Samir Kumar Mukherjee v. State Of Bihar — 1999 DIGILAW 244 (PAT)

Judgment R.N.Sahay, J. 1. This is an appeal against decree dated 3.1.1984 of the 3rd Additional District Judge, Saharsa in Title Appeal No. 5/82 reversing the decree of the Munsif, Supaul in Title Suit No. 131 of 1965, who had decreed the suit which was instituted by Dr. Sudhir Kumar Mukherjee, father of appellant Nos. 1 to 3 and husband of appellant No. 4 for a declaration that the land described in Schedule I of the plaint was not a public land and/or part and parcel of the land which had been transferred by registered deed dated 29.8.1878 by the erstwhile proprietors of Baruari Estate in the district of Saharsa to the Government for construction of Court of S.D.O., Supaul. 2. The suit was instituted because the Sub-Divisional officer, Supaul had declared the suit land as public land in a land encroachment proceeding. The plaintiff was served with notice by the Deputy Collector Land Reforms to vacate the land. 3. There is no dispute that the plaintiffs were in possession of the suit land since long and also paying rent to the State of Bihar after vesting. There is no dispute that by registered deed dated 29.8.1878 Raj Bahadur Narendra Narain Singh on behalf of self and guardian of minor nephew Surendra Narain Singh granted licence to the State Government to occupy 30 acres 11 poles of land of Kharail village, Pargana Malharigopal, P.S. Supaul pertaining to Touzi No. 54 in the district or Bahagalpur for limited purpose of constructing Sub-Divisional Kutchery on certain conditions. This was before passing of the Transfer of Property Act, 1882. 4. Some years thereafter, there was partition between two branches of Baruari Estate and out of parent Estate, two separate Estates were carved out, one popularly known as 9 annas Baruari Estate and the other 7 annas Baruari Estate and some of the Bakasht and Gairmazarua khas lands were partitioned and some remained joint in which one branchs share was 9 annas and the other branchs share was 7 annas. The land of which permission was granted for the purpose of Sub-Divisional Kutchery formed a portion of Bakasht land consisting of a big mango orchard and other trees and one pucca well. 5. The land of which permission was granted for the purpose of Sub-Divisional Kutchery formed a portion of Bakasht land consisting of a big mango orchard and other trees and one pucca well. 5. 30 acres and 11 poles of lands were donated to the State Government for construction of Sub-Divisional Court were carved out and demarcated by fixing permanent pillars around the said block which are still in existence and rest of the area remained in possession of the proprietors of 9 annas and 7 annas Baruari Estates. District Survey and settlement operation took place in which final publication was made in the year 1904 and the said land of 30 acres 11 poles along with the area remaining in possession of Baruari Estates were recorded under "Kaiser-E-Hind Barkar Bahadur". Under Khata No. 470 Plot No. 1629 an area of 31 acres 75 decimals and map was prepared. According to the plaintiffs case the survey entry and the survey map was wrongly prepared since the State Government was in possession of only 30 acres 11 poles of land by virtue of deed of lease/ licence dated 29.8.1878. 6. The plaintiffs submitted that survey plot No. 1629 comprises of 30 acres 11 poles of donated land to the Government as stated above as well as other lands of Baruari Estate which had been prior to survey and after survey all along remained in possession of the proprietors of Baruari Estates. Due to some mistake and error on the part of survey authorities, no separate plot number was given to the land and it was included in one and the same plot No. 1629 but nevertheless the remaining land besides the land donated to the Government remained quite distinct having its separate and independent identity from the aforesaid area covered by the Court compound, which has been demarcated. It is alleged that the said piece of land outside the donated land was an orchard which was in possession of Baruari 9 annas and 7 annas Estates. It is alleged that the said piece of land outside the donated land was an orchard which was in possession of Baruari 9 annas and 7 annas Estates. The trees standing thereon when dried up were utilised and the sale proceeds thereof were appropriated by the owners of the said Estates and when the trees were dried up and removed, the land was cultivated on behalf of the estates through Bataidars for many years and the yield appropriated by the said Estates and it was never used as Court or its compound by the Government. 7. In 1908-1909, a site plan of the Government land was prepared by the then Executive Engineer, Northern Circle P.W.D., Bhagalpur Division. The map indicates that the remaining land besides the land donated i.e. 30 acres 11 poles were not within the Court compound. In the year 1918 the Union Board, Supaul prepared a map of the area and the Court compound has been shown exactly as it exists at the time of filing of the suit. In the manner in which it exist at present demarcated by barbed wire fixed to Sakhua Poles on permanent basis. In that map remaining pieces of land has been shown under Khas possession of the then proprietors of Baruari Estates. The Court compound was again measured and finally demarcated on all sides by barbed wire attached to Sakhua poles on permanent basis and this position still exists. This demarcation excludes the remaining land from the fencing and the independent nature and existence of the remaining land is well established. 