Jharkhand High Court
Sarbeshwar Prasad Sharma vs The State Of Jharkhand Through The Chief ... on 9 June, 2025
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
2025: JHHC: 14762
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No. 219 of 2022
Sarbeshwar Prasad Sharma, aged about 70 years, son of Late Chandi
Prasad Sharma, resident of Village Yadavpur, Bakaspura, P.O. Yadavpur,
P.S. Barwadda, Govindur, District Dhanbad
... ... Plaintiff/Respondent/Appellant
-Versus-
1. The State of Jharkhand through the Chief Secretary, having its office at
Project Building, P.O. & P.S. Dhurwa, District Ranchi
2. The Deputy Commissioner, Dhanbad, P.O., P.S. & District Dhanbad
3. The Additional Collector, Dhanbad, P.O., P.S. & District Dhanbad
4. The Sub-Divisional Officer, Dhanbad, P.O., P.S. & District Dhanbad
5. The Circle Officer, Govindpur, P.O. & P.S. Govindpur, District
Dhanbad
6. The District Fishery Officer, Dhanbad, P.O., P.S. & District Dhanbad
... ... Defendants/Appellants/Respondents
---
CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
---
For the Appellant : Mr. Rahul Kumar Gupta, Advocate Mr. Rakesh Kr. Singh, Advocate For the Respondents : Mr. Sanjay Kr. Tiwary, Advocate
---
th 15/9 June 2025
1. This appeal has been filed against the judgment dated 31 st August 2022 (decree sealed and signed on 13th September 2022) passed by the learned District Judge-III, Dhanbad in Civil Appeal No. 126 of 2019, whereby the learned 1st appellate court has set-aside the judgment dated 12th October 2018 (decree sealed and signed on 26th November 2018) passed by the learned Additional Civil Judge (Junior Division), Dhanbad in Title Suit No. 114 of 2005. The trial court had decreed the suit.
2. The appeal before the learned 1st appellate court was filed by the defendants and the present appeal has been filed by the plaintiff against the judgment of reversal.
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3. This appeal was admitted for final hearing vide order dated 24.02.2025 on the following substantial questions of law: -
I. Whether the 1st appellate court has wrongly reversed the judgment and decree passed by the trial court by making out a third case that (i) the persons who had executed 'Arpannama' only had fractional interest upon the suit property; (ii) Sruti Kirti Debya had other heirs and original plaintiff was not the alone nominated 'Sebayat'; and (iii) Arpannamas were not in terms of Section 72 of the Chhota Nagpur Tenancy Act?
II. Whether the lower appellate court was right in holding that exhibit-3 was the conclusive proof possession as per Section 84(3) of the Chhota Nagpur Tenancy Act? III. Whether the learned lower appellate court was right in discarding "exhibit 1/b and 1/c on the ground that they were beyond pleadings" in view of the provisions contained in Order 6, Rule 2(1) of the Code of Civil Procedure? IV. Whether the reversal of judgment and decree by the learned appellate court is without meeting the reasoning of the trial court?
V. Whether the appellate court was right in reversing the judgment and decree passed by the trial court on the ground that the 'deity' was not made party?
4. The suit was filed by the plaintiff for declaration of title and confirmation of possession etc. over the suit property. The plaintiff prayed for the following reliefs: -
"(a) For a decree in favour of the plaintiff and against the defendants for declaration that the tank mentioned in the schedule below is not a government Sairat rather it is the property of the Shiba Mandir, Bakashpura through its Arpan Namas and the plaintiff is the Sewayat of the deity.
(b) For a decree in favour of the plaintiff and against the defendants for confirmation of possession alternatively for 2 2025: JHHC: 14762 recovery of possession if he is found dispossessed from the said tank during the pendency of the suit.
(c) For a decree for permanent injunction restraining the defendants, their men and agents, officers and staffs from setting the tank by holding public auction or otherwise.
(d) for cost of the suit.
(e) For any other or further relief or reliefs for which the plaintiff found entitled to."
5. The schedule property is situated in District Dhanbad, PS- Govindpur (Now Barwadda), Mouza-Bakaspura, Mauza no. 77, Khata No. 55, Plot Nos. 202 and 203, total area 4.86 acres comprising tank and tank ails.
6. Case of the plaintiff
(a) The suit property is a Tank, commonly known as Purana Bandh which was originally recorded as Gair Abad Malik in the Last Cadestral Survey Record of Rights under Panchulal Dashoundhi as Khewatdar and he was in possession. He made a spiritual Gift of the tank to Sri Sri Shiba Thakur Jiu, Ka Shiba Mandir (hereinafter referred to as the Shiba Mandir) situated at village Bakashpura on 17.01.1923 by executing a registered Arpan Nama and since then, the produce of the tank was being used for the worship and management of the said Shiba Mandir. After the death of Panchulal Dashoundhi, another co-sharer, namely, Baikuntha Nath Dashoundhi also made registered Arpan Nama Gift of his share of the said tank on 17.08.1954 to the said Shiba Mandir and also appointed Smt. Surti Kirti Devi, mother of the plaintiff, as Sewayat of the Shiba Mandir.
(b) The mother of the plaintiff continued to possess the tank and she managed the affairs of the said Shiba Mandir out of the produce of the said tank. She used to rear fishes in the said tank through khewats and by selling the fishes, she used the sale proceeds for the management of the Shiba Mandir.
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(c) After vesting of zamindari interest, the name of Surti Kirti Devi was entered as Sewayat/Raiyat for the said tank and she used to pay rent to the State of Bihar and continued to possess the same for said purpose. After the death of Surti Kirti Devi, the plaintiff being her son, was managing the affairs of the said Shiba Mandir but could not continue to pay the rent of the said tank.
(d) The cause of action arose when the plaintiff came to know that the said tank was being settled by public auction through the District Fisheries Department, Dhanbad and therefore the plaintiff made an application before the Land Reforms Deputy Collector, Dhanbad to enquire into the matter and stop further auction of the said tank and upon a report, the application of the plaintiff was rejected vide order dated 25.06.2004 and the appeal against the said order was also dismissed vide order dated 25.04.2005 by observing that the tank could not be settled to the plaintiff as it was under the charge of the Fishery Department.
(e) It was the specific case of the plaintiff that the tank belonged to Shiba Mandir and it never vested in the State Government under the provisions of Bihar Land Reforms Act which remained the property of Shiba Mandir through registered deeds of Arpan Namas and at the time of vesting of zamindari, the tank remained as raiyati tank of Shiba Mandir which cannot be settled to general public by auction treating it to be a Government Sairat.
7. Case of the defendants
(i) The defendants, who was the State and their authorities, filed their written statement and took a specific plea that the suit was barred under Section 4 of the Bihar Land Reforms Act; barred by law of limitation and the suit was not maintainable.
(ii) It was stated by the defendants that the tank was being settled by the Fishery Department every year which was sufficient to show that the plaintiff did not have any possession over the suit property.
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(iii) It was their specific case that all the tenure rights in Government tank vested in the State of Bihar after coming into force of the Bihar Land Reforms Act and the temple was situated by the side of the tank and therefore cannot be owned and possessed by the plaintiff. It was also stated that the tank had no relationship with the temple. It was a public tank and the statements made in the plaint were denied.
8. On the basis of the pleadings of the parties, the learned trial court has framed the following issues for consideration: -
1. Is the suit maintainable in its present form?
2. Is the suit barred under the provisions of waiver, estoppel and acquiescence?
3.Is the suit barred by law of Limitation?
4. Is the suit barred under the principle of Section 4 of Bihar Land Reforms Act?
5. Whether the suit tank is the property of Shiba Mandir Bakaspura through its Arpan Nama and plaintiffs is the Sebait of the deity?
