1981 passed by the L.R.D.C., Daltonganj in Misc. Case

No.1/1977-78 have cast cloud over the title of the plaintiffs and, therefore,

the suit was instituted. In the suit, the State of Bihar through the Deputy

Commissioner, Palamau was made defendant no.1 and, therefore, notice

under Section 80 C.P.C. was served upon defendant no.1 and, thereafter,

the suit was filed.

5. The defendant no.1 i.e. the Government of Bihar had appeared

through the Government Pleader who had filed a separate written

statement dated 12.06.1991. The contesting defendant nos. 2 to 9

appeared and filed their separate written statement on 15.04.1991. The

defendant nos. 2 to 9 have challenged the case put forth by the plaintiffs in

the plaint. They contended that the suit as framed is not maintainable. The

plaintiffs have no cause of action for the suit. The defendants had also

pleaded that the suit is hit by the principles of estoppel, waiver and

acquiescence. It was also pleaded that the suit is barred by law of

limitation. In the written statement, it was admitted that there was a

Partition Suit No.28/1923 amongst the co-sharers landlords in which a

separate Takhta to the extent of 39.36 acres in plot no.597 delineated as

plot no.597B was allotted to Jaisher Dayal Singh, Parmeshwar Dayal Singh,

Mahadeo Singh, Nathuni Singh and Sardari Singh, the predecessors in

interest of the defendant nos.2 to 9. It was also admitted that an area of 10

acres of land out of 39.36 acres was settled with the plaintiffs by the

defendants over which the plaintiffs possession is continuing and

accordingly their possession has also been declared in a proceeding u/s 145

and 146 Cr.P.C. and remaining 29.36 acres of land was declared to have

been in possession of the defendants or their predecessor in interest. It was

further pleaded that the land mentioned in Schedule-B of the plaint did not

remain jungle jhari, but it was made cultivable by the defendants and their

ancestor long before the vesting of intermediary and, as such, the suit land

became Bakast of the defendants which was confirmed by the State of Bihar

by making assessment of rent u/s 5, 6 and 7 of the Bihar Land Reforms Act

in favour of the defendants to the extent of 4.59 acres in the name of

Nathuni Singh and Sardari Singh, to the extent of 4.59 acres in the name of

Kashinath Singh, to the extent of 4.59 acres in the name of Baidnath Singh

and Shivnath Singh and an area of 4.59 acres in the name of Kritnarayan

Singh and Shital Singh. Thus, the total area of assessment comes to 18.36

acres. It was also pleaded in the written statement that according to the

revenue records, an area of 11.00 acres was found in possession of Harijans

and, as such, assessment of rent of that area of 11.00 acres was not made

in the name of the defendants. The plaintiffs or their ancestors did not

reclaim any portion of the suit land nor they had any permission for

reclamation from the then landlord i.e. defendants as per mandatory

requirements according to the statement made in the plaint itself on the

basis of entry made in the Cadestral Survey, records of right. It was further

pleaded that though the suit land had become Bakast land of the

defendants at the time of vesting, but the plaintiffs had filed a partition

before the Circle Officer, Panki for settlement as Case No.V/5, V/6 and V/7

of 1962-63, but they were never found in possession. They are said to have

obtained some order by duping the revenue staff but ultimately the

proposal for settlement was negatived. No parwana was issued to the

defendants nor rent ever realised from them. The possession of the

defendants was declared in a proceeding u/s 145, 146 Cr.P.C. against which

the plaintiffs' went up to the High Court, where, they also lost. Defendant

no.1 (State of Bihar) in a separate written statement had pleaded that the

suit is not maintainable. The plaintiffs have got no action and the suit is

barred by law of limitation. The defendant no.1 had also pleaded that the

order staying the issue of parchas to the plaintiffs be deemed to be properly

passed because there is presumption of correctness of all official act done

u/s 114 of the Evidence Act.

6. Thus on the aforesaid facts, the learned trial court has framed eight

issues and decided the suit in favour of the plaintiffs/appellants and the

same was decreed in favour of the plaintiffs/appellants. Aggrieved with that,

the defendants/respondents moved before the appellate court in Title

Appeal No.20/1999 and vide judgment dated 24.03.2006, the learned

appellate court has been pleased to reverse the judgment of the learned

trial court and has dismissed the suit. Being aggrieved with the judgment

passed in the said title appeal, the plaintiffs/appellants have preferred this

second appeal.

7. This second appeal was admitted vide order dated 17.08.2009 on the

following substantial questions of law:

(1) Whether the Court of Appeal below has erred in law in

reversing the judgment and decree of the trial Court without

meeting the reasonings?

