Patna High Court - Orders
Dhobi Yadav vs Mohan Yadav & Anr. on 15 October, 2014
Author: Kishore Kumar Mandal
Bench: Kishore Kumar Mandal
IN THE HIGH COURT OF JUDICATURE AT PATNA
Second Appeal No.336 of 2010
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Dhobi Yadav son of late Sukar Yadav resident of vill. Khaira P.O. and P.S.
Khaira, Dist. Jamui
.... ....Plaintiff-Respondent-Appellant
Versus
1. Mohan Yadav son of late Faudi Yadav
2. Sachindra Yadav son of Mohan Yadav both resident of vill. Khaira,
P.O. and P.S.Khaira, Dist. Jamui.
.... ....Defendants-Appellants- Respondents
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Appearance :
For the Appellant/s : Mr. Prabat Ranjan Singh
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CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR
MANDAL
ORAL ORDER
9 15-10-2014Heard learned counsel for the appellant.
The plaintiff-appellant has filed the appeal aggrieved by the judgment dated 07.05.2010 passed by the Additional District Judge-II Jamui in Title Appeal No. 01 of 2006 whereby the judgment and decree dated 28.10.2005 and 03.11.2005 respectively passed by the Munsif, Jamui in Title Suit no. 47 of 2000 was reversed.
The plaintiff filed the suit for declaration of his right title over the suit land appertaining to plot no. 1662, measuring an area of 15 decimals as also for confirmation of possession thereof.
The plaintiff‟s case in brief is that the suit land was recorded in the name of grand father of the plaintiff. Reliance in this regard was placed on Ext. 3 which is the copy of Khatiyan. The defendants made attempts to dispossess him resulting in initiation of 144 of the Cr. P.C. proceeding in course whereof it Patna High Court SA No.336 of 2010 (9) dt.15-10-2014 2/5 transpired that the defendants had been issued Basgit purcha. In such circumstance, the suit was filed with the aforesaid relief. In para 12 of the plaint the plaintiff stated as under:-
";g fd bl eqdnes dk okn dkj.k (Cause of Action) fnukad 9-1-98 ,oa 144 lh- vkj- ih- lh- ds fu.kZ; gksus dh frfFk ,oa 144 lh- vkj- ih- lh- ds eksdnes ds nksSjku oklxhr ipkZ fuxZr eksdnek fd;s tkus dh tkudkjh ls gqvk gSA"
The learned trial Court framed diverse issues and permitted the parties to adduce evidence. The defendants brought on record Ext. A which is the final order passed in the proceeding initiated under the Bihar Privileged Persons Homestead Tenancy Act ( for short „the Act‟) vide case no. 14 of 1997-98. Be it further noted that the plaintiff also asserted possession over the land and on a petition filed in this behalf the measurement of the land was directed to be made by the Amin who after such measurement submitted a report wherein the possession of the defendants were found on the suit land. The said report was never challenged . The learned trial Court in the light of the evidence adduced on behalf of the parties held that the title of the plaintiff over the land was established and as such he was entitled to the relief. Accordingly the suit was decreed. Aggrieved thereby the defendants filed appeal .
The appellate Court after apprising itself of the case of the parties and scanning the evidence placed on record found Patna High Court SA No.336 of 2010 (9) dt.15-10-2014 3/5 several fundamental defects in the case put up by the plaintiff. In para 21 the appellate Court held as under:-
"21. The plaintiff has clearly admitted in para 12 of the plaint that, at the time of filing of suit, he was well aware that „Basgit parcha‟ has been issued in favour of Mohan Yadav and has stated that in course of proceeding u/s 144 Cr. P.C., he was aware that Basgit parcha under the B.P.P.H.T. Act has been issued but knowing all these facts, he has not made specific pleadings required by law. When, the plaintiff is making a case by admitting that Basgit parchas has been issued in favour of plaintiff and in order to seek any relief in connection with Basgit parcha some necessary averment in pleadings was essential to bring out a case in civil jurisdiction. The said defect also bar the suit of the plaintiff. Section 18 B.P.P.H.T. Act provides that the order passed under this Act shall be final subject to the provision of section 21, what order passed by the Collector in any proceeding under this Act shall be final and no suit shall lie in any civil Court to vary or set aside any such order except on the grounds of fraud or want of jurisdiction. The order of the Collector declaring a person as a privileged tenant and determining rent in his favour, is final order and is not liable to be challenged in any civil Court. The circle officer can also be authorized on behalf of Collector to pass any order declaring a person as privileged person. The plaintiff has not made any such pleading in plaint that any fraud was committed in proceeding in „Basgit parcha‟ or the same is defective for want of jurisdiction, when the law provides that the jurisdiction of such case is barred and not maintainable by Civil Court without making specific pleadings. Therefore, suit of the plaintiff is not maintainable. Further, it is found that the plaintiff has also not sought any relief that parcha issued in favour of Patna High Court SA No.336 of 2010 (9) dt.15-10-2014 4/5 defendant is fit to be set aside in want of jurisdiction or on ground of fraud. Therefore, the suit of the plaintiff also suffers with defect of provision of section 34 of Specific Relief Act. The plaintiff has tried to obtain the relief for declaration of right, title and confirmation of possession in garb of the order passed u/s 144 Cr.P.C.. The plaintiff when admitting this fact that the „Basgit parcha‟ has been issued by the prescribed authority in favour of defendant but has not made step to implede the collector party to the suit and the suit of the plaintiff also suffers with defects for not implicating necessary party and when the plaintiff has challenged the issuance of Basgit parcha the case cannot be adjudicated in want of impleading the necessary party. But the learned lower court has ignored all these legal aspects while deciding the suit. Therefore, the aforesaid issues are decided against the plaintiff-respondent."
Learned counsel for the appellant submitted that the findings of the appellate Court is perverse since the defendants had not finally been issued Basgit purcha when the suit was filed. The pleadings made by the plaintiff in para 2 has incorrectly been appreciated by the appellate Court. It has further been submitted that the Basgit purcha issued, if any, in favour of the defendants was not after adopting the procedure laid down therefor under the Act. In my view, none of the aforesaid submissions, in the facts and circumstances of the case, would hold good in view of the findings which have been recorded by the learned appellate Court on appraisal of the pleadings of the parties in the light of the evidence adduced. The appellate Court has found that the plaintiff Patna High Court SA No.336 of 2010 (9) dt.15-10-2014 5/5 was aware of the issuance of Basgit purcha in favour of the defendants yet no relief for setting aside the same was prayed. The appellate Court, in such circumstances, held that the plaintiff ought to have prayed for setting aside the Basgit purcha which was issued in favour of the plaintiff. No such prayer was made in the suit. Further any such prayer if made could not have been granted in favour of the plaintiff in view of the clear bar as contemplated under Section 18 of the Act. Further, the plaintiff asserted his possession over the suit land but in course of demarcation proceeding such possession of the plaintiff was not found. In all fairness the plaintiff was required to pray for consequential relief which was, however, not the case. The findings recorded by the appellate Court, therefore, cannot be said to be perverse and/or wholly illogical. The appeal lacks merit.
Dismissed.
(Kishore Kumar Mandal, J) Shyam/-
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