Patna High Court
Byasdeo Mandal & Ors vs Smt. Longi Devi & Ors on 6 February, 2014
Author: V. Nath
Bench: V. Nath
IN THE HIGH COURT OF JUDICATURE AT PATNA
Second Appeal No.392 of 2009
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1. Byasdeo Mandal son of late Tarkeshwar Mandal.
2. Smt. Kantimani Devi wife of late Kailash Bihari Mandal @ Kailash Mandal.
3. Smt. Sangita Verma wife of late Subodh Verma.
4. Sonam Kumari daughter of late Subodh Verma.
5. Chhotu Kumar son of late Subodh Verma.
6. Pramod Verma.
7. Sri Sanjoy Verma @ Sanjoy Kumar Verma both sons of late Kailash Behari
Mandal.
8. Hariom Verma @ Hariom Kumar Verma son of Late Kailash Behari Mandal @
Kailash Mandal.
9. Smt. Indubala Singh daughter of late Kailash Behari Mandal @ Kailash Mandal
all residents of village-Alampur Police Station-Kahalgaon, District-Bhagalpur.
-Defendant/Respondents/Appellants.
Versus
1. Smt. Longi Devi wife of late Baldeo Mandal.
2. Mahendra Mandal.
3. Raj Kishore Mandal.
4. Rajesh Kumar Mandal @ Rajesh Mandal.
All sons of late Baldeo Mandal. All residents of village-Alampur, P.S.-Kahalgaon,
District-Bhagalpur. -Plaintiffs-Appellants-Respondents.
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Appearance :
For the Appellant/s : Mr. Keshav Kumar Srivastava, Sr. Adv.
Mr. Ramanuj Tiwari, Adv.
Mr. Ashutosh Ranjan Pandey, Adv.
For the Respondent/s : Mr. Uma Shankar Prasad, Sr. Adv.
Mr. Ranjan Kumar Jha, Adv.
Mr. Kamala Kant Tiwary, Adv.
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CORAM: HONOURABLE MR. JUSTICE V. NATH
ORAL JUDGMENT
Date: 06-02-2014
V.Nath , J. Heard Mr Keshav Kumar Srivastava, the learned senior
Patna High Court SA No.392 of 2009 dt.06-02-2014
2
counsel appearing on behalf of the appellants as well as Mr Uma
Shankar Prasad, the learned senior counsel appearing for the
respondents.
2. The defendants are the appellants in this appeal against
the judgment and decree of reversal decreeing the suit of the
plaintiffs.
3. The plaintiffs filed the suit for declaration of their title
and recovery of possession over the suit lands described in Schedule
I & II of the plaint and the ancillary relief. The property described in
Schedule I of the plaint is 7.90 of land of Mauza-Maheshmunda,
P.S.- Kahalgaon, District- Bhagalpur recorded in Cadastral Survey
Khatian in Khata No. 591, C.S. Plot No.1281 which corresponds to
R.S.Plot No. 602, R.S.Plot Nos. 2722 and 2733, area 7.82 acres in
the recent survey khatian. The Schedule II of the plaint contains
description of 48 decimals of land of Mauja-Alampur,
P.S.Kahalgaon, District-Bhagalpur recorded in C.S.Plot No.249 of
C.S.Khata No.31 corresponding to R.S.Plot No. 363 of R.S.Khata
No.73 area 44 decimals. The plaintiffs have claimed their title over
the aforesaid suit lands as their ancestral lands and have stated that
those lands have been recorded in the cadastral survey khatian in the
name of Amrit Mandal who was predecessor-in-interest of the
plaintiffs. It is the case of the plaintiffs they had been coming in
Patna High Court SA No.392 of 2009 dt.06-02-2014
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possession over those lands as title holders but the defendants
dispossessed them in the year 1999 and therefore, the suit with the
aforesaid relief of declaration of title, recovery of possession and
correction of survey entries in the name of the defendants for the suit
lands has been filed.