(2) Whether the finding of the Court of Appeal below is vitiated in

law for mis-appreciation and non-consideration of the vital

documents i.e. Exts.9, 10 and 11?

8. Mr. Manjul Prasad, learned senior counsel appearing for the appellants

by way of taking the Court to the finding of the learned trial court, submits

that the learned trial court has dealt with every aspects of the matter

including exhibits as well as oral evidences and, thereafter, has decreed the

suit in favour of the plaintiffs/appellants, however, the learned appellate

court without looking into the requirement of Order XLI Rule 31 of the Code

of Civil Procedure (C.P.C.) has been pleased to reverse the said finding,

which is against the mandate of law. He draws attention of the Court to the

appellate court's judgment and submits that so far as issue nos. V and VI

are concerned, that were the decisive issues, which have been dealt with by

the learned appellate court in paragraph 26 of the judgment. He further

submits that the learned appellate court has wrongly interpreted the

provisions of the Bihar Land Reforms Act and has not taken into

consideration the permission, which was required to be taken under the

Chotanagpur Tenancy Act by the Deputy Commissioner. He also submits

that the appellants were already in possession by way of settlement they

are put in possession in view of Zamindar at that time. He submits that

when the appellants are already in possession, there was no question of

taking permission afresh. He further submits that the land was already

mutated in favour of the appellants and subsequently L.R.D.C has stayed

the same and due to that the documents with regard to settlement was not

with the appellants and they have not been able to produce the documents

before the court. He submits that the learned appellate court has not

appreciated Exts.9, 10 and 11 series, which are Khatian, Kheshara and

Hukumnama respectively. He further submits that Section 145 Cr.P.C.

proceeding was the subject matter before this Court in Cr. W.J.C. No.84 of

1980(R) and the order under Section 145 Cr.P.C. was upheld, which was in

favour of the defendants/respondents, however the observation was made

therein that so far as right, title and interest is concerned, for that the

parties are at liberty to obtain decree from the competent court. He submits

that in this background, the suit was contested and the learned appellate

court has erred in reversing the finding of the learned trial court without

discussing these documents. On these grounds, he submits that the law

points framed by this Court may kindly be answered in favour of the

plaintiffs/appellants.

9. Per contra, Mr. Amar Kumar Sinha, learned counsel for the

defendants/respondents straightway draws attention of the Court to

paragraphs 9, 10, 11 and 15 of written statements of defendant nos.2 to 9

and submits that Partition Suit No.28/1923 was between the predecessor in

successor of the defendants and pursuant to that decree was already

passed and that was exhibited as Ext.9. He submits that when the

appellants have got the order of settlement stayed, that was the cause of

the action in Section 145 Cr.P.C. proceeding. He submits that Section 145

Cr.P.C. proceeding was also subject matter before this Court in Cr. W.J.C.

No.84 of 1980(R) in which the finding of the learned court was not

interfered with, however observation was made that that the parties can

settle the dispute by way of filing appropriate suit. He further submits that

the respondents/defendants are in possession of the plot in question, which

has been discussed elaborately by way of considering Ext.A series, which

are rent receipts. He submits that Form-M was also considered by the

learned appellate court pursuant to the order passed under Sections 5, 6

and 7 of the Bihar Land Reforms Act, 1950. The said Form M are Exts. F to

F/3. He further submits that there is no appeal with regard to Ext.J and in

view of that, the said order has attained finality, however there is specific

provision of appeal under Section 8 of the Bihar Land Reforms Act. He

submits that the possession of the respondents/defendants further fortified

in view of Ext.J, which is the order passed under Sections 5, 6 and 7 of the

Bihar Land Reforms Act for assessment of rent. He further submits that the

possession and title was further fortified in view of Ext.G, which is the

tenants ledger with regard to Schedule-B property which was the disputed

land in the suit property. He submits that Ext.8 series are the rent receipts

which further suggest that the respondents/defendants are in possession of

the plot in question. He submits that the learned appellate court has framed

the point at paragraph 31 of the judgment and, thereafter, has decided the

appeal and there is no violation of Order XLI Rule 31 of C.P.C.. To buttress

his argument, he relied upon the judgment passed by the Hon'ble Supreme

Court in Laliteshwar Prasad Singh and others v. S.P. Srivastava

(Dead) through Legal Representatives; [(2017) 2 SCC 415] .