6. Whether the suit tank is vested in the State of Bihar now Jharkhand and entered as a Government Sairat?
7. Whether the plaintiff entitled a decree for permanent injunction restraining the defendants their men, agents of Officer and staff from settling the tank by holding public auction or otherwise?
8. To what relief or reliefs the plaintiff is entitled to?
9. The plaintiff has examined as many as six witnesses in support of his case as under: -
PW 1 Lav Kumar Mishra
PW 2 Bhagirath Dashaundhi
PW 3 Sarbeshwar Prasad Sharma
PW 4 Anant Dhiwar
PW 5 Balram Prasad Sharma
5
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PW 6 Prem Narayan Sharma
10. The plaintiff adduced the following documentary evidences in support of his case: -
Exhibit documents
No.
Ext.-1 Arpan Nama dt. 28-01-23
Ext.-1/a Arpan Nama dt. 17-08-54
Ext.-1/b Arpan Nama dt. 04-05-46
Ext.-1/c Arpan Nama dt. 24-01-30
Ext.-2 Carbon Copy of notice u/s 80 CPC dt.
24-05-2008
Ext.-3 C.S. Khatiyan of Khata no. 55
Ext.-4 Original form M of rent assessment of
56-57
Ext.-5 Postal register extract 661 to 666 dt. 01-
06-05
Ext.-6 CC of order dt. 25-04-2005 in Misc.
Appeal no. 9/04
Ext.-7 Rent receipt no. 560769 dt. 29-03-85
11. The defendants have also adduced one oral evidence i.e. DW-1 Umesh Chandra Prasad and exhibited some documentary evidence. Ext.-A was the certified copy of the revisional khatiyan of Revisional Khata No. 91 and Ext.-B is the application for information.
12. The suit was decreed by the learned trial court and the judgement and decree was set aside by the learned 1st appellate court.
13. Before this court, the parties were heard and their arguments were recorded vide orders dated 24.04.2025 and 25.04.2025 and the prayer for framing additional substantial question of law as to, Whether the suit property was vested in the Government by virtue of Section 4 of the 6 2025: JHHC: 14762 Bihar Land Reforms Act? was rejected by this Court and the arguments on merits of the substantial questions of law already framed earlier were recorded and posted for judgement today.
14. Arguments of the parties on additional substantial question of law has been recorded in order dated 24.04.2025 from paragraph 30 onwards as under: -
"30. Learned counsel for the appellant during the course of argument has submitted that there is an additional substantial question of law involved in this case as to whether the property being raiyati pond of deity through the sebiait vested in the Government by virtue of Section 4 of the Bihar Land Reforms Act? He has submitted that there are concurrent findings recorded by both the courts in connection with vesting of the property with the State Government by virtue of Section 4 of the Bihar Land Reforms Act and unless this finding is set-aside, no relief will be ultimately given to the plaintiff. The learned counsel has in particular referred to Section 4(a) of Bihar Land Reforms Act , 1950 and has submitted that as per the provision of vesting only those interest stood vested in the State which were other than the interest of raiyats and under raiyats. He has submitted that since the property was a raiyati pond, therefore, it did not vest with the State Government.
31. Learned counsel appearing on behalf of the respondents has opposed the prayer and has submitted that no such question of law arises for consideration by this Court in view of law settled by the Hon'ble Supreme Court in the judgment reported in 1994 Suppl. (3) SCC 725 (Lawanya Bala Devi vs. State of Bihar) and has submitted that in the said case also, raiyati right was claimed over the tank and the same was specifically rejected by the Hon'ble Supreme Court by holding that no raiyati right can be claimed over tank and the tank which was said to be settled by the land holder in favour of the appellant of the case was not saved by virtue of Section 6(i)(b) of the Bihar Land Reforms Act. The learned counsel submits that the pre-existing right over the tank/sairat does not exist upon vesting. He submits that the law having been settled by the Hon'ble Supreme Court, the same cannot be framed as a substantial question of law to be decided by this Court.7
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32. ......................................................................"
15. On 25.04.2025, with regard to framing of additional substantial question of law, the submission of learned counsel for the respondents was recorded in paragraph 17 and the refusal to frame additional question of law has been recorded in paragraph 18 to 19 as under: -
"17. The learned counsel for the respondents has submitted that there are concurrent findings recorded by both the courts that the suit land, which was in the form of pond and admittedly not used for any agricultural purpose, had vested in the State of Bihar under Bihar Land Reforms Act and the issue is covered by the Judgment passed by the Hon'ble Supreme Court in the case reported in 1994 Suppl. (3) SCC 725 and therefore, no such substantial question of law arises in this case.
18. Considering the aforesaid submissions, with regards to additional substantial question of law to be framed as argued by the learned counsel for the appellant on 24 th of April 2025 and opposed by the learned counsel for the respondents today in the light of the judgement passed in 1994 Suppl. (3) SCC 725, no additional substantial question of law arises for consideration as the law is well settled by the Hon'ble Supreme Court that the tank settled by the landholder was not saved by section 6(1) (b) of Bihar Land Reforms Act and it was vested in the State by virtue of section 4. In Labanya Bala Devi v. State of Bihar Patna Secretariat, 1994 Supp (3) SCC 725, the appellants/plaintiffs laid the suit for a declaration that the appellant has a Raiyati right over Plots consisting of tank and tank tail and the trial court decreed the suit holding that the appellant had the Raiyati right over the property but on appeal it was held that the property stood vested in the State under Section 4 of the Bihar Land Reforms Act (30 of 1950) and accordingly dismissed the suit and in the second appeal the 1st appellate court's judgement was confirmed . The law has been settled by the Hon'ble Supreme Court as follows: -
"3. By operation of Section 4 such estates or tenures including the interests of the proprietor or tenure holder in such estate or tenure and his interests in trees, forests, fisheries, jalkars, hats, bazars (mela) and ferries and all other sairati interests as also his interest in all sub-soil including 8 2025: JHHC: 14762 any rights in mines and minerals etc., other than the interests of raiyats or under-raiyats shall w.e.f. the date of vesting, vest absolutely in the State free from all encumbrances and such proprietor or tenure holder shall cease to have any interests in such estate or tenure other than the interests expressly saved by or under the provisions of the Act. Section 6(1)(b) is one of the savings which postulates that:
"On and from the date of vesting all lands used for agricultural or horticultural purposes which were in khas possession of an intermediary on the date of such vesting, including-lands used for agricultural... and held in the direct possession of a temporary lessee of an estate or tenure and cultivated by himself with his own stock or by his own servants or by hired labour or with hired stock ... shall, subject to the provisions of Sections 7-A and 7-B be deemed to be settled by the State with such intermediary and he shall be entitled to retain possession thereof and hold them as a raiyat under the State having occupancy rights in respect of such lands subject to the payment of such fair and equitable rent as may be determined by the Collector in the prescribed manner".
The saving by Section 6(1)(b) is only of the lands actually used for agricultural purposes in a State or a tenure of a lessee or a temporary lessee and directly in his possession and cultivated by himself with his own stock or by his own servants or by hired labour or with hired stock that the land stands excluded and raiyati rights has been confirmed statutorily subject to the terms contained therein. The tank is said to be settled by the landholder in favour of the appellant thereby the tank was not saved. Thus, the tank stands vested in the State absolutely free from all encumbrances and that, therefore, the contract, even if any, was nullified by non-obstante clause in clause 4. ........................"
19. The law having been settled by the Hon'ble Supreme Court with regards to saving of raiyati rights over tank and having been held that the tank vested in the State by virtue of Section 4 and not saved by Section 6 of the Bihar Land Reforms Act, 1950, no additional substantial question of law as suggested by the learned counsel for the appellants arise for consideration by this Court and accordingly the prayer for framing additional substantial questions of law is rejected."
