Patna High Court
Kamleshwari Pd vs The State Of Bihar And Ors on 9 January, 2024
Author: Khatim Reza
Bench: Khatim Reza
IN THE HIGH COURT OF JUDICATURE AT PATNA
SECOND APPEAL No.731 of 2010
======================================================
Kamleshwari Prasad son of late Mathura Prasad, resident of village-
Warisaliganj, P.S.- Warsaliganj, District- Nawada.
... ... Appellant/s
Versus
1. The State Of Bihar through the Collector, Nawada.
2. Anchal Adhikari, Warsaliganj, Nawada.
3. Vijay Kumar Son of Mathura Prasad, resident of village-Warisaliganj, P.S.-
Warsaliganj, District- Nawada. (Died)
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Rakesh Chandra, Advocate
For the Respondent/s : Mr. U.S.S. Singh, G.P.19
======================================================
CORAM: HONOURABLE MR. JUSTICE KHATIM REZA
CAV JUDGMENT
Date :- 09-01-2024
This Second Appeal has been filed by the appellant
against the judgment and decree dated 06.10.2010 passed by the
learned Addl. District Judge, F.T.C. II, Nawada in Title Appeal
No. 05 of 1999/02 of 2010 whereby the learned appellate court
has affirmed the judgment and decree dated 23.02.1999 passed
by the Munsif, Nawada, in Title Suit No. 306 of 1999 whereby,
the learned trial court dismissed the suit of the plaintiff-
appellant.
2. In this appeal, the following substantial questions
of law have been formulated for determination:-
Patna High Court SA No.731 of 2010 dt.09-01-2024
2/27
I. Whether in view of the averment of plaintiff in the
plaint regarding settlement of 5 ½ dhurs (approximately one
decimal) of land of plot no. 2690 from the ex-landlord after the
cadastral survey and non-denial of this fact by the defendants in
their written statement, the impugned judgments can be
sustained without legal adjudication of this claim of the plaintiff
on the basis of the evidence adduced in that regard?
II. Whether when admittedly C.S. Plot no. 2690 has
been recorded as Katchhari in Cadastral Survey Khatiyan as
well as revisional survey Khatiyan, the ex-landlord/tenure
holder could have the right to settle the suit land with the
plaintiff?
III. Whether the evidence on record as led by the
plaintiff to corroborate the case of settlement of the suit land i.e.
5 ½ dhurs of plot no. 2690 are sufficient to uphold the said
claim and whether in view of insufficiency of the evidence in
this regard the impugned judgments can be held to be valid?
3. In order to gauge the matter in its correct
perspective, it is necessary to briefly restate what the suit
entails. The suit was filed by the plaintiff-appellant for
declaration of title and confirmation of possession and further
declaration that survey in the name of defendants-respondents
Patna High Court SA No.731 of 2010 dt.09-01-2024
3/27
with regard to the suit land was wrong and also for permanent
injunction restraining defendant nos. 1 and 2 from interfering
with the plaintiff's peaceful possession as also from demolition
of structure standing over the suit lands or from changing
physical features of the suit land as well as sought relief for
declaration that the revisional survey entry with respect to the
suit land is wrong and is not binding on the plaintiff.
4. The case of the plaintiff in brief is that, land of C.S.
Plot No. 2691 area 4 decimal, Khata No. 341 was owned and
possessed by Tunia Devi wife of Dhalo Kahar which was orally
settled from ex-landlord on which there was a residential house.
Her name was recorded in the Cadastral Survey in remarks
column showing her possession. Most. Tunia Devi took
settlement of 5 ½ dhurs of land of plot no. 2690 from the ex-
landlord coupled with delivery of possession immediately after
Cadastral Survey and remained in possession. Most. Tunia Devi
sold 16 ½ decimal of lands to Jaldhari Kahar and put him in
possession. Further, case of the plaintiff is that thereafter the
said Jaldhari Kahar orally purchased 5 ½ dhurs land of C.S. Plot
No. 2690 from Most. Tunia Devi in the year 1932 accompanied
with delivery of possession. Jaldhari Kahar got constructed a
house consisting of shops over amalgamated lands of plot no.
