JUDGMENT
S.N. Pathak, J.
1. This Second Appeal has been preferred against the judgment of the 1st Appellate Court passed by the Sub-Judge, Khagaria, in Title Appeal No. 9 of 1984 whereby the learned Sub-Judge set aside the judgment of the trial Court passed in Title Suit No. 10 of 1983 dismissing the same.
2. The case of the plaintiff-respondent in the lower Court was that a piece of land bearing plot No. 156 in khata No. 138 was taken settlement from the ex-landlord by one Makhan Tanti. This Makhan Tanti had no male issue although he had only daughter, namely, Bahuri Devi. So, the land measuring 6 kathas was sold by Makhan Tanti to his only daughter Bahuri Devi by registered sale-deed dated 14-12-1962. Bahuri Devi came in possession of the land, but she died leaving behind her son Sadanand Sharma, a plaintiff of the suit. Sadanand Sharma incurred some loan while performing Shradha ceremony of his mother. The plaintiffs father also died. So, Makhan Tanti under whose guardianship the plaintiff was, sold 4 kathas of land out of 6 kathas to one Mosmat Hasina, who was the purchaser of the 4 kathas of land on 29-5-1973. However, the plaintiff continued in possession on 2 kathas of land which was the suit land as described in schedule of the plaint. The plaintiff’s maternal grandfather also died and then the plaintiff’s came under the guardianship of one Bhumi Pandit. When the plaintiff became major and went to pay rent to the State in the year 1982, he came to know that the defendant-appellant had got his name entered in Jamabandi No. 66 on the basis of parcha granted to him under the Privileged Persons Homestead Tenancy Act (hereinafter referred to as the ‘Act’). This parcha was issued fraudulently with the help of one Gholti Pandit, in whose house the defendant-appellant lived. So, the plaintiff-respondent sought declaration that the parcha was obtained fraudulently and it was illegal, inoperative and without jurisdiction. The plaintiff still claimed of the possession of the suit land.
3. The case of the defendant-appellant was that of course, Makhan Tanti had acquired the suit land by settlement from the ex-landlord, but the sale-deed concerned executed by Makhan to Mosmat Hasina was a forged document and the plaintiff was never in possession of the suit land. However, it was not denied that the plaintiff-respondent was the nati of Makhan Tanti. It was also not denied that Makhan Tanti had only the female issue Bahuri Devi, who was mother of the plaintiff. The substantive case of the defendant-appellant was that in the year 1950, he occupied the suit land of 2 kathas with the consent of Makhan Tanti and he constructed his house and since then he has been coming in possession over the same. He was privileged person and, therefore, he applied for settlement of the suit land and after due inquiry, the parcha was issued in his name in case No. 7 of 1975-76. After issuance of the parcha holding No. 165 was obtained in the same jamabandi No. 66 and the defendant has been paying rent to the State of Bihar since then. However, in the month of June, 1982, the plaintiff came to Kazichak and requested the defendant to allow him to stay in the suit house fora few days. The defendant allowed the plaintiff to stay in the verandah of the house, but with the help of anti-social elements of the village the plaintiff forcibly entered inside the house and drove away the family members of the defendant. Then there was a criminal came in the Gram Panchayat in which the plaintiff was convicted and sentenced to pay a fire of Rs. 50/-. The plaintiff his statement before the Gram Panchayat on 26-11-82 admitted that he had been allowed to stay in the verandah and he forcibly evicted the defendant’s family.
4. The trial Court dismissed the suit on the grounds, inter alia, that the suit was barred under Section 34 of the Specific Relief Act and that the defendant was privileged person under the Act and the parcha was rightly granted to him and that the defendant was in possession of the suit land and the house over the same.
5. The appellate Court after taking into consideration the entire evidence on record came to the conclusion that the defendant-appellant had failed to prove that he was in possession of the suit land from the year 1950 as permitted by Makhan Tanti and that he was granted parcha by the State after due and proper inquiry regarding his possession and also held that the plaintiff was admittedly the nati of the recorded tenant Makhan Tanti and he had title over the suit land and he was in possession of the suit land throughout. Thus, the appellate Court set aside the judgment of the trial Court and decreed the suit.
6. This appeal had been admitted on the sole question of law whether “the suit was maintainable in view of Section 18 of the Bihar Privileged Persons and Homestead Tenancy Act and Section 34 of the Specific Relief Act?” So, it appears that the findings of fact recorded by the 1st Appellate Court were not challenged nor this appeal was admitted so far as the findings of fact are concerned. However, dealing with the legal aspects of the case, I shall refer to the findings of fact recorded by the trial Court and the 1st Appellate Court just in brief of so as to enlighten this Court whether the judgment of the 1st Appellate Court was justified on the basis of the evidence adduced in the trial Court. However, presently I shall discuss the trial Court’s findings regarding the issue of maintainability of the suit under Section 34 of the Specific Relief Act.