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16. Arguments of the parties on the substantial questions of law as recorded in order dated 25.04.2025 are quoted as under: -
"Arguments of the appellant.
2. With respect to the substantial question of law No. (I), the learned counsel for the appellant has referred to the finding recorded by the learned 1st appellate court at internal page 26 and has submitted that the learned 1st appellate court has referred to the judgment passed by this Court in First Appeal No. 43 of 2012, which has been set aside by the Hon'ble Supreme Court in Civil Appeal Nos. 6781-6782 of 2023 [M/s Asarfi Hospital Limited vs. The State of Jharkhand & Ors.] and the matter has been remanded to this Court for fresh consideration. He submits that in the said case, it was held that mere issuance of form M with respect to any land cannot protect the land from vesting.
3. The learned counsel has also submitted that the learned 1 st appellate court has recorded that the Khewat was Ejmal Khewat. Meaning thereby, Panchu Lala Dashaundhi was not the sole Khewatdar/proprietor tenure holder rather there were other Khewtdars also and therefore, Panchu Lala Dashaundhi did not have exclusive right to execute Arpan Nama with respect to the property. The learned counsel has submitted that there was another Apran Nama executed by the co-sharer of the property, namely, Baikunth Nath Dashaundhi.
4. The learned counsel has submitted that the learned 1st appellate court has also recorded a finding that Shruti Kirti Devi had other legal heirs and the original plaintiff was not the alone nominated Sebait. He submits that the learned 1st appellate court has recorded findings with regard to other legal heirs of Shruti Kirti Devi and has recorded that she had four sons and at the same time, the court has recorded that it was not pleaded that amongst the heirs, the plaintiff was the sole nominated Sebait and the learned 1st appellate court was of the view that the plaintiff did not have the locus standi to file the suit alone. The learned counsel for the appellant has submitted that the plaintiff being one of the sons of Shruti Kirti Devi certainly had the locus to file the case.10
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5. The learned counsel has further submitted that the State never raised any objection with respect to Section 72 of Chhotanagpur Tenancy Act and therefore there was no occasion for the learned 1st appellate court to enter into such an issue.
6. He submits that the learned 1st appellate court has wrongly reversed the judgment and decree and the learned 1 st appellate court made out a case which was never the case of the parties and therefore, the substantial question of law No. (I) is fit to be answered in favour of the appellant and against the respondents.
7. With respect to the substantial question of law No. (II), the learned counsel for the appellant has submitted that as per Section 84(3) of Chhotanagpur Tenancy Act, the Exhibit 3 at best could have a presumptive value and the same cannot be said to be conclusive proof of possession. However, he has submitted that the presumption was required to be rebutted through evidence.
8. With respect to the substantial question of law No. (III), the learned counsel for the appellant has submitted that merely because there was no reference of Exhibit 1/b and Exhibit 1/c in the plaint, the same cannot be termed as beyond pleadings, inasmuch as, in view of Order VI Rule 2(1) of CPC, the plaintiff is supposed to plead and state material facts and not evidence and therefore, the finding of the learned 1 st appellate court in rejecting Exhibit 1/b and 1/c on the ground that they were beyond pleadings is not in accordance with law.
9. During the course of argument, the learned counsel for the appellant has submitted that the substantial question of law No. (IV) does not arise for consideration by this Court, to which the learned counsel for the State has also no objection and therefore, substantial question of law No. (IV) is not pressed during the course of hearing by both the parties.
10. With respect to substantial question of law No. (V), the learned counsel for the appellant has submitted that the description of the plaint itself indicated that the plaintiff was representing the deity as Sebait and the details of the deity has been mentioned in the plaint and therefore, for all practical purposes the plaintiff was representing the deity and therefore, 11 2025: JHHC: 14762 this substantial question of law is also fit to be answered in favour of the appellant.
11. However, during the course of hearing, it is not in dispute that both the courts have given concurrent findings that the property involved in this case vested with the State by virtue of Bihar Land Reforms Act.
Arguments of the respondents.
12. The learned counsel for the respondents has submitted that the learned 1st appellate court has scrutinized the materials on record produced by the plaintiff and has not made out the third case. The plaintiff has to make out a case on the basis of pleadings and materials placed on record.
13. However, during the course of hearing, the learned counsel for the State has submitted that no plea with respect to Section 72 of the Chhotanagpur Tenancy Act was taken in the written statement but the same was essentially a question of law which could be taken care of by the learned 1 st appellate court. The learned counsel has also submitted that the learned 1 st appellate court has taken the documents as produced by the plaintiff as surrender instead of taking the same as Arpan Nama i.e. gift to the deity.
14. With respect to substantial question of law No. (II), the learned counsel for the respondents has submitted that as per Section 84(3) Chhotanagpur Tenancy Act, the entry in record of rights has a presumptive value but it was for the plaintiff to produce evidence to rebut the same, which has not been done by the plaintiff.
15. With respect to Exhibit 1/b and 1/c, the learned counsel for the State has submitted that there was no foundational pleadings to support the pleadings through these exhibits and therefore, the learned 1st appellate court has rightly discarded Exhibit 1/b and 1/c.
16. With respect to substantial question of law No. (V), the learned counsel for the respondents has submitted that the plaintiff only described himself as Sebait and deity was a necessary party.
Findings of this Court 12 2025: JHHC: 14762
17. Admittedly, the suit land is a tank known as Purana Bandh originally recorded as Gair Abad Malik in the last cadastral survey record of rights under Panchulal Dashoundhi as khewatdar as he was in possession. The case of the plaintiff is that Panchulal Dashoundhi gifted the property to Shiba Mandir vide registered Arpannama dated
17.01.1923. After death of Panchulal Dashoundi another co-sharer Baikuntha Nath Dashoundi made Arpan Nama gift of his share on the said tank vide registered deed dated 17.08.1954 to the temple and appointed the mother of the plaintiff namely Smt. Surti Kirti Devi as sewayat of the said temple who used the tank and its proceeds for managing the temple. It was the further case of the plaintiff that after vesting of zamindari name of Surti Kirti Devi was entered as sewayat/raiyat for the said land and she used to pay rent and continued to possess the tank and after her death, the plaintiff used to manage the temple but could not continue to pay rent. The plaintiff came to know that the tank was being settled through public auction and then he filed an application before LRDC, Dhanbad to stop the auction which was rejected vide order dated 25.06.2004 after calling for report from the Circle Officer; the appeal was dismissed vide order dated 25.04.2005. It is the specific case of the plaintiff that the plaintiff is the sewayat of the temple and the tank belongs to the temple and never vested in State Government under Bihar Land Reforms Act and the land remained the property of the temple namely Sri Sri Shiba Thakur Jin ka Shiba Mandir situated at village Bakaspura and therefore it cannot be settled to general public by auction and the entries in the sairat register is wrong and it should be deleted. The suit was filed, inter alia, for a declaration that the tank is not government sairat tank rather it is the property of the aforesaid temple through aforesaid Arpan Namas and plaintiff is the sewayat of the temple and also for recovery of khas possession if plaintiff is found dispossessed and permanent injunction restraining the defendants from selling the suit property.
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18. As per the written statement of the defendants, the suit was not maintainable and the tank has vested in the State of Bihar under Bihar Land Reforms Act and is being settled by the Fishery Department every year through auction. All tenure rights have vested in the State; the temple is by the side of the tank and is not owned and possessed by the plaintiff and the plaintiff has no right, title, interest and possession over the suit property; maintenance of temple through earnings from tank has been denied and that temple has no relationship with the tank; tank is a public tank and owned and possessed by the defendants (State).