4. The defendants have not denied the fact that the suit
lands had been recorded in the cadastral survey in the name of Amrit
Mandal who was the predecessor-in-interest of the plaintiffs.
However, it is their case that Amrit Mandal did not remain in
possession over those lands till his death and it has been pleaded in
paragraph 6 of the written statement that during his lifetime the suit
land mentioned in Schedule I of the plaint was settled with Jagarnath
Mandal who was the maternal grandfather of the defendants. The
defendants have also pleaded that Jagarnath Mandal executed a
registered deed of agreement in favour of the ex-landlord on
26.08.1926stating therein that in view of the oral agreement he had accepted to pay the rent for the suit land at the enhanced rate as mentioned in the deed. It is also the case of the defendants that after the death of Jagarnath Mandal, his widow Most Banita executed a registered gift deed in the year 1960 in favour of the mother of the defendants with regard to the suit land and the defendants have acquired title thereto by inheritance. Further, the defendants have Patna High Court SA No.392 of 2009 dt.06-02-2014 4 based their title over the suit land described in Schedule II of the plaint on the basis of the sale deed executed by Basant Kumar Nayak in their favour asserting that Basant Kumar Nayak had the title over that land.
5. In view of the rival pleadings of the parties, the trial court framed altogether 7 issues out of which the issue no.5 was tried as material issue which is as follows:
Issue No.5- Whether plaintiffs have got valid right, title and interest over the suit land and whether they are entitled for the recovery of possession?
6. After scrutiny of the evidence, the trial court returned the finding that the plaintiffs had failed to establish their title over the suit lands and dismissed the suit. In appeal by the plaintiffs, the appellate court after reappraisal of evidence has reversed the judgment and decree of the trial court and decreed the suit upholding the title of the plaintiffs over the suit lands and granting the relief for recovery of possession.
7. This second appeal has been admitted for hearing on the following substantial questions of law:
(I) Whether the lower appellate Court could have reversed the Judgment of the trial Court without meeting the reasonings of the trial Court and without their being any evidence Patna High Court SA No.392 of 2009 dt.06-02-2014 5 adduced on behalf of the plaintiff except the cadastral survey record of right and discarding the evidence, i.e., documentary evidence ext.'C' produced by the appellant which is registered agreement dated 26.8.1926 which was discarded on the ground that this agreement was not signed by the landlord although the Apex Court in the case of Aloka Bose v. Parmatma Devi and Ors. A.I.R. 2009 SC 1527 has held that an agreement is not required to be signed by both the parties?
8. Mr Keshav Kumar Srivastava, the learned senior counsel appearing on behalf of the appellants has assailed the impugned judgment and decree passed by the appellate court below mainly on the ground that the appellate court below has wrongly decided the main issue by putting over emphasis on the weakness of the case of the defendants and ignoring the weakness of the case of the plaintiffs. It has been urged that the trial court in view of the well settled principle requiring the plaintiff to establish his case on his own strength has rightly proceeded to decide the controversy between the parties. It has been further submitted by the learned senior counsel that the plaintiffs have failed to adduce any documentary evidence except the cadastral survey khatian in support of their title but the statutory presumption of correctness attached to Patna High Court SA No.392 of 2009 dt.06-02-2014 6 such survey records of rights must be taken to have substantially weakened after considerable lapse of time. It has been pointed out by the learned senior counsel that admittedly C.S.Khatian was published in the year 1908 but the plaintiffs have not produced any rent receipt granted by the ex-landlord or the government revenue receipts after the vesting of Zamindari in their favour for the suit lands. Even the Return filed by the ex-landlord at the time of vesting has not been brought on record to corroborate the case of their subsisting title and possession over the suit lands. It has also been pointed out that there is neither pleading nor evidence by the plaintiff that they ever dealt with the suit lands in any manner right from the year 1908 when the khatian was published till