8. The plaintiffs, therefore, submitted that there was no manner of doubt that the State Government acquired only 30 acres 11 poles area donated by Baruari Estate and the remaining land all along remained in use and occupation of Baruari Estate and that the survey entry of the donated land was apparently wrong but in spite of wrong entry the parties remained in possession of the specific lands. The Government did not take advantage of the wrong entry in the record of rights and the said wrong entry remained a dead letter and as the Government was not in possession of the remaining land and the Government did not exercise any act of possession in spite of wrong entry. The proprietors of Baruari Estates remained in possession as before. The proprietors of Baruari Estates remained in possession as before. No step was needed and taken for rectification of wrong entry so far remaining lands are concerned. 9. The case of the plaintiff was that he took settlement of the remaining land measuring 8 kathas from Baruari 7 annas Estate for agricultural and horticultural purposes in the years 1945 and put in possession of the same. The plaintiff got possession and began to cultivate the same and subsequently took settlement from 9 annas Baruari Estate and began to pay rent and obtain rent receipts and Baruari Estate submitted Jamabandies for 8 kathas of plot No. 1629 settled with the plaintiff in the name of the plaintiff at the time of vesting to the State of Bihar and the plaintiff began to pay rent to the State of Bihar and obtain rent receipts. The plaintiff submitted that on account of undisputed fact that he acquired the status of occupancy raiyat, his title and possession is perfect and complete over the said settled land. The plaintiff is coming in uninterrupted possession over the suit land since the date of settlement. Baruari Estates were coming in uninterrupted possession till the settlement with the plaintiff by appropriating the fruits of the trees and by selling the trees when dried up and by getting it cultivated through Bataidars. 10. In the alternative, the plaintiff claimed title by adverse possession. The plaintiff subsequently got the suit land filled up with earth at enormous cost to raise the land of the ground as it had become low due to Kosi flood and made it habitable for habitation and constructed several straw-thatched hutments at the corner of the P.W.D. and Dak Bunglow Road and farm and rented it to several persons. Some time in 1959-60, the plaintiff collected materials for the construction of pucca house on the suit land and began constructing house which was daily noticed and seen by all the authorities but when the building reached the ceiling level. The P.W.D. and Circle Officer, Supaul caused proceedings under Sec. 144, Cr.P.C. and Bihar Public Land Encroachment Act started against the plaintiff with respect to the suit land. The P.W.D. and Circle Officer, Supaul caused proceedings under Sec. 144, Cr.P.C. and Bihar Public Land Encroachment Act started against the plaintiff with respect to the suit land. It is submitted that the plaintiffs possession through hutments will be apparent from letter No. 300 dated 6.3.1959 of the Circle Officer, Supaul wherein he had asked the plaintiff to show cause why his hutment be not removed on which the plaintiff had shown his cause before the Circle Officer, Supaul asserting his title and possession and the matter was finally disposed of on 20.3.60. The construction of bruck-built building by the plaintiff is also admitted by the P.W.D. vide letter dated 24.6.60. 11. The plaintiff appeared in 144 Cr.P.C. proceeding before the Sub-Divisional Officer, Supaul, who passed adverse order against the plaintiff on 8.6.60. Since thereafter, the case under Public Land Encroachment Act numbered as Case No. 11 of 1960-61 was initiated against the plaintiff. The Sub-Divisional Officer treating the suit land as public land passed order against the plaintiff on 6.1.1961. The plaintiff appealed against the said order before the Addl. Collector Saharsa, but could not succeed. It is worthwhile to note that the Additional Collector in the appellate order gave option to the plaintiff to take step to get his Jamabandi fixed by way of fresh settlement from the State Government and the plaintiffs old Jamabandi was ordered to be cancelled, The plaintiff applied for creation of new Jamabandi by way of settlement of the lands on the line suggested by the Additional Collector, Saharsa. The plaintiffs petition remained pending with the Divisional Commissioner. The plaintiff submitted that the Government is bound to recognize the plaintiff as tenant of the suit land and the action of the Government in stopping rent receipt to the plaintiff is not lawful. 12. On these premises, suit was filed for declaration of title over the suit land and for declaration that the order of Sub-Divisional Officer and Additional Collector, Saharsa is null and void arid without jurisdiction. 