Patna High Court
Ram Prasad Das vs Deebakar Das on 4 January, 2024
Author: Khatim Reza
Bench: Khatim Reza
IN THE HIGH COURT OF JUDICATURE AT PATNA
SECOND APPEAL No.535 of 1999
======================================================
1. Ram Prasad Das Son of Late Bhauli Das, resident of Madhopura, Police
Station-Khazanchi Hat, District-Purnea.
2.1. Mostt. Lukhia Devi, widow of Late Ram Chandra Das, resident of
Madhopura, P.S. Khazanchi Hat, Distt-Purnea.
2.2. Dukha Das, S/o Ramchandra Das, resident of Madhopura, P.S. Khazanchi
Hat, Distt-Purnea.
... ... Appellant/s
Versus
1. Deebakar Das son of Late Sukhdeo Das, resident of Tatma Toli near By
Pass, Police Station-Khazanchi Hat, District-Purnea.
2. Seebakar Das son of Late Sukhdeo Das, resident of Tatma Toli near By Pass,
Police Station-Khazanchi Hat, District-Purnea.
3. Bibi Sultana Khatoon W/o Md. Yunus, resident of Village Asiana Colony,
P.S. K. Hat, P.O. Purnea, Distt. Purnea.
4. Md. Yunus, S/o Md. Lal Hussain, resident of Village Asiana Colony, P.S. K.
Hat, P.O. Purnea, Distt. Purnea.
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Raghib Ashan, Sr. Advocate with
Md. Shahab Khalil, Advocate
For the Respondent/s : Mr. Abbas Haider, Advocate
Mr. Wasi Mohammad, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE KHATIM REZA
CAV JUDGMENT
Date : 04-01-2024
Heard learned senior counsel for the appellants and
learned counsel for the respondents.
2. The instant Second Appeal has been filed against the
Judgment of reversal dated 12.10.1999, passed in Title Appeal
Patna High Court SA No.535 of 1999 dt.04-01-2024
2/18
No.52/1992 (Tr. No.3/1996) by the 4th Additional District
Judge, Purnea, whereby the learned Lower Appellate Court
reversed the judgment and decree dated 15.09.1992, passed in
Title Suit No.35/1990,by the learned Munsif, Sadar, Purnea
whereby the suit filed by the plaintiffs- appellants was decreed.
3. In the present Second Appeal, the following substantial
questions of law have been formulated for determination:-
"(a) Whether the first appellate court was justified in not
admitting the evidence regarding Municipal Survey Parcha
which would have connected it with the old G.S. plots, and
claimed as the suit plots as also regarding the amendment of the
plaint with respect to the year of settlement ?
b) Whether the appellate court was justified in dismissing
the suit of the plaintiff-respondents even after holding that the
plaintiffs-respondents were found to be in possession of their
names were recorded in the Municipal Survey records of right in
the column of possession ?
c) Whether the appellate court was further Justified in
dismissing the suit, even after holding that the defendants had
failed to prove their right and title over the suit land?
d) Any other question of law that may be pointed out by
the parties and which the Court may deem fit and proper for
consideration in this appeal."
4. In order to guage the matter in its correct perspective, it
is necessary to briefly restate what the suit entails. The
plaintiffs- appellants filed Title Suit No. 35/1990 for declaration
Patna High Court SA No.535 of 1999 dt.04-01-2024
3/18
of their title and confirmation of possession over the suit land on
an adjudication that the entry of the name of the defendants
-Respondent Nos.1 and 2, in respect of the suit land, is wrong.
The details of the suit land has been mentioned in the Schedule
to the plaint, which reads as under:-
Mouza- Madhopara, Thana No.108, Thana: Sadar (K.
Hat), District Purnea.
MS Khata No. MS Plot No. Area Remarks
144 788, 05.40 Ares Carved out of C.S.
Plot No. 819, 811
and 813.
473 14.10
Total 19.50
BOUNDARY
North- Janakdhari Das and Malhu Das
South- Road Municipality
East- Dhar
West- Plaintiffs house and lands
5. The case of the plaintiffs, in brief, is that 3 bigha land
of Mouza- Madhopara of Khewat No.11 C.S. Khata 51 (Part)
bearing C.S. Plot Nos. 811, 813 and 819 was acquired by Bhauli
Das from the Khewatdar, namely, Maulvi Mohammad Hanif
Sahab in the year 1953 and came in possession of the said land.
