Posted On by &filed under High Court, Patna High Court.


Patna High Court
Deodhari Singh vs Mulchand Hazam And Ors. on 24 August, 2006
Author: S M Alam
Bench: S M Alam


JUDGMENT

Syed Md. Mahfooz Alam, J.

Page 2040

1. This second appeal has been preferred by the plaintiff-appellant against the judgment and decree dated 6.9.1989 passed by Sri Sitaram Choudhary, Sub Judge I, Rhabhua in Title Appeal No. 21 of 1989 reversing the judgment and decree dated 16.5.1989 passed by Sri B.R. Prasad, Additional Munsif, Bhabhua in Title Suit 131 of 1986/76 of 1988. By the said judgment, and decree, the learned Subordinate Judge allowed the appeal and dismissed the suit of the plaintiff.

2. Briefly stated, the case of the plaintiff-appellant is that the plaintiff filed a title suit bearing Title Suit No. 131 of 1986 / 76 of 1988 against State of Bihar and others for correction of revisional survey entry and for declaration of his right, title and interest and also for confirmation of possession over the suit land bearing C.S. Khata No. 185, C.S. Plot No. 551 measuring an area of 10 decimals corresponding to R.S. Khata No. 435 R.S. Plot No. 1090 / 2048 in the court of Munsif, Bhabhua. The appellant further prayed that if he is found dispossessed then in the alternative the relief for recovery of possession be granted and further prayed that the defendant second set (State of Bihar) be restrained to settle the suit land to anyone. Further case of the plaintiff-appellant is that the father of the appellant was ex-landlord and the suit land was Sahan in the cadestral survey. His father had given the suit land to his labourer Sheonandan Dusadh who was utilising the land from before the cadestral survey as such the suit land was recorded in his name in cadestral survey. The said Sheonandan Dusadh died issueless and thereafter the suit land came in khas possession of the father of the appellant. At the time of abolition of Zamindari the return of the suit land was filed in the name of the appellant as he was throughout in possession of the suit land without any interference. During revisional survey, the suit land was wrongly recorded in the name of State of Bihar but since this fact was not known to the appellant, he did not file any objection. The factum of wrong entry came to the knowledge of the appellant in 1986 and hence, after giving notice under Section 80 of the Code of Civil Procedure on 16.8.1986 he filed the suit. Respondents – first set, who were defendant Nos. 1 to 3, filed their joint written statement and denied the claims made by the appellant.

3. According to the written statement of defendant first set, the suit, as framed, is not maintainable. The plaintiff has got no cause of action for the suit. The suit is barred by law of limitation and under Section 4(c) of the Bihar Consolidation of Holdings & Prevention of Fragmentation Act, 1956. Further case is that Mahabir Page 2041 Singh, the father of the plaintiff was not the ex-landlord of Mauza Deohalia and plot No. 551 khata No. 185 area 10 decimals was never under the Zamindari of the said Mahabir Singh and he was never in possession of the said plot. It has further been stated that it is not correct to say that the suit plot was in occupation of the plaintiff and he used to grow vegetables over the same. It is also denied that the plaintiff had put Nad and Charan for keeping cattle over the same. It is also denied that the plaintiff had submitted return of the suit plot at the time of vesting of the estate. It has further been stated that during the revisional survey, the suit plot corresponding to plot No. 1090/2048 was recorded in the name of the State of Bihar and the said entry is correct. It is also stated that the notice under Section 80 of the Code of Civil Procedure was not properly served upon the defendant first set.