Patna High Court SA No.731 of 2010 dt.09-01-2024
4/27
2691 and 2690 immediately after oral purchase of the aforesaid
land. It is further case of the plaintiff that Jaldhari Kahar and his
vendor prior to him had already perfected their title by law of
adverse possession by remaining in peaceful possession over the
house and lands openly continuously uninterruptedly to the
knowledge of ex-landlord. The said Jaldhari Kahar sold the said
lands consisting house, shops and other structure standing over
plot no. 2691 and 2690 to Chando Devi, mother of plaintiff and
defendant no. 3 by virtue of registered sale deed dated
18.09.1946
for a valuable consideration of Rs. 6000/- and
delivered the possession to the said Chando Devi. Chando Devi
used to live in the said house along with her husband and sons.
It is submitted that Mathura Pd., husband of Chando Devi had a
clinic in the said outer shop and structures facing towards east.
The said Mathura Pd. was a Homeopath practitioner and he
practised this profession till his death. On the death of Chando
Devi, her two sons plaintiff and defendant no. 3 succeeded as
legal heirs and came in possession thereof. Rent was being and
is being paid and rent receipt is being granted before vesting and
after vesting of the estate. It is also submitted that after purchase
Mathura Pd. made certain addition and modification in the
house and converted old latrine into septic latrine.
Patna High Court SA No.731 of 2010 dt.09-01-2024
5. In the revisional survey, the lands of plot no. 2691
has been carved out as R.S. Plot No. 3860, but wrongly
recorded in the name of Ramsaran Kahar under Khata No. 1266
showing an area of 02 decimals. The lands of plot no. 2690 area
5 ½ dhurs which corresponds to approximately one decimal has
been carved out as R.S. Plot No. 3862/10747 but wrongly
recorded under Khata No. 1706 in the name of State of Bihar.
The entire land measuring 16 ½ dhurs of plot no. 2691 and 5 ½
dhurs of C.S. Plot No. 2690 over which there stand structures
ought to have been recorded in the name of Chando Devi by
carving out a separate revisional plot of amalgamated lands 22
dhurs corresponding to 4 decimals. The said Ramsaran Kahar
never claimed the said land of R.S. Plot No. 3860 and as such he
gave Bazidawa by executing a registered deed of Bazidawa
dated 06.11.1987. Therefore the suit is confined to the portion of
lands of R.S. plot no. 10747 measuring 5 ½ dhurs only the
description of which is given in Schedule-A-I of the plaint.
6. The plaintiff further contended that they were in
peaceful possession over the suit land for last 60 years. Recently
the Karamchari and Anchal Adhikari has issued notice to the
plaintiff for removing, demolishing the old wall of the structure
standing over C.S. plot No. 2690/ R.S. Plot no. 10747. Hence,
Patna High Court SA No.731 of 2010 dt.09-01-2024
the plaintiff has been advised to file the suit for immediate and
urgent relief without serving notice under Section 80 C.P.C.
Leave was granted by the learned Munsif, Nawada on
16.10.1996.
7. On summons, defendants appeared and filed their
written statement denying the claim of the plaintiff with regard
to title and possession of the plaintiff. They asserted that the suit
property is the property of the State of Bihar and it has been
rightly recorded in Khata of State of Bihar. Though plaintiff is
in possession of the suit property but the possession is
unauthorized and illegal and an encroachment proceeding
started against the plaintiff.
8. Mr. Shashi Shekhar Dvivedi, learned senior counsel
for the appellant submits that in the instant case the real dispute
is with regard to C.S. Plot No. 2690, C.S. Khata No. 347,
equivalent to R.S. Khata No. 1906, R.S. Plot No. 3862/10747,
having an area of 5 ½ dhurs. The total area of the plot in C.S. is
26 decimals and the area is reduced to 14 decimals (Ext. 4 and
Ext. 4 /A).
