Most. Geeta Devi And Others v. State Of Bihar And Others

Purushottam Jha, for the Appellant;

ORDER

Chakradhari Sharan Singh, J.Heard Mr. Purushottam Jha, learned counsel for the appellants. The second appeal u/s 100 of the CPC has been preferred on behalf of the appellants who were plaintiffs before the trial Court and the appeal has been placed for hearing under Order 41 Rule 11 of the C.P.C.

2. The appellants are aggrieved by the judgment and decree dated 11.3.2010 and 26.3.2010 passed in Title Appeal No. 31 of 1993 by learned Additional District Judge (Fast Track Court)-II, Madhubani, whereby he has confirmed the judgment dated 22.6.1993 and decree dated 7.7.1993 passed in Title Suit No. 38 of 1984, and dismissed the first appeal. The suit on behalf of the plaintiff was filed seeking the following reliefs:--

(1) for declaration of title and confirmation of possession over the suit land bearing plot No. 677 measuring 1 Bigha 8 Katha 17 dhurs covered by tank and Bhinda situated in Village Lorika P.S. Benipatti District Madhubani

(2) if the plaintiff are dispossessed from suit land during the pendency of the suit, a decree for recovery of possession

(3) for a direction to the defendants for removal of the suit land from sairat list of the State Government

(4) for restraining the respondents from interfering with the possession of the plaintiff and settling the suit land.

3. The plaintiffs case as pleaded in the plaint was that the suit land which is covered by tank and bhinda was recorded in C.S. Khatiyan as Gairmazarua khas and in the remarks column the possession of ancestor of plaintiff were shown. The ancestor of plaintiff, namely, Kishori Jha, Bhagirath Jha, Manohar Jha, Fekan Jha and Bhawanath Jha excavated the said tank and also planted some trees on the bhinda. They remained in possession of the tank and bhinda and within two years of cadastral survey they constructed their residential houses over the said bhinda and started utilizing the same as their house. The disputed plot, according to the plaintiff, was within the homestead campus of the plaintiff. The plaintiff claimed that they have been coming in possession over the suit land for several 12 years openly and continuously with full knowledge of the defendant and others and as such if at all the defendant had any title over the suit land the same got extinguished by adverse possession.

4. Vide notice dated 6.9.1982 the Anchal Adhikari alleged that the suit plot was included in the Government Sairat and asked the plaintiff not to interfere with the possession of the setlee and further asked him to file objection, if any. The further case of the plaintiff was that objection was filed but no heed was paid to it and further that suit land was never settled to anyone nor any setlee ever got possession over the suit land. It was further pleaded that the suit land was never included in sairat Register of the State Government of Bihar and any such paper to the contrary was forged, fabricated, illegal and inoperative.

5. The State of Bihar being the defendant in the suit contested the suit and filed written statement and took plea, inter alia, that the suit was bad for non-joinder of necessary parties inasmuch as the setlee of State of Bihar was not impleaded as party in the suit. The State of Bihar, the respondents asserted in the written statement that the ancestor of plaintiff never excavated the tank in question as alleged in the plaint and the same was recorded as tank in survey Khatiyan and the same tank was still existing which vested in the State of Bihar after abolition of Zamindari. The defendant further claimed that the trees standing over the disputed bhinda were planted at the instance of ex-landlord and was in possession of the ex-landlord and after abolition of Zamindari the land vested in the State of Bihar. The specific case of the State of Bihar before the trial Court was that the suit land was settled with setlee and was included in the sairat list of the Government which was genuine, valid, legal and operative and thus sought for dismissal of the suit.

6. Learned trial Court on the basis of the rival pleadings framed altogether eight issues including issue Nos. IV, V and VI which go to the root of the matter and are being quoted hereinbelow:--

IV. Have the plaintiffs any right and cause of action to bring the suit.

V. Whether suit tank vested in the State of Bihar.

VI. Whether the plaintiffs perfected their title by adverse possession.

7. Dealing with the issues No. IV, V and VI learned trial Court held, on the basis of evidence and other material on record, that the plaintiffs had not perfected their title by adverse possession. Learned trial Court further held that the disputed tank vested in the State of Bihar after abolition of Zamindari. Learned trial Court while reaching to this finding considered the aspect that the plaintiffs failed to establish their case that they remained in continuous hostile possession over the suit land to the knowledge of its real owner. Learned trial Court also took into account the fact that the plaintiffs did not file any receipt granted by the landlord which could establish that their possession was known to the ex-landlord and even after abolition of Zamindari they did not apply for determination of the rent nor did they bring on record the return which could also show as to who was in possession of the disputed land at the time of abolition of Zamindari.