19. The learned trial court first took up issue No. 4 i.e. whether the suit was barred under the principle of Section 4 of the Bihar Land Reforms Act and ultimately came to a finding as under: -
"..........................
From discussion of provisions of Bihar Land Reform Act and Bihar land Reform Rules, it is clear that present suit is not barred u/s 4 of the Bihar Land Reforms Act, 1950. As present suit is not brought in respect of any entry in or omission from a compensation Assessment Roll or in respect of any order passed under Chapters II to VI or concerning any matter which is or has already been subject of any application made or proceedings tank under the said Chapters. Accordingly, this issue is decided in favor of the plaintiff."
20. Issue No. 6 as to whether the suit tank is vested in the State of Bihar now Jharkhand and entered as a Government Sairat was considered vide paragraph 16 and the learned trial court ultimately held that the suit pond was registered as Gairabad Malik and it was admitted by the plaintiff himself that it has entry in government sairat register and ultimately held that the suit pond vested in the State of Bihar now Jharkhand and entered as government sairat.
21. Vide paragraph 15, the learned trial court considered issue No. 5 i.e. whether the suit tank is the property of Shiba Mandir through Arpan Nama and whether the plaintiff is the Sewayat of the deity. The learned trial court decided the issue by ultimately recording a finding that the suit 14 2025: JHHC: 14762 pond was recorded as Gairabad Malik in the last cadastral survey in the record of rights showing Panchulal Dasundhi as Khewatdar. The plaintiff had filed Form-M in which name of his mother was mentioned as tenant and rent was fixed for the suit land after undertaking proceedings under Bihar Land Reforms Act the mother of the plaintiff was paying rent to the Government of Bihar. The plaintiff had proved through documentary evidence that his predecessors have surrendered/settled/gifted suit pond in favour of Lord Shiva and appointed him and his predecessor as Sewayat through various Arpan Namas which were exhibited on record. The learned trial court held that the Lord Shiva is a legal person in the eyes of law and was capable of holding property and on the basis of the discussion made, this issue was decided in favour of the plaintiff.
22. With respect to issue No. 7, the matter was taken up in paragraph
17. The learned trial court recorded that the plaintiff has proved that the suit pond was in possession of his predecessors and himself since 1923 and Panchulal Dashaundhi was shown as Khewatdar in the CS Khatiyan vide Ext.-3, and Ext.-4 states that the rent was assessed in the year 1956- 57 in the name of his mother and rent receipt was issued which was exhibited as Ext.-7 and all the witnesses had supported the fact that the suit pond was in possession of the plaintiff and his predecessors and they were managing the temple of Lord Shiba situated at Bakaspura from income arising out of fishery in the pond. The learned trial court further recorded that the defendants were claiming that the pond was public tank and property of government, but the defendants did not file any documentary proof in support of their pleadings. However, it was admitted that the suit land was registered as Gairabad Malik land. The suit land was registered in the name of Government of Bihar and thereafter, State of Jharkhand, but it was in possession of the plaintiff and his predecessors since 1923. The plaintiff has brought the suit only when the defendants auctioned the pond in favour of third person. The learned trial court further decided the issue in favour of the plaintiff by observing 15 2025: JHHC: 14762 that the defendants failed to prove that the suit pond was vested in the Fishery Department as no circular, gazette notification or official order was brought by the Fishery Department. The learned trial court ultimately recorded a finding that the suit land was in possession of the plaintiff since 1923.
23. The issue No. 8 was ultimately decided in favour of the plaintiff. The learned trial court ultimately decreed the suit on contest and it was declared that the tank mentioned in the schedule was not government sairat rather it is a property of Shiba Mandir, Bakashpura through its Arpan nama and the plaintiff was the Sewayat of the deity. The possession of the plaintiff was confirmed against the defendants and alternatively for recovery of possession if the plaintiff is found dispossessed from the tank during the pendency of suit and the decree of permanent injunction restraining the defendants, their men and agents, officers and staffs from settling the tank by holding public auction or otherwise was passed in favor of the plaintiff and against the defendants and their men.
24. This Court finds that the learned trial court, in spite of holding that the property vested in the State of Bihar while deciding issue No. 6, still declared that the tank was not a government sairat and was the property of Shiba Mandir. This Court finds that the findings of the learned trial court was self-contradictory. The learned trial court also held that the suit land was registered in the name of Government of Bihar and thereafter, State of Jharkhand, and decided the issue in favour of the plaintiff by observing that the defendants failed to prove that the suit pond was vested in the Fishery Department as no circular, gazette notification or official order was brought by the Fishery Department without considering that the Fishery Department was a department of the State Government. However, the possession of the plaintiff and their predecessors was declared over the suit pond since 1923.
25. So far as the learned 1st appellate court is concerned, the impugned judgment shows that certain documents were produced on behalf of the 16 2025: JHHC: 14762 defendants before the learned 1st appellate court by way of additional evidence, but the additional evidence was rejected by the learned 1 st appellate court. The order-sheet of the learned 1st appellate court dated 20.08.2020 reveals that additional evidences were allowed when a submission was made by the plaintiff that prayer may be allowed subject to payment of some cost with respect to the following documents and were marked as exhibit- C, C/1 and C/2 - certified copy of letter no. 16- 2/92-39 dated 16.7.1992 of the Fishery Department, Dhanbad, letter no. 601 dated 8.7.2014 and letter no. 621 dated 14.6.2017 alongwith the list of tanks settled with the Matsay Sahyog Samiti for the year 2014-15, 2016- 17, 2017-18 to 2019-20.
26. This Court also finds that the learned 1st appellate court recorded the moot question for determination in paragraph 13 as under; -
"13. Moot question to be decided by this court : Whether the suit tank is the property of Shiba Mandir, Bakaspura through its Arpan Nama and plaintiff/respondent is the Sebait of the deity and whether the suit tank is vested in the state of Bihar now Jharkhand and entered as a government Sairat and the plaintiff/respondent is entitled a decree for permanent injunction restraining the defendants, their men, agents, officers and staff from settling the tank by holding public auction of otherwise."
27. The learned 1st appellate court after considering the materials on record has given its finding in paragraph 15 of the judgment and has in particular dealt with the provision of Section 4 of the Bihar Land Reforms Act and also other materials placed on record. The learned 1st appellate court held that -
a) during the recent Revisional Survey the tank is recorded in the name of Anabad Bihar Sarkar and is finally published on 21st February 1991, which was crystal clear from Ext.-3 and observed that Ext.-3 was conclusive proof of possession as per section 84(3) of CNT Act and as per this Section every entry in the record of rights so published shall be evidence of the matter referred to in 17 2025: JHHC: 14762 such entry and shall be presumed to be correct until it is proved, by evidence, to be incorrect. The learned 1st appellate court further observed that neither the plaintiff nor any Sewayat filed any objection against the entry either under Section 87 or under Section 89 of CNT Act and further referred to the judgment passed by this Court reported in JLJR 2003 (2) 708 (Dwarika Sonar & Ors. vs. Most. Bilguli & Ors.) that the recording is final and conclusive prove of possession. A finding has also been recorded that R.S. Khatiyan of Khata No.-91 has been brought on record on behalf of defendants, which has been marked as Ext.-A and from perusal of this document it was crystal clear that the same was finally published on 21.09.1992 in the name of Anabad Bihar Sarkar but the plaintiff never filed any objection before the survey authority as provided in the Sections 83 & 87 of the C.N.T. Act and filed the instant suit on 25.08.2005 but no relief has been claimed against the Revisional Survey Khatiyan. This Court has gone through the records and exhibit- A reveals that the Revisional Survey Khatiyan was finally published on 21.02.1992.
