Patna High Court
Ganga Mahto vs Nawal Kishore Sharma on 10 January, 2023
Author: Sunil Dutta Mishra
Bench: Sunil Dutta Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
SECOND APPEAL No.74 of 2022
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1. Ganga Mahto son of Late Judagi Mahto Resident of Village- Dheebar, P.O.-
Chak Nawada, P.S.- Pandarak, District- Patna.
2. Uday Mahto son of Late Judagi Mahto Resident of Village- Dheebar, P.O.-
Chak Nawada, P.S.- Pandarak, District- Patna.
3. Bhuneshwar Mahto son of Bhikhari Mahto Resident of Village- Dheebar,
P.O.- Chak Nawada, P.S.- Pandarak, District- Patna.
4. Most. Sarswati Devi wife of Late Nageshwar Mahto Resident of Village-
Dheebar, P.O.- Chak Nawada, P.S.- Pandarak, District- Patna.
5. Most. Siya Devi wife of Late Nageshwar Mahto Resident of Village-
Dheebar, P.O.- Chak Nawada, P.S.- Pandarak, District- Patna.
... ... Appellant/s
Versus
1. Nawal Kishore Sharma son of Late Ambika Prasad Singh Resident of
Village- Dhabar, P.O.- Chak Nawada, P.S.- Pandarak, District- Patna.
2. Umesh Prasad Sharma son of Late Ram Ratan Prasad Singh Resident of
Village- Dhabar, P.O.- Chak Nawada, P.S.- Pandarak, District- Patna.
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Sahvind Kumar Sharma, Advocate
For the Respondent/s : Mr.
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CORAM: HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA
CAV JUDGMENT
Date : 10-01-2023
This Second Appeal under Section 100 of the Code of Civil
Procedure has been preferred against the judgment dated
28.01.2022and Decree dated 04.02.2022 passed by learned Additional District Judge - 1, Barh (Patna) in Title Appeal No. 30 of 2018 confirming the judgment dated 09.02.2018 and Decree dated 21.02.2018 passed by the learned Sub-Judge -III, Patna High Court SA No.74 of 2022 dt.10-01-2023 2/9 Barh, District - Patna in Title Suit No. 146 of 2011, whereby the learned trial Court has allowed the suit of the plaintiffs/ respondents on contest.
2. The respondents were the plaintiffs in the Trial Court who had filed the suit, inter alia, for declaration of title to the exclusion of defendants over the suit land Plot No. 40, area 4 dec., Khata No. 222, Tauzi No. - 9165, Thana No. - 50 (Mauza- Dariyapur Dheebar, P.S. Pandarak, District - Patna) mentioned in the Schedule - 1 of the plaint.
3. The case of the plaintiffs / respondents, in brief, is that entire area measuring 20 dec. of plot No. 40 under Khata No. 222, Tauzi No. - 9165, Thana No. - 50 belonged to and possessed by Etbari Lal before the cadestral survey and, in the records of right, his name stands recorded as tenant. The common ancestor of the plaintiffs, namely, Badri Singh had purchased the said land from the cadestral survey recorded tenant, namely, Etbari Lal through a registered sale deed no. 350 dated 03.05.1910 and came into the possession. The said plot measuring 20 dec. was amalgamated with the neighbouring adjacent plot No. 39 area - 51 dec. recorded in the name of Badri Singh and he had been coming in cultivating possession Patna High Court SA No.74 of 2022 dt.10-01-2023 3/9 over this amalgamated area of 71 decimal. The said Badri Singh died leaving behind his two sons, namely, Ambika Prasad Singh and Mathura Prasad Singh (died issueless). Ambika Prasad Singh died leaving behind his six sons including plaintiff No. 1 and Ram Ratan Prasad Singh father of plaintiff No. 2. In the family partition, 35.5 decimal towards south of the amalgamated 71 decimal land was allotted to plaintiff No. 1 and rest half towards north allotted to Ram Ratan Prasad Singh and in family partition of Ram Ratan Prasad Singh through compromise decree 35.5 dec. northern part was allotted to plaintiff No. 2. The ex-landlord and also after vesting of jamindari, State of Bihar had recognized Ambika Prasad Singh (father of plaintiff No. 1 and grandfather of plaintiff No. 2) as tenant of entire 20 Decimal of plot alongwith other lands. Further case of the plaintiffs-respondents is that the defendants having their land plot No. 41 situated in the west of the suit land, had broken the intervening western ridges and claimed the suit land of his own. In demarcation case No. 29 of 2010 before D.C.L.R., Barh, it was wrongly held that the suit land is in possession of the defendants, so the suit was filed by the plaintiffs.
4. As per defendants-appellants, Late Makhan Mahto was the ancestor of defendants, who died in jointness, leaving Patna High Court SA No.74 of 2022 dt.10-01-2023 4/9 behind three sons, namely, Huro Mahto, Ferangi Mahto and Biraj Mahto, who were raiyat, servants, Halwaha and settlee of said Badri Singh. They were the possession holder of the suit plot and hence, raiyati Khatiyan had been prepared and issued in favour of Huro Mahto, the ancestor of the defendants. Huro Mahto was in jointness with his brothers Ferangi Mahto and Biraj Mahto. On amicable family partition by metes and bounds Huro Mahto and Ferangi Mahto remained joint but Biraj Mahto was separated to whom 2 decimal of the said 6 decmial land was given. Huro Mahto died leaving behind his only son Judagi Mahto and Ferangi Mahto died leaving behind Bhikhari Mahto. Bhikhari Mahto died during lifetime of Judagi Mahto leaving behind his two sons, namely, Nageshwar Mahto and Bhubaneshwar Mahto. Huro Mahto, Ferangi Mahto and Bhikhari Mahto had died prior to vesting of Jamindari so Judagi, Nageshwar and Bhubaneshwar Mahto were jointly paying the rent and getting rent receipt from the Zamindar for 4 decimal of plot No. 40. The name of the defendants have been entered in the Register-II of the Anchal and rent receipts are being issued to them on payment of rent. The disputed plot is in possession of the defendants since more than 70 years. The plaintiffs have no right, title and interest in the suit property. Patna High Court SA No.74 of 2022 dt.10-01-2023 5/9
