Patna High Court
Rajendra Prasad Sinha vs Executive Officer on 14 December, 2023
Author: Khatim Reza
Bench: Khatim Reza
IN THE HIGH COURT OF JUDICATURE AT PATNA
SECOND APPEAL No.122 of 2002
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1.1. Ram Pari Devi Wife of late Rajendra Prasad Sinha Resident of Village
Hassanpur P.O and PS Rajgir Dist Nalanda Present residing at Bangali Tola
Makaurpur Rajgir, P.S Rajgir Dist- Nalanda.
1.2. Arvind Prasad Son of late Rajendra Prasad Sinha Resident of Village
Hassanpur P.O and PS Rajgir Dist Nalanda Present residing at Bangali Tola
Makaurpur Rajgir, P.S Rajgir Dist- Nalanda.
1.3. Renu Kumari Wife of Late Jitendra Kumar, Daughter of Late Rajendra
Prasad Sinha Resident of Village Hassanpur P.O and PS Rajgir Dist Nalanda
Present residing at Bangali Tola Makaurpur Rajgir, P.S Rajgir Dist- Nalanda.
1.4. Prerit Kumar Son of late Jitendra Kumar Resident of Village Hassanpur P.O
and PS Rajgir Dist Nalanda Present residing at Bangali Tola Makaurpur
Rajgir, P.S Rajgir Dist- Nalanda.
1.5. Piyush Kumar Son of late Jitendra Kumar Resident of Village Hassanpur
P.O and PS Rajgir Dist Nalanda Present residing at Bangali Tola Makaurpur
Rajgir, P.S Rajgir Dist- Nalanda.
1.6. Ranju Devi Daughter of late Rajendra Prasad Sinha Resident of Village
Hassanpur P.O and PS Rajgir Dist Nalanda Present residing at Bangali Tola
Makaurpur Rajgir, P.S Rajgir Dist- Nalanda.
1.7. Karuna Devi Daughter of late Rajendra Prasad Sinha Resident of Village
Hassanpur P.O and PS Rajgir Dist Nalanda Present residing at Bangali Tola
Makaurpur Rajgir, P.S Rajgir Dist- Nalanda.
1.8. Sushila Devi Daughter of late Rajendra Prasad Sinha Resident of Village
Hassanpur P.O and PS Rajgir Dist Nalanda Present residing at Bangali Tola
Makaurpur Rajgir, P.S Rajgir Dist- Nalanda.
... ... Appellant/s
Versus
1. Executive Officer Notified Area Committee, Rajgir, Nalanda.
2. The Chairman, Notified Area Committee, represented through S.D.O.
Biharsharif, Rajgir, Nalanda.
3. Md. Shakil Hassan Son of late Md. Aziz Hussain Resident of Mohalla
Baignabad, Town Biharsharif, District Nalanda.
... ... Respondent/s
======================================================
with
SECOND APPEAL No. 123 of 2002
======================================================
1.1. Ram Pari devi Wife of late Rajendra Prasad Sinha Resident of Village
Hassanpur, P.O. and P.S. Rajgir, District Nalanda, Present residing at Bangali
Tola Makaurpar, Rajgir, P.S. Rajgir, District Nalanda.
1.2. Arvind Prasad Son of late Rajendra Prasad Sinha Resident of Village
Hassanpur, P.O. and P.S. Rajgir, District Nalanda, Present residing at Bangali
Tola Makaurpar, Rajgir, P.S. Rajgir, District Nalanda.
Patna High Court SA No.122 of 2002 dt.14-12-2023
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1.3. Renu Kumari Wife of late Jitendra Kumar, Daughter of Late Rajendra
Prasad Sinha Resident of Village Hassanpur, P.O. and P.S. Rajgir, District
Nalanda, Present residing at Bangali Tola Makaurpar, Rajgir, P.S. Rajgir,
District Nalanda.
1.4. Prerit Kumar Son of Late Jitendra Kumar Resident of Village Hassanpur,
P.O. and P.S. Rajgir, District Nalanda, Present residing at Bangali Tola
Makaurpar, Rajgir, P.S. Rajgir, District Nalanda.
1.5. Piyush Kumar Son of late Jitendra Kumar Resident of Village Hassanpur,
P.O. and P.S. Rajgir, District Nalanda, Present residing at Bangali Tola
Makaurpar, Rajgir, P.S. Rajgir, District Nalanda.
1.6. Ranju Devi Daughter of Late Rajendra Prasad Sinha Resident of Village
Hassanpur, P.O. and P.S. Rajgir, District Nalanda, Present residing at Bangali
Tola Makaurpar, Rajgir, P.S. Rajgir, District Nalanda.
1.7. Karuna Devi Daughter of Late Rajendra Prasad Sinha Resident of Village
Hassanpur, P.O. and P.S. Rajgir, District Nalanda, Present residing at Bangali
Tola Makaurpar, Rajgir, P.S. Rajgir, District Nalanda.
1.8. Sushila Devi Daughter of Late Rajendra Prasad Sinha Resident of Village
Hassanpur, P.O. and P.S. Rajgir, District Nalanda, Present residing at Bangali
Tola Makaurpar, Rajgir, P.S. Rajgir, District Nalanda.
... ... Appellant/s
Versus
1. Md Shakil Hassan Son of Late Md. Aziz Hussain Resident of Mohalla
Baignabad Town- Biharsharif District Nalanda.
2. Executive Officer, Notified Area Committee, Rajgir, District Nalanda.
... ... Respondent/s
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with
SECOND APPEAL No. 139 of 2002
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Executive Officer, N.A.C. Rajgir, Now Special Officer, Nagar Panchayat,
Rajgir, Nalanda (N.A.C. Rajgir has been declared as Nagar Panchayat Rajgir
vide notification no. 2651 dated 30.08.2001
... ... Appellant/s
Versus
1.1. Ram Pari Devi, W/o Late Rajendra Prasad Sinha, Resident of Village-
Hassanpur, P.O. and P.S.- Rajgir, District- Nalanda. At present residing at
Bangali Tola, Makaurapur Rajgir, P.S.- Rajgir, District- Nalanda.
1.2. Arvind Prasad, S/o Late Rajendra Prasad Sinha, Resident of Village-
Hassanpur, P.O. and P.S.- Rajgir, District- Nalanda. At present residing at
Bangali Tola, Makaurapur Rajgir, P.S.- Rajgir, District- Nalanda.
1.3. Renu Kumari, W/o Late Jitendra Kumar S/o Late Rajendra Prasad Sinha,
Resident of Village- Hassanpur, P.O. and P.S.- Rajgir, District- Nalanda. At
present residing at Bangali Tola, Makaurapur Rajgir, P.S.- Rajgir, District-
Nalanda.
Patna High Court SA No.122 of 2002 dt.14-12-2023
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1.4. Prerit Kumar, S/o Late Jitendra Kumar, Resident of Village- Hassanpur, P.O.
and P.S.- Rajgir, District- Nalanda. At present residing at Bangali Tola,
Makaurapur Rajgir, P.S.- Rajgir, District- Nalanda.
1.5. Piyush Kumar, S/o Late Jitendra Kumar, Resident of Village- Hassanpur,
P.O. and P.S.- Rajgir, District- Nalanda. At present residing at Bangali Tola,
Makaurapur Rajgir, P.S.- Rajgir, District- Nalanda.
1.6. Ranju Devi, D/o Late Rajendra Prasad Sinha, Resident of Village-
Hassanpur, P.O. and P.S.- Rajgir, District- Nalanda. At present residing at
Bangali Tola, Makaurapur Rajgir, P.S.- Rajgir, District- Nalanda.