4. It appears that one Mulchand Hajam filed intervention petition which was allowed and by order dated 8.12.1987 he was impleaded as intervenor-defendant and thereafter he filed his written statement. From perusal of the written statement of the intervenor-defendant it appears that this defendant has also denied this fact that the father of the plaintiff was the ex-landlord of Mauza Deohalia and that over plot No. 551 of khata No. 185, the plaintiff had got his house and Sahan in which his labourer Sheonandan Dusadh was residing. He has also denied this fact that after the death of Sheonandan Dusadh, the plaintiff’s father obtained possession of the suit plot as Sheonandan Dusadh was issueless. He has also denied this fact that the plaintiff is in possession of the suit plot since the date of death of Sheonandan Dusadh. The intervenor-defendant has also denied this statement of the plaintiff that a few years before abolition of Zaminidari, the house standing over the suit plot fell down during heavy rain and -thereafter the plaintiff started keeping Goitha, tying cattle and growing vegetables over the suit plot. The intervenor-defendant has stated that Nad, Charan and Marhi standing over the suit plot belonged to him. He has also denied this fact that the plaintiff had submitted return of the suit plot after vesting of the Zamindari. The intervenor-defendant has claimed that the revisional survey khatian was correctly prepared about which the plaintiff had full knowledge but he had not raised any objection. The intervenor-defendant has stated that the cause of action, as alleged by the plaintiff, is imaginary. Further case of the intervenor-defendant is that Sheonandan Dusadh was the real owner of the suit plot and he died issueless. During his old age, the intervenor-defendant and his father served Sheonandan Dusadh and having pleased with the service provided by the intervenor-defendant and his father, he orally gifted the suit plot to the father of the intervenor-defendant. This happened about 50 to 60 years ago and since then the intervenor-defendant has been coming in possession over the suit plot and was residing in the house standing thereon but during flood, the house standing over the suit plot fell down and thereafter he started keeping Nad, Charan over the suit plot and constructed Marai over the same. The intervenor-defendant has also asserted that he has got his land adjacent to the suit land and both the lands are intermingled and there is no ridge between the lands of the intervenor-defendant and the suit land which proves title and possession of the intgrvenor-defendant. On the basis of the above pleadings, the prayer has been made to dismiss the suit of the plaintiff.

5. From perusal of the lower court records it appears that the trial court after scrutinising the evidence – both oral and documentary adduced on behalf of all the contesting parties decreed the suit of the plaintiff with cost by its judgment dated 16.9.99.

Page 2042

6. From perusal of the judgment of the trial court it appears that the trial court has held that the revisional survey entry in the name of the State of Bihar is wrong and the plaintiff – appellant has right, title and possession over the suit plot. It has also held that respondent No. 1 has neither title nor possession over the disputed plot. The trial court has also held that the suit was not barred by limitation.

7. Against the said judgment and decree of the trial court, the intervenor-defendant preferred appeal which was numbered as Title Appeal No. 21 of 1989. In the said appeal the judgment was delivered on 6.9.1989, by which judgment the appeal was allowed and the plaintiff’s suit was dismissed holding that the plaintiff has failed to prove right, title and possession over the suit property.

8. Against the said judgment of the appellate court, the plaintiff-appellant has preferred this second appeal. From perusal of the record of this second appeal, it appears that at the time of admission of this second appeal, only one substantial question of law was formulated by this Court to be determined in this appeal. The substantial question of law as formulated in this appeal is as follows:

Whether the limitation matter has been correctly decided or not?

Substantial Question of Law

9. From perusal of paragraph 13 of the judgment it appears that in the said para the appellate court has discussed the point of limitation as there was specific case of the defendant first set as well as intervenor-defendant that the plaintiff’s suit was barred by law of limitation. According to the finding of the appellate court, the revisional survey was finally published in the year, 1971 but this suit was filed after 15 years of the final publication of the revisional survey challenging the entry of the revisional survey with regard to the suit land as incorrect. The learned first appellate court held that since the suit was filed after 15 years of publication of revisional survey, as such the same is barred by limitation.

10. Let me see – whether the finding of the first appellate court that the suit is barred by law of limitation is correct. Admittedly, Article 113 of the Limitation Act will be attracted in this case according to which the suit will be barred after expiry of period of three years from the date of wrong entry in the record of rights. Admittedly, the record of rights i.e. revisional survey khatian was finally published in the year 1970-71 and according to Article 113 of the Limitation Act, 1963 any suit for wrong entry in the revisional survey khatian should have been filed within three years from the date of final publication of the revisional survey meaning thereby that the plaintiff should have filed the suit prior to ending of the year 1974 but admittedly, the plaintiff has filed the suit on 19.11.1986 meaning thereby that he has filed the suit after expiry of 15 years period from the date of final publication of the revisional survey khatian. This fact itself proves that the plaintiff’s suit is barred under Article 113 of the Limitation Act, 1963.