9. It is submitted that with regard to claims of the
plaintiff, in rebuttal of all the paragraphs of plaint with respect
to the plaintiff's title and non-title of the State of Bihar, only one
Patna High Court SA No.731 of 2010 dt.09-01-2024
paragraph in written statement of defendant nos. 1 and 2 is
relevant which is paragraph 10 which reads as under:-
"10. That the averments made in the
plaint which have not been
specifically admitted should be
admitted to have been denied by the
defendant."
10. It is contended that the relevant law in this respect
is contained in Order VIII Rule 3, 4 and 5 CPC, which reads as
follows:-
3. Denial to be specific.- It shall not
be sufficient for a defendant in his
written statement to deny generally
the grounds alleged by the plaintiff,
but the defendant must deal
specifically with each allegation of
fact of which he does not admit the
truth, except damages.
4. Evasive denial. Where a defendant
denies an allegation of fact in the
plaint he must not do so evasively, but
answer the point of substance. Thus, if
it is alleged that he received a certain
sum of money, it shall not be sufficient
to deny that he received that
particular amount, but he must deny
that he received that sum or any part
thereof, or else set out how much he
Patna High Court SA No.731 of 2010 dt.09-01-2024
received. And if an allegation is made
with diverse circumstance, it shall not
be sufficient to deny it along with
those circumstances.
5. Specific denial.- (1) Every
allegation of fact in the plaint, if not
denied specifically or by necessary
implication, or stated to be not
admitted in the pleading of the
defendant, shall be taken to be
admitted except as against a person
under disability:
Provided that the Court may in it
discretion require any fact so admitted
to be proved otherwise than by such
admission.
(2) Where the defendant has not filed
a pleading, it shall be lawful for the
Court to pronounce judgment on the
basis of the facts contained in the
plaint, except as against a person
under a disability, but the Court may,
in its discretion, require any such fact
to be proved.
(3) In exercising its discretion under
the proviso to sub-rule (1) or under
sub-rule (2), the Court shall have due
regard to the fact whether the
defendant could have, or has, engaged
a pleader.
Patna High Court SA No.731 of 2010 dt.09-01-2024
(4) Whenever a judgment is
pronounced under this rule, a decree
shall be drawn up in accordance with
such judgment and such decree shall
bear the date on which the judgment
was pronounced.
11. It is submitted that the next relevant provision is
Order XII Rule 6 (1) CPC, reads as under:-
"Where admissions of fact have been
made either in the pleading or
otherwise, whether orally or in
writing, the Court may at any stage of
the suit, either on the application of
any party or of its own motion and
without waiting for the determination
of any other question between the
parties, make such order or give such
judgment as it may think fit, having
regard to such admissions.
12. Learned senior counsel further submitted that the
provisions of Section 58 of the Indian Evidence Act have been
considered by this court as well as by the Hon'ble Supreme
Court on several occasions. He relied upon a decision in the
case of Punit Rai and Another Vs. Md. Majid and Others
reported in 1964 Patna 348 (DB) wherein it has held in
Patna High Court SA No.731 of 2010 dt.09-01-2024
paragraph 4 as under:-
"So far as the first point, namely, that
the plaintiff has not established its
title to a portion of Plot No. 407 is
concerned, it may be noted that the
title of the plaintiff was not denied in
the written statements filed by the
appellants of the two appeals. The
plaintiff clearly stated in paragraph-3
of the plaint that its own lands
bearing Municipal Survey Plot Nos.
407, 408, 409 and 410 in Ward No.
26, Sheet No. 242, the area whereof is
about 1 Bigha 5 kathas. The
defendants 11 to 13 did not deny in
their written statement the correctness
of the averments made by the plaintiff
referred to above. Defendants 14 and
15, however, in paragraph 7 of their
written statement, with reference to
the averments in the plaint about the
ownership of the said plots only stated
that they denied the allegations made
in Paragraphs 2, 3 and 4 of the plaint.