b) The tank in question was being auctioned and the plaintiff never made any objection prior to filing of the suit in 2005 and the plaintiff was praying before the Revenue Authority for settlement of the same. The learned 1st appellate court also recorded that the documents i.e. Arpan Namas dated 17.01.1923 & 17.08.1954 does not mention the details of the land and they only related to the management of the Shiba Mandir. It also recorded that the Arpan Nama dated 17.01.1923 which was executed by Panchulal Dashaundhi was executed prior to Cadastral Survey record of rights and there was mentioning of khata and plot. The learned 1st appellate court took judicial notice that after preparation of Cadastral Survey in the year 1925, the plot numbers and Khatians came to the picture and in the Arpan Nama dated 17.01.1923, there 18 2025: JHHC: 14762 were boundaries given, but no other details have been mentioned therein. It was also observed that the documents also showed that there were other co-shares as through this Arpan Nama said Panchulal Dashaundhi made these documents only to the extent of his 3 Anna Shares.
c) The learned 1st appellate court further gave its finding in connection with registered deed No. 226 dated 17.08.1954 (Ext.-1/a) and observed that Arpan Namas Ext.-1 and 1/a may be said to be as gift and therefore the required procedure for execution of gift as provided under Section 123 of Transfer of Property Act should have been adopted. The learned 1st appellate court further recorded that the surrender is before the deity but under the provision of Section 72 of the CNT Act, the surrender has always to be made by the raiyat and not a Khewat holder and the executant of Arpan Nama was a Khewat holder. The learned 1st appellate court also recorded that Section 72 of the CNT Act showed that the surrender will exclusively be done by Raiyat in favour of landlord.
d) The learned 1st appellate court went on to record that the outgoing intermediary, at the time of vesting, had not filed return and as such property was vested to the State Government; though the plaintiff had filed a copy of return (Ext.-4) but in the return the property under the dispute does not find place and it was only after vesting of the Zamindari interest, the name of Surti Kirti Devi was entered as Sewayat/Raiyat for the said tank and she used to pay rent to the State of Bihar and continued to possess the same for the said purpose and after her death, the plaintiff continued to possess the tank.
e) The learned 1st appellate court recorded that the property is a Tank and Tank aile and it is the case of the plaintiff that the tank existed since long prior to vesting of intermediary right but no return was filed for this property and as such the property belonged to State 19 2025: JHHC: 14762 Government. The learned 1st appellate court referred to the judgment passed by this Court in First Appeal No. 43 of 2012 and observed that mere issuance of M-form with respect to such land cannot protect these lands from vesting. At this, the learned counsel for the appellant has submitted that the judgment passed in First Appeal No. 43 of 2012 has been set-aside by the Hon'ble Supreme Court and the matter has been remanded and now pending before this Court. The order passed by the Hon'ble Supreme court has been produced before this court during the course of hearing.
f) This Court finds from the 1st appellate court's judgment that the learned 1st appellate court considered the oral evidences and recorded that the witnesses of the plaintiff had themselves stated that the disputed tank was being used for general public and was being auctioned by the State Government. Particular reference has been made to PW-1 and PW-4.
g) The learned 1st appellate court after perusal of the judgment of the learned trial court as well as the materials available on record held that the relevant facts as pointed out by the learned counsel for the defendants, who were appellants before the 1st appellate court, were not discussed and considered by the learned trial court.
h) The learned 1st appellate court ultimately held that the declaration made by the learned trial court that the tank mentioned in the schedule of the plaint was not a government sairat rather it was a property of Shiba Mandir, Bakaspura was incorrect. The learned trial court had wrongly confirmed the possession of the plaintiff and the learned trial court had wrongly granted permanent injunction restraining the defendants, their men, agents, officers and staff from settling the tank through public auction and consequently, trial court's judgment and decree was set-aside by the learned 1st appellate court.
Substantial question of law No. (IV) 20 2025: JHHC: 14762
28. With respect to substantial question of law no. (IV), it was submitted by the learned counsel for the appellant that the same does not arise for consideration in this case, to which, the learned counsel for the State had also agreed and consequently, the substantial question of law No. (IV) was not pressed during the course of hearing by both the parties. This aspect of the matter has been recorded in paragraph-9 of order dated 25.04.2025. consequently, the substantial question of law No. (IV) need not be pressed.
Substantial question of law No. I and III
29. These two substantial questions of law Nos. I and III have a bearing on each other and therefore they are taken together.
30. The learned 1st appellate court has recorded findings in connection with entry made in CS Khatiyan which was exhibited as exhibit-3 and has observed that the suit property has been recorded as "gairabad malik"
under khewat No. 7 as Ejmal Malik, meaning thereby, it did not belong solely to Panchulal Dashaundhi rather the same also belonged to different khewat holders. The learned 1st appellate court recorded that this also revealed from the documents itself that Panchulal Dashaundhi and Baikunth Nath Dashaundhi has fractional interest over the suit property and therefore they could not be exclusive owner of the property. The learned 1st appellate court has also considered that there was material suppression from the side of the plaintiff, inasmuch as, the plaintiff pleaded only about two Arpan Namas which were dated 17.01.1923 (Ext.-
1) and 17.08.1954 (Ext.-1/a). The learned court also recorded that there were also two additional Arpan Namas, that is, dated 04.05.1946 (Ext.-
1/b) and 24.01.1930 (Ext.-1/c) and these two Arpan Namas are beyond the pleadings.
31. This Court is of the considered view that the manner in which the property was claimed by the plaintiff to be the property of the Shiba Mandir was required to be pleaded though the evidence was not required to be pleaded. This Court has gone through the plaint and is of the view 21 2025: JHHC: 14762 that the learned 1st appellate court has rightly recorded that the fact regarding two Arpan Namas i.e. Ext.-1/b and 1/c has not been pleaded and therefore the documents in support of the claim flowing through Ext.-1/b and Ext.-1/c was certainly beyond pleadings of the plaintiff.
32. The learned 1st appellate court has also recorded the contents of the Arpan Nama dated 04.05.1946 (Ext.-1/b) in connection with which there was no pleading and observed that in this Arpan Nama, it was provided that Smt. Chuna Devya would be the Sewayat and after her death, Surti Kirti Devi would be the Sewayat and after the death of Surti Kirti Devi, her sons would be the Sewayat, but this fact has not been mentioned in the plaint. The learned 1st appellate court also recorded that a petition was also filed seeking intervention by one of the sons of Surti Kirti Devi claiming himself to be the Sewayat and consequently there was certainly a dispute as to who was the Sewayat with respect to the Shiba Mandir (deity). The learned 1st appellate court ultimately recorded that the names of the heirs of Surti Kirti Devi was mentioned in the petition seeking to be added as party and ultimately held that there were several heirs of Surti Kirti Devi, but it was not pleaded that amongst the heirs, the plaintiff alone was nominated as Sewayat. With this background, the learned 1st appellate court held that the plaintiff had no locus-standi to file the suit alone and the suit was bad for non-joinder of parties and when there was difference amongst heirs of any trust or Sewayat, Section 5 of Hindu Religious Endowment Act, 1863 would apply and it was the duty of the plaintiff to plead about his appointment as Sewayat amongst other heirs of Surti Kirti Devi, but this aspect of the matter was lacking in the pleading.