11. The argument of the learned Advocate of the appellant is that it is settled principle that the question of limitation has to be tested on the basis of the averments of the plaintiff made in the plaint. He submitted that according to paragraphs 13 and 14 of the plaint, the plaintiff got knowledge about the wrong entry in the revisional survey khatian on 16.8.1986 and therefore, the limitation period will be calculated from that very date and not from the date of publication of the revisional survey khatian. The learned Advocate of the appellant submitted that since the plaintiff has filed the suit just after expiry of three months period from the date of knowledge Page 2043 (16.8.1986), as such the suit is within time and not barred by law of limitation. In this regard he has placed reliance upon the decision of this Court (Ranchi Bench) given in the case of Karunamoy Dutt and Ors. appellants v. The State of Bihar) reported in 1983 BLJ 599.

12. The argument of the learned Advocate of the respondent is that this decision is not applicable in this case as there is no averment of the plaintiff in the plaint that how he could know about wrong entry in the revisional survey khatian with respect to the suit land on 16.8.1986 and what was the source of his knowledge. He submitted that unless the plaintiff makes averment in the plaint by specifically stating that he had no knowledge prior to 16.8.1986 about the revisional survey operation going on in the area where the suit property lies and that for the first time he came to know about the wrong entry in the revisional survey khatian due to the hostile act of the defendants or any other person, he cannot be entitled to get the benefit of limitation beyond the period prescribed under Article 113 of the Limitation Act. The learned Advocate of the respondent submitted that in the plaint the plaintiff has not even disclosed the source of knowledge from which he had got information regarding the wrong entry in the revisional survey khatian and as such, the limitation beyond the period of three years, as prescribed under the law, cannot be condoned in favour of the plaintiff. He further submitted that the evidence of the plaintiff (P.W.14) as well as the evidence of the other witnesses examined on behalf of the plaintiff establishes beyond doubt that the plaintiff as well as his witnesses had full knowledge about the revisional survey operation and, therefore, on the basis of the materials available on record, it cannot be held that during the revisional survey operation the plaintiff had no knowledge about the survey operation and, therefore, limitation will definitely start from the date of final publication of the revisional survey khatian and not from the date as mentioned in the plaint i.e. 16.8.1985.

13. I have perused the plaint of the plaintiff from perusal of which it appears that the plaintiff has not made any averment in the plaint that on 16.8.1986 for the first time he came to know about wrong entry in the revisional survey khatian. Neither he disclosed the source of knowledge about the wrong entry in the revisional survey khatian nor he mentioned any overt act done by the defendant which might have compelled him to know about the wrong entry of the revisional survey khatian. Thus, it appears that the cause of action, as disclosed by the plaintiff at para-14 of the plaint, appears to be imaginary. I have also perused the evidence of the plaintiff, who has been examined as P.W.14 in the suit. He has deposed at paragraph 12 of his evidence that he does not remember as to when the revisional survey had taken place, but admitted that the revisional survey khatian was correctly prepared with regard to all his lands. This statement of the plaintiff clearly establishes that he had full knowledge about the revisional survey operation. In such situation, his evidence that about three to three and half years ago, for the first time he came to know about the wrong entry in the revisional survey khatian with regard to the suit land cannot be relied upon. Not only this but other witnesses of the plaintiff, who are mostly his close relations, have stated that they have got full knowledge about the revisional survey operation.

14. Thus, the above facts establish beyond doubt that the plaintiff had full knowledge about the revisional survey operation and it is not correct to say that he for the first Page 2044 time got knowledge about the wrong entry in the revisional survey khatian with regard to the suit land on 16.8.1986.