This denial is no denial of averment in
law. Order VIII, rule 3 of the Code of
Civil Procedure, states that it shall not
be sufficient for a defendant in his
written statement to deny generally
Patna High Court SA No.731 of 2010 dt.09-01-2024
the grounds alleged by the plaintiff,
but the defendant must deal
specifically with each allegation of
fact of which he does not admit the
truth, except damages. There should,
therefore, have been a specific denial
of the title of the plaintiff with regard
to the plots referred to above, and the
Lower Appellate Court has rightly
observed that the title of the plaintiff
over these plots had not been denied
in the pleadings. There being no
denial of the title of the plaintiff with
respect to these plots, it must be
assumed that its title to these plots
was admitted in the pleadings."
13. Further, reliance has been placed on the judgment
in case of Balraj Taneja Vs. Sunil Madan and Another
reported in (1999) 8 SCC 396, in which all possible aspects of
Order VIII Rules 3 to 5 have been considered in paragraphs 8 to
12. Even the effect of non-filing of the written statement has
been considered and it has been held that it will be deemed to be
admission.
14. In another judgment of Hon'ble Supreme Court in
the case of Gautam Sarup Vs. Leela Jetly and Ors reported in
(2008) 7 SCC 85 considered Order VIII as well as Order XII
Patna High Court SA No.731 of 2010 dt.09-01-2024
Rule 6 CPC read with Section 58 of the Evidence Act in
paragraph 16, which reads as under:-
"16. A thing admitted in view of
Section 58 of the Evidence Act need
not be proved. Order 8 Rule 5 of the
Code of Civil Procedure provides that
even a vague or evasive denial may be
treated to be an admission in which
event the court may pass a decree in
favour of the plaintiff. Relying on or
on the basis thereof a suit, having
regard to the provisions of Order 12
Rule 6 of the Code of Civil Procedure
may also be decreed on admission. It
is one thing to say that without
resiling from an admission, it would
be permissible to explain under what
circumstances the same had been
made or it was made under a mistaken
belief or to clarify one's stand inter
alia in regard to the extent or effect of
such admission, but it is another thing
to say that a person can be permitted
to totally resile therefrom. The
decisions of this Court unfortunately
in this regard had not been uniform.
We would notice a few of them."
15. It is submitted that the title of the plaintiff should
be considered in view of the oral evidences and documents of
Patna High Court SA No.731 of 2010 dt.09-01-2024
title having been produced which shows the story of settlement
immediately after Cadastral Survey in favour of Tunni Devi.
The registered sale deed dated 18.09.1946 (Ext. 2) was executed
by Jaldhari Singh and his brothers in favour of the plaintiff's
mother Chando Kunwar with respect to Plot No. 2690 and 2691
consisting a house, clearly mentioning therein the purchase of
the disputed land from Tunni Devi, namely, Settlee of the
disputed land from the ex-landlord. It is further contended that
the revenue receipts were granted by the State authorities,
namely, Ext. 1 series in the name of Chando Kunwar widow of
Mathura Pd. regarding the disputed land of Jamabandi No. 410.
This Jamabandi was created by the State of Bihar on the basis of
Return submitted by the ex-landlord. Rent was not realized by
the ex-landlord with respect to house property and therefore,
there is no rent receipt of the ex-landlord. The receipts granted
by the State, act as estoppel against the state and they cannot
argue that it is valueless because it is issued without prejudice.
This question was considered by a Division Bench of this court
in the case of Sardamoni Debi Vs. State of Bihar reported in
AIR 1979 Patna 106 and in paragraph 24 this issue was
considered and the court held that the grant of receipt by the
State without prejudice does not mean that the state is not bound
Patna High Court SA No.731 of 2010 dt.09-01-2024
by them.