10. Paragraph 12 of the said judgment is quoted hereinbelow:

"12. As per Order 41 Rule 31 CPC, the judgment of the first appellate court must explicitly set out the points for determination, record its reasons thereon and to give its reasonings based on evidence. Order 41 Rule 31 CPC reads as under:

"31: Contents, date and signature of judgment. - The judgment of the Appellate Court shall be in writing and shall state -

a. the points for determination; b. the decision thereon;

c. the reasons for the decision; and d. where the decree appealed from is reversed or varied, the relief to which the appellant is entitled;

and shall at the time that it is propounded be signed and dated by the Judge or by the Judges concurring therein."

It is well settled that the first appellate court shall state the points for determination, the decision thereon and the reasons for decision. However, it is equally well settled that mere omission to frame point/points for determination does not vitiate the judgment of the first appellate court provided that the first appellate court records its reasons based on evidence adduced by both the parties."

11. Mr. Amar Kumar Sinha, learned counsel for the respondents further

submits that the documents are on the record which has been appreciated

by the learned appellate court which proved the better right, title and

interest of the defendants/respondents and that is why, the case has been

rightly appreciated by the learned appellate court. To buttress his argument,

he relied upon the judgment passed by the Hon'ble Supreme Court in

Smriti Debbarma (Dead) through Legal Representative v. Prabha

Ranjan Debbarma and others; [(2023) SCCR 228].

12. Paragraphs 30, 31 and 32 of the said judgment are quoted

hereinbelow:

"30. In the above factual background, for the plaintiff to succeed, she has to establish that she has a legal title to the Schedule 'A' property, and consequently, is entitled to a decree of possession. The defendants cannot be dispossessed unless the plaintiff has established a better title and rights over the Schedule 'A' property. A person in possession of land in the assumed character as the owner, and exercising peaceably the ordinary rights of ownership, has a legal right against the entire world except the rightful owner. A decree of possession cannot be passed in favour of the plaintiff on the ground that defendant nos. 1 to 12 have not been able to fully establish their right, title and interest in the Schedule 'A' property. The defendants, being in possession, would be entitled to protect and save their possession, unless the person who seeks to dispossess them has a better legal right in the form of ownership or entitlement to possession.

31. The burden of proof to establish a title in the present case lies upon the plaintiff as this burden lies on the party who asserts the existence of a particular state of things on the basis of which she claims relief. This is mandated in terms of Section 101 of the Evidence Act, which states that burden on proving the fact rests with party who substantially asserts in the affirmative and not on the party which is denying it. This rule may not be universal and has exceptions, but in the factual background of the present case, the general principle is applicable. In terms of Section 102 of the Evidence Act, if both parties fail to adduce evidence, the suit must fail. Onus of proof, no doubt shifts and the shifting is a continuous process in the evaluation of evidence, but this happens when in a suit for title and possession, the plaintiff has been able to create a high degree of probability to shift the onus on the defendant. In the absence of such evidence, the burden of proof lies on the plaintiff and can be discharged only when he is able to prove title. The weakness of the defence cannot be a justification to decree the suit. The plaintiff could have succeeded in respect of the Schedule 'A' property if she had discharged the burden to prove the title to the Schedule 'A' property which squarely falls on her. This would be the true effect of Sections 101 and 102 of the Evidence Act. Therefore, it follows that the plaintiff should have satisfied and discharged the burden under the provisions of the Evidence Act, failing which the suit would be liable to be dismissed. Thus, the impugned judgment by the High Court had rightly allowed the appeal and set aside the

judgment and decree of the trial court. We, therefore, uphold the findings of the High Court that the suit should be dismissed. We clarify that we have not interfered or set aside any observations of the High Court in re the Tripura Land Revenue and Land Reforms Act, or defendants' claim etc. Notably, M/s. Hotel Khosh Mahal Limited is not a party to the present proceedings.

32. In view of the aforesaid discussion and legal position, the present appeal must be dismissed. We order accordingly. In the facts of the case, there will be no order as to costs."

13. Mr. Amar Kumar Sinha, learned counsel for the respondents also

submits that it is well settled that only on the extent of their own title

irrespective of whether the respondents/defendants proved the case or not,

the title can be declared in favour of any of the party, which was considered

by the Hon'ble Supreme Court in Jagdish Prasad Patel (Dead) through

Legal Representatives and another v. Shivnath and others; [(2019)

6 SCC 82].

14. Paragraph 45 of the said judgment is quoted hereinbelow:

"45. Observing that in a suit for declaration of title, the respondents- plaintiffs are to succeed only on the strength of their own title irrespective of whether the defendants- appellants have proved their case or not, in Union of India and others v. Vasavi Cooperative Housing Society Limited and others (2014) 2 SCC 269, it was held as under:-

"15. It is trite law that, in a suit for declaration of title, the burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration and the weakness, if any, of the case set up by the defendants would not be a ground to grant relief to the plaintiff." "

15. In these premises, Mr. Amar Kumar Sinha, learned counsel for the

respondents submits that the law points framed by this Court may kindly be

answered in favour of the defendants/respondents.