the filing of the suit. Mr Srivastava, has further proponed that the defendants, on the other hand, have adduced in evidence the registered agreement of the year 1926 executed by their maternal grandfather wherein the acceptance for paying the rent at enhanced rate for the suit land (Schedule-I) to the landlord had been stated; the gift deed (Ext.D) executed by Most Banita widow of Jagarnath Mandal (maternal grandfather of the defendants) whereby the suit land in Schedule I had been gifted in favour of the mother of the defendants and also the sale deed executed by Basant Kumar Nayak in favour of the defendants with regard to the lands described in Schedule II of the plaint. Besides, it Patna High Court SA No.392 of 2009 dt.06-02-2014 7 has been further pointed out that the suit lands have admittedly been recorded in the recent survey khatian in the name of the defendants and the plaintiffs in his deposition has also accepted to have knowledge of the said entry. It has thus been submitted by Mr Srivastava that the judgment and decree of the appellate court below cannot be sustained either on facts or in law and the judgment and decree passed by the trial court are fit to be sustained. Mr. Srivastava has also argued that the suit filed by the plaintiffs was barred by limitation as they had knowledge of the revisional survey entry in the name of the defendants from much before but they failed to file the suit within three years for appropriate reliefs against the said entry.
9. Mr. Uma Shankar Prasad, the learned senior counsel appearing on behalf of the plaintiff-respondents while propounding the legal acceptability of the impugned judgment and decree has submitted that the appellate court below has correctly decided the main issue in favour of the plaintiffs as there was nothing on record to show that the plaintiffs or their predecessor-in-interest had ever abandoned or transferred the suit lands. It has been urged that in view of the presumption of the correctness attached to the cadastral survey entry, the plaintiffs' title over the suit land would be deemed to have continued and remained undisturbed. The documentary evidence (Ext. B, Ext. C and Ext. E) on behalf of the defendants have been Patna High Court SA No.392 of 2009 dt.06-02-2014 8 seriously challenged asserting that from the registered document marked as Ext. C, it is apparent that it was in the nature of an agreement and therefore in absence of the execution or at least the acceptance by the other party, the said document has no decisive value. It has also been submitted that the information obtained and produced by the defendants with regard to the return filed in the name of Basant Kumar Nayak with regard to Schedule-II property of village Alampur is also not worth reliance as there is major discrepancy in the area of the plot with regard to which the return has been said to have been submitted. The learned senior counsel has thus submitted that once the case of title of Jagarnath Mandal over the suit land (Schedule-I) falls apart, nothing would remain for his widow to transfer by gift in favour of the defendants, and in view of the above fact also creating doubt over the title of Basant Kumar Nayak, he also could not have any right, title or interest over Schedule-II land to transfer by sale in favour of the defendants. It has also been submitted by the learned senior counsel that the entry in the recent survey khatiyan is under challenge as it has been wrongly prepared in the name of the defendants and therefore no reliance can be placed on the same.
10. From the perusal of the judgment of both the courts below and after considering the submissions on behalf of the parties, Patna High Court SA No.392 of 2009 dt.06-02-2014 9 it is manifest that the suit property had admittedly been recorded in the cadastral survey khatiyan in the name of Amrit Mandal who was the predecessor of the plaintiffs. It is also not in dispute that the cadastral survey khatiyan was published in the year 1908. In fact, from the perusal of the plaint, it transpires that the plaintiffs have claimed the suit land as their ancestral land and have relied upon the entry in the cadastral survey khatiyan in support of this claim. It has also not been disputed by the parties that the plaintiffs have not adduced any other documentary evidence of the later years after 1908 to corroborate their claim of title and possession over the suit lands. The plaintiffs are also admittedly not in possession of the suit lands although it is their case that the defendants forcibly dispossessed them which compelled them to file the suit.