1.7. Karuna Devi, D/o Late Rajendra Prasad Sinha, Resident of Village-
Hassanpur, P.O. and P.S.- Rajgir, District- Nalanda. At present residing at
Bangali Tola, Makaurapur Rajgir, P.S.- Rajgir, District- Nalanda.
1.8. Sushila Devi, D/o Late Rajendra Prasad Sinha, Resident of Village-
Hassanpur, P.O. and P.S.- Rajgir, District- Nalanda. At present residing at
Bangali Tola, Makaurapur Rajgir, P.S.- Rajgir, District- Nalanda.
2. Md. Shakil Hassan @ Shakib Hassan, S/o Late Aziz Hassan, of Mohalla-
Baignabad, P.S.- Biharsharif, District- Nalanda.
3. Chairman, Nagar Panchayat, Rajgir, Nalanda.
... ... Respondent/s
======================================================
with
SECOND APPEAL No. 140 of 2002
======================================================
Executive Officer, N.A.C. Rajgir, Now Special Officer, Nagar Panchayat,
Rajgir, Nalanda (N.A.C. Rajgir has been declared as Nagar Panchayat Rajgir
vide notification no. 2651 dated 30.08.2001
... ... Appellant/s
Versus
1.1. Ram Pari Devi, W/o Late Rajendra Prasad Sinha, Resident of Village-
Hassanpur, P.O. and P.S.- Rajgir, District- Nalanda. At present residing at
Bangali Tola, Makaurapur Rajgir, P.S.- Rajgir, District- Nalanda.
1.2. Arvind Prasad, S/o Late Rajendra Prasad Sinha, Resident of Village-
Hassanpur, P.O. and P.S.- Rajgir, District- Nalanda. At present residing at
Bangali Tola, Makaurapur Rajgir, P.S.- Rajgir, District- Nalanda.
1.3. Renu Kumari, W/o Late Jitendra Kumar S/o Late Rajendra Prasad Sinha,
Resident of Village- Hassanpur, P.O. and P.S.- Rajgir, District- Nalanda. At
present residing at Bangali Tola, Makaurapur Rajgir, P.S.- Rajgir, District-
Nalanda.
1.4. Prerit Kumar, S/o Late Jitendra Kumar, Resident of Village- Hassanpur, P.O.
and P.S.- Rajgir, District- Nalanda. At present residing at Bangali Tola,
Makaurapur Rajgir, P.S.- Rajgir, District- Nalanda.
1.5. Piyush Kumar, S/o Late Jitendra Kumar, Resident of Village- Hassanpur,
P.O. and P.S.- Rajgir, District- Nalanda. At present residing at Bangali Tola,
Makaurapur Rajgir, P.S.- Rajgir, District- Nalanda.
1.6. Ranju Devi, D/o Late Rajendra Prasad Sinha, Resident of Village-
Patna High Court SA No.122 of 2002 dt.14-12-2023
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Hassanpur, P.O. and P.S.- Rajgir, District- Nalanda. At present residing at
Bangali Tola, Makaurapur Rajgir, P.S.- Rajgir, District- Nalanda.
1.7. Karuna Devi, D/o Late Rajendra Prasad Sinha, Resident of Village-
Hassanpur, P.O. and P.S.- Rajgir, District- Nalanda. At present residing at
Bangali Tola, Makaurapur Rajgir, P.S.- Rajgir, District- Nalanda.
1.8. Sushila Devi, D/o Late Rajendra Prasad Sinha, Resident of Village-
Hassanpur, P.O. and P.S.- Rajgir, District- Nalanda. At present residing at
Bangali Tola, Makaurapur Rajgir, P.S.- Rajgir, District- Nalanda.
2. Md. Shakil Hassan @ Shakib Hassan, Son of Late Md. Aziz Hussain,
Resident of Mohalla- Baignabad, Town Biharsharif, District- Nalanda.
3. The Chairman, N.A.C. Rajgir, Naladan, (S.D.O. Rajgir,) Nalanda.
... ... Respondent/s
======================================================
Appearance :
(In SECOND APPEAL No. 122 of 2002)
For the Appellant/s : Mr. T.N. Maitin, Sr. Adv.,
Mr. S.S.Shabbar Hussain, Adv.
For respondent no. 3 : Mr. Jitendra Kishore Verma, Adv.,
Mr. Ray Saurabh Nath, Adv.,
Mr. Anjani Kumar Adv.,
Ms. Sweta Rai, Adv.
(In SECOND APPEAL No. 123 of 2002)
For the Appellant/s : Mr. T.N. Maitin, Sr. Adv.,
Mr. S.S.Shabbar Hussain, Adv.
For the Respondent no.1 : Mr. Jitendra Kishore Verma, Adv.,
Mr. Ray Saurabh Nath, Adv.,
Mr. Ravi Raj, Adv.
(In SECOND APPEAL No. 139 of 2002)
For the Appellant/s : Mr. Mahendra Prasad Bhartee, Adv.
For Respondent No. 2 : Mr. Jitendra Kishore Verma, Adv.,
Mr. Ray Saurabh Nath, Adv.,
Mr. Shreyansh Goyal, Adv.
(In SECOND APPEAL No. 140 of 2002)
For the Appellant/s : Mr. Mahendra Prasad Bhartee, Adv.
For Respondent no. 2 : Mr. Jitendra Kishore Verma, Adv.,
Mr. Ray Saurabh Nath, Adv.,
Ms. Sweta Raj, Adv.
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CORAM: HONOURABLE MR. JUSTICE KHATIM REZA
ORAL JUDGMENT
Date : 14-12-2023
Heard the parties.
Patna High Court SA No.122 of 2002 dt.14-12-2023
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2. These four appeals arise out of Title Suit No. 58 of
1985 filed by the plaintiff for declaration of title and non-title of
defendant/Executive Officer, Notified Area Committee, Rajgir,
Nalanda and further for a relief for permanent injunction
restraining the defendant from interferring with the possession of
the plaintiff, which has been fully described in Schedule, bearing
Tauzi No. 12569, Khata No. 333, Plot No. 5205, ad measuring an
area of 1 acre 98 decimals, situated at Rajgir in the District of
Nalanda. Subsequently, the Chairman, Notified Area Committee
represented through S.D.O., Biharsharif, Rajgir, Nalanda was
added as defendant no. 2 and Md. Shakil Hassan was added as
defendant no. 3, as he had filed intervention petition on 05.03.1992
for adding him as party defendant. The said intervention petition
was allowed vide order dated 09.04.1992, holding the itnervenor to
be necessary party, as his interest is directly involved in the suit
property.
3. The Second Appeal bearing S.A. No. 122 of 2002 has
been filed by the plaintiff/ appellant against the Judgment and
decree dated 20.03.2002, passed in T.A. No. 23 of 1993 ( filed by
defendant no.1), by the learned 1 st Additional District Judge,
Biharsahrit, Nalanda, reversing (partly) the Judgment and decree
Patna High Court SA No.122 of 2002 dt.14-12-2023
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dated 17.03.1993, passed in T.S. No. 58 of 1985 by the learned
Sub-Judge-I, Biharsharif, Nalanda.
4. The Second Appeal bearing S.A. No. 123 of 2002 has
been filed by the plaintiff/appellant against the Judgment and
decree dated 20.03.2002, in T.A. No. 25 of 1993 ( filed by
intervenor- defendant no.3), reversing (partly) the judgment and
decree dated 17.03.1993, passed in T.S. No. 58 of 1985 by the
learned Sub-Judge-I, Biharsharif, Nalanda.