The plaintiffs used to pay rent to the Khewatdar and after the
vesting of tenures under Bihar Land Reforms Act, 1950, name
of the plaintiffs were mutated and Jamabandi was created in the
Patna High Court SA No.535 of 1999 dt.04-01-2024
4/18
name of the plaintiffs and rent receipts were issued in their
favour. The boundary of the land settled was as under:
North- Madhu Das and Janakdhari Das
South- Municipal Road
East- Dhar
West- Dukha Das and Janak Das
6. It is the further case of the plaintiffs that immediately
after settlement, they constructed their house to live with their
families. The holding of the house built over part of the land
was created as holding No.27 of ward No.1/19, Mohalla- Gwala
Toli and on payment, rent receipts was issued in favour of the
plaintiffs. The remaining portion of the land is being used for
agriculture, Bari-jhari and for keeping cow to the knowledge of
all concerned. The land lying towards East of the plaintiffs has
not been surveyed in Municipal Survey. During recent
Municipal Survey, the Survey Authorities finding the title and
possession of the plaintiffs issued Purcha in the name of the
plaintiffs showing that MS Plot No. 473 has been carved out of
CS Plot No. 819 (part) with an area of 14 Ares 10 point and
MS Plot No. 474(Ka) and (Kha) carved out of CS Plot nos.
811, 813 and 819 (part) measuring area of 2 Ares, 30 points
and 40 Ares respectively recorded in the name of the plaintiffs.
7. The further case of the plaintiffs is that the defendants,
Patna High Court SA No.535 of 1999 dt.04-01-2024
5/18
who have no manner of right, title, interest and possession over
the above said holding of the plaintiffs or any portion thereof,
filed an objection case bearing 515/646 of 1983, Ward No. 1 of
the Purnea Municipality against the State of Bihar for MS Plot
Nos. 644 and 472 only. In the instant case, as it appears from
the petition of the defendants, they did not claim the
plaintiffs' MS Plot Nos. 473 and 474(Ka) and (Kha) and did not
even implead the plaintiffs as party in that suit. It is further
contented that the Municipal Survey Amin in collusion with
the defendants and other staffs of the Survey Settlement Office
submitted a wrong, illegal and collusive report in favour of the
defendants with respect to the plaintiffs said plots, which was
not even claimed by the said defendants. The Assistant
Settlement Officer, on the basis of the Amin's report, wrongly
and illegally ordered on 25.07.1984 to record M.S. Plot No.473,
measuring 14 Ares 10 points and 5 Ares 40 points of M.S.
Plot No.474 in the name of the defendants. The Assistant
Settlement Officer, by its order dated 25-07-1984, directed to
record as "Deebakar Das etc., Dhokal Bholi Das". The order
was without jurisdiction, illegal and wrong. On the strength of
the illegal order, the defendants started giving threat to
dispossess the plaintiffs from the suit land. The cause of action
Patna High Court SA No.535 of 1999 dt.04-01-2024
6/18
for which arose on 25-07-1984 when wrong order to record suit
land in the name of defendants was passed by the Municipal
Survey Authorities and on 30-01-1990 when the khatiyan was
finally published with respect to the suit land. The last date of
threat of dispossession was given on 05-02-1990.
8. The defendants- respondent nos. 1 and 2 filed their
written statement and contested the suit denying the claim of
acquisition of the suit land , title and possession of the plaintiffs
and admitted filing of objection case no. 515/646 of 83 of Ward
No.1 of Purnea Municipality against the State of Bihar. It is
further pleaded that Sukhdev Das, father of the defendants
purchased the following land from Bibi Akhtari and other heirs
of Late Md. Hanif by virtue of a registered sale deed dated
24.1.1973
, bearing Khata No. 99, plot no. 815(part) area 0.15
decimals, khata no. 97 plot no. 819 (part) area 0.40 decimal,
khata no. 98, plot no. 821 (part) area 0.40 decimal, khata no.
100 plot no. 817 (part), area 0.10 decimal, plot no. 820 (part)
area 0.12 decimal, khata no. 34, plot no. 814 (part), 0.09
decimal situated at Mouza Madhopara, ward No. 1, Purnea
Municipality. It is further case of the defendants that the
defendants were all along in possession of their aforesaid
purchased land with the specified boundaries and they used to
Patna High Court SA No.535 of 1999 dt.04-01-2024
cultivate different crops thereon and planted bamboos in a
portion thereof. It is submitted that the defendants' father died in
the year 1976 leaving behind the defendants as his heirs who
were then minors. The defendants after the death of their father
used to cultivate the lands aforementioned with the help of their
grandfather and all along remained in possession of the same.