16. Learned senior counsel vehemently argued that
the Cadastral Survey Khatiyan published in the year 1915, Plot
no. 2690 was recorded as Katchhari Ka Sahan, area 26 decimals
(Ext. 4.) whereas R.S. Khatiyan (Ext. 4/A) published in the year
1976, corresponding to R.S. plot no. 3862/10747 is recorded as
Tehsil Katchhari, having an area of 14 decimals only. This
clearly means that after Cadastral Survey 12 decimals of plot
no. 2690 were settled by ex-landlord, inter alia, to the plaintiff's
predecessor in interest. Admittedly, the State has not settled any
part out of it. This fully corroborates the story of settlement as
stated by the plaintiff. Both the courts below have put the onus
of proving title on the plaintiff without considering the law on
the point. In paragraph 9 of the written statement filed by the
State, the defendants have admitted the possession of the
plaintiff and such possession is evident from the Khatiyan also.
17. Learned counsel placed upon provisions of
Section 110 of the Indian Evidence Act, 1872, which reads as
under:-
"110. Burden of proof as to
ownership.- When the question is
whether any person is owner of
anything of which he is shown to be in
Patna High Court SA No.731 of 2010 dt.09-01-2024
possession, the burden of proving that
he is not the owner is on the person
who affirms that he is not the owner."
18. In view of the aforesaid provision, the onus of
proof of the lack of title of the plaintiff lies squarely on the
defendant. The defendant could have proved that the disputed
property vested with the State of Bihar. The Return has not been
filed by the State which are proof of Jamabandi return. The
Jamabandi of the suit land prepared by the State of Bihar in
favour of the tenants, namely, tenants ledger and finally
published register of the land prepared under Section 28 of the
Bihar Land Reform Act (compensation Assessment- role)
carries a presumption regarding certain land having vested in
favour of the State of Bihar. This aspect of the provision of law
have not been considered by the courts below. Only relying on
the entry in Khatiyan, which is admittedly not a document of
title, as has been held by this Court as well as Apex Court time
and again, therefore, having failed to discharge the onus of
proof on them with respect to the title, the Court was duty
bound to hold and declare the title of the plaintiff over the suit
properties.
19. Learned senior counsel submits that the title and
possession of the plaintiff has been proved, the entry with
Patna High Court SA No.731 of 2010 dt.09-01-2024
respect to the suit property is illegal and wrong and is not
binding on the plaintiff.
20. So far second substantial question of law is
concerned, senior counsel for the appellant further submits that
this question is redundant and appears to have been framed only
because the appellate court has made out of a third case
regarding ability of the landlord to settle Gair Mazarua Aam
land, which the Katchhari is. There is no fundamental plea in
the written statement and therefore, this question ought not to
have been raised by the appellate court by making out a third
case.
21. It is further submitted that the landlord before
1956 was the absolute owner of every inch of land within his
Zamindari/tenure and he could settle any land at his will to any
tenant; the only exception was with regard to the land over
which some kind of customary right had accrued to the general
public.
22. Reliance has been placed on the judgments
reported in AIR (34) 1947 Patna 116, 1959 BLJR 310 as well
as 1970 PLJR 7, the tenor in all these cases are that Gair
Mazarua Aam lands could be settled by the ex-landlord subject
to the right of general public like customary right.
Patna High Court SA No.731 of 2010 dt.09-01-2024
23. It is further submitted that Katchhari is not
defined anywhere in the B.T. Act. Only two kinds of lands are
there namely, Mazarua (cultivable) and Gair Majarua (non
cultivable) and they have been classified according to the
different uses for which they have been put now except where
any embargo has been placed on the land lord over settlement of
any kind of land. Katchhari only means a place where the land
lord holds his office for his convenience and management of the
estate and realization of revenue and maintenance of records. It
could be built on any kind of land within the Zamindari of the
landlord. He had the power to shift it, remove it, and demolish it
or to do anything about it there is or was no legal embargo upon
it. The State had never had any authority over these lands before
the vesting of estate by the Act of Bihar Land Reforms Act,
1950. By this Act, they got only such rights which the Maliks
had including the power of settlement earlier held by Maliks.
They do not contend nor they have ever contended since 1956
that on vesting of such lands, if any, the State has any right to
settle a land which was Katcchari of the estate or any other kind
of property held by the ex-landlord.
24. This question of law has not been considered by
the courts below.