11. The trial court dismissed the suit after finding that there was no material evidence on record to corroborate the claim of title of the plaintiffs over the suit lands and has relied upon the well settled principle that in a suit for recovery of possession on the basis of the title it is for the plaintiff to establish his subsisting title over the suit property and the weakness in the case of the defendant can never enure to the benefit of the plaintiff making him entitled to the decree as prayed. The trial court has also concluded that the oral evidence of the parties cannot be the determining factor on the issue Patna High Court SA No.392 of 2009 dt.06-02-2014 10 of title involved in the present controversy as the witnesses of both sides have come to support the case of the respective parties.
12. In appeal, the appellate court below, while overturning the findings of the trial court, has proceeded on the basis that the entry in the cadastral survey khatian for the suit lands in the name of the ancestors of the plaintiffs carries with it the presumption of correctness and as there is no abandonment, surrender or transfer by the recorded raiyats or their descendants of the suit lands, the plaintiffs, therefore, shall be presumed to have valid right, title and interest over the suit lands. The appellate court has further also recorded the finding that the sale deed dated 27.11.1961 executed by Basant Kumar Nayak in favour of the plaintiffs for the suit land (Schedule-II) is a fabricated document as the said Basant Kumar Nayak had no title over the said land. It is however transparent from the judgment of the appellate court below that it has not referred to any evidence of the plaintiffs except the copy of the cadastral survey khatian (Ext-I) and has not taken into notice the copy of the revisional survey khatian where the entries for the suit lands are admittedly in the name of the defendants and the same also has carried with it the presumption of correctness.
13. The result following the conflict of entries in the cadastral survey khatian and the revisional survey khatian is no more Patna High Court SA No.392 of 2009 dt.06-02-2014 11 res integra and it is by now well settled that in such a case, the recent khatian entries are to prevail and will be presumed to be correct. The Apex Court in the case of Shri Raja Durga Singh of Solon Vs Tholu, AIR 1963 SC 361 at Page- 364 has clearly ruled that when there is a conflict between the entries in the C.S.Khatian and the new record of rights, the recent one will be presumed to be correct. Further, it would also be fruitful here to take into notice a Bench decision of this Court in the case of Shaikh Banka Vs Shaikh Bartul, AIR 1952 Patna 157 laying down that an earlier entry made at the time of cadastral survey cannot by itself rebut the presumption of correctness attaching to the later entry. Tested on the anvil of these dictums, it is apparent that the appellate court below has approached the case with wrong angle in accepting the presumption of correctness of the cadastral survey khatian entry and altogether ignoring the recent khatian entry for the suit land and the presumption attached to it. Since the plaintiffs have sought the relief for recovery of possession on the basis of title over the suit lands, it was definitely incumbent upon them to prove their title by clear and cogent evidence and the defendants had no business to show that the entry in the C.S. Khatian was incorrect. Even otherwise also if the entries in the survey khatian with statutory presumption attached to it is to be taken to have relevance as some evidence of title, it is Patna High Court SA No.392 of 2009 dt.06-02-2014 12 definitely in favour of the defendants.
14. The strenuous emphasis by the learned senior counsel on behalf of the plaintiff-respondents on the cadastral survey khatian entry for the suit land and its presumption of correctness, in the facts and circumstances of the case, ignoring such presumption in favour of the defendants in view of the recent khatian entry for the suit land in their favour, is thus clearly misplaced. But in any view of the matter the survey entries in the khatian at the most raise only a rebuttable presumption but cannot extinguish or create title over the properties. The submission on behalf of the plaintiff-respondents thus appears to have been made blurring the purpose of statutory presumption which is different from establishing the claim of title over the property on the basis of cogent evidence in case of dispute. The statutory presumption cannot take the place of evidence as its only role is to determine the question of burden of proof. Once both parties have entered trial and led evidence in support of their cases, the role of presumption is over and thereafter the evidence of the parties only remain material for consideration. Reflecting on the role of presumption, the Apex Court in the case of Sodhi Transport Company Vs State of U.P. , AIR 1986 SC 1099 has ruled as follows:
"...A presumption is not in itself evidence but only makes a prima facie case for party in Patna High Court SA No.392 of 2009 dt.06-02-2014 13 whose favour it exists. It is a rule concerning evidence. It indicates the persons on whom the burden of proof lies. When presumption is conclusive, it obviates the production of any other evidence to dislodge the conclusion to be drawn on proof of certain facts. But when it is rebuttable it only points out the party on whom lies the duty of going forward with evidence on the fact presumed, and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed the purpose of presumption is over. Then the evidence will determine the true nature of the fact to be established..."
