Bettiah Estate Through Manager v. Lachuman Mahto — 1998 DIGILAW 148 (PAT)

Judgment Gurusharan Sharma, J. 1. In the aforementioned eight appeals a common question are involved and all of them arose out of one Execution Case No. 10 of 1971, levied for execution of the decree passed in Title Suit No. 183 of 1963, wherein different applications under Order XXI Rules 58 and 99 of the Code of Civil Procedure were filed and thereby Miscellaneous Case Nos. 42, 47, 57, 58, 59, 60 and 69 of 1974 and 37 of 1986 were registered and were disposed of by the impugned orders under these appeals. 2. These appeals, therefore, were made analogous for the purpose of hearing. Bettiah Estate is appellant in all the appeals, these appeals have been heard together and are being disposed of by a common judgment, 3. Bettiah Estate, under the Court of Wards, through its Manager filed Title Suit No. 183 of 1963 against the defendants 1st and 2nd set for recovery of possession in respect of Schedule 1 properties to the plaint as also for a decree for rent, compensation an damages for cutting and removing threes and other materials. 4. By judgment and decree dated 14.8.1970, the said suit was decreed in part. It was held that the status of the defendant 1st set in respect of the suit land was never anything other than a lessee and that of the contesting defendants 2nd set was of sub-lessee and the defendants were liable to be evicted from the lease hold suit properties as they had no right to be over the same any longer. The plaintiff claim for damages etc. was, however, allowed in part only. The said judgment and decree was affirmed by this Court, vide First Appeal No. 1050 of 1970, filed at the instance of the defendants 2nd set, which was dismissed and the cross objection therein filed by the plaintiff was also dismissed. 5. Execution Case No. 10 of 1971 was levied for execution of the decree passed in the aforesaid suit. A writ of delivery of possession was issued on 3.3.1974, which is said to have been resisted by some persons and so the delivery of possession could not be effected! 6. Those persons were strangers to the decree under execution. They filed different applications purporting to be under Order XXI Rules 58 and 99 of the Code Civil Procedure, whereupon Miscellaneous Case Nos. 6. Those persons were strangers to the decree under execution. They filed different applications purporting to be under Order XXI Rules 58 and 99 of the Code Civil Procedure, whereupon Miscellaneous Case Nos. 42, 47, 57, 58, 59, 60 and 69 of 1974 and 37 of 1986 were-registered. The Bettiah Estate filed rejoinder in each of those Miscellaneous cases. However, by the impugned order passed separately in each case, those Miscellaneous Cases were allowed. It was held that the proceedings were maintainable at the instance of those strangers to the decree and it was required to be decided by the Court as to whether they succeeded in proving their title to the properties in question on the basis of evidence brought on record. It was further held that the decree holder failed to substantiate its subsisting title and possession over the properties and on the other hand the applicants proved their uninterrupted and continuous possession for more than thirty years and thus perfected their title thereon as occupancy raiyat. The objection of the decree holder was rejected. The properties in question were exempted from the operation of the decree passed in Title Suit No. 183 of 1963 and the execution vide Execution Case No. 10 of the 1971 got no binding force so far as the properties in question were concerned. 7. These appeals under Order XXI Rule 103 of the Code of Civil Procedure were preferred by the decree holder-Bettiah Estate. 8. After hearing the parties at length and perusing the records I find that in the suit a relief for recovery of possession over total 22 bighas 4 kathas and 6 dhurs land, which consisted Makan Mai Sahan, Patwari Shed, Bhusa Godown Grain Godown, Bullock Shed, Old factory building Kitchen, Servant quarters, Staff quarters, Tehsildars quarters and compound with 178 green standing trees thereon, namely. Sisam, Aam, Semal, Jamun, Niboo, imli, Lichi, Tar, Khajoor, Jhawa, Karauni, Nim, Amaltas, Fucyputs, Borgad, Ankath, Pipal and Pakari. 9. Earlier in the year 1946 the defendant no. 1 had been given by the plaintiff, Bettiah Estate settlement of big area of lands as kasht lands in village Sathi Raibarba, which was known as Sothi Farm. He was in khas possession thereof and had his own cultivation establishment. 9. Earlier in the year 1946 the defendant no. 1 had been given by the plaintiff, Bettiah Estate settlement of big area of lands as kasht lands in village Sathi Raibarba, which was known as Sothi Farm. He was in khas possession thereof and had his own cultivation establishment. Bettiah Estate had farm and factory buildings and compound thereof including the aforesaid 22 bighas and odd of land, which was known as Sathi Bunglow Compound Farm and Sathi Factory buildings. 10. On the request of the defendant No. 1 to the then Manager of Bettiah Estate the aforesaid Farm buildings and Factory buildings with compound including 22 bighas 4 kathas 6 dhurs of land with green trees etc. were given on lease to him for three years by a registered deed commencing from 15.1.1956 and again another registered lease was executed on 13.1.1960 for the period from 1.1.1960 to 1.1.1963 on a monthly rental of Rs. 100.00 only. The defendant No. 1 along with his employees used to reside in the said bunglow and from there used to control and look after the agricultural operations of his lands known as Sathi Farm. The defendant No. 1 subsequently sold his entire Kast lands known as Sathi Farm to the defendants 2nd set by registered sale-deed and also sub-let the leasehold properties to them. 11. On the other hand, the applicants who filed applications under Order 21 Rules 58 and 99 of the Code alleged that their ancestors had reclaimed the properties in question and made the same culturable and for more than thirty years they enjoyed continuous physical cultivating possession thereon. 