Patna High Court SA No.731 of 2010 dt.09-01-2024
25. On the other hand Mr. U.S.S. Singh, Government
Pleader no. 19 has submitted that learned trial court after
perusing Cadestral Survey Khatiyan with regard to plot no. 2690
came to the finding that the said land was recorded in the
Khatiyan as Katchhari (Ext. 4) and in the Revisional Survey
Khatiyan (Ext. 4/a) the land is recorded as Tehsil Katchhari and
held that as per Bihar Land Reform Act the cadestral survey plot
no. 2690 corresponding to R.S. Plot no. 3863 / 10747 is also
recorded in the name of Anabad Bihar Sarkar and the nature of
the land has been shown as Tehsil Katchhari which has been
vested in the State of Bihar and as such plot no. 2690 which was
Katchhari was not subjected to settlement by the ex-landlord
and the trial court has held that plaintiff has got no document of
settlement of the suit land. Moreover, such land which is used
for the purpose of Katchhari could not be settled in view of the
provisions of Section 4(a) of the Bihar Land Reforms Act. The
trial court further held that because the suit land has already
been vested in the State of Bihar by operation of the Bihar Land
Reform Act, so the revisional survey entry recorded in the name
of Bihar Sarkar is correct.
26. Learned counsel for the State further submitted
that the learned appellate court after considering the matter held
Patna High Court SA No.731 of 2010 dt.09-01-2024
that revisional survey plot no. 2690 area 5 ½ dhurs which is
recorded as Katchhari in C.S. Khata no. 347, no question of
passing title to Tuniya Devi or her subsequent vendor over plot
no. 2690 exists. The Court below has come to the conclusion
that the plaintiff has got no document of settlement of the suit
land, moreover, such land which is used as Katchhari could not
be settled by the operation of the Bihar Land Reform Act, 1950.
27. Learned counsel for the State further submitted
that both the courts below gave a concurrent finding of facts and
the said finding does not require any interference by this court
in second appeal. It is further submitted that from the perusal of
evidence produced by the plaintiff, it does not appear that the
Katchhari was not used by the landlord for the collection of
rent. Reliance was placed on the judgment reported in AIR
1957 Pat 94 (Ram Kumari Devi Vs. State of Bihar).
28. It is further submitted that both the courts have
considered all aspect of the matter and rightly dismissed the suit
of the plaintiff-appellant.
29. Considering the rival submissions, materials on
records as well as on perusal of the impugned judgment, it is
pertinent to mention that Most. Tunia Devi took oral settlement
from the ex-landlord with regard to 4 decimals pertaining to
Patna High Court SA No.731 of 2010 dt.09-01-2024
C.S. Khata No. 347, C.S. Plot No. 2691 by oral settlement on
which there was residential house, her name was recorded in the
Cadestral Survey in remarks column showing her possession.
The said Cadestral Survey was finally published in the year
1915. The case of the plaintiff is that Most. Tunia Devi took
settlement of 5 ½ dhurs lands of plot no. 2690 from the ex-
landlord coupled with delivery of possession immediately after
cadastral survey and remained in possession.
30. Most. Tunia Devi sold 16 ½ decimals land to
Jaldhari Kahar and put him possession. It is submitted that
Jaldhari Kahar orally purchased 5 ½ dhurs land of C.S. Plot No.
2690 from Most. Tunia Devi in the year 1932 accompanied with
delivery of possession. Plot nos. 2691 and 2690 amalgamated
immediately after oral purchase of 5 ½ dhurs land of C.S. Plot
no. 2690. The said Jaldhari Kahar and his brother sold the lands
consisting house and shops and other structures standing over
Plot no. 2691 and 2690 to one Chando Devi (mother of the
plaintiff and defendant no. 3) by virtue of registered sale deed
dated 18.09.1946. Her name was mutated and on payment of
rent receipts was granted by the State authorities (Ext. 1 series)
and Jamabandi was created bearing Jamabandi No. 410.