7. The trial Court has stated in its judgment that the plaintiff-respondent had failed to seek relief relating to setting aside of the parcha granted to the defendant which he could seek under Section 34 of the Specific Relief Act. Hence, the suit was barred because if plaintiff fails to seek relief which he was entitled to seek and which he ought to have sought, the suit was barred under the Specific Relief Act. The trial Court formed this opinion because the suit was for declaration that the parcha was fraudulent, inoperative and without jurisdiction, but he did not seek setting aside of the parcha and, therefore, the Court held that under Section 18 of the Act the plaintiff should have sought this relief which he failed to do. But, the appellate Court had held that relief sought for by the plaintiff amounted to setting aside of the parcha as well and, therefore, the suit was not barred under the Specific Relief Act. It appears that the trial Court confused the relief sought by the plaintiff in view of Section 18 of the Act. Section 18 of the Act laid down “all orders passed by the Collector in any proceeding under this Act shall be final and no such suit shall lie in a Civil Court to vary or set aside any such order except on the ground of fraud or want of jurisdiction”. So, the trial Court held that the plaintiff had to seek the relief that parcha issued by the Collector was fraudulent and hence, it should have been set aside, and since the plaintiff failed to seek setting aside of the parcha which he could do in view of Specific Relief Act, the suit was barred under the Specific Relief Act. It appears that the trial Court was misled by the wrong opinion or mis-interpretation of law under Section 34 of the Specific Relief Act. All that Section 34 of the Specific Relief Act mentions that if a declaratory suit involves any consequential relief, the plaintiff must seek this consequential relief, otherwise suit would be barred. In that instant case, the plaintiff was claiming possession of the suit land and he was denying the allegations of the defendant regarding forcible ouster of the latter. He was simply seeking relief that the parcha issued in the name of the defendant was fraudulent and it was inoperative, So, there was no consequential relief. Therefore, the declaration that the parcha was fraudulent and issued without jurisdiction by the State authority amounted to setting aside the parcha or its cancellation. So, the suit was, of course, not barred under Section 34 of the Specific Relief Act. I am, therefore, of the opinion that the opinion of 1st appellate Court was proper and justified that the suit was not barred under any provision of the Specific Relief Act.
8. So far as the bar of the suit under the Act is concerned, it is to be noted that the trial Court held that no order of the Collector would be challenged except on the basis of fraud or want of jurisdiction of the authority which passed an order under the Act. In the instant suit, it was very much sought that the Collector had no jurisdiction to issue parcha and parcha issued was fraudulently issued and it was also illegally issued. So, the jurisdiction of the Collector or his sub-ordinate issuing the parcha was challenged and, therefore, the suit was not barred under the Act. It appears that the trial Court’s finding regarding the possession of the suit land by the defendant was based on a particular so-called statement of the plaintiff-respondent made before the Gram Kachheri admitting his induction on the verandah of the suit house, then the subsequent forcible eviction of the defendant’s family from the same.This document was exhibited as Ext. B. The trial Court, perhaps, failed to consider the oral evidence of the defendants in its prospective and light and, perhaps, it also missed certain significant statements of the defendant himself and his other material witnesses regarding his possession as pleaded in his written statement. The trial Court also missed to consider the evidence on behalf of the plaintiff-respondent regarding continuous possession of the suit land or house. So, the trial Court’s finding regarding the possession was based mainly on Ext-B which was also, perhaps a mistaken one. Therefore, I shall consider what was the Ext-B and how the trial Court considered the Ext in order to give finding regarding the possession of the defendant-appellant.