33. The findings of the learned 1st appellate court in this regard are quoted as under: -
"From perusal of Ext.-3 i.e. Khatiyan of C.S. Khata No.-55 of Mauza Bakaspura, it appears that this Khata is recorded Gair Abad Malik under Khewat No.- 7 as Ejmal Malik meaning thereby Khewat No.-7 do not belong solely to Panchulal Dashaundhi rather the same belong to different Khewat Holder and it also reveals from the document it self that 22 2025: JHHC: 14762 Panchulal Dashaundhi and Baikunth Nath Dashaundhi had fractional interest upon the said property along with other Khewat Holder and in no situation they could be exclusive owner of the property. It further appears that after inception of Bihar Land Reforms Act 1950 this property vested to the State Government and being auctioned since 1980 but the sole respondent wrongly shown this fact. So far exhibits 1/b and 1/c are concerned, these are also Arpan Nama. Arpan Nama dated 04.05.1946 has been marked as Ext.-1/b and Arpan Nama dated 24.01.1930 has been marked as Ext.-1/c. When I perused the Hindi transcription of these Arpan Namas, I find that both the Arpan Namas are beyond the pleadings. The facts of these Arpan Namas have not been mentioned in the plaint of the plaintiff and the documents or evidence beyond the pleading can not be considered. I further find that the plaintiff pleaded only about two Arpan Nama i.e. Arpan Nama No.-76 dated 17.01.1923 and Arpan Nama No.-226 dated 17.08.1954 but the plaintiff/respondent got exhibited two other Arpan Nama dated 04.05.1946 and 24.01.1930 which has been marked as Ext.-1/b and 1/c. I further find that in the Arpan Nama dated 04.05.1946 that it was provided that Smt. Chuna Debya would be the Sebait and after her death Shruti Kirti Debya would be Sebait and after death her sons would be Sebait but this has not been mentioned in the plaint of plaintiff. I further find that it is also the fact that one petition under order I rule 10(2) CPC was filed by one of the son of said Shruti Kirti Debya namely Rishikesh Sharma, claiming himself to be Sebait and prayed for making him party. It shows that the present respondent is not the alone heir of said Shruti Kirti Debya. The said Shruti Kirti Debya died leaving behind his four sons namely Navin Chandra Sharma, Rishikesh Sharma the petitioner of the said petition, Akhileshwar Prasad Sharma, Sarbeshwar Prasad Sharma, the respondent No.-1. The eldest son of Surti Kirti Debya, Navin Chandra Sharma also died leaving behind his two sons namely Gopal Shankar and Amitav Shankar and Surti Kirti Debya had also two daughters namely Saroj Devi and Amboj Devi. Thus, there are several heirs of said Surti Kirti Debya but it is not pleaded that amongst the heirs, the respondent No.-1 is alone nominated Sebait and thus, he has had no locus-standi to file the suit alone or the suit is bad for non- joinder of parties and when there is differences amongst the heirs of any Trust or Sebait, section 5 of the Religious Endowment Act 1863 would apply. It was the duty of the respondent/plaintiff to plead about his appointment as Sewati amongst other heirs of said Surti Kirti Debya but it is lacking in the pleadings."23
2025: JHHC: 14762
34. In view of the aforesaid facts and circumstances, this Court is of the considered view that the learned 1st appellate court was right in holding that the evidence through Ext.-1/b and Ext.-1/c was beyond pleadings and this Court is of the considered view that no foundational facts were pleaded to exhibit additional Arpan Namas through Ext.-1/b and Ext.-1/c and in absence of foundational fact, Ext.-1/b and Ext.-1/c were rightly held to be evidences led beyond pleadings. Accordingly, substantial question of law No. III is answered against the appellant and in favour of the respondents.
35. So far as substantial question of law No. I is concerned, this Court finds that the learned 1st appellate court has recorded that from perusal of Ext.-3 i.e. Khatiyan of C.S. Khata No.-55 of Mauza Bakaspura, it appeared that this Khata is recorded Gair Abad Malik under Khewat No.- 7 as Ejmal Malik meaning thereby Khewat No.-7 did not belong solely to Panchulal Dashaundhi. Rather, the same belong to different Khewat Holders and it also reveals from the document itself that Panchulal Dashaundhi and Baikunth Nath Dashaundhi had fractional interest upon the said property along with other Khewat Holder and in no situation they could be exclusive owner of the property. In this background, it was held that the persons who had executed Arpan Namas had only fractional interest upon the suit property and such finding has been recorded on the basis of materials produced by none less by the plaintiff himself.
36. This Court is of the considered view that it was for the plaintiff to plead and prove that the entire suit (tank) was gifted to the deity through Arpan Namas as claimed. Moreover, in the suit, only two Arpan Namas were mentioned and in the evidence, 4 Arpan Namas were filed and still it was not clear as to who were the joint owners of the suit property (tank) apart from Panchulal Dashaundhi and the learned 1st appellate court has recorded that through Arpan Nama dated 17.01.1923 (exhibit-1) executed by Panchulal Dashaundhi he had gofted only 3 to the deity and from the perusal of Arpan nama dated 17.08.1954 (exhibit- 1/a) the 24 2025: JHHC: 14762 details of the property was not mentioned. Thus, this Court is of the considered view that the learned 1st appellate court has not tried to make out a third case while holding that the persons who had executed the Arpan Namas had only fractional interest as it was for the plaintiff to establish the chain of title with respect to the entire suit property and the learned 1st appellate court has rightly pointed out the deficiency in the case of the plaintiff while considering the materials placed on record by non-less than the plaintiff himself. The law is well-settled that weakness in the pleadings/case will not be a reason to decree a suit and it is for the plaintiff to plead and prove his case.
37. Similar is the situation with respect to the finding recorded by the learned 1st appellate court that Surti Kirti Devi had other heirs and original plaintiff was not the alone nominated Sewayat and while recording so, the learned 1st appellate court has rightly recorded that there was dispute amongst legal heirs of Surti Kirti Devi as to who was the actual Sewayat and the plaintiff neither pleaded nor proved that he was nominated as sole Sewayat. The learned 1st appellate court referred to the Arpan Nama dated 04.05.1946 (exhibit- 1/b) with respect to which there was no pleading and observed that in the Arpan Nama dated 04.05.1946 it was provided that Smt. Chuna Debya would be the Sewayat and after her death Shruti Kirti Debya would be Sewayat and after her death, her sons would be the Sewayat but this has not been mentioned in the plaint of the plaintiff. The exhibit- 1/b clearly revealed that Surti Kirti Devi had more than one son and the plaintiff did not plead much less prove that he was the sole surviving heir of Surti Kirti Devi and therefore after her death he was the only Sewayat of the deity and did not even mention in the plaint about exhibit-1/b or its contents.
38. This Court finds that aforesaid findings have been recorded on the basis of the evidences produced by the plaintiff and in such matter also, merely because the defendants had not pleaded such facts, the same cannot be said to be making out a third case by the 1 st appellate court 25 2025: JHHC: 14762 while holding that Surti Kirti Debya had other legal heirs and the original plaintiff was not the alone nominated Sewayat.
39. So far as the findings with regard to applicability of Section 72 of the CNT Act is concerned, this Court is of the considered view that there was no foundational pleading with respect to applicability of Section 72 of the CNT Act and consequently the learned 1st appellate court could not have gone into the said issue.
40. As a cumulative effect of the aforesaid findings, this Court is of the considered view that the learned 1st appellate court had committed no illegality in holding that the persons who had executed Arpan Nama had only fractional interest upon the suit property and further holding that Surti Kirti Devi had other legal heirs and original plaintiff was not the alone nominated Sewayat.
41. Accordingly, substantial question of law No. (I) is partly answered in favour of the appellant and partly against the respondents. However, the same will have no bearing on the final outcome of the appeal as there are other numerous reasons in the impugned judgement of 1 st appellate court to set-aside the judgement and decree of the trial court which have been upheld by this court while answering the other substantial questions of law.