31. It is admitted case of the parties that C.S. Plot No.
Patna High Court SA No.731 of 2010 dt.09-01-2024
2690 has been recorded as Katchhari in Cadastral Survey
Khatiyan as well as revisional survey Khatiyan. The total area of
C.S. Plot is 26 decimals where as R.S. Khata No. 1906, R.S.
Plot No. 3682/10747 having an area of 14 decimals only
recorded as Tehseel Katchhari. It means after C.S. Khatiyan 12
decimals of Cadastral Survey Plot no. 2690 were not treated as
part of the "Katchhari ka Sehan". The defendant did not produce
any document with regard to 12 decimals which was settled by
the ex-landlord.
32. It is pleaded that 5 ½ dhurs (approximately 1
decimal) land of Tunia Devi is out of 12 decimals of C.S. plot
no. 2690. The defendant is the custodian of all revenue records
after vesting of Zamindari. Neither any document nor any
evidence has been adduced by the defendants to prove that the
said 5 ½ dhurs (approx 1 decimal) is not part of the 12 decimals.
33. So far sale deed of 1946 is concerned, as per the
provision of Bihar Land Reforms Act, 1950, the Collector has
power to enquire whether any transfer was made after
01.01.1946 and if said transfer was made after 01.01.1946
whether the same was with object of defeating provision of the
Act or causing loss to the estate or obtain higher compensation.
In the present case, the sale deed was executed on 18.06.1946
Patna High Court SA No.731 of 2010 dt.09-01-2024
but neither any annulment of the sale deed nor any enquiry was
made by the Collector under Section 4(h) of the Bihar Land
Reforms Act, neither the Jamabandi stood cancelled from the
name of mother of the plaintiff namely Chando Devi nor any
proceeding was ever initiated against the said Chando Devi. The
said sale deed with regard to 16 ½ decimals of land of plot no.
2690 and 2691 was admitted and defendant, accepted the sale
deed which is evident from the conduct of the defendant state
while excluding 5 ½ dhurs of land (approx 1 decimal).
34. The provision of Section 4(a) of the Bihar Land
Reforms Act provides that "Such estate or tenure including the
interests of the proprietor or tenure-holder in any building or
part of a building comprised in such estate or tenure and used
primarily as office or cutchery for the collection of rent of such
estate or tenure, and his interests in trees, forests, fisheries,
jalkars, hats, bazars [mela] and ferries and all other sairati
interests, as also his interest in all sub-soil including any rights
in mines and minerals whether discovered or undiscovered, or
whether been worked or not, inclusive of such rights of a lessee
of mines and minerals, comprised in such estate or tenure
(other than the interests of raiyats or under-raiyats) shall, with
effect from the date of vesting, vest absolutely in the State free
Patna High Court SA No.731 of 2010 dt.09-01-2024
from all incumbrances and such proprietor or tenure-holder
shall cease to have any interest in such estate or other than the
interests expresslly saved by or under the provisions of this
Act."
35. The defendant did not produce any order of
cancellation of settlement or annulment of sale deed with regard
to the suit land and there is no averment with regard to initiation
of proceeding under Section 4 (h) of the Bihar Land Reforms
Act, 1950; the defendant has not produced any documents with
regard to order of annulment of sale deed dated 18.09.1946 with
regard to Plot No. 2691 and 2692 admeasuring 16½ decimals.
The claim of the appellant-predecessor in interest regarding
settlement of 5½ dhurs of C.S. Plot No. 2690 has not been
denied by the defendant. The defendant-State of Bihar is the
custodian of the revenue records despite that they did not file
'Return' which would clarify real issue in dispute. Moreover, on
the basis of 'Return', the rent was fixed by the State authority in
favour of the mother of the appellant. So far settlement in favour
of Tunia Devi, who was settlee from the ex-tenure holder of suit
land along with other land is concerned, in the cadestral survey,
26 decimals land of Plot No. 2690 has been shown as
Katchhari. The said land reduced after submission of 'Return'
Patna High Court SA No.731 of 2010 dt.09-01-2024
filed by ex-tenure holder meaning thereby 12 decimals land of
the said Katchhari land was settled by the ex-tenure holder
which was accepted by the authority concerned. It is well settled
that only building of the Katchhari of the ex-landlord which was
primarily used for the purpose of collection of rent has been
vested. This aspect of the matter has been dealt with in the case
of Smt. Ram kumari Devi and Ors. Vs State of Bihar and Ors.