15. Now coming to the decision referred above, I would like to see – whether the said decision will apply in this case or not. According to the said decision, the question of limitation has to be tested on the averments of the plaintiff and the court need not confine itself merely to the frame of the suit but should look into the substance of the pleading. In the case referred above, the case of the plaintiff was that although wrong entry in the record of rights was made in June, 1964 but on 15th January, 1970 the plaintiff was threatened to be dispossessed from the suit land on the strength of the said wrong and incorrect entries in the record of rights. In this background, the court held that the limitation has to be calculated from 15th June, 1969/1970 the date on which the plaintiff was threatened to be dispossessed from the suit land and not from June, 1964 when wrong entry was made in the record of rights. The facts and circumstances of the case referred above are quite different from the facts and circumstances of this case. Here, in the instant case, the plaintiff has simply stated at para-14 of the plaint that he got knowledge about the wrong entry in the revisional survey khatian on 16.8.1986 but did not disclose as to how he got knowledge about the said wrong entry on that date and what was the source of his information. He did not disclose that on that very date someone, threatened to dispossess him from the suit land or anyone had committed any overt act which caused the apprehension in his mind that his title with regard to the suit land was at stake. On the contrary, his evidence and the evidence of his witnesses who are mostly his close relatives establishes that the plaintiff as well as his witnesses had full knowledge about the revisional survey operation. This fact establishes that the plaintiff had full knowledge about the entry in the revisional survey khatian with regard to the suit plot and therefore, the ruling referred above will not apply in this case and the limitation period will be calculated from the date of final publication of the revisional survey khatian which was finally published on 8th January, 1970. Thus, I find that in this case the limitation will start from 8th January, 1979 because as per Article 113 of the Limitation Act, the limitation prescribed for filing any suit against incorrect entry in the record of rights is three years. I am, therefore, of the view that in order to avoid limitation, the plaintiff should have filed the suit by 8th January, 1973 but as per the lower court record, the plaintiff has filed the suit on 19.11.1986 i.e. after expiry of period of 16 years from the date of final publication of the revisional survey khatian which proves that the plaintiff’s suit is hopelessly time barred. I am, therefore, of the view that the finding of the first appellate court that the suit is barred under Article 113 of the Limitation Act, 1963 is correct and the said finding of the first appellate court is hereby upheld. Accordingly, this substantial question of law is decided against the appellant.

16. Although only one substantial question of law was formulated in this case for decision but before concluding my judgment, I would like to see – whether the finding of the first, appellate court that neither Mahabir Singh, the father of the plaintiff nor the plaintiff himself had any title and possession over the suit land is correct. The admitted case-of the plaintiff is that the father of the plaintiff was the ex-landlord of Tauzi 2352, Mauza Deohalia plot No. 551 measuring an area of 10 decimals appertaining to khata No. 185 over which his labaurer Sheonandan Prasad was residing from before the cadestral survey and as such, the said plot was Page 2045 recorded in the name of Sheonandan Dusadh. Sheonandan Dusadh died issueless and thereafter the plaintiff’s father came in possession of the suit plot and made the land as his Bakast land and after vesting of Zamindari, the plaintiff submitted return claiming the suit plot as his Bakast land. In support of his case, the plaintiff has brought several documents on record. Let me see – whether the case of the plaintiff with regard to his title over the suit land finds support from the documentary evidence or not.

17. First of all, I would like to see – whether the plaintiff’s father, namely, Mahabir Singh was the landlord of the suit plot. In support of this fact, the plaintiff has relied upon Ext. 3 and Ext. 4 to 4/B. Ext. 3 is the application filed by the plaintiff, Deodhari Singh under the provision of Section 3B of the Bihar Land Reforms Act, 1950 which was submitted by the plaintiff at the time of vesting of Zamindari. The learned Advocate of the appellant has argued that this Ext.C is the return filed by the ex-landlord showing that suit plot No. 551 area measuring of 10 decimals belongs to the plaintiff. But I am of the view that Ext. 3 is the return submitted by the plaintiff showing intermediary right and not the tenancy right. To support my view, I would like to quote Section 3B of the Bihar Land Reforms Act, 1950 which is as follows :

Where it is proposed to issue a notification under Section 3A in respect of all intermediary interest in the whole of the State, or in a part of the State, the following provisions shall apply, namely :

(1) The State Government shall publish a proclamation in the Official Gazette, not less than three months before the date on which it is proposed to issue a notification under Sub-section (1) or Sub-section (2) of Section 3A, announcing its intention to take over, on the expiration of the said period, all intermediary interests in the whole of the State or, as the case may be, in such part of the State as may be specified in the proclamation.