The plaintiffs have no concern with the above mentioned lands
of the defendants. The suit lands are part and parcel of the
above mentioned lands of the defendants. It is further pleaded
that during the Municipal Survey operation the suit lands and
other lands of the defendants which were carved out of the
above mentioned lands of the defendants were wrongly
recorded in the name of the plaintiffs and others respectively for
which the defendants filed the objection case No. 1515/ 446 of
1983. The Municipal Survey entry of the suit lands showing the
possession of the plaintiffs over the same is wrong and baseless.
The defendants took steps for setting aside the wrong entries of
some of the lands of the defendants in the name of some other
person. The defendants have acquired valid right, title and
interest over the suit land by adverse possession and also by
remaining in adverse possession of the same for more than 12
years openly, adversely and to the full knowledge of the
Patna High Court SA No.535 of 1999 dt.04-01-2024
plaintiffs and others.
9. After considering the evidence oral as well as
documentary led by the parties in support of their case, the
learned Trial Court decreed the suit in favour of the plaintiffs.
10. Aggrieved thereof, the defendant nos. 1 and
2/respondent nos. 1 and 2 assailed the said judgment and
decree of the learned Trial Court by way of filing Title Appeal
bearing T.A. No. 52 of 1992 before the learned Lower Appellate
Court, which was allowed by judgment and decree dated
09-10-1999 passed by 4th Additional District Judge, Purnea. The
learned Lower Appellate Court has held that the plaintiffs have
failed to prove that the suit land was acquired by their father
through settlement in the year 1953. The appellate Court has
also held that as per plaintiffs' MS plot no. 473, 474(ka) and
(kha) have been carved out of CS plot no. 819, but in the
Schedule of the land as given in the plaint, MS Plot nos. 788
and 473 have been mentioned. Thus, there is a conflicting
description of the suit land in the plaint and the Schedule of the
plaint. Description of the suit land is vague and the suit is fit to
be dismissed on this ground alone. On the basis of the evidence
adduced on behalf of both the parties as well as on the basis of
the Municipal Survey record of right ( Ext. 4), it is apparent
Patna High Court SA No.535 of 1999 dt.04-01-2024
that the plaintiffs are in possession over the suit land.
11. Mr. Raghib Ahsan, learned Senior counsel for the
appellants, vehemently submitted that the learned Lower
Appellate Court was not justified in admitting the evidence
regarding Municipal Survey Purcha, which would have
attached it with the old CS Plots claimed as the suit plot as also
regarding the amendment of plaint with respect to the year of
settlement. It is further submitted that the learned Lower
Appellate Court wrongly dismissed the suit of the plaintiffs even
after holding that plaintiffs are in possession of the suit land. It
is further submitted that if Municipal Survey Purcha is taken
into evidence, then it would lead to the conclusion that the
entry of the name of the defendants in first column of
Municipal Survey Khatiyan has been wrongly entered. The
learned senior counsel further submitted that if the amendment
regarding year of settlement of the suit land is allowed, then
the rent receipt granted by the Ex intermediary and by State of
Bihar would be accepted. The learned Trial Court has rightly
found that plaintiffs acquired right, title and interest and were in
possession over the suit land. The learned Lower Appellate
Court had affirmed the finding of the learned Trial Court that the
plaintiffs are in possession of the suit land, but has defeated the
Patna High Court SA No.535 of 1999 dt.04-01-2024
plaintiffs on the ground that the plaintiffs have failed to establish
their title. The learned Lower Appellate Court failed to
consider that the plaintiffs have possessory title to the suit land,
which is supported by the rent receipts. It is further submitted
that the sale deed of defendant Nos. 1 and 2 did not disclose the
specific possession of the land. The learned senior counsel
further submits that both the Courts below declared the suit
land in possession of the plaintiffs. The possessory title is a
good title as against everybody other than the lawful owner. A
person having possessory title can get a declaration that he was
the owner of the land in suit. Reliance has been placed in case of
Somnath Burman v. Dr. S.P. Raju & Anr. reported in (1969) 3
SCC 129 wherein the Hon'ble Apex Court has held that the
possession of the plaintiff was a sufficient evidence of title as
owner against the defendant. It is further argued that an entry
in the record of rights neither creates nor extinguishes the right,
it is merely rebuttable piece of evidence. The record of right is
not a document of title at all and the entries in such document
do not prove exclusive title of a person so recorded therein.