5. The Second Appeal bearing S.A. No. 139 of 2002 has
been filed by the defendant no. 1/appellant against the judgment
and decree dated 20.03.2002, passed in T.A. No. 25 of 1993 ( filed
by intervenor- defendant no.3) by the learned 1st Additional
District Judge, Nalanda at Biharsharif, affirming the findings
against the appellant passed in T.S. No. 58 of 1985 by the learned
Sub-Judge-I, Biharsharif, Nalanda on 17.03.1993.
6. The Second Appeal bearing S.A. No. 140 of 2022 has
been filed by the defendant no. 1/appellant against the judgment
and decree dated 20.03.2002, passed in T.A. No. 23 of 1993 ( filed
by defendant no.1) by the 1st Additional District Judge, Nalanda at
Biharsharif, affirming the finding of the learned Trial Court,
passed in judgment and decree dated 17.03.1993 by the learned
Sub-Judge-I, Biharsharif, Nalanda.
Patna High Court SA No.122 of 2002 dt.14-12-2023
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7. The Second Appeal No. 122 of 2002 and Second
Appeal No. 123 of 2002 were heard together and on 03.02.2010
the following substantial question of law was formulated while
admitting the appeals:-
(i) Whether the notice under Section 377 of the Bihar
and Orissa Municipal Act was at all essential when the Notified
Area Committee and Municipality concern fully contested the suit
as parties and never pressed their objections before the learned
Trial Court on this point ?
8. In Second Appeal No. 123 of 2002, no separate
substantial question of law was framed. However, the time of
hearing of S.A. No. 123 of 2002, the appellant suggested
additional substantial question of law, which are as follows:-
(i) Whether Appellate Court erred in law in holding that
plaintiff acquired title over only 98 decimals of C.S. Plot No. 5205
by relying upon Exhibit A-1, which is not a document of sale in
the eye of law.
(ii) Whether learned Lower Court erred in law in
declaring title of Intervenor over 1 acre of part of the suit land
without any counter-claim for making declaration of his title over
the same land.
Patna High Court SA No.122 of 2002 dt.14-12-2023
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9. The case of the plaintiff is that the suit property ad
measuring 1 acre 98 decimals was purchased by Syed Shah
Mujtaba Hassan from the ex-land lord namely Nawab Manzoor
Khan and Bibi Khurshidi Begum, by registered sale deed dated
17.08.1944
(Exhibit 1-B) and the purchaser came in possession
and paid rent to the ex-land lord and got rent receipt from the ex-
land lord. Thereafter, at the time of vesting, the Return was
submitted by the ex-land lord in the name of purchaser recognizing
him as a raiyat. The nature of the land in dispute was recorded as
Gairmazarua Aam Pokhar in C.S. khatian, but with the passage of
time, the nature of land changed and it became raiyati ba-kasht
land of the ex-land lord, which is apparent from the road cess
Return filed in the year 1930 by the ex-land lord, wherein the land
is shown as raiyati. The purchaser Syed Shah Mujtaba Hassan had
three sons namely Syed. Shah Ijtaba Hassan, Syed Shah Alam and
Syed Shah Jahan. Syed Shah Ijtaba Hassan pre-deceased his father
leaving behind his two sons namely Syed Shah Altaf Hassan and
Syed Shah Equbal Hassan. It is further case of the plaintiff is that
the two alive sons of Syed Shah Mujtaba Hassan namely Syed
Shah Jahan and Syed Shah Alam and the widow namely Syed
Shah Mujtaba, inherited the entire property after the death of Syed
Shah Mujtaba Hassan and thereupon all the three heirs of Syed
Patna High Court SA No.122 of 2002 dt.14-12-2023
Shah Mujtaba have transferred the entire 1 acre 98 decimals of the
land by two registered sale deeds dated 26.06.1982 to the plaintiff
and since then the plaintiff came in possession as owner and he is
continuing in his possession. It is further case of the plaintiff that
when the Intervenor/defendant filed his written statement, the
plaintiff came to know that a forged document of sale by Syed
Shah Mujtaba Hassan dated 05.08.1971 has been prepared in the
name of Syed Shah Altaf Hassan and Syed Shah Equbal Hassan. It
is further case of the plaintiff that after purchase plaintiff filed a
petition before the Land Revenue Deputy Collector for mutating
his name and accordingly on a verification report of L.R.D.C. the
Sub Divisional Officer forwarded the petition of the plaintiff. It is
contended that there was a dispute between the plaintiff and the
Executive Officer, Notified Area Committee. The Notified Area
Committee was illegally interferring with the suit property. The
present suit was filed seeking declaration of title and injunction.
10. On summon, the defendants ( defendant Nos. 1 and
2) have appeared and filed their written statement separately and
denied the claim of the plaintiff. Their main defence is that the suit
property was and is pokhar (and it vested in the State of Bihar at
the time of vesting of zamindari) and the said pokhar was passed
on by the State of Bihar to the Notified Area Committee, which is
Patna High Court SA No.122 of 2002 dt.14-12-2023
now Municipality and the Municipality is settling the said pokhar
and the plaintiff has no title to suit property. The plea is also taken
that the suit is not maintainable in view of non-service of notice
under Section 377 of the Bihar and Orissa Municipal Act. It is
further contended that the suit is bad for non-joinder of the party
namely the State of Bihar which was a necessary party and it is
also bad for non-compliance of notice under Section 80 C.P.C. The
permission under Section 80 (2) C.P.C. has been obtained under
mis-representation and concealment of actual facts.
11. The intervenor -defendant no.3 also filed his written
statement. The case of the invervenor/ defendant is that he is the
purchaser by virtue of sale deed dated 13.03.1991, Exhibit A-2
executed by Syed Shah Altaf Hassan and Syed Shah Equbal
Hassan, wherein 1 acre land of the suit plot no. 5205, out of 1.98
acres in the Southern side has been sold to the intervenor. It is
further contended that the vendor of the intervenor had acquired
title to the aforesaid property by virtue of sale deed dated
05.08.1971, executed in their favour by their grandfather and
grandmother (Syed Shah Mujtaba Hassan and his wife). The
purpose of sale deed is indicated in the sale deed itself to the effect
that the grandfather has executed the sale deed dated 05.08.1971 in
favour of his two grandsons as they are sons of the pre deceased
Patna High Court SA No.122 of 2002 dt.14-12-2023
son and in the absence of absolute transfer the grandsons would
not inherit anything ( being a Mehjob grand sons) and will be
excluded from inheritance in presence of other two alive sons of
the grandfather (propositus) Syed Shah Mujtaba Hassan and it is
mentioned in the recital of the sale deed that the deed is being
executed out of love and affection and to protect the interest of
grandson and the consideration money has been forsaken (mafi
Zarsaman). It is emphatically pleaded that in the said sale deed the
other two sons of the grandfather are witnesses of the recital of the
sale deed. Thus, the intervenor/ defendant, who are purchaser from
the aforesaid grandsons filed written statement claiming 1 acre
land which was acquired by their vendors from the
rightful/admitted owner Syed Shah Mujtaba Hassan to the full
knowledge of the other two sons, who are witnesses to the
aforesaid sale deed dated 05.08.1971. Thus, the plaintiff claiming
through his vendors could have acquired title to entire 1.98 acres
of land from Syed Shah Mujtaba Hassan who had already sold 01
acre of land through sale deed dated 05.08.1971 and at the time of
his death he was holding title of only 98 decimals of the land in
plot no. 5205 only which could have been inherited by the vendors
of the plaintiffs.