(2) xx xx xx

(3) On the publication of the proclamation every intermediary shall at any time before the expiration of the said period, make to the Collector an application in the form set out in the Schedule to this Act.

(4) The application shall be verified and signed in the manner provided for the verification of a plaint and shall be accompanied by

(a) such documents relating to the intermediary interests held by the intermediary as are required by the Schedule:

Provided that the Collector may dispense with the production of any document or any particulars in any statement;

(b) a certificate from the intermediary that he has not concealed or withheld any material information or particular relating to his intermediary interests:

(c) a declaration by such intermediary that the documents filed by him are genuine and the information furnished by him in the application is true to the best of his knowledge and belief and that he has made no other application claiming compensation under this Act.

18. Thus, from the plain reading of Section 3B of the Act, it appears that Ext. 3 is the application showing intermediary interest in the land mentioned in the application Page 2046 and not showing tenancy right and so, at best on the strength of Ext.3 it can be said that the plaintiff had intermediary right in plot No. 551 but it is difficult to hold that this plot No. 551 corresponds to suit plot as Exts. 4/A and 4/B of the plaintiff which are Jamabandi returns falsify the claim of the plaintiff that his father, Mahabir Singh, was Zamindar of the suit land and that the suit land is his Bakast land. According to these exhibits, one Jhhaju Singh was the Zamindar of Tauzi No. 2352 of Mauza Deohalia and Sheonandan Dusadh was the tenant over the suit plot appertaining to plot No. 551 of khata No. 185. It appears that the plaintiff’s witnesses have also admitted this fact that Jhhaju Singh was the Zamindar of Tauzi No. 2352 of Mauza Deohalia. However they have tried to explain that the said Jhajhu Singh was the ancestor of the plaintiff and on partition the suit plot was allotted to the share of the plaintiff but this fact has not been pleaded in the plaint and as such, this evidence of the plaintiff cannot be admissible in the eye of law. Thus, from the abovementioned documents it is established beyond doubt that the plaintiff or plaintiff’s father was neither Zamindar of the suit plot nor the suit land was his Bakast land. I, therefore, hold and find that the first appellate court has rightly held that the plaintiff has failed to prove his title and possession over the suit land.

19. Lastly, it was argued on behalf of the appellant that since the State had not filed any first appeal and the finding of the trial court that the entry in the revisional survey khatian was wrong, was against the State as such the learned first appellate court has committed a grave error of law by reversing the judgment of the trial court.

20. It is true that the suit of the plaintiff was decreed by the trial court and the trial court had held that the plaintiff had got title over the suit land and the entry in the revisional survey khatian with regard to the suit land is wrong. According to the entry in the revisional survey khatian the suit plot was shown as Anaabad Bihar Sarkar meaning thereby that the State of Bihar was the owner of the suit property. The argument of the learned Advocate of the appellant was that since the State of Bihar did not file any appeal against the judgment of the trial court, as such the finding of the trial court against the State of Bihar is final and in second appeal this point cannot be raised. I am of the view that it is not correct proposition of law and since an appeal had already been preferred against the judgment of the trial court by the intervenor-defendant, therefore, the appellate court was authorised to consider all the points decided by the trial court in the suit including the issue of title of the parties as well as correctness or incorrectness of the record of rights. I am further of the view that since the first appellate court is the last court of fact and the first appellate court is bound to give its own findings and reasonings on all the points discussed in the judgment of the trial court, as such, the first appellate court is entitled to reverse the finding of the trial court after scrutinising the entire materials available on record when the appeal is pending before him from the judgment of the trial court although the party against whom the finding had been given by the trial court did not prefer appeal. I, therefore, hold that this argument of the learned Advocate of the appellant is also not acceptable.

21. In the result, I do not find any merit in this second appeal and as such, the same is hereby dismissed with cost. The judgment and decree of the first appellate court dismissing the suit of the plaintiff are hereby confirmed.


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