Substantial question of law No. (II)
42. Section 84 of the Chhota Nagpur Tenancy Act deals with presumption as to final publication and correctness of records of right. Section 84 of C.N.T. Act is quoted as under: -
"84. Presumptions as to final publication and correctness of record-of-rights - (1) In any suit or other proceedings in which a record-of-rights prepared and published under this Chapter or a duly certified copy thereof or extract therefrom is produced, such record-of-rights shall be presumed to have bean finally published unless such publication is expressly denied and a certificate, signed by the Revenue Officer, or by the Deputy Commissioner of any district in which its local area, estate or tenure or part thereof to which the record-of-26
2025: JHHC: 14762 rights relates is wholly or partly situate, stating that the record-of-rights has been finally published, under this Chapter shall be conclusive evidence of such publication. (2) The [State] Government may, by notification, declare with regard to any specified area, that a record-of-rights has been finally published for every village included in that area; and such notification shall be conclusive evidence of such publication.
(3)Every entry in a record-of-rights so published shall be evidence of the matter referred to in such entry and shall be presumed to be correct until it is proved, by evidence, to be incorrect."
43. The perusal of Section 84 of the C.N.T. Act reveals that the State Government may by a notification declare with regard to any specified area, that a records of right has been finally published for every village included in that area and such notification is conclusive evidence of such publication. Sub-Section 3 provides that every entry in records of right so published shall be evidence in the matter referred to in such entry and shall be presumed to be correct until it is proved, by evidence, to be incorrect.
44. Thus, perusal of Section 84(3) reveals that there is presumption regarding correctness of entry made in records of right so published in terms of sub-Section (2) and there is a presumption regarding its correctness, but certainly Section 84 does not provide that such entry in the records of right would be conclusive proof of the matters mentioned therein. The entry is only presumed to be correct until it is proved, by evidence, to be incorrect and thus the entry made in records of right has a presumption of correctness and it can be proved, by evidence, to be incorrect.
45. The consequences of such finding by this court with regards to the question of law is also required to be considered. This Court finds that the learned trial court while considering issue No. VII has considered exhibit- 3 by observing that Panchulal Dashoundhi has been shown as Khewatdar 27 2025: JHHC: 14762 in Cadestral Survey Khatiyan (C.S. Khatiyan) which is exhibited as exhibit-3 and the learned trial court decided issue No. VII in favour of the plaintiff by observing that the plaintiff has established that he and his predecessors were in possession of the suit pond since 1923. The learned 1st appellate court has noted that the C.S. Khatiyan was published in the year 1925. The learned 1st appellate court has taken note of subsequent entry in record of rights in Revisional Survey Khatiyan which was published finally in the year 1992 (exhibit-A) wherein the suit property was recorded in the name of 'Anabad Bihar Sarkar' but such entry was never challenged by filing any objection against the entry either under Section 87 or Section 89 of the CNT Act nor any relief was prayed for in the suit seeking correction of the entry made in Revisional Survey Khatiyan. Thus, the plaintiff having not challenged the entry in final publication of the record of rights in Revisional Survey Khatiyan in the year 1992, such entry remained unchallenged and consequently considering the presumption under Section 84(3) of the C.N.T. Act, the entry made in Revisional Survey Khatiyan in the year 1992 showing the property in the name of 'Anabad Bihar Sarkar' remained unrebutted and became final.
46. The learned 1st appellate court recorded that during the recent revisional survey, the tank was recorded under R.S. Khata No. 91 in the name of Anabad Bihar Sarkar which was finally published on 21st February 1991 and held that it was crystal clear from exhiit-3 that the same was conclusive proof of possession as per Section 84(3) of the aforesaid Act and also held that such entry is presumed to be correct until it is proved by evidence to be incorrect, but neither the plaintiff nor any Sewayat filed any objection against entry under Section 87 and 89 of the aforesaid Act. The learned 1st appellate court has referred to the judgment passed by this Court reported in JLJR 2003 (2) 708 and recorded that the recording is final and conclusive proof of possession. The learned 1st appellate court thereafter recorded that the tank in question was being 28 2025: JHHC: 14762 auctioned which was clear from exhibit-C series and the plaintiff never made any objection to auction prior to filing of the title suit. The plaintiff rather prayed before the Revenue Authorities for settlement of the same which itself defeated the claim of the plaintiff/respondent.
47. This Court finds that although the learned 1st appellate court has recorded that exhibit-3 was the conclusive proof of possession as per Section 84(3) of the aforesaid Act, but at the same time, observed that such entry is presumed to be correct until it is proved by evidence to be incorrect and ultimately held that as per exhibit-C series, the tank was being auctioned by the defendant, but the plaintiff never made any objection rather they themselves filed application for settlement of the tank in their favour before the Revenue Authorities and consequently the learned 1st appellate court recorded that such act of the plaintiff defeated the claim of the plaintiff.
48. In the judgment passed by this Court reported in 2003 (2) JLJR 708 (supra), which has also been referred to by the learned courts, one of the substantial questions of law which fell for consideration was as follows: -
"(i) What will be the effect in law of the two different entries made in the two different survey settlement of records of right under Section 84(3) of the Chotanagpur Tenancy Act?
49. It has been held in paragraph 9 of the aforesaid judgment that the question which fell for consideration was what will be the effect in law of the two different entries made in the two different survey settlement of records of right, namely, cadastral survey and revisional survey records of right. It has been held that it is well settled that if there is conflict between two entries in the records of right then the latter records or right will prevail. A reference has also been made to the judgment of the Hon'ble Supreme Court in the case of Sri Raja Durga Singh of Solon v. Tholu and Ors. reported in AIR 1963 SC 361 wherein it has been held that where there is such conflict in the two entries, it is the latter entry which must prevail and new entry takes place of old one and there shall be 29 2025: JHHC: 14762 presumption of correctness of the new entry until and unless it is established to be wrong or substituted by another entry.
50. In the present case, the subsequent entry in the record of rights i.e. R. S. record of rights having attained finality and remained unchallenged, inasmuch as, no relief was prayed in the suit seeking rectification of the entry in R.S. Khatiyan finally published in the year 1992 with respect to the area covering the suit property, there is presumption of its correctness. It is also important to note that in the aforesaid judgment, it has been held that a suit challenging the entries made in revenue record of rights can be filed within 12 years and with regard to maintainability of the suit, reference has been made to the earlier Full Bench judgment of Hon'ble Patna High Court reported in 1987 PLJR 354 (FB).
51. Considering the aforesaid facts and circumstances, this Court is of the considered view that in spite of having held that entry in record of rights is not conclusive evidence with regard to its correctness while answering substantial question of law No. II and that there is only a presumption with regard to its correctness, R. S. record of rights having not been challenged, its correctness stands final and consequently, the suit property stands recorded in the name of 'Anabad Bihar Sarkar'. It is also important to note that at the appellate stage additional evidence was brought on record indicating that the tank was being auctioned by the defendants since long time and therefore the defendants have duly proved their possession over the suit property (tank).
52. This Court finds that though the substantial question of law no. (II) is answered in favour of the appellant by holding that the entry made in records of right is not conclusive proof but has only presumptive value and there is a statutory presumption under section 84(3) of C.N.T. Act, 1908 but when the judgment passed by the learned 1 st appellate court is considered in totality, this Court finds that the learned 1 st appellate court applied the principle of law correctly and has considered the materials on record and found that the defendants were able to prove that the suit 30 2025: JHHC: 14762 property had vested in the State under Bihar Land Reforms Act and the defendants had the right, title, interest and possession over the suit property (tank). The learned 1st appellate court also rightly held that the claim of the plaintiff stood defeated by their own conduct, inasmuch as, they themselves applied for settlement and having failed to get settlement the plaintiff filed the title suit.