Patna High Court SA No.122 of 2002 dt.14-12-2023
12. The learned Trial Court after scrutinizing the
evidence and material on records decreed the suit holding plaintiffs
title to the suit property and the suit property was never vested in
the State of Bihar and was sold by ex-land lord to Syed Shah
Mujtaba Hassan, through registered sale deed dated 17.08.1944,
which was written by ex-land lord as his ba-kasht land. The said
document cannot be said to be a forged document, because it is a
registered document of the year 1944. The Zamindari receipts
were issued to the purchaser Syed Shah Mujtaba Hassan and the
Return was also filed by ex-land lord showing the purchaser to be
a raiyati of the concerned land. The learned Trial Court also held
that the nature of the land changed and it became raiyati land
which is proved from the road cess Return of 1930, filed by the ex-
land lord. The learned Trial Court in view of the certified copy of
Return in the name of Syed Shah Mujtaba Hassan and the
registered sale deed dated 17.08.1944, held that said land never
vested in the State of Bihar. Defendant nos. 1 and 2 had not
brought any such witnesses to show that the suit land is being used
by public at large as gairmazarua Aam. Exhibit-B is the kabuliat
deed. This deed is also unregistered and there is every likelihood
of being forged. Exhibits C and D series are not authenticated
documents because these should have been entered in the cash
Patna High Court SA No.122 of 2002 dt.14-12-2023
register, which was not produced by the defendant nos. 1 and 2.
The learned Trial Court further held that the intervenor/ defendant
failed to establish his title and possession. The Notified Area
Committee has got no right, title and interest in the suit property. It
is further held that Mujtaba Hassan acquired right, title and interest
over the disputed plot. The plaintiff has established that he had
purchased the land from the legal heirs of Syed Mujtaba Hassan
and the suit is not barred by law of limitation.
13. Being aggrieved by the Judgment and decree of Trial
Court dated 17.03.1993, two Title Appeals were preferred. T.A.
No. 23 of 1993 was preferred on behalf of the Executive Officer,
Notified Area Committee, whereas T.A. No. 25 of 1993 was
preferred by the intervenor/defendant. Both the appeals were heard
together and decided by a common Judgment dated 20.03.2002,
whereby the plaintiff was declared to be title holder of only 98
decimals of land. The vendor of the intervenor/ defendant has been
examined to support his case, whereas the vendor of the plaintiff
did not turn up to depose. It is further held that the vendors of the
plaintiff had full knowledge that they had only title for 98 decimals
of land in the suit plot. They sold the area of 1.98 acres of land to
the plaintiff. Exhibit C-1 is the plaint of T.S. No. 11 of 1985,
Exhibit K-1 is an Exchange Deed by one Sukhdeo Singh as one
Patna High Court SA No.122 of 2002 dt.14-12-2023
party and Syed Shah Jahan, Syed Shah Alam, Syed Shah Altaf
Hassan and Syed Equbal Hassan as the other party in this deed
dated 15.08.1983, and deed of exchange all had admitted the deed
of 1971 (Exhibit A-1), executed by Syed Shah Mujtaba Hassan
and his wife in favour of Syed Altaf Alam and Syed Equbal
Hassan. It is further held that the claim of plaintiff has been denied
over 1 acre of the suit plot, whereas the claim of
intervenor/defendant was admitted. All these exhibits are sufficient
enough to show that the title with respect to 1 acre land in the suit
plot passed on to the vendor of intervenor/defendant (sale deed
dated 05.08.1971) and the document filed is of an unimpeachable
character, which cannot be forged or manufactured. However, the
claim of Municipality was rejected upholding the finding that the
land never vested in the State of Bihar and the nature of land has
changed as raiyati land and further that the plea regarding the
documents relied upon by the plaintiff to be forged cannot be
exhibited as they are certified copies. The learned Trial Court held
that the suit to be not maintainable on the ground of want of notice
under Section 377 of the Bihar and Orissa Municipal Act. It has
further held that the Notified Area Committee had no right to settle
the suit plot of anyone.
Patna High Court SA No.122 of 2002 dt.14-12-2023
14. Other two appeals bearing S.A. No. 139 of 2002 and
S.A. No. 140 of 2002 have been field on behalf of the Executive
Officer, Notified Area Committee challenging the appellate
Judgment and decree. The aforesaid two appeals had been heard
together on 03.03.2004 and the following substantial questions of
law were formulated while admitting these appeals:-
(I) Whether the learned 1st Appellate Court committed
error in law in entering into the merits of the case and deciding the
appeals on merits after holding that the original suit was not
maintainable for want of notice under Section 377 of the Bihar and
Orissa Municipal Act? The learned Appellate Court has held that
one month prior notice is mandatory, which has not been complied
with and so the suit of the plaintiff will fail on this score alone
against the municipality as no notice under Section 377 of the
Bihar and Orissa Municipal Act was served upon authority and the
suit of the plaintiff was bad, which could not have been decreed.
15. Learned counsel for the appellant in S.A. No. 122 of
2002 and S.A. No. 123 of 2002 submits that the Lower Appellate
Court has wrongly held that suit is barred under Section 377 of the
Bihar and Orissa Municipal Act as the said finding has been given
without considering oral and documentary evidence and pleadings
of the parties. It has not been shown that Notified Area Committee
Patna High Court SA No.122 of 2002 dt.14-12-2023
pleaded an oral evidence on this point. No issue was framed on
this point. Plaintiff had no opportunity to lead any evidence on the
point of service of notice under Section 377 of the Bihar and
Orissa Municipal Act. It is submitted that no notice is required to
be served under Section 377 of the Bihar and Orissa Municipal Act
in view of relief sought in this suit. The plaintiff only sought
declaration of title over the suit land as a cloud was caste on his
title. It is further submitted that in the suits no relief has been
sought against any specific order or act on the Officers of
Municipality. It is further contended that in all suits against
Municipality, no notice is required to be given under Section 377
of the Bihar and Orissa Municipal Act.
16. Reliance has been placed on A.I.R. 1936 Patna 322
(Lachminarayan Das Vrs. Chairman, Cuttak Municipality), in
which it has been held that notice under Section 377 of the Bihar
and Orissa Municipal Act is not required in all types of cases in
Municipality.
17. Learned Senior Counsel has argued and submits that
the Lower Appellate Court erred in law and holding that plaintiff
has title only over 98 decimals of land in C.S. Plot No. 5205 by
relying upon Exhibit A-1.
Patna High Court SA No.122 of 2002 dt.14-12-2023
18. Learned Senior Counsel further submits that the
Lower Appellate Court failed to consider Exhibit A-1, which is
not sale in the eye of law. Section 54 of the Transfer of Properties
Act provides "sale" is a transfer of ownership in exchange for a
price paid or promised or part paid or part promised. For sale,
there must be payment of money.
19. He relied upon a decision in the case of
Commissioner of Income Tax, A.P. Vrs. M/s. Motors and
General Stores (P) Ltd., AIR 1968 SC 200 at paragraph-3. It has
been held that for sale, there must be payment of money. Further in
the case of Dhanbarti Koerin Vrs. Shyam Narain Mahton & Ors.
reported in A.I.R. 2007 Patna 59, paragraph-12, it has been held
that sale is invalid, if there is no payment of money, so sale deed
dated 05.08.1971, executed in favour of vendor of the intervenor
(Exhibit A-1) is not sale deed in the eye of law. The vendor of the
intervenor/ defendant did not acquire any title nor any defendant
acquire any title over any portion of suit land.
20. So far finding with regard to title of the defendant is
concerned, the Trial Court has held that intervenor/ defendant
failed to prove his title, which was not considered by the Appellate
Court. It is submitted that in a case of reversal of judgment, it is
the duty of the Lower Appellate Court to consider the reasoning
Patna High Court SA No.122 of 2002 dt.14-12-2023
given by the Trial Court. Reliance has been placed on a decision
reported in A.I.R. 1995 SC 1607, S.V.R. Mudaliar (Dead) by Lrs.
