Patna High Court
Shankar Prajapat vs The State Of Bihar &Ors on 6 February, 2012
Author: Shailesh Kumar Sinha
Bench: Shailesh Kumar Sinha
Patna High Court FA No.112 of 1984 dt.06-02-2012
IN THE HIGH COURT OF JUDICATURE AT PATNA
First Appeal No.112 of 1984
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A 1. (i) Kaushalya Devi wife of Late Shankar Prajapat.
A 1. (ii) Ravindra Prajapat son of late Shankar Prajapat.
A 1 (iii) Chhotu Prajapat son of late Shankar Prajapat.
A 1 (iv) . Babi Kumari daughter of Late Shankar Prajapat
All resident of mohalla Urdu Sherghaty, P.S. Sherghaty, District - Gaya
A 1 (v) Gulabi Devi daughter of late Shankar Prajapat and wife of Ram Pravesh
Prajapat resident of Duri, P.S. Bakee Bazar, District -
Gaya.
2. Mahabir Prajapat
Sons of Late Tuni Prajapat and resident of Mohalla Urdu Sherghaty, P.S.
Sherghati, District - Gaya.
Plaintiffs .... .... Appellant/s
Versus
1. The State Of Bihar through the District Magistrate and Collector, Gaya
2. Kunti Devi wife of Late Rameshar Prajapat
2/A. Bharat Prajapat son of Late Rameshar Prajapat
2/B. Birendra Prajapat
2/C. Upendra Prajapat
Both minor sons of Late Rameshar Prajapat under the guardianship of their
mother, Kunti Devi as well- wisher and natural guardian.
All resident of village Kamat, P.S. Sherghati, District - Gaya
3. Ramchandra Prajapat, S/o- Anup Prajapat resident of village Kamat , P.S.
Sherghati, District - Gaya
Defendants .... .... Respondent/s
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Appearance :
FOR THE APPELLANT/S : MR. AJAY KUMAR SHARMA, ADVOCATE
FOR THE RESPONDENT/S : MR. INDRAJEET SINGH, J.C. TO S.C. - 6
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CORAM: HONOURABLE MR. JUSTICE SHAILESH KUMAR SINHA
ORAL JUDGMENT
06.02.2012 Heard learned counsel for the appellants and A.C. to
S.C. - 6 for the State.
The above appeal is directed against the judgement
and decree dated 12.12.1983 passed by 3rd Sub-ordinate Judge,,
Gaya in Title Suit No. 13 of 1982 whereby the suit for declaration
of title and possession over the suit land was dismissed.
The short facts for disposal of the above appeal, are that
the plaintiff- appellants filed the aforesaid Title Suit No. 13 of 1992 for
Patna High Court FA No.112 of 1984 dt.06-02-2012
declaration of title and possession over the suit land under Schedule -
1 of the plaint with further declaration that entry made in the
Revisional Survey Khatian with respect to the suit land in the name of
the State of Bihar (Defendant No. 1) be wrong, incorrect, illegal and not
binding on the plaintiff - appellants.
The issue is that the suit land as described in the plaint
situated in village - Gopalpur, P.S. Sherghati, District - Gaya were
recorded as Gairmazaru Malik in the Cadestral Survey Khatian. The
then landlord settled those lands in favour of their family members.
Consequently, the settlees came in their respective possession and were
also recognized as raiyat after vesting of the Zamindari in the State of
Bihar under the provisions of the Bihar Land Reforms Act, 1950. The
names of the settlees were recorded in the revenue records i.e. register
-II of the State of Bihar. The further case of the plaintiff is that they
had purchased the land in question from one of the settlee
namely, Shiv Narayan Gupta through four (4) sale deeds dated
01.07.1969and upon purchasing, they came into the final possession of the land and since then they are continuing in possession and got their name mutated in the register - II, the tenant ledger was maintained by the State of Bihar and rent receipts issued in their favour on payment of the land rent, however, in the revisional survey of Khatian, the suit land (Schedula - 1) were wrongly recorded in favour of the State of Bihar (Defendant No. 1), although in the remarks column, the plaintiff possessions was mentioned.