reported in AIR 1957 Pat 94, the Court has held that:-
"Under the terms of Section 4(a) of the
Bihar Land Reforms Act, a building or a
part of it vests in the State only if it is
primarily used for collection of rent. The use
of the word 'primarily' by the legislature is
very significant and makes it perfectly
intelligible that though rents may have been
collected by a proprietor in a building or a
part of it casually, it cannot vest in the State
as being a Kutchery unless it is established
that it was primarily used for the purpose of
collection of rent. It has, therefore, to be
seen whether a case has been made out by
the State on the materials on the record that
the building in question was primarily used
for collection of rent".
36. The defendant has failed to prove that any
building as a Katchhari was situated over the said disputed land
Patna High Court SA No.731 of 2010 dt.09-01-2024
i.e. 5 and ½ dhurs (approximately one decimal). The registered
sale deed was executed on 18.09.1946 (Ext.-2) i.e. after
01.01.1946, the Collector had power under Section 4 (h) but no
step was taken by the Collector. Non-consideration of registered
sale deed amounts to perversity, reliance has been placed in case
of Municipal Committee, Hoshiarpur vs. Punjab State
Electricity Board and Ors. reported in (2010) 13 SCC 216. The
sale deed with regard to Cadestral Khatiyan No. 347, Plot No.
2690 and 2691, mentions area 16 and ½ decimals. Both the
courts have held that C.S. Plot No. 2691 is not in dispute. Only
entry of Plot No. 2690 in the Survey Khatiyan is Katchhari and
further assumed that the said 5 and ½ dhurs (approximately one
decimal) is Katchhari without ascertaining that the said 5 and ½
dhurs is primarily used for collection of rent or not. This aspect
of the matter has not been considered. The predecessor in
interest was in possession of the suit land since 1930 and
thereafter the suit property along with other land was sold to the
appellant's mother. The State has not established that the said
one decimal (5½ dhurs) land was primarily used for the purpose
of collection of rent.
37. It appears from the Revisional Survey Khatiyan,
the Katchhari land has been mentioned only 14 decimals out of
Patna High Court SA No.731 of 2010 dt.09-01-2024
26 decimals measured in Cadestral Survey Khatiyan as
Katchhari. Therefore, by the conduct of the State it is ample
clear that it recognized ex-tenure holder settling of 12 decimals
land of plot no. 2690 of C.S. Khatiyan in favour of other
persons including the predecessor in interest of the plaintiff. In
absence of any legal proceeding especially under Section 4(h) of
the Act, the sale deed dated 18.09.1946 is legal and valid.
38. From the above discussions, it is manifest that the
land, in question, was not primarily used for collection of rent
within the meaning of Section 4(a) of the Land Reforms Act and
as such, it did not vest in the State and therefore, Plaintiff-
appellant has title over the suit land.
39. In view of my above findings, the impugned
judgments and decree are liable to be set aside and the suit be
decreed.
40. The substantial question of law formulated is
therefore, answered in favour of the appellant.
41. Accordingly, the impugned judgment and decree
dated 06.10.2010 passed by the learned Addl. District Judge,
F.T.C. II, Nawada in Title Appeal No. 05 of 1999/02 of 2010 as
well as judgment and decree dated 23.02.1999 passed by the
Munsif, Nawada in Title Suit No. 306/1999 are hereby set aside
Patna High Court SA No.731 of 2010 dt.09-01-2024
and Title Suit No. 306/1999 is decreed in favour of the plaintiff-
appellant.
42. In the result, this Second Appeal is allowed.
(Khatim Reza, J)
Sankalp/-
AFR/NAFR AFR
CAV DATE 08.09.2023
Uploading Date 16.01.2024
Transmission Date N/A
