Bindeshwari Singh v. Brijnandan Singh — 1984 DIGILAW 106 (PAT)

Judgment Ahwini Kumar Sinha, J. 1. This second appeal is by the plaintiff against a judgment of reversal. The plaintiffs brought a suit for declaration of title and recovery of possession over the suit land measuring 1.26 acres of C. S. Plot No. 404, appertaining to C. S. Khata no 204, situate at village Dhandi in the district of Bhojpur. 2. The plaintiffs case was that the suit land originally belonged to one Kishun Dusadh (defendant No. 11), which was auction purchased by Ram Swarath Singh, father of plaintiff No. I in Execution case No. 241/30 arising out of a mortgage decree in Title Suit No. 49/27. According to the plaintiffs, the sale also confirmed on and 93Q and since then the auction purchaser that is, the father of plaintiff No. 1 and after his death, the plaintiffs were coming in lawful possession over the suit land and also paid rent to the ex-landlord as well as to the State. 3. According to the plaintiffs, there existed an old enmity between the plaintiffs and defendant No. I and due to the old enmity, the defendant No. 1 got a sale deed executed by Kishun Dusadh on 10-10-60 in the name of his son, defendant No. 4. This sale deed, in favour of the defendant No. 4, according to the plaintiffs, was a collusive sale deed and no title passed to the vendee on the basis of that sale deed. According to the plaintiffs, the sale deed was void and it remained only a paper transaction. The plaintiffs also pleaded that the sale deed was void also because it was executed by Kishun Dusadh without previous sanction of the Collector. 4. The plaintiffs case was that despite the sale deed in favour of the defendant No. 4, the plaintiffs continued in possession over the suit land and in the revisional survey the suit land was recorded in the name of the plaintiffs and even the objection of defendant No. 1 filed under Sec.103-A of the B. T. Act was rejected on 3rd June, 1964. The plaintiffs also claimed to have perfected their title by adverse possession. The plaintiffs also claimed to have perfected their title by adverse possession. The plaintiffs pleaded that a proceeding under Sec.144 of the Code of Criminal Procedure, which was later converted into one under Sec.145 of the Code of Criminal Procedure between the plaintiffs and defendants 1st set, was decided against the plaintiffs and in favour of the defendants 1st set on 1st of August, 1966 as a consequence of which the defendant first set on 1-10-66 dispossessed the plaintiffs which necessiatted the filing of the present suit. 5. The suit was contested by defendant No. 1 and the defence was that the suit property originally belonged to Chaturi Dusadh and his brother Kaburi Dusadh. According to the contesting defendants, Chaturi Dusadh died in a state of jointness with his brother a few years after cadestral survey while Kaburi Dusadh died in a state of jointness with Kishun Dusadh in the year 1937. The defence was that Kaburi Dusadh died issueless leaving behind Kishun Dusadh as his only heir. The contesting defendants claimed that the plaintiffs story of mortgage decree and execution sale of the suit properties were all false and the entire execution proceeding was fraudulent. The defendants pleaded that the auction sale was not binding on Kaburi Dusadh and at least to that extent the auction sale was void. 6. The contesting defendants pleaded that the plaintiffs never got possession over the suit property after the alleged auction sale and the receipts filed by the plaintiffs in proof of their possession were all forged and fraudulent. 7. The contesting defendants claimed to have been coming in lawful possession of the suit land since after their purchase on 10-10-60 and, according to the defendants, before that Kishun Dusadh was said to have been coming in possession of the same. 8. The defendants also pleaded that some land out of the suit plot was acquired by the State of Bihar in 1956 and its compensation was also given to Kishun Dusadh. The defendants further pleaded that Kishun Dusadh also perfected his title over the suit land on the strength of adverse possession and has also pleaded that the suit was not maintainable in absence of State of Bihar, a necessary party. 9. The defendants further pleaded that Kishun Dusadh also perfected his title over the suit land on the strength of adverse possession and has also pleaded that the suit was not maintainable in absence of State of Bihar, a necessary party. 9. The trial court decreed the suit and held that the plaint had got subsisting title over the suit land and also held that the State of Bihar was not a necessary party to the suit. 10. The contesting defendants preferred an appeal. The lower appellate court allowed the defendants appeal and set aside the judgment and decree of the trial court. It held that the plaintiffs never came in possession over the suit land, it always remained in possession of Kishun Dusadh and in that view of the matter, the lower appellate court held that Kishun Dusadh had a valid title to alienate the suit property under the sale deed (Ext. B) in favour of defendant No. 4. 11. The appellate court non-suited the plaintiffs on the ground that the plaintiffs had failed to prove their subsisting title over the suit land (The underlining has been done by me for emphasis). 12. The lower appellate court also held that the suit was bad on account of non-joinder of the State as a necessary party. 13. Hence the present second appeal by the plaintiffs. 