Moreover DW-7, who is defendant himself, in his cross-
examination in paragraph nos. 14 and 15, somewhat supports
the case of the plaintiffs when he says that he has seen the
Patna High Court SA No.535 of 1999 dt.04-01-2024
residential house of Bholi Das which is standing on an area of 3
Bigha and he details the boundary of this land and he further
stated that this land has Tori crops, which corroborated the
statement of DW-5. These statements unequivocally indicates
that the land which is the suit land and this witness
(defendants' witness) admits the possession of the plaintiffs
over the same.
12. On the other hand, learned counsel for the defendants-
respondents submits that no documentary or oral evidence has
been adduced by the plaintiffs in support of the alleged
settlement. No return has been filed ( Zamindari Return). The
Zamindari receipt i.e., Exts. 1, 1A, 1B and 1C are of the year
1950 to 1952, which is prior to the alleged settlement. It is
further argued that the description of the land given in para 7 of
the plaint differs from Schedule given in the plaint. It is further
submitted that the claim of the defendants' right, title and
interest, on the basis of the registered sale deed dated
24.01.1973 (Ext. A), executed in favour of Sukhdev Das, father
of Defendant nos. 1 and 2, was for 1 Bigha 8 Katha. The
plaintiffs have not sought any relief for setting aside the said
sale deed (Ext. A). It is further submitted that there is
presumption that a registered document is validly executed. A
Patna High Court SA No.535 of 1999 dt.04-01-2024
registered document, therefore, prima facie would be valid in
law. The onus of proof, thus, would be on a person who leads
evidence to rebut the presumption. In support of his submission,
learned counsel places reliance on a decision in the case of
Jamila Begum (D) thr. Lrs. v. Shami Mohd (D) Thr. Lrs.
reported in AIR 2019 SC 72. It is further submitted that it is
settled principle of law that the entry in survey khatian is not
an evidence of title. The question as to what are the effects of
entry of record of rights, as to whether the presumption of
correctness of those entries will be conclusive proof of the title
and possession or as to whether those presumptions are
rebuttable or not, have been examined several times by
different courts. Reliance has been placed in the case of
Narshing Mishra vs. Rajendra Mishra reported in 2009(2)
PLJR 1028.
13. On analyzing the materials on record as well as the
impugned judgments, this Court finds that the learned appellate
court has wrongly held that M.S. Plot No. 473, 474 (ka) and
(kha) have been carved out of C.S. Plot No. 819, but in the
Schedule of the land as given in the plaint M.S. Plot No. 788
and 473 have been mentioned and, therefore, it is assumed that
there is a conflicting description of the suit land in the plaint and
Patna High Court SA No.535 of 1999 dt.04-01-2024
the schedule of the plaint.
14. On perusal of Ext. 4, it shows that Plot Nos. 474/788
is mentioned in column of plot number admeasuring area 5.40
Ares was in possession of Bhauli Das, son of Rameshwar Das
as well as Plot No. 473 is also mentioned in the plot number
column area 14.70 Ares was in possession of Bhauli Das son of
Rameshwar Das. In the aforesaid facts, there is no conflicting
description of the suit land. It is admitted case of the defendants,
that they filed Objection Case No. 515/646 of 1983 against the
State of Bihar for entering their name only in M.S. Plot No. 644
and 472. They did not assert claim over MS Plot Nos. 473 and
474 (ka) and (kha). Moreover, the said plots were not in suit or
dispute and as such, the defendant did not implead the plaintiffs
as a party in the Objection Case No. 515/646 of 1983. There is
no dispute with regard to C.S. Plot Nos. 811, 813 and 819 of
Khata No. 51 (part) which acquired 3 Bigha land by the original
plaintiff through Raiyati Settlement from the ex-landlord. The
ex- landlord issued rent receipt 1 to 1(b) for the year 1360,
1361, 1362 fasli i.e. 1953, 1954 and 1955 respectively for the
arrears of rent 1357 fasli 1358, 1359 fasli and State of Bihar
also granted rent receipt for the same Khata No. 51 (Kayami
Khata). Since 1958 onwards, Jamabandi No. 29 was created in
Patna High Court SA No.535 of 1999 dt.04-01-2024
favour of Bhauli Das. Since then he is in possession of the suit
land, which is apparent from concurrent findings of both the
courts. There is material to show that the plaintiffs were in
actual possession much less continued possession of the
property for a long period which may be called settled
possession or established possession. In the Case of Rame
Gowde (dead) by LR Vs. M. Varadappa Naidu (dead) LR and
others reported in (2004) 1 SCC 769, the Hon'ble Supreme
Court has held that while discussing the Indian law on the
subject observed as follows in paragraph 8:-
"8. It is thus clear that so far the Indian law is
concerned, the person in peaceful possession is
entitled to retain his possession and in order to
protect such possession he may even use
reasonable force to keep out a trespasser."