The aforesaid wrong entry in favour of the State of Patna High Court FA No.112 of 1984 dt.06-02-2012 Bihar was not binding on the plaintiff, however, on account of such entry in favour of the State of Bihar it cast a shadow on the right, title and interest of the plaintiff which was illegally recorded hence, the plaintiff filed the suit after serving a notice as required under the provisions of Section 80 of the Code of Civil Procedure. The State of Bihar appeared in the suit filed the written statement and contested the claim of the plaintiff with regard to the title and possession over the suit land on various grounds and further supported the entry made in the Regional Survey Khatian prepared in favour of the State of Bihar. Accordingly, it was prayed that the suit, in question, be dismissed.
The court below on the basis of the evidence on record held that the plaintiffs have got right, title, interest and possession over the suit land and the entry made in the regional survey of khatian, in favour of the State of Bihar (Defendant No.
1) was incorrect, However, the suit was dismissed on the ground of limitation, as the suit is barred in terms of Article 113 of the Limitation Act (hereinafter referred to as the "Act"). The court below taking note of the fact that the revisional survey of khatian, was finally published on 20th of January 1977 and the suit having been filed on 31st of March 1982 i.e. beyond the limitation of 3 years, as prescribed under Article 113 of the Act and as such, held the suit being time barred, dismissed the suit.
Learned counsel appearing on behalf of the appellant submits that from perusal of the relief prayed in the suit, Patna High Court FA No.112 of 1984 dt.06-02-2012 it would appear that the suit is for declaration of title and confirmation of possession. As a matter of fact, confirmation of possession was sought to be based on the title. The State of Bihar denied the title asserting the vesting of the suit land in the State of Bihar was asserted and as such, the appropriate Article under the above limitation Act would be Article 65 and not Article
113. It was accordingly submitted that the court below committed the error while applying Article 113 of the Act and held the suit barred by limitation.
Learned counsel appearing for the State submits that this suit basically was for correction of the entry in the Revisional Survey Khatian and as such, the appropriate limitation for filing such suit, would be governed by Article 113 of the Act and not Article 65 as asserted by the plaintiff- Appellant and supported the judgement and decree under appeal.
In reply, learned counsel for the appellant submits that the controversy with respect to the correct application of Article 113 or 65 of the Act, has been considered in detailed which was decided by this court virtually, in the same set of facts except the plot number and Area vide F.A. No. 111 of 1984 arising out of judgement and decree dated 16.12.1983 passed by Sub-ordinate Judge -III, Gaya in Title Suit No. 14 of 1982 which was allowed by the reasoned judgement dated 2nd of April 1997. The only difference being the plot number and the area of the same plot, the above position is not being disputed by the learned Patna High Court FA No.112 of 1984 dt.06-02-2012 counsel for the State.
Considering the submissions of the parties, this court finds that the title and possession has been found to be in favour of the plaintiffs, however, the suit was dismissed on the ground of limitation. According to the Trial Court, the limitation would be three years and the suit has not been filed after expiry of the aforesaid limitation period. The suit was dismissed as submitted by the learned counsel for the appellant. The judgement of this court passed in F.A. No. 111 of 1984, squarely covers the issue in question. The findings of this court with respect to the correct applicability of the Article 65 of the Limitation Act, in fully applicable in this suit as well. Accordingly, this court also finds that the suit in question i.e. Title Suit No. 13 of 1982 is not barred by limitation.
In the result, for the reasons and discussions made above, the judgement and decree under the appeal is set aside. The suit is decreed. The appeal is accordingly allowed, however, in the facts and circumstances of the case, there would be no costs. Patna High Court, Patna (Shailesh Kumar Sinha, J) Date :- 06.02.2012 N.A.F.R./Jagdish