9. I find that Ext-B was so-called statement of the plaintiff-respondent allegedly made before the Gram Kachheri. This Ext-B is certified copy of the so-called statement of the plaintiff-respondent made before the Gram Kachheri in case No. 44/82 under Section 448,1.P.C. This Ext, B mentions that plaintiff Sadanand Sharma had admitted that in the year 1982, he had come to Kazi Chak with his family members and he was allowed to stay in the verandah of the suit house and then with the help of youth of the village, he entered the house and evicted Ram Swaroop, the defendant and since the he had been living in the suit house. This so-called statement of the plaintiff was exhibited in the lower Court, but the plaintiff was not drawn the attention to this statement as has been alleged by the plaintiff-respondent’s lawyer in the lower Court. But, the trial Court had held and stated in its judgment that attention was very much drawn to the statement, but I find that the plaintiff was examined as P.W. 7. At paragraph 5, the plaintiff stated that in June 1982, the defendant’s wife filed a case in the Gram Kachheri in which it was alleged that he (plaintiff) had made forced entry in the suit house, but the plaintiff said specifically that this was the false allegation. Then, the plaintiff stated that he did not remember whether he had made any statement or not. This statement of the plaintiff was interpreted by the trial Court as evading the alleged statement which was contained in Ext. B. Then, the trial Court held that attention of the plaintiff was very much drawn to his purported statement made before the Gram Kachheri (Ext-B). But, I am of the opinion that the trial Court not only erred in law regarding the statement of the plaintiff at paragraphs 5 rather, perhaps he was very much enthusiastic to consider the Ext. B as substantive piece of evidence against plaintiff-respondent. Law relating to drawing of attention to any previous statement of any witness is clear and it is to the effect that any previous statement must be put to the witness and then he should be asked whether he denied this statement or admitted the same. The question put to the plaintiff as P.W. 7 was simply whether he had made any statement before the Gram Kachheri. The plaintiff replied that he did not remember. So, apparently the statement concerned was not put to the plaintiff nor he was drawn his attention to the statement. So, the plaintiff was not made aware of any alleged statement made by him before the Gram Kachheri admitting his want of possession and his force entry into suit house. So, the alleged statement contained in Ext. B. would not be used against plaintiff-respondent. It is further to be noted that an accused before a Court of law is not normally examined as a witness unless on his own request and as permitted by the Court, So, it is not understandable as to how the plaintiff was examined as a witness before the Gram Kachheri and under what circumstances. Besides the above, a witness on behalf of defendant-appellant, D.W. 2, had admitted in cross-examination at paragraph 3 that entire panchayat was with the defendant Ram Swarup. From the aforesaid admission, it would transpire that the members of the panchayat of,the village were in collusion with the defendant Ram Swaroop and, so, manufacture of the so-called statement of the plaintiff (Ext. B) cannot be ruled out. In such a situation, it was highly improper on the part of the trial Court to rely on Ext. B and hold that it was a piece of substantive evidence regarding possession of the defendant.
10. Admittedly, the plaintiff-respondent is the nati of Makhan Tanti and so, he was entitled to the suit house as heir of his maternal grandfather as also on the basis of some sale deed executed by Makhan Tanti in favour of his only daughter. The only question was, therefore, whether the defendant was in possession of the suit house from the year 1950 as permitted by Makhan Tanti and whether parcha was rightly granted to his favour. Admittedly, the parcha concerned granted by the State was not filed in the lower Court. Moreover, so far the case of the defendant regarding his possession since 1950, the appellate Court has taken note of the evidence of Ram Swaroop Tanti himself where he said that he had come to settle in village Kazichak 14 years back. He had deposed on 20th May, 1984. However, he added that he had come to settle 34 years back. However, in cross-examination at paragraph 4, he admitted that Makhan Tanti left the village after leaving the suit house to him and at that time, he (defendant) was 5-6 years old. It is fantastic that a boy of 5-6 years of age will be inducted into the house over the two kathas of land by a person who was admittedly owner of the same and he would leave the land and the village for ever. Defendant’s claim of possession was further belied by his own admission at paragraph 6 at page 4 where he said that when mud house was built, he was 5-6 years old and he further admitted that he did-not measure the mud built house nor he was able to give its length and breadth. At paragraph 7, he admitted that Makhan Tanti had written a paper in his favour which was registered without taking any consideration for the same. Thus, the case of the defendant was shifting one because in the W.S. he had claimed permissive possession of the suit house whereas in evidence before the Court he claimed register document in his favour. So far the evidence of the witnesses, P.Ws. 2 and 3 who were the only other two material witnesses. P.W. 2 in his very chief had said that Makhan Tanti had never given any land to the defendant Ram Swaroop for residence 30-35 years back. He admitted at paragraph 6 that presently Ram Swaroop was living in the house of Jhagru Tanti and he was working as labour in the chimni. D.W. 3 was Jagdish Pandit. He admitted that P.W. 2 was his nephew and at paragraph 5 he further admitted that Ram Swaroop was a labourer and he had earlier lived in the house of D.W. 2 Gholti Pandit and in his house he was working. This suit was being fought by Gholti Pandit and this witness had come to help Gholti Pandit. The aforesaid admission was very much consideration by the appellate Court who held that the defendant Ram Swaroop failed to prove his case that he had come to the village Kazichak in the year 1950 and he was allowed to live in the house by Makhan Tanti and, therefore, he was issued the parcha.
11. Moreover, neither the parcha was filed before the lower Court nor it was proved by any documentary evidence or oral evidence that the parcha was ever issued after due and proper inquiry regarding possession of the suit house by the defendant. Ext. D was the entry in Register II in the name of Ram Swaroop, the defendant No. 1. From this document, it is clear that his name was mutated after changing the name of Makhan Tanti, but what was the basis of the change was not motioned in Ext. D. So, issue of parcha was, of course, fraudulent and without inquiry regarding the privileged position of the defendant and regarding his continued possession over the suit house. So, I do not think that the judgment of the appellate was bad in its legal aspect or factual aspect.
12. In the result, I hold that the judgment and decree passed by the appellate Court requires no interference by this Court and this second appeal is dismissed.