15. There is no confusion at all regarding identity of
property in- question and on the basis of materials on record, the
trial court has correctly ruled that the appellants-plaintiffs have
proved their title and possession over the suit property and there
is no case of the defendants that they have purchased the same
land from their vendor.
16. Learned first appellate court has held that there is no
evidence on the record to show that the suit/plots have been
carved out from CS Plot Nos. 811, 813 and 819. The plaintiffs
Patna High Court SA No.535 of 1999 dt.04-01-2024
failed to establish their case.
17. This aspect could be settled through official
documents likewise Municipal Parcha in connection with the
aforesaid land which was already on record, but it was not
marked as Exhibit. The plaintiffs filed application before the
appellate Court for marking the survey parcha as Exhibit which
was rejected by the appellate court.
18. In the present case, there is no dispute with regard to
CS Plot. The only dipute is with regard to carving out CS Plot
for making Municipal Survey Plot. The Survey parcha is very
relevant for deciding the issue involved in the suit. The first
Appellate Court is the final Court of facts. The Appellate Court
requires to ascertain the real fact involved to admit the evidence
regarding Municipal Survey Parcha which has connected it with
old CS Plot column as the suit plots.
19. In the light of the discussion made above, this Court is
of the view that the plaintiffs-appellants on the basis of
materials on record have been able to prove that the suit
property was settled by ex-landlord in favour of original
plaintiffs (heirs of appellants) and on settlement they came in
possession and paid rent to the ex-landlord, which was accepted
and rent receipts were granted and in view of the settled law as
Patna High Court SA No.535 of 1999 dt.04-01-2024
laid down by the Full Bench of this Court in case of Mosst.
Ugni and another Vs. Chowa Mahto and others reported in
AIR 1968 Pat 302 (FB), that such actual possession and
acceptance of rent by ex landlord creates Raiyati interest in
favour of the settlee.
20. Moreover, after vesting of Zamindari, Jamabandi was
created in favour of original plaintiffs and thus the plaintiffs
acquired title to the property and both the courts below have
concurrently found the possession of the plaintiffs over the suit
property which fact is also corroborated from the remarks
column of Municipal Survey Khatiyan (Ext. 4) showing the
possession of the plaintiffs over the suit property. It is settled
law that Revisional or Municipal Survey entry neither creates
nor extinguishes title, and as such, they have no document of
title rather they are per-dominantly based on actual physical
possession. Reliance, in this connection, is placed on the
decision reported in AIR 1974 Pat 164 (FB) (Nand Kumar Rai
& Ors. V. State) paragraph 14 and 1991 1 PLJR 633 (Reyasat
Ali Khan and Anr. Versus Bhagalpur Municipality). In other
view of the matter, creation of Raiyati interest regarding the suit
property having been proved in favour of the plaintiffs and their
possession regarding the suit property having been recorded
Patna High Court SA No.535 of 1999 dt.04-01-2024
even in the municipal survey apart from the concurrent findings
of both the courts below in favour of the plaintiffs regarding
their possession all along, the plaintiffs are entitled to get their
title and possession declared with respect to the suit property
especially when there is a presumption of continuity of
possession before vesting and after vesting of Zamindari
coupled with the settled law that possession must be deemed to
follow title.
21. In the light of the narrative and discussion supra, there
can be no doubt that the learned Lower Appellate Court erred
and was not justified in dismissing the suit of the plaintiffs.
22. Accordingly, the entry in the Municipal Survey
khatian is found to be wrong and incorrect.
23. Consequently, the judgment of learned Lower
Appellate Court dated 12-10-1999, passed in Title Appeal No.
52/1992 (Tr. No. 3/1996) is set aside and the suit of the
plaintiffs-appellants is decreed and affirmed the judgment and
decree of the Trial Court dated 15-09-1992 passed in Title Suit
No. 35/1990.
24. In the facts and circumstances of the case, the
substantial questions of law formulated are, therefore, answered
in favour of the appellants.
Patna High Court SA No.535 of 1999 dt.04-01-2024
25. Thus, this Second Appeal has got merit and
accordingly it is being allowed.
26. Pending Interlocutory Application, if any, shall stand
disposed off.
(Khatim Reza, J)
Shyambihari/
Prabhat-
AFR/NAFR AFR
CAV DATE 02-08-2023
Uploading Date 06-01-2024
Transmission Date N/A