And Ors. Vrs. Mrs. Rajabu F. Buhari (Dead) by Lrs. & Ors.,
paragraph-5, wherein, it has been held that reasoning given by the
Trial Court must be considered by the Lower Appellate Court.
21. Learned counsel for the appellant further submits
that the Lower Appellate Court erred in law in holding that
intervenor/defendant has title over 1 acre of disputed plot without
any counter-claim by intervenor/defendant. No relief was sought in
the plaint against intervenor/defendant, so without any counter-
claim title of the intervenor/defendant shall not have been
declared. It is further argued that concurrent finding of fact on the
point of no title to Notified Area Committee have been given. It is
further contended that Notified Area Committee have not been
able to show that finding of Trial Court and Appellate Court is
perverse, as such the finding of learned Trial Court that plaintiffs
have proved their title is concluded by concurrent finding of fact.
The case laws stated by the Notified Area Committee has no
application in this case. It is specific case of the intervenor/
defendant that the intervenor has purchased suit property, but they
failed to prove the consideration money paid in this case, so sale is
void and for this issue the learned counsel for the appellant has
Patna High Court SA No.122 of 2002 dt.14-12-2023
placed his reliance reported in A.I.R. 2002 SC 564 (Kewal Kishan
Vrs. Rajesh Kumar & Ors.).
22. On the other hand, learned counsel for the appellant
(S.A. No. 139 of 2002 and S.A. No. 140 of 2002) submitted that
one substantial question of law was framed with regard to notice
under Section 377 of the Bihar And Orissa Act, 1922 and with
regard to other question it has been said that other question of law
would be considered at the time of hearing. It is submitted that the
appellants suggested other six substantial questions of law which
has been filed in the Court and copy to the same was served on the
other side which are as follows:-
(i) Whether the Lower Appellate Court was justified in
overlooking the evidences available on record and exhibits K to
G/2 having been admitted in evidence by the Lower Appellate
Court, vide its order dated 24-11-2000 under order 41 Rule 27
C.P.C. could be completely overlooked and neglected by itself ?
(ii) Whether the finding of the Lower Appellate Court is
sustainable on the point of possession and non vesting in N.AC
without discussing the evidence which are available and having
been admitted in evidence vide its order dated 24-11-2000 under
order 41 Rule 27 C.P.C ?
Patna High Court SA No.122 of 2002 dt.14-12-2023
(iii) Whether the Court below have not committed
serious error of record and in law also ignoring the pleading of the
plaintiff with regard to para 6 of its plaint with regard to road cess
return filed in the year 1930 and having come to the conclusion
that such an old document cannot be disbelieved ?
(iv) Whether the parties to the suit are free to lead
evidence against their pleadings, and different evidence against
pleading would not be fatal for the case ?
(v) Whether the ex-intermediary or the government are
entitled to settle a Gair-Mazarua pond (Pokhar) to any individual ?
(vi) Whether in the facts and circumstances of the case
certified copy of documents exhibited with objection be read in
evidence?
23. So far as suit being not maintainable for want of
notice under Section 377 of the Bihar And Orissa Act, 1922 is
concerned, learned counsel for the appellant vehemently argued
that without prior notice to the Municipality or the State, the suit is
not maintainable with regard to declaration of title and recovery of
possessions. The plaintiff has filed the suit against the
Municipality asking declaration of title ignoring the compliance of
Section 377 of the Bihar And Orissa Act, 1922. The
defendant/appellant relied upon a case reported in A.I.R. 1984 SC
Patna High Court SA No.122 of 2002 dt.14-12-2023
1043 (Bihari Chowdhary and Anr. Vrs. State of Bihar & Ors.) as
well as recent Judgment of the Hon'ble Apex Court in case of
Nagar Palika Parishad, Mihona and Anr. Vrs. Ramnath and
Anr., reported in 2014 (6) SCC 94. The Hon'ble Supreme Court
has held at paragraphs 9 and 10 which are as under:-
"9. Along with the trial court and the
appellate court, the High Court also failed to
appreciate the aforesaid fact and also overlooked the
valuable interest and right of public at large to use the
suit land which is a part of public street. Further, in
absence of challenge to the notice of eviction issued by
the appellant, it was not open to the trial court to
decide the title merely because permanent injunction
coupled with declaration of title was also sought for.
10. In view of our finding, we set aside the
impugned judgment dated 11-4-2012 passed by the
High Court in Nagar Palika Parishad,
Mihona v. Ramnath [Second Appeal No. 568 of 2009,
decided on 11-4-2012 (MP)] as also the judgment and
decree passed by the first appellate court and the trial
court. It will be open to the appellant to proceed in
accordance with law. The appeal is allowed with the
aforesaid observations."
Patna High Court SA No.122 of 2002 dt.14-12-2023
24. Learned counsel for the appellant further submitted
that admittedly the, pokhar, in question is a 'Gairmazarua Aam'
land entered in the C.S. khatian as 'Gairmazarua' pokhar. The ex-
land lord is not entitled to settle the land to an individual. Neither
the Government nor the public is empowered to settle the
'Gairmazarua Aam' pokhar to an individual. Reliance is placed on
the case of Jagpal Singh & Ors. Vrs. State of Punjab and Ors.
Reported in A.I.R. 2011 SC 1123, paragraph-14 onwards.
25. Learned counsel for the appellant submits that
admissibility of evidence specially documentary evidence, which
is produced by the plaintiff was certified copies, which was not
legally proved as per Section 63 of the Evidence Act. The
appellant has relied upon a decision of Hon'ble Apex Court in the
case of Smt. Dayamathi Bai Vrs. Sri K.N. Shaffi (Appeal (Civil)
No. 2434 of 2000), decided on 04.08.2004. The Hon'ble Supreme
Court has held that when the plaintiff submitted a certified copy of
the sale deed in evidence and when the sale deed was taken on
record and marked as an Exhibit, the appellant did not raise any
objection, even a question of Exhibit P/2 was not challenged. In
such circumstances, it was not open to the appellant to object to
the mode of proof before the Lower Appellate Court. If the
objection had been taken at the trial stage, the plaintiff could have
Patna High Court SA No.122 of 2002 dt.14-12-2023
met it by calling for the original sale deed, which was on record in
collateral proceedings, but there was no objection from the
appellant. The sale deed dated 14.11.1944 was marked as Exhibit
P/2 and it was exhibited to the record without objection. Learned
counsel for the appellant submitted in this regard that some of the
documents were exhibited but with the objection, but all these
documents of the plaintiff were relied upon by both the Courts
below. The entire Judgment of the Courts below are based upon
the documents which were not proved as per the Evidence Act.
26. Learned counsel for the intervenor/defendant has
argued that notice under Section 377 of the Bihar And Orissa
Municipal Act, 1922 is applicable to the present suit. It is
submitted that the suit filed against the Executive Officer on the
ground that notice under Section 377 of the Bihar And Orissa
Municipal Act, 1922 is not required on account of fact that in the
present suit the relief is regarding the title to the property and not
challenging anything done by any officials under the Municipal
Act and further having contested this suit on merits, the objection
is decided to have been waived. It is submitted that no notice at all
was required for filing of the present suit seeking declaration of
title to the suit property as in view of the settled law as laid down
by a Division Bench of this Court reported in 2000 (1) BBCJ 488
Patna High Court SA No.122 of 2002 dt.14-12-2023
(D.B.), (Notified Area Committee Through the Vice Chairman,
Notified Area Committee & Anr. Vrs. Shri Chhatrapal Singh &
Anr.) paragraph-11 as well as the decision of Hon'ble Single Judge
in S.A. No. 6 of 2006, decided on 12.05.2009, paragraph-10,
wherein their Lordships have clearly held that from the reading of
Section 377 of the Bihar And Orissa Municipal Act, 1922, it is
manifest that provision provided protection to the Municipality
and its Officials only in a suit for damage to torturous act and not
to other suit including a suit for declaration.