15. The plaintiff no.2 examined as P.W.5 on behalf of the plaintiff has stated in his deposition that he had the documents in his possession with regard to the suit land evidencing his title over the suit land but they all were destroyed in flood. However it appears from the records that the plaintiffs did not file the certified copies or have made prayer to get the original records, like Register-II, the original copy of the Return and the records of the mutation proceeding, called for from the concerned department, by way of evidence in support of his claim of subsisting title and no reason has also been assigned justifying absence of this course of action. Patna High Court SA No.392 of 2009 dt.06-02-2014 14 There is also no statement that the plaintiffs or their predecessor had been paying rent to the ex-landlord. The plea of destruction of the relevant documents cannot take the plaintiffs any far because these documents could have been brought on record by filing certified copies or by making prayer to call for the original copies. As such, there is no impediment in drawing the inference that the plaintiff has withheld the best evidence. It also does not appeal to reason that right from 1908 upto the date of the filing of the suit in the year 1999 the plaintiffs could not have a chit of paper to support their claim of title except the entry in the cadastral survey khatian. The dearth of clear and cogent evidence to corroborate the title and possession of the plaintiffs over the suit lands is writ large from the records.
16. On the other hand, the defendants have adduced in evidence the registered deed (Ext. C) which is in the nature of an agreement for the suit land (Schedule-I) executed by Jagarnath Mandal through whom the defendants have claimed to have derived their title. The appellate court below has held that the said document cannot be relied as it lacks the signature of the ex landlord on the same. From the perusal of the contents of the document, it appears that it contains the statement against the interest of the maker himself whereby he had agreed to pay the rent for the suit land (Schedule-I) at the enhanced rate to the ex landlord in the background of the facts Patna High Court SA No.392 of 2009 dt.06-02-2014 15 and circumstances mentioned therein. This is a typical case of unilateral contract where a gratuitous promise had been made without a need for a return promise and it was the maker alone who was ever under obligation. The document evidencing such contract is not required to be signed by the other party and will not become invalid for that reason. The principle in this regard has been illumined by the Apex Court in Aloka Bose Vs Parmatma Devi, AIR 2009 SC 1527. The appellate court has, therefore, erred in law in discarding this document from consideration. Even otherwise also the question of rate of rent or payment of rent at enhanced rate is not in issue at all in the present case and the said document has been brought in evidence on behalf of the defendants only to show that Jagarnath Mandal had concern with the suit land otherwise there was no reason for him to execute this document in the year 1928 accepting to pay the enhanced rate of rent for the suit land to the ex landlord. On behalf of the plaintiffs no evidence has been adduced to show that Jagarnath Mandal had fabricated the said document with a motive to deprive the plaintiffs or their predecessors of their title over the suit land. Even thereafter, Most. Banita the widow of Jagarnath Mandal had executed the registered deed of gift (Ext-D) for the suit land in favour of the mother of the defendants who was her daughter and again there is no allegation by the plaintiffs that this Patna High Court SA No.392 of 2009 dt.06-02-2014 16 document was also executed by the widow of Jagarnath Mandal with secrecy and plan to deprive the plaintiffs of their title. The information slip (Ext-B) with regard to the filing of return for the Alampur land (the schedule-II land of the plaint) shows that the return was filed for the said land by the ex landlord in the name of Basant Kumar Nayak. Although, veracity of the said document has been disputed by the plaintiffs on the ground of difference in the area of land mentioned in the information slip but again there is total absence of documentary evidence on behalf of the plaintiffs to show otherwise that the Return for said land was in fact filed in the name of the plaintiffs by the ex-landlord and the information given in the information slip is thus completely wrong. The difference in the area as mentioned in the information slip cannot be momentous enough to lead to the conclusion that no Return in the name of Basant Kumar Nayak was filed at all. As mentioned earlier the plaintiffs have also not taken any step to get the original copy of the Return to substantiate their assertion that the contents of the information slip (Ext.