53. The substantial question of law no. (II) is accordingly answered in favour of the appellant by holding that the entry made in records of right is not conclusive proof, but in view of the aforesaid discussions, the findings of the learned 1st appellate court by referring to entry in record of rights does not call for any interference. Substantial question No. V
54. The question of law relates to the point as to whether the suit was maintainable as 'deity', in whose name the Arpan Namas were said to have been executed, was not made party. This Court finds that the first issue framed by the trial court was "is the suit maintainable in the present form?" The learned trial court did not decide this issue regarding maintainability of the suit in present form. However, the learned trial court decreed the suit and declared that the tank is the property of the temple through Arpan Nama and plaintiff is the Sewayat of the deity and the possession of the plaintiff was confirmed and it was held that if the plaintiff found dispossessed, would have the right of recovery the possession and the defendants were restrained from settling the tank by holding public auction.
55. The learned 1st appellate court has recorded at internal page 27 of the judgment that deity has not been made party and deity was the necessary party. It has been held that "I further find that the plaintiff is claiming himself as sewayat of Shiba Mandir situated to village Bakaspura, P.S. Govindpur and has brought the suit without making the deity as a party in the suit though the deity is a legal and juristic person but he has not been made necessary party."
312025: JHHC: 14762
56. From perusal of the plaint, this Court finds that though the deity has not been made party and the deity is a juristic person but the suit was filed by the plaintiff and in the cause title itself the plaintiff had described himself as "representing the shiba mandir, as sewayat at village Bakaspura..." This court also finds that a relief has been sought in the prayer (a) of the plaint, interalia, that the plaintiff is the Sewayat of the deity. The prayer (a) is quoted as under: -
(a) For a decree in favour of the plaintiff and against the defendants for declaration that the tank mentioned in the schedule below is not a Government Sairat rather it is the property of Shiba Mandir, Bakaspura through its Arpan Namas and the plaintiff is the Shewait of the deity.
57. This court also finds that the learned 1st appellate court has also recorded that application seeking to be added as party was filed under Order I Rule 10 (2) of C.P.C. by a person claiming to be son of Surti Kirti Devi and further even as per the Arpan Nama dated 04.05.1946 (exhibit- 1/b) it was provided that Smt. Chuna Debya would be the Sewayat and after her death Surti Kirti Devya would be the Sewayat and after the death of Surti Kirti Devya her sons would be the Sewayat. Meaning thereby, Surti Kirti Devya had more than one son and the plaintiff claimed to be the son of Surti Kirti Devya and hence claimed to be Sewayat but is completely silent about his sibling(s) and sought a declaration as a part of relief in prayer (a) of the plaint that he is the Sewayat of the deity.
58. In the judgment passed by Hon'ble Supreme Court reported in AIR 1967 SC 1044 (Bishwanath and Another Vs. Sri Thakur Radha Ballabhji and Ors.), the suit was filed by the deity represented by a person as his next friend and the defendant was the manager and savarakar of the deity who had executed a sale deed and it was alleged by the plaintiff that sale of the suit property was not necessary for the benefits of the idol and was not binding on the deity. The only point for consideration was 'whether the suit is maintainable by the idol represented by a worshipper who has been assisting the defendant in the management of 32 2025: JHHC: 14762 the temple?" The suit was ultimately held to be maintainable and was also held to be not covered under Section 92 of CPC. The Hon'ble Supreme Court further held that there is no doubt that an idol may be regarded as a juridical person capable as such of holding property, though it is only in an ideal sense that property is so held.
59. While dealing with the position of sewayat of such an idol, it was observed that in earlier judicial pronouncements it was already held that the possession and management of the dedicated property belong to sewayat and this carries with it the right to bring whatever suits are necessary for the protection of the property and every such right of the suit is vested in the sewayat, and not in the idol. The Hon'ble Supreme Court further observed that the aforesaid position of law was clarified where in a case the sewayat filed a suit for eviction from the dedicated property. The Hon'ble Supreme Court further referred to the 3 legal concepts, they are (1) an idol of Hindu temple is a juridical person; (2) when there is a sewayat, ordinarily no person other than the sewayat can represent the idol; and (3) worshippers of an idol are its beneficiaries, though only in a spiritual sense. Ultimately, the Hon'ble Supreme Court held that the suit filed by the idol represented by a worshipper was maintainable considering the fact that alienation of the property of the idol through the Sewayat was under challenge on the ground that the sale was not for the benefit of the idol and the consideration was also not adequate and in the suit the manager/Sewayat was the defendant. The legal position with respect to Sewayat and right of idol has been summarized in paragraph 11 of the aforesaid judgment wherein the extract of a book by Sri B.K. Mukherjea "The Hindu Law of Religious and Charitable Trust" has been quoted. Paragraph 11 of the aforesaid judgement is quoted as under:
"11. There are two decisions of the Privy Council, namely, Pramatha Nath Mullick v. Pradyumna Kumar Mullick and Kanhaiya Lal v. Hamid Ali, wherein the Board remanded the case to the High Court in order that the High Court might 33 2025: JHHC: 14762 appoint a disinterested person to represent the idol. No doubt in both the cases no question of any deity filing a suit for its protection arose, but the decisions are authorities for the position that apart from a Shebait, under certain circumstances, the idol can be represented by disinterested persons. B.K. Mukherjea in his book "The Hindu Law of Religious and Charitable Trust" 2nd Edn., summarizes the legal position by way of the following propositions, among others, at p. 249:
(1) An idol is a juristic person in whom the title to the properties of the endowment vests. But it is only in an ideal sense that the idol is the owner. It has to act through human agency, and that agent is the Shebait, who is, in law, the person entitled to take proceedings on its behalf. The personality of the idol might therefore be said to be merged in that of the Shebait.
(2) Where, however, the Shebait refuses to act for the idol, or where the suit is to challenge the act of the Shebait himself as prejudicial to the interests of the idol, then there must be some other agency which must have the right to act for the idol. The law accordingly recognises a right in persons interested in the endowment to take proceedings on behalf of the idol.
This view is justified by reason as well by decisions."
60. This Court finds that the suit was filed by Sarbeshwar Prasad Sharma by stating in the cause title itself that he was representing the Shiv Mandir as Sewayat. However, the suit was not filed by the Shiv Mandir as a plaintiff through Sarbeshwar Prasad Sharma. This is over and above the fact that the materials on record as held by the learned 1 st appellate court revealed that there were other persons who claimed similar right of Sewayat as that of the plaintiff as Surti Kirti Devi, through whom the plaintiff was claiming right of Sewayat, had other sons as the Arpan Nama mentioned the son in plural, that is, sons. Further, the plaintiff also claimed a declaration that he was the Sewayat of the deity without making 34 2025: JHHC: 14762 the deity as a party and without impleading the other claimants as party in the proceedings.
61. In the aforesaid circumstances, this Court is of the considered view that the idol (deity) being a juristic person ought to have been made party in the case and was a necessary party and more so when the plaintiff was himself seeking a declaration that he was the Sewayat of the deity. Rights of deity could not be decided in absence of deity as a party being a juristic person capable of suing and being sued in a court of law. Accordingly, this Court is of the considered view that the learned 1 st appellate court was right in holding that Shiv Mandir (deity) was a necessary party and the learned 1st appellate court was right in reversing the decree taking this point as one of the grounds to reverse the decree.
62. Accordingly, the substantial question of law no. (V) is accordingly answered against the appellant and in favour of the respondents.
63. All the substantial questions of law is accordingly answered in the aforesaid manner and consequently, this appeal is hereby dismissed.
64. Pending interlocutory application, if any, is closed.
65. Let a copy of this order be communicated to the concerned courts through 'e-mail/FAX'.
(Anubha Rawat Choudhary, J.) Mukul/AFR 35