27. Learned counsel for the appellant further submits
that Section 377 of the Bihar And Orissa Municipal Act, 1922
requires notice only when anything done by the authorities under
the Act is questioned and not in other suits where title to property
is being litigated and thus, the provision is not applicable. Reliance
has been placed in the decision reported in 2016 (2) SCC 200, City
Municipal Council Bhalki Vrs. Gurappa (Dead) by Legal
Representatives & Ors., wherein the Hon'ble Apex Court has held
in paragraphs 25 and 26, which are as follows:
"25. At this stage, we also direct our
attention to the contention raised by Mr Basava Prabhu
S. Patil, learned Senior Counsel appearing on behalf of
the appellant Municipality that the suit in OS No. 39 of
1993 was not maintainable, as the notice was issued
under Section 80 CPC in suit OS No. 255 of 1984
could not be said to be sufficient notice for the
Patna High Court SA No.122 of 2002 dt.14-12-2023
institution of the suit in OS No. 39 of 1993. We cannot
agree with the said contention. The High Court of
Karnataka in the second appeal had dismissed the
contention on the ground that the notice issued in the
suit OS No. 255 of 1984 can be said to be constructive
notice. The High Court considered that the object of
the section is the advancement of justice and securing
of public good.
26. In our opinion, this issue does not arise
at all, as a municipal council is not a public officer, and
no notice is necessary when a suit is filed against a
municipality. Thus, the question of sufficiency of
notice under Section 80 CPC does not arise at all.
Further, the issuance of notice under Section 284(1) of
the Karnataka Municipalities Act, 1964 also does not
arise for the reason that the dispute between the parties
in the suit in OS No. 39 of 1993 does not attract the
above provision of the Act and therefore, we need not
advert to and answer the above contention.
28. It is further submitted that requirement of notice to
the Municipality under Section 377 of the Bihar And Orissa
Municipal Act, 1922, even though mandatory, can be waived in
view of the settled law that even a mandatory provision made for
benefit of parties to the suit can be waived by conduct unless such
provision is in public interest and Section 80 C.P.C. and like
provision can be waived. Reliance has been placed on a decision
reported in A.I.R. 1964 SC 1300 (Subal Chandra Nath Saha &
Ors. Vrs. Sudhir Chandra Ghosh & Ors.) as well as A.I.R. 1980
Patna High Court SA No.122 of 2002 dt.14-12-2023
Patna 212 (D.B.), State of Bihar & Anr. Vrs. Smt. Panchratna
Devi & Anr., this Court has held at paragraph-10, which is as
follows:-
"10. Coming to the merit of the case, the
counsel for the appellant has attacked the deed of gift
(Ext. 1) created in favour of the plaintiff by her
husband defendant second party-respondents on the
ground that it was a clever device to defraud the
outstanding dues of the Government and as such it is
hit by Section 53 of the Transfer of Property Act. The
submission does not appeal to me. The certificate case
was filed in the year 1955-56 whereas, the deed of gift
was executed long before on 25-2-50. The certificate-
debtor defendant second party was working as a
Manager in Khalsa Motor Service. It has been pleaded
on behalf of the appellants that as a Manager of Khalsa
Motor Service, he had the knowledge that the
Government issues might ultimately be realised from
his immovable properties and he, therefore, made a
farzi and sham transaction by creating such deed. By
any stretch of imagination, it is hard to hold that as a
Manager working in any motor concern would have
thought in the year 1950 that some Government dues
would fall on his head long after six years and would
create a document to defeat the Government for
payment of the dues. I, therefore, do not find any force
in the contention.
29. It is contended that the Notified Area Committee
having not pressed this objection seriously at the initial stage of
the suit, the same will be deemed to have been waived and cannot
Patna High Court SA No.122 of 2002 dt.14-12-2023
be permitted to be raised, more so, when there was no specific
issue framed in the Trial Court regarding want of notice under
Section 377 of the Bihar And Orissa Municipal Act, 1922, but the
defendant Municipality never raised objection or tried to get the
issue re-cast.
30. It is submitted that in the decision relied upon by the
learned counsel for the Municipality of Hon'ble Chhatisgarh
High Court, the question of waiver was not considered and more
particularly the requirement of notice in a Title Suit against
Municipality under Section 377 of the Bihar And Orissa Municipal
Act, 1922 is not considered and thus the decision is inapplicable
specially when the Division Bench and Hon'ble Single Judge of
this Court referred to above have considered the requirement of
notice under Section 377 of the Bihar And Orissa Municipal Act,
1922.
31. So far the claim of the plaintiff to the suit property
regarding 1 acre 98 decimals of the lands are concerned, learned
counsel for the appellant submits that the registered sale deed
dated 05.08.1971 regarding 1 acre of the land, out of the suit
property, in favour of sons of the pre-deceased son of Syed Shah
Mujtaba Hassan and his wife, the admitted owner as per plaintiff,
remains valid and unchallenged till date as no suit or even
Patna High Court SA No.122 of 2002 dt.14-12-2023
amendment in relief challenging the deed dated 05.08.1971,
Exhibit A-1 has been made till date by the plaintiff or his
predecessor in interest. The vendors of the plaintiff, who
transferred 1.98 acres of suit land to the plaintiff by two sale deeds
dated 26.06.1982 are themselves witness to the sale deed of vendor
of intervenor/ defendant dated 05.08.1971 (Exhibit A-1). It is
submitted that the vendor of the plaintiff has no title to transfer the
entire 1.98 acres of land out of which owners of the land had
already transferred one acre land in the year 1971. Question of sale
deed of the vendor of the intervenor is without consideration. The
objection that the same is not valid sale deed in the eye of law is
wholly unsustainable having regard to the intention of vendors,
who transferred the said property out of love and affection to
compensate the "Mehjoob" ( sons of predeceased son) grandsons.
It is submitted that the learned Trial Court having not considered
or discussed the effect of sale deed dated 05.08.1971, in presence
of Exhibit A-1, entire 1.98 decimals of land transferred. Reliance
has been placed on the decision reported in 2016 (2) SCC 200,
City Municipal Council Bhalki Vrs. Gurappa (Dead) by Legal
Representatives & Ors., paragraph-31. The Hon'ble Supreme
Court has held as under:-
"31. It is a settled position of law that in a
suit for declaration of title and possession, the onus is
Patna High Court SA No.122 of 2002 dt.14-12-2023
upon the plaintiff to prove his title. Further, not only is
the onus on the plaintiff, he must prove his title
independently, and a decree in his favour cannot be
awarded for the only reason that the defendant has not
been able to prove his title, as held by this Court
in Brahma Nand Puri v. Neki Puri [Brahma Nand
Puri v. Neki Puri, AIR 1965 SC 1506] as under: (AIR
p. 1508, para 8)
"8. ... The plaintiff's suit being one for
ejectment he has to succeed or fail on the title that he
establishes and if he cannot succeed on the strength of
his title his suit must fail notwithstanding that the
defendant in possession has no title to the property...."
The same view has been reiterated by this Court in the
more recent case of R.V.E. Venkatachala
Gounder v. Arulmigu Viswesaraswami & V.P.