16. The learned trial court has framed 8 issues to decide the suit. The

issue nos. 5 and 6 were main issues and that is why both the issues were

taken up together by the learned trial court. The learned trial court has

considered Ext.7 and 7/A, 7/B and 7/C, which are order-sheets of A.R. Case

No.18/1965-66, 19/1965-66, 20/1965-66 and 22/1965-66, which were

initiated on the application of Kritnarayan Singh (original defendant no.9)

and found that in all the said four cases, the Circle Officer, Panki directed

the applicants to file certified copy of the return filed under Section 3-B of

the Bihar Land Reforms Act, but both the partied did not file the same and

that is why the Circle Officer has dropped the proceeding, however,

subsequently the same was filed and rent was fixed. Ext.-8 Series are the

certified copy of ishtehar with regard to settlement case numbers and Ext.9

Series are are Khatiyans prepared by the Circle Officer in the said settlement

cases. Exts.10 Series and 11 Series are Kheshara and Hukumnama prepared

by the Circle Officer after approval of the settlement by the Sub-Divisional

Officer, Sadar, which were also considered by the learned trial court. The

learned trial court has further considered the order of this Court passed in

Cr. W.J.C. 84 of 1980(R) and in paragraph 28 of the judgment, the learned

trial court has found after appreciating all the entire evidences, both oral

and documentary on a thorough enquiry at several stages, the defendants/

respondents were found in possession of the suit land at the time of

vesting the Zamindari and accordingly the assessment of rent was ordered

to be fixed up to the court of the Additional Collector, however the

D.C.L.R. stayed the order dated 06.02.1981, however it has been

vehemently argued on behalf of the learned counsel for the appellants

that there was typographical mistake and from reading of the entire

judgment of the learned trial court, it can be easily found out that

the plaintiffs/appellants were in possession and that was countered

in course of argument by the learned counsel for the respondents that

if any mistake was there, it was required to be corrected by the appellants

in view of Section 152 of C.P.C. In light of the above discussions, the

learned trial court has decreed the suit in favour of the plaintiffs/appellants.

17. The learned appellate court has framed point at paragraph 31 of the

judgment 'whether the plaintiffs have any subsisting title or any right and

interest to possess the land in suit or not?' The learned appellate court has

appreciated the proceeding under Section 145 Cr.P.C. at paragraph 32 of the

judgment and he has taken care of the observation made by the High Court

in Cr. W.J.C. No.84 of 1980(R). The learned appellate court has dealt with

Sections 6 and 35 of the Bihar Land Reforms Act and found that without

considering the provision of Section 35 of the said Act, the suit for

declaration of title, confirmation of possession or recovery of possession are

not barred. The learned appellate court further considered Ext.7/E to 7/M

and Ext.8 Series as well as Exts. 9, 10, 11 Series and 12 Series, which are

the documents to be considered in view of the law points framed by this

Court while admitting the second appeal and held that the plaintiffs were

found in possession and the settlement was ordered in their favour, but the

same was subsequently stayed and since the possession of the plaintiffs/

appellants has been admitted by the functionary of the State since the date

of vesting under the provisions of law and have given some rights in

accordance with the provisions of the act and the right having been accrued

in favour of the plaintiffs/appellants, that cannot be taken away by way of

proceeding under Section 145 Cr.P.C. In paragraph 40 of the appellate

court's judgment, the learned appellate court held that the plaintiffs/

appellants have admitted the title of the defendants and have claimed

settlement from the defendants or their predecessor-in-interest. The witness

of the plaintiffs/appellants, who were examined and even the plaintiff who

was examined as P.W.11 had not said as to when and on which year, the ex-

intermediary permitted him or their predecessor to make Korkar over the

lands or over the piece of land measuring 23.10 acres neither the date, nor

year nor month is stated by the witness and it was definite case of the

plaintiffs that the landlord had permitted them to make the land cultivable

and they done so but due to vesting of the said tenure the formalities of the

settlement could not be done and was not found as an evidence and it was

only the pleadings. The learned appellate court has further found that after

vesting of such tenure under the Bihar Land Reforms act, rights of the

landlord vested in the then State of Bihar and in view of that analogy of

events, there is also no amount of evidence and held that the

plaintiffs/appellants have not taken permission, which was pre-requisite in

view of the remark made in the Khatian as Khatian (Ext.9) in which it has

been disclosed that on permission, the land can be developed. The plaintiffs'