-B) produced by the defendants was incorrect. The sale deed (Ext.-E) has been executed by Basant Kumar Nayak on 27.11.1961 for the schedule-II property of village Alampur in favour of the defendants. There is no explanation by the plaintiffs as to why the said sale deed was executed in favour of the defendants by Basant Patna High Court SA No.392 of 2009 dt.06-02-2014 17 Kumar Nayak as far back as in the year 1961 when there was no controversy in existence for the suit lands between the plaintiffs and defendants or even Basant Kumar Nayak. It is well settled that a registered document carries with it the presumption of valid execution. The appellate court below surprisingly has discarded this sale deed as fabricated without referring to any evidence to support the said finding. Moreover, on behalf of the plaintiff-respondents, no evidence on record could be pointed out to sustain the finding that the registered sale deed (Ext-E) has been fabricated by the defendants. The judgment of the appellate court does not show that the learned court has at all adverted to the aspect as to whether the plaintiffs have adduced material evidence to explain away the inferences flowing from the documentary evidence produced on behalf of the defendants. The conclusions by the appellate court, while passing the judgment of reversal, are, thus, erroneous and deserves to be overturned.
17. The appellate court below has further also held that in order to assail the finding on the issue of limitation which has been decided against them, the defendants were required to file a cross objection and they are precluded from raising the issue of limitation in absence of cross objection. The provision as contained in Order 41 Rule 22 C.P.C. does not require a defendant in whose favour the Patna High Court SA No.392 of 2009 dt.06-02-2014 18 decree stands in entirety to file a cross objection assailing the finding against him. This principle has also been succinctly laid down by the Apex Court in the case of Banarsi Vs Ram Phal, 2003 S.C.1989 as follows. "...Thus it is clear that just as an appeal is preferred by a person aggrieved by the decree so also a cross-objection is preferred by one who can be said to be aggrieved by the decree. A party who has fully succeeded in the suit can and need to neither prefer an appeal nor take any cross- objections though certain finding may be against him. Appeal and cross- objection---both are filed against decree and not against judgment and certainly not against any finding recorded in a judgment..." The appellate court has erred in law in this regard and its finding in this regard is also not sustainable. However, although Mr. Srivastava, the learned senior counsel for the defendant-appellants, has made submissions that the suit of the plaintiffs was barred by limitation as they had admittedly the knowledge of the survey entry in the name of the defendant much prior to the filing of the suit and therefore the said issue ought to have been decided against the plaintiffs, it is manifest from the written statement filed by the defendants that the defendants have claimed their own independent title over the suit property and have not claimed to have acquired title by adverse possession. In this fact- situation, Mr. Sirvastava could not substantiate his submission by any provision of law or precedent which could have required the plaintiffs to file the suit within three years after getting the Patna High Court SA No.392 of 2009 dt.06-02-2014 19 knowledge of the survey entry of the suit land in favour of the defendants. An entry in the survey records of rights does not create or extinguish title over the land and cannot be held to be the starting point of limitation. The trial court has correctly held that the suit filed by the plaintiffs is not barred by limitation for that reason and the said finding is upheld.
18. For the aforementioned reasons and discussions, the substantial question of law is answered in favour of the appellants and this appeal stands allowed. The judgment and decree passed by the appellate court below is set aside and the judgment and decree passed by the trial court is upheld. No cost.
(V. Nath, J) Nitesh/Devendra-
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