14. learned Counsel appearing for the appellants has submitted that the entire approach given by the lower appellate court to the case was erroneous in law in view of the fact that a mere perusal of the judgment under appeal was enough to indicate that the lower appellate court was still under a misconception of law that in the nature of the case that it was incumbent upon the plaintiffs to prove their subsisting title ; in other words, it was Article 142 of the old Limitation Act which governed the case of present nature. Secondly, the learned Counsel for the appellants has submitted that the lower appellate court has also gone wrong to hold that the State of Bihar was a necessary party and that the suit was bad in its absence. 15. So far as the first submission advanced by learned Counsel for the appellants is concerned, there is enough force in it. The learned Counsels appearing for the respective parties have placed the judgment under appeal before me in detail. 15. So far as the first submission advanced by learned Counsel for the appellants is concerned, there is enough force in it. The learned Counsels appearing for the respective parties have placed the judgment under appeal before me in detail. A mere perusal of the judgment under appeal starting with paragraph 5 gives a clear indication that the approach given by the lower appellate court was erroneous in law. The lower appellate court framed a question that the point for consideration in the appeal was whether the plaintiffs had subsisting title over the suit land. With this in the background that the plaintiffs could not succeed unless the subsisting title was proved, the lower appellate court starts testing the plaintiffs case. 16. The plaintiffs suit is a suit for declaration of title and recovery of possession. Thus, the present case falls within the purview of Article 65 of the new Limitation Act. A change has been brought about by Article 65 of the new Limitation Act to what it stood before under the old Limitation Act, namely, Article 142. There is vital difference between Article 65 and Article 142. Under Article 142, the plaintiffs were required to prove title and also possession within 12 years from the institution of the suit. The plaintiffs were required to file a suit within 12 years from the date of dispossession. In other words, the plaintiffs were required to prove title and possession both within 12 years from the institution of the suit. Now under Article 65 of the new Limitation Act, if the plaintiffs bring a suit for possession over immovable property or any interest therein on the basis of title, the plaintiffs are required to prove only the title and not the subsisting title. This is the difference between the old Article 142 and the new Article 65. It seems, the lower appellate court has completely missed the change in law and in the instant case, as the suit was filed in 1967 after coming into force of the new Limitation Act, it was only Article 65 which was applicable. 17. Thus there is enough force in the submission of learned Counsel for the appellants that the lower appellate court has looked at the case completely with erroneous view of law. 18. 17. Thus there is enough force in the submission of learned Counsel for the appellants that the lower appellate court has looked at the case completely with erroneous view of law. 18. So far as the second submission advanced by the learned Counsel for the appellants is concerned, the contesting defendants also admitted that some portion from the plot in question was acquired by the State of Bihar in 1956 and, according to the contesting defendants, Kishun Dusadh, the rightful owner, received the compensation. The only question is as to what area was acquired by the State of Bihar and what area was left in the plot in question. The trial court, while holding that the State of Bihar was not a necessary party, on the basis of Ext. 3 (a) (survey khatian held) that the plot in question measured only 1 acre 14 decimals out of 1 acre 26 decimals in the cadestral survey and from this the trial court concluded that the rest 12 decimals belonged to the State and hence there was no vagueness in ascertaining the disputed land and in that view of the matter held that the State was not a necessary party to the suit. The lower appellate court was final court of fact. It was the duty of the lower appellate court is consider the reasonings of the trial court while reversing the judgment and decree of the trial court. The trial court did give one reason for holding that the State of Bihar was not a necessary party. The lower appellate court completely overlooked the reasonings given by the trial court and on its own reasonings held that the suit was bad on account of non-joinder of the State of Bihar. It is true that the lower appellate court was entitled to give its own reasonings but nonetheless, the lower appellate court being a final court of fact is duty bound to consider the reasonings of the trial court while reversing the judgment and decree of the trial court. As already stated above, the contesting defendants have pleaded that compensation was already paid to Kishun Dusadh and if that be a correct position, then the question of the State of Bihar coming as a party does not arise. Any way, I leave the point open. 19. As already stated above, the contesting defendants have pleaded that compensation was already paid to Kishun Dusadh and if that be a correct position, then the question of the State of Bihar coming as a party does not arise. Any way, I leave the point open. 19. For the foregoing reasons, I hold that the approach given to the case by the lower appellate court was erroneous in law and on that ground alone, the judgment and decree under appeal are fit to be set aside. 20. In the result, this appeal is allowed and the judgment and decree of the lower appellate court are set aside. The matters is sent back to the lower appellate court for deciding the entire matter afresh after hearing the parties on the material already on the record and in accordance with law. The parties will be entitled to argue their respective cases on all the points available to them. 21. However, there will be no order as to costs.