12. The suit was contested by the defendants second set and thereafter the appeal before this Court was also contested by the parties and there was no indication that physical features of the properties as described in Schedule No. 1 to the plaint was ever changed, rather it was found that only some trees of the bunglow compound were cut and some building materials of the aforesaid Patwari Shed and servant quarters were removed. 13. Further in course of execution of the decree passed in Title Suit No. 183 of 1963, a writ of delivery of possession was issued. The report of the Commissioner, which was marked as an Exhibit in the proceeding at the instance of the decree holder was very much relevant for the purpose. 13. Further in course of execution of the decree passed in Title Suit No. 183 of 1963, a writ of delivery of possession was issued. The report of the Commissioner, which was marked as an Exhibit in the proceeding at the instance of the decree holder was very much relevant for the purpose. The Commissioner reported that when he reached at the spot along with Nazir of the Civil Court, on behalf of the decree holder (Bettiah Estate) Nazir, Amin, their employees and peons were also present there, but on behalf of the judgment debtors a mob of about two hundred persons armed with various weapons was already on the spot to obstruct the effecting of delivery of possession, lie tried his best to get delivery of possession effected by explaining all the facts and its legal consequences and also explaining his capacity as well as capacity of the Nazir and peon of the Civil Court to the men of judgment debtor, but they did not pay any heed to the same and they by taking law and order at their own hands were bent upon to unrest of the peace. In the last the situation had become so grave and dangerous that the Commissioner along with Nazir and peon of the Civil Court had to return back without effecting delivery or possession. Men of decree holder (Bettiah Estate) also saved their life by fleeing away from the spot. Facing the above said situation the Commissioner came to the conclusion that no delivery of possession could be effected without help of Magistrate and armed force. 14. A perusal of the writ of delivery of possession which was also marked as an Exhibit shows that besides the trees there were Bhusa Godown, Grain Godown, Bullock Shed, Old Factory Building, Kitchen, servant quarters, Staff quarters, Tehsildars quarter and houses with sahan and there was absolutely no culturable land. 15. Besides this the decreed holder in the rejoinder specifically asserted that in fact these persons who had obstructed in effecting delivery of possession and later on filed applications, whereupon the present proceedings were initiated, were none-else creation of the judgment debtors-defendants 2nd set of the suit. 15. Besides this the decreed holder in the rejoinder specifically asserted that in fact these persons who had obstructed in effecting delivery of possession and later on filed applications, whereupon the present proceedings were initiated, were none-else creation of the judgment debtors-defendants 2nd set of the suit. Even at the time, when the Nazir of the Court had gone on the spot to delivery of possession one of the judgment debtors, namely Sitaram Rajgarhia was identified there instigating the mob to create obstructions in the processes of the Court so that the delivery of possession be not effected, his contention was substantiated by the evidence of the witnesses, while deposing in the proceeding on behalf of the decree holder. 16. The Court below has completely failed to go into the aforesaid vital matters. Since the applicants had come up with a new case that they were in cultivating possession of the properties in question, whereas the parties to the suit had contested the matter in respect of the leasehold properties, which consisted of buildings, Sahan and Orchards with compound and were not at all culturable lands, it was most essential to the claimants to establish by cogent evidence, their allegation that their ancestors reclaimed and made the barren lands in question culturable. In my opinion, they have not been able to substantiate their claim on the basis of evidence brought on record. 17. The Court below considered the oral evidence of the applicants witnesses in one sentence that they have supported continuous possession of the applicants over the lands in question for more than 30 years. None of those witnesses were competent to depose about the alleged reclamation and cultivation over the lands by the ancestor of the applicants and they have not been able to prove the same. It cannot be said that the parties to the suit were in collusion and the Bettiah Estate under Court of wards has obtained a collusive decree to deprive the applicants to utilise the properties in question. In my opinion, the applicants have completely failed to prove acquisition of title by adverse possession. 18. I find that the applicants in the impugned proceedings purporting to be under Order XXI Rule 99 have miserably failed to prove acquisition of their title over the properties in question. 19. In my opinion, the applicants have completely failed to prove acquisition of title by adverse possession. 18. I find that the applicants in the impugned proceedings purporting to be under Order XXI Rule 99 have miserably failed to prove acquisition of their title over the properties in question. 19. I have, therefore, no option but to seat aside the impugned order passed in the proceedings in question at the instance of the applicants-respondents herein and allow these eight appeals. However, there shall be no order as to costs. 20. The executing Court is directed to proceed with Execution Case No. 10 of 1971 and issue fresh writ of delivery of possession and depute a Magistrate with armed force to effect delivery of possession on spot to the decree holder-appellant herein forthwith in accordance with law.