witnesses P.W.4 and P.W.6 in their evidence have stated that the plaintiffs

were cultivating the lands since 30 years. The learned appellate court

considered Ext.B, which is the order dated 25.08.1975 by the then learned

Munsif, Palamau in Misc. Case No.40/1974 under Section 146 Cr.P.C. who

referred in paragraph 5 the boundary of the lands of area 10 acres, which

has been discussed in paragraph 43 of the appellate court's judgment and

the learned appellate court has found that the area of the land which was

settled to the landlord i.e. ex-intermediary having an area of 10 acres out of

39.36 acres towards east of the plot and the title of the defendants over

39.36 acres is not in dispute and also the settlement of 10 acres is also not

disputed in favour of the plaintiffs though as observed, the said document

of the settlement has not been exhibited, but there is observation of court

of law regarding settlement of 10 acres and pursuant to that the boundary

was described by the learned Munsif. The learned appellate court has

further found that the entire pleadings or even the evidence of any of the

P.Ws including P.W.11, none have stated about the boundary of settlement

of 10 acres, however that is not disputed land and the disputed land is

Schedule-B of the suit property. The use of the word 'Khet' was considered

in view of not showing the same as cultivable or Bakast land and the

learned appellate court has found that the use of 'Khet' shows that at the

relevant point of time, when the settlement to the plaintiff was being

effected for 10 acres of land nearby lands which were towards west of the

plots was under cultivation of defendants and balance land since being

under cultivation of the defendants was found to be Bakast land and after

vesting of the Estate and tenure, they became raiyat under the State of

Bihar and have also submitted return under the provisions of the Bihar Land

Reforms Act in view of Sections 5, 6 and 7 of the said Act and the learned

appellate court found that their name stood recorded with respect to their

Bakast land and they became raiyats under the State of Bihar. The learned

appellate court has further found that Ext.7/K is the order dated 30.06.1981

is the document by which the settlement was stayed and the said order was

not challenged although provision to that effect is there under Section 8 of

the Bihar Land Reforms Act. The said has attained the finality. In view of

these facts, the learned appellate court has found that the documents

relating to Ext-C, Ext.E, Ext.F to F/3, Ext.J, Ext.G and Ext.8 Series suggest

that the defendants/respondents are in possession of the Schedule-B

property and thereafter, he has come to the conclusion that the finding of

the learned trial court is perverse.

18. The law in this regard is not res integra as it is well settled that the

person who is claiming right, title and interest, onus lies on him to prove the

title by way of producing the documents as has been appreciated by the

Hon'ble Supreme Court in several judgments as well as two judgments,

which has been relied by the learned counsel for the respondents supra. In

the case in hand, the exhibits which are the subject matter of the law points

framed by this Court, have been rightly appreciated by the learned appellate

court. The learned appellate court has dealt with all the points and it cannot

be said that the appeal was decided without considering Order XLI Rule 31

of C.P.C. and in this point, the judgment relied by the learned counsel for

the defendants/respondents in Laliteshwar Prasad Singh (supra) is in favour

of the defendants/respondents.

19. The Court has looked into Ext.C, which is the order passed by

this Court in Cr. W.J.C. No.84 of 1980(R) and finds that the finding of

the Court has been rightly appreciated by the learned trial court as

well as the appellate court. Exts. F to F/3 are the documents, which are in

Form M. Ext.J is the order-sheet of A.R. Case No.4/1975-76, which is

the order passed under Sections 5, 6 and 7 of the Bihar Land Reforms

Act regarding assessment of the ancestor in which the area is disclosed

as 18.36 acres. Ext.J is the tenants ledger and these documents have

been rightly appreciated by the learned appellate court. This Court has

also examined the said documents at bar and finds that the

learned appellate court has rightly appreciated these documents. There

is no illegality in appreciating those documents by the learned appellate

court.

20. In view of the above facts, reasons and analysis, the law points are

answered in favour of the defendants/respondents. The Court finds that

there is no perversity with the judgment of the learned appellate court.

21. In view of that, this second appeal is dismissed. Consequently, Title

Suit No.89 of 1988 is dismissed.

22. Let the L.C.R. be sent back to the learned court forthwith.

23. Pending I.A., if any, is disposed of.

(Sanjay Kumar Dwivedi, J.) Ajay/