Temple [R.V.E. Venkatachala Gounder v. Arulmigu
Viswesaraswami & V.P. Temple, (2003) 8 SCC 752] as
under: (SCC p. 768, para 29)
"29. In a suit for recovery of possession
based on title it is for the plaintiff to prove his title and
satisfy the court that he, in law, is entitled to dispossess
the defendant from his possession over the suit
property and for the possession to be restored to him.
... In our opinion, in a suit for possession based on title
once the plaintiff has been able to create a high degree
of probability so as to shift the onus on the defendant it
is for the defendant to discharge his onus and in the
absence thereof the burden of proof lying on the
plaintiff shall be held to have been discharged so as to
amount to proof of the plaintiff's title."
32. Learned counsel for the intervenor/ defendant
submitted that the intervenor/ defendant being not a party to the
Patna High Court SA No.122 of 2002 dt.14-12-2023
suit, the Trial Court grossly erred in holding that intervenor sale
deed is hit by lis pendense.
33. So far as the objection raised by the plaintiff
appellant with regard to finding of the Appellate Court, not
declaring title of the plaintiff regarding 1 acre of land as in
paragraph-13 of the Appellate Court Judgment, the learned
Appellate Court had considered and held that right, title and
interest to 1 acre land out of 1.98 acres land had already stood
transferred by the vendors (grand parents) of vendor of the
intervenor and the plaintiff is entitled to declaration of title
regarding only 98 decimals of land. The plaintiff/appellant did not
challenge the sale deed dated 05.08.1971 and till date relief was
not amended to challenge the said deed and such relief has now
become barred by limitation. Reliance has been placed on the
decision reported in A.I.R. 1996 SC 2358 (Radhika Devi Vrs.
Bajrangi Singh & Ors.). It is submitted that there is a presumption
that a registered document is validly executed and also valid in law
until it is set aside. Reliance is placed on a decision reported in
2012 (2) PLJR 190 (Sita Sharan Prasad Vrs. Manorma Devi),
wherein this Court has also relied upon a decision reported in 1996
(7) SCC 767 (Md. Noorul Hoda Vrs. Bibi Raifunnisa & Ors.).
The Hon'ble Apex Court has held that when the plaintiff seeks to
Patna High Court SA No.122 of 2002 dt.14-12-2023
establish his title to the property, which cannot be established
without avoiding the decree or an instrument which stands as an
unsurmountable obstacle in his way which otherwise binds him
though not a party, the plaintiff necessarily has to seek a
declaration and have that decree, instrument or contract cancelled,
set aside or rescinded, but no such relief has been claimed.
34. Learned counsel for the intervenor/defendant
submitted that the suggested substantial question on behalf of
plaintiff regarding Appellate Court declaring intervenors title over
1 acre of disputed land without any counter-claim is also
thoroughly mis-conceived as the Appellate Court has examined in
paragraph-13 as to whether the plaintiff is entitled to declaration of
his title regarding entire 1 acre 98 decimals of land or not in view
of the defence based on unimpeachable registered sale deed dated
05.08.1971.
35. Learned counsel for the intervenor/ respondent in
reply to the submission made by the appellant of S.A. No. 139 of
2002 and S.A. No. 140 of 2002 (Notified Area Committee of the
Municipality) has submitted that the learned Appellate Court
Could not have decreed the suit despite holding the suit to be not
maintainable for want of notice under Section 377 of the Bihar
And Orissa Municipal Act, 1922 and the same is also not
Patna High Court SA No.122 of 2002 dt.14-12-2023
sustainable. Firstly, because of the non-requirement of notice for
the reason indicated above having regard to nature of the suit and
secondly on the ground that while defending a decree there is no
requirement to file any cross objection, when no part of the decree
is sought to be assailed by the respondent and in view of the
settled law after 1976 amendment of Order 41 Rule 22 C.P.C.
respondent without filing cross objection and challenging the
finding recorded against him in the Judgment under appeal, there
is no requirement to file any cross objection and the Court hearing
the appeal can correct the wrong finding even in absence of cross
objection. Reliance is placed on the decision reported in AIR.
2003 SC 1989 (Banarsi & Ors. Vrs. Ram Phal) as well as 2013
(2) PLJR 6 SC (Hardevinder Singh Vrs. Paramjit Singh). Both
the Courts have concurrently recorded as finding of fact holding
that exhibits filed by the plaintiff are genuine and not forged,
particularly when they are certified copies and some of them were
in the custody of the State Government and thereby clearly
disbelieved the bald plea of respondent Municipality that the
Exhibits of plaintiffs are forged. The concurrent finding of the fact
on the genuineness of exhibits the same cannot be permitted to be
assailed in Second Appeal as the view taken by the Court below
was one of the possible view and is not open to substitute by re-
Patna High Court SA No.122 of 2002 dt.14-12-2023
appreciation of evidence. Reliance is also placed on the decision
reported in 2012 (7) SCC 288 (Vishwanath Agrawal Vrs. Sarla
Vishwanath Agrawal), paragraph-37. So far as the nature of land
alleged to be pokhar based on C.S. khatian entry cannot be held
good for all time to come and nature of lands always changes with
the passage of time and for proving the certified copy of road cess
Return (Exhibit-4) has been filed, wherein this suit property is
shown to be raiyati land in 1930. The nature of land changes with
passage of time. The learned counsel for the intervenor/ defendant
has relied upon a decision reported in 2014 (3) PLJR 584, Maya
Devi & Ors. Vrs. The State of Bihar & Ors., this Court has held in
paragraph-6, which reads as under:-
"6. The next thing is whether the nature of
land being as aforesaid does thelaw permit change? In
my view, State andits officials are still harbouring a
misconception that once a land is recorded as Gair
Mazarua Aam or such land, no settlement can be made
by anyone at any point of time. The sooner this wrong
impression is erased, the better it is because on this
spacious plea, lot of damage is being done. It is well
settled judicially that such lands can be settled. That
being so, it cannot be said that as the lands were
recorded as Gair Mazarua Aam, Gair Mazarua Khas or
Qaisar-e-Hind, the settlements in respect thereof and
the Jamabandi in respect thereof becomes suspect, or
becomes illegal. There cannot be any such
presumption or assumption. Those assumptions and
presumptions are clearly misplaced. I can "here
Patna High Court SA No.122 of 2002 dt.14-12-2023
usefully refer to the judgment of this Court in the case
of Chandeshwari Prasad Narain Deo v. State of
Bihar since reported in 1956 BUR 24 as also to the
case of Laxman Sahai v. State of Bihar since reported
in 1990 (1) BLJ 457.
36. The aforesaid decision further goes on to say that it
is a settled law that gairmazarua Aam, kaisere hind or gairmazarua
khas land can also be settled by ex-land lord and there is no bar.
Reliance is also placed on the decision reported in 2016 (3) PLJR
237 (Yadunandan Singh Vrs. State of Bihar), paragraphs 14 and
15. It is submitted that the land vested in the State is no longer
open in view of the zamindari Return (Exhibit-5) and also in view
of the registered sale deed by the ex-land lord to the raiyat namely
Syed Shah Mujtaba Hassan in the year 1944 through registered
sale deed dated 17.08.1944 (Exhibit 1-B), which is prior to
01.01.1946 and in view of the same having been marked without
objection and in view of Section 4(h) of the Bihar Land Reforms
Act, the genuineness thereof cannot be examined being a
registered document prior to 01.01.1946 and on the date of vesting
the said transferred land no longer remains the lands of ex-land
lord. There was no question of vesting of those land in the State of
Bihar. Learned counsel for the appellant has placed reliance on the
Patna High Court SA No.122 of 2002 dt.14-12-2023
decision reported in 2019 (1) BLJ 597 Smt. Shashi Kala Vrs.