5. Heard learned counsel for the appellants.
6. Learned counsel for the appellants has submitted that the learned appellate Court wrongly affirmed the judgment passed by the learned trial Court and dismissed the appeal of the appellants without applying his judicial mind and without properly considering the order of D.C.L.R. who found the peaceful possession of the appellants. He has further submitted that the learned courts below have failed to consider that appellants are in possession of the disputed land since more than 80 years. Further, it has been submitted that the Courts below have not considered the Raiyati Khatiyan and settlement khatiyan (Exhibit B and B/1) in right perspectives while decreeing the suit. Lastly, it is submitted that the Courts below failed to appreciate that the suit is barred by limitation also which can be raised at any stage including in this second appeal also.
7. The trial Court on analysis of evidence given finding that there is nothing to show that the Raiyati Khatiyan produced by the defendants had ever been published. It is simply a draft khatiyan given to raiyat for filing objection. Even if the draft khatiyan is given the sanctity of final khatiyan, it does not create title nor extinguish one, it simply gives the presumption, which Patna High Court SA No.74 of 2022 dt.10-01-2023 6/9 has been rebutted by C.S. Khatiyan and sale deed in favour of ancestors of the plaintiffs.
8. The trial Court found that the defendants have not clarified as to how and when, they have come in possession of the suit land. They have not clarified as to who had actually settled them or their ancestor and from when exactly they are coming in possession and whether their possession is permissive or adverse / hostile. There is no explanation whether it was made due to service or any other consideration. There is no explanation as to how Badri Singh, a raiyat himself, had settled his own purchased property. The learned trial Court noted that once the title of the plaintiffs and non-title of the defendants had well been established, the possession or dispossession itself is not of much importance. The trial Court allowed the suit on contest.
9. In appeal, the appellate Court found that there is no other material evidence, oral or documentary, so as to show that Ambika Singh was ever the ex-landlord or even his ancestors, Badri Singh was landlord at any time and merely saying in the oral cross-examination, would not make them landlord and even Exhibit 'B' produced by Appellants does not show that they were landlord. The rent receipts and order of DCLR cannot be Patna High Court SA No.74 of 2022 dt.10-01-2023 7/9 said to have proved that there was consent for Raiyati interest by the act of the parties and further DCLR order shows that question of title was left open.
10. The law is well settled that an entry in the records of rights does not create any title in favour of any person and the presumption of correctness of entry could be displaced. It is consistent view of the Hon'ble Supreme Court that entries in the revenue records do not confer a title. Such entries only serve fiscal purpose i.e. payment of land revenue. No ownership is conferred on the basis of such entries.
11. As per Article 58 of the Limitation Act, the decree of the declaration of suit has to be filed within a period of three years from the date when right to sue first accrues.
In Daya Singh and another Vs. Gurudev Singh (Dead) by Lrs. & Ors. reported in (2010) 2 SCC 194, the Apex Court, in respect of starting point of limitation, has taken notice of the view of earlier decision in C. Mohammad Yunus Vs. Syed Unissa (AIR 1961 SC 808), where it was held that the cause of action for the purpose of Article 58 of the Act, accrues only when the right asserted in the suit is infringed or there is at least a clear and unequivocal threat to infringe that right. Therefore, the mere existence of an adverse entry into the revenue record Patna High Court SA No.74 of 2022 dt.10-01-2023 8/9 cannot give rise to cause of action.
In view of the aforesaid principle of law, it cannot be said that suit was not filed within the prescribed limitation period.
12. Both the trial Court and the appellate Court on scrutiny of pleading and evidence on record held that the plaintiffs have clear right and title over the suit properties and the plaintiffs are entitled for the decree of declaration of title and recovery of possession alongwith sufficient cost. There is no substantial question of law involved in this Second Appeal. The law is well settled that this Court cannot entertain an appeal under Section 100 of the Code of Civil Procedure unless a substantial question of law is involved.
13. In view of the pleadings put forth by the parties before the courts below and the evidences laid on their behalf which have been duly considered and appreciated by the learned trial court and the first appellate court, the finding of the court being concurrent and there is no perversity in the same, I do not find any legal infirmity in the impugned judgment and decree requiring interference by this Court in exercise of power under Section 100 of the Code of Civil Procedure.
14. As discussed above, there is no substantial question of law arises in this Appeal. Accordingly, this Second Appeal is Patna High Court SA No.74 of 2022 dt.10-01-2023 9/9 dismissed at the admission stage itself. The interlocutory application, if any, stands disposed of.
(Sunil Dutta Mishra, J) saurabhkr/-
AFR/NAFR NAFR CAV DATE 20.09.2022 Uploading Date 11.01.2023 Transmission Date NA