8. Aggrieved by the judgment and decree of the trial Court, the appellants preferred first appeal which was registered as Title Appeal No. 31 of 1993. On the basis of the dispute raised by the parties in their pleadings and the material brought on record by way of evidence before the trial Court, the learned First appellate Court formulated five points for determination, the relevant three points of which are being quoted hereinbelow:--

1. Have the plaintiffs/appellants title over the tank and bhinda as mentioned in schedule of the plaint

2. Are the plaintiffs/appellants entitled for confirmation of possession over said tank and bhinda

3. Have the plaintiffs/appellants perfected their title over said tank and bhinda as mentioned in plaint by adverse possession

9. Learned First appellate Court examined the oral and documentary evidence adduced on behalf of both the parties. The First Appellate Court took into account Exhibit-5, the certified copy of the cadastral survey Khatiyan in which the suit land was shown to have been recorded as Gairmazarua Khas and in remarks column possession of the ancestor of the plaintiffs were shown. The learned First Appellate Court on such basis came to the conclusion that the ex-landlord was the owner of the suit land. The First Appellate Court took into account the fact that the appellants did not file any rent receipt granted by ex-landlord or the State of Bihar in favour of the ancestor of the plaintiffs and came to -the conclusion that no Jamabandi was created in the name of ancestor of the plaintiffs or plaintiffs in the name of the ex-landlord or by the State of Bihar after abolition of Zamindari. The First Appellate Court noticed that though the process of revisional survey had been completed in the Madhubani District and new khatiyan on the basis of revisional survey had been published but the appellants did not file the certified copy of the revisional survey khatiyan. Keeping in mind such facts, the learned First Appellate Court on "evaluation, estimation and analysis" of the evidence available on record concluded that the appellants had no title over the said tank and bhinda mentioned in the plaint. Learned First Appellate Court, dealing with point No. 2, also held that the appellants were not in possession over the suit land and had no title over the same and were thus, not entitled for confirmation of possession over the suit land. Dealing with the main plea raised by the appellants/plaintiffs that they perfected title over the suit land by virtue of adverse possession, learned First Appellate Court came to the finding that ingredients of adverse possession were not available in favour of the appellants on the basis of the evidence both oral and documentary available on record.

10. There is, thus, a concurrent finding of fact by the two Courts below holding that the appellants could not prove their case of adverse possession nor title over the suit land.

11. Mr. Purushotam Jha, learned counsel appearing on behalf of the appellants has submitted that the Courts below wrongly rejected the claim of the appellants regarding their oral settlement by way of gift made by the ex-landlord in favour of their ancestor prior to cadastral survey operation and contended that such claim could not have been disbelieved in view of the entry available in the cadastral survey records of right. Mr. Jha has also submitted that there being admitted case before the Court below that the appellants/their ancestors were in continuous peaceful possession over the land in question since last 20-25 years with full knowledge of the State of Bihar/ex-landlord, the Courts below should not have rejected their claim of adverse possession. He has lastly submitted that at least the case of the appellants merited consideration in view of provisions of Section 48(D) of the Bihar Tenancy Act, 1885.

12. Mr. Jha has placed reliance on a Division Bench judgment of this Court reported in Sitaram Choubey and Others Vs. State of Bihar and Others to contend that entry made in C.S. Khatiyan in favour of the plaintiffs raises strong presumption of its correctness and, therefore, the Courts below wrongly rejected the appellants case. He has also placed reliance on another judgment of this Court reported in Abdul Jabbar Vs. The State of Bihar and Others, to contend that the State cannot be permitted to evict the appellant by taking recourse to Bihar Public Land Encroachment Act in the facts and circumstances of the case.

13. In my opinion, however, none of the judgments cited by the learned Counsel for the appellants would support his contention. In case of Sitaram Choubey vs. State of Bihar the set of facts were different. In that case admittedly the petitioner was setlee whose name was entered into Register-II and the rent receipts were issued by the State of Bihar but in course of revisional survey settlement name of State of Bihar was entered which was not questioned by the petitioner. In such circumstance the Court held that by reason of an entry in Register-II a person merely become entitled to deposit rent. In the case in hand, on the other hand, admittedly no rent receipts were issued in favour of the appellants as would appear from the judgment and decree under challenge. The appellate Court took note of the fact that the appellants did not file the certified copy of the revisional survey Khatiyan, though process of revisional survey had been completed in Madhubani District. The appellants, therefore, was not in a position to establish before the Courts below that their names figured in R.S. Khatiyan also. The judgment in case of Abdul Jabbar (supra) will also not apply in the present case as that was the case where the land was settled by the ex-landlord in favour of petitioner of that case and the petitioner was being sought to be evicted by taking recourse to proceeding for cancellation of Jamabandi.

14. So far as the concurrent findings of fact recorded by the trial Court and First Appellate Court that the appellants failed to prove their title on the basis of entry made in C.S. Khatiyan and on the basis of their claim of adverse possession, I am of the view that these are concurrent findings of fact which cannot be said to be perverse or contrary to any law laid down by superior Courts nor any such law has been placed before me by learned counsel for the appellants to demonstrate that the findings deserve interference in exercise of power by this Court u/s 100 of the Code of Civil Procedure. This is to be kept in mind that a finding of fact recorded by the final Court of fact is binding on High Court unless such finding is proved to be perverse, without any material or contrary to material available on record. This Court will not interfere when the finding of final Court of fact is alleged to be erroneous in view of the law laid down by the Supreme Court.

15. The plea of the appellants that their case ought to have been considered in terms of Section 48(D) of the Bihar Tenancy Act, 1885 also cannot be accepted, for the reason that the appellants never claimed to be an under-raiyat acquiring raiyati land by occupancy. On the contrary they claimed to be the title holder on the basis of the so-called oral gift made by the ex-landlord as also by virtue of adverse possession. Further more, they never made an application in this behalf in the prescribed manner as provided u/s 48(D) of the Bihar Tenancy Act, 1885. As a matter of fact, they never claimed that they acquired a right of raiyat being occupancy under-raiyat. By no stretch of imagination, they can claim themselves to be an under-raiyat. In view of the above I find ho merit in this appeal and the appeal is, accordingly, dismissed.