State of Bihar through Collector, Gaya & Anr.).
37. After having heard learned counsel for the appellants
and learned counsel for the respondents, the main question
involved in all the four appeals is whether a notice under Section
377 of the Bihar & Orissa Municipal Act, 1922, was at all essential
when the Notified Area Committee and Municipality concerned
fully contested the suit as parties and never pressed their
objections before the learned Trial Court on this point ?
38. The relevant provisions contained in Section 377 of
the Bihar & Orissa Municipal Act, 1922 is extracted, which is as
follows:-
"377. Notice of suits against
Commissioners:-
(1) No suit shall be brought against the
Commissioners of any municipality, or any of their
officers of any person acting under their direction, for
anything done under this Act until the expiration of
one month next after notice in writing has been
delivered or left at the office of such Commissioners,
and also (if the suit is intended to be brought against
any officer of the said Commissioners or any person
acting under their direction) at the place of abode of
the person against whom such suit is threatened to be
brought, stating the cause of suit and the name and
place of abode of the person who intends to bring the
suit; and unless such notice be proved, the court shall
find for the defendant;
Patna High Court SA No.122 of 2002 dt.14-12-2023
(2) Every such action shall be commenced
within three months next after the accrual of the cause
of action, and not afterwards.
(3) If the Commissioners or their officers,
or any person to whom any such notice is given, shall,
before suit is brought, tender sufficient amends to the
plaintiff, such plaintiff shall not recover."
39. On a plain reading of Section 377 of the Bihar &
Orissa Municipal Act, 1922, for the purpose of protecting a public
authority from the suits in respect of bona fide acts purporting to
have been performed under the aegis of a lawful Act in which in
spite of the bona fide of the public authority the law has been
overstepped and a tort has been committed. The word "Act" used
in Section refers to tortuous and not to any Act arising out of a
contractual or quasi contractual basis. Section 377 of the Bihar &
Orissa Municipal Act, 1922 is attracted only when the order in
question is legally passed under the Act. In the case of Dwarka
Prasad Marwari and Another Vrs. The Municipal
Commissioners Through Chairman, Bhagalpur, Municipality
reported in 1959 BLJR 121. In that decision, His Lordship with
the help of other related decisions came to the conclusion that
Section 377 of the Bihar & Orissa Municipal Act, 1922 bars only
the suits filed against the Municipality for damages of a tortuous
act and not a suit for declaration that certain orders was illegally
Patna High Court SA No.122 of 2002 dt.14-12-2023
and for injunction restraining the Municipality from enforcing that
order. In another decision of this Court reported in AIR 1936,
Patna 323 (Kanhya Lal Missir Vrs. Mt. Hira Bibi), it has been
held that Section 377 of the Bihar & Orissa Municipal Act, 1922
like similarly Legislation in India is for the purpose of protecting a
public authority from suits in respect of the Acts bona fide
purporting to have been performed under the aegis of the lawful
Act, in which in spite of the bona fide of the public authority, the
law has been overstepped and a tort has been committed. It was
held that this Section was not intended to apply to suits for the
recovery of some money other than damages for tort which are
lawfully recoverable either under the restitution or at common law
in the case of Notified Area Committee to the Notified Area
Committee Through The Vice Chairman, Notified Area
Commitee & Anr. Vrs. Shri Chharapal Singh & Anr.)., reported
in 2000 (1) BBCJ 488.
40. After considering the aforesaid decision, this Court
has held that from a reading of Section 377 of the Bihar & Orissa
Municipal Act, 1922 as well from the decision noticed above, it is
manifest that this provision provides a protection to the
Municipality and its officials only in a suit for damages or a
tortuous act and not to other suits including a suit for declaration.
Patna High Court SA No.122 of 2002 dt.14-12-2023
41. So far as the decision reported in 2014 (6) SCC 394,
Nagar Palika Parishad, Mihona (supra), the Hon'ble Supreme
Court has held that suit for declaration of plaintiff's title to
property and permanent injunction filed against Nagar Palika
without first challenging notice already issued under Section 187
by Nagar Palika for removal of encroachment made by the
plaintiff on that property, the suit is not maintainable. It is apparent
from the decision in the case of Nagar Palika Parishad (supra),
the suit was filed without challenging the notice issued under
Section 187 of M.P. Municipalities Act, 1961 by Nagar Palika for
removal of encroachment made by the plaintiff. This fact has not
emerged in the present appeals. In another decision of the Hon'ble
Supreme Court in the case of City Municipal Council (supra), the
Hon'ble Apex Court has held that the Municipal Council is not a
Public Officer, and no notice is necessary when a suit is filed
against a Municipality. Thus, the question of sufficiency of notice
under Section 80 C.P.C. does not arise at all. Further, the issuance
of notice under Section 284(1) of the Karnatka Municipalities Act,
1964 also does not arise for the reason that the dispute between
the parties in the suit does not attract the above provision of the
Act and, therefore, we need not advert to and answer the above
contention.
Patna High Court SA No.122 of 2002 dt.14-12-2023
42. Moreover, in paragraph-18 of the plaint, it is
specifically pleaded that Executive Officer, Notified Area
Committee is not a Public Officer and no notice is necessary for
filing the suit and seeks permission in a separate application before
the learned Trial Court and the leave was granted without service
of any notice under Section 80 (1) C.P.C. The same will be deemed
to have been waived and cannot be permitted to be raised in view
of the decision reported in A.I.R. 1964 SC 1300 (Subal Chandra
Nath Saha & Ors. Vrs. Sudhir Chandra Ghosh & Ors.).
However, plaintiff-appellant has also come against the finding that
the notice under Section 377 of the Bihar & Orrisa Municipl Act is
mandatory. As far as this aspect is concerned, the same has been
dealt with above in detail and this Court has come to the finding
that the same is not attracted in the instant matter.
43. In view of the above discussion, the substantial
question of law formulated with regard to notice under Section 377
of the Bihar & Orissa Municipal Act, 1922 is answered against the
appellant in S.A. No. 139 of 2002, S.A. No 140 of 2002. However,
this question is answered in favour of appellant in S.A. No. 122 of
2002 and S.A. No. 123 of 2002.
44. Considering the rival submissions and materials
available on records, it is apparent that the sale deed dated
Patna High Court SA No.122 of 2002 dt.14-12-2023
05-08-1971 executed in favor of vendor of intervenor - defendant
by his grandfather with regard to one acre of land of plot No.
5205, out of 1.98 acres had remained unchallenged and, therefore,
the sale deed dated 05-08-1971, is not vitiated and that the
intention of the grandfather of vendor (Mehjoob grandsons) of the
intervenor -defendant was to transfer the title of the said land to
"Mehjoob grandson", wherein, in order to protect the right, title
and interest of the vendor of the intervenor -defendant, his vendor
(grandfather) got his other sons ( vendors of plaintiff- appellant) as
witness in the sale deed dated 05-01-1971 (Exhibit A/1).
45. Accordingly, learned appellate court has rightly held
that the plaintiff is only entitled to 0.98 acre of the suit and the said
judgment in I.A. No. 23 of 1993 and I.A. No. 25 of 1993 is
affirmed.
46. In view of the above discussion and findings, the
judgment and decree of the Appellate Court is affirmed and,
accordingly, the aforesaid four Second Appeals stand dismissed.
(Khatim Reza, J)
pravinkumar/-
AFR/NAFR NAFR
CAV DATE 01.12.2023
Uploading Date
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