13. The defendant-State of Bihar in its written statement has not traversed any of the allegations in the plaint. 12. On these premises, suit was filed for declaration of title over the suit land and for declaration that the order of Sub-Divisional Officer and Additional Collector, Saharsa is null and void arid without jurisdiction. 13. The defendant-State of Bihar in its written statement has not traversed any of the allegations in the plaint. In para H of the written statement averment is "that in accordance with the aforesaid deed of gift of the lands aforesaid by the then proprietors and the acceptance of the same by the Collector of the District Bhagalpur on behalf of the Government, the Government was put in and came in possession and since then have been in possession of the said lands all along". It further asserted that the Government Amin measured the land and prepared a map of 36 B 6 K 14 Dhoors and odd. It was asserted that the so-called demarcation as alleged by the plaintiff is not legal and valid. They cannot legally alter the status of the land. The measurement was done in the year 1867, which was prior to the execution of the sale deed. In para F of the written statement, it is stated that the Government acquired the land as recorded in the Khewat not only from the then proprietor of Barwari Estate but also from the tenants of the said village, but no particulars of these acquisitions were given. The defendant claimed that it has been in possession of the land since 1878. It is submitted that the Court compound did not affect title. It is further submitted that Barwari Estate did not raise any dispute regarding called wrong entry. The plaintiff, therefore, is estopped from challenging it. The defendant denied payment of rent by the plaintiff and submitted that the settler of the plaintiff had no right to settle the land of plot No. 1629, which belonged to the Government. The ex-landlord Shri Bhupendra Singh Parmar admitted title and possession of the Government to the suit land and has further admitted that the alleged settlement with the plaintiff is forged and bogus. The ex-landlord was not examined nor any caveat on his behalf was filed. It is submitted that the Jamabandi was wrongly opened on the basis of illegal and invalid settlement by the ex-landlord and the unauthorised rent receipts issued on behalf of the State of Bihar are all collusive. 14. The ex-landlord was not examined nor any caveat on his behalf was filed. It is submitted that the Jamabandi was wrongly opened on the basis of illegal and invalid settlement by the ex-landlord and the unauthorised rent receipts issued on behalf of the State of Bihar are all collusive. 14. Learned Munsif in his well-considered judgment decreed the suit. Learned Munsif held that the title and possession of Barwari Estate on the suit land till 1945 has been well established. The plaintiff adduced sufficient evidence oral and documentary to prove the suit land in then-possession. The Munsif found that in the notice served upon the plaintiff in the encroachment case, the plaintiff was asked to vacate the suit land as the plaintiff had encroached upon the suit land and constructed house. The Munsif relying on Sec. 20 of the Bihar Tenancy Act and the evidence, came to the conclusion that the plaintiff acquired status of settled raiyat. The settlement in his favour was also accepted. Relying on A.I.R. 1963 Patna 302 (F.B.), the learned Munsif held that the raiyati interest was valid by creation either of registered lease or by delivery of possession. The plaintiff had successfully proved possession of Barwari Estate prior to settlement. He found that the map prepared by the Pleader Commissioner (Ext. 16/A) clearly indicates that the suit land is outside the Court compound. No objection was raised against the report of the Pleader Commissioner. Learned Munsif held that the remaining area of plot No. 1629 remained in possession of the State of Bihar and Survey entry was wrong. On these findings, the suit was decreed and the relief claimed therein was granted. 15. Contrary to the well, discussed judgment of the learned Munsif, learned Additional District Judge on appeal by a cryptic judgment reversed the finding of the learned Munsif without properly appreciating the real controversy in the case. This learned Judge was largely influenced by the entry in the record of right and it is well settled that such an entry is no evidence of title. The appellate Court omitted to notice the finding of the trial Court in paragraphs 30, 31 and 39 that on vesting of the estate Jamabandi was created in favour of the plaintiff. The Jamabandi was never cancelled and from 1953 onwards the State was granting receipts on this Jamabandi. The appellate Court omitted to notice the finding of the trial Court in paragraphs 30, 31 and 39 that on vesting of the estate Jamabandi was created in favour of the plaintiff. The Jamabandi was never cancelled and from 1953 onwards the State was granting receipts on this Jamabandi. The appellate Court doubted the plaintiffs case only because there was an application by the plaintiff for a fresh Jamabandi. The plaintiffs case was that he was compelled to make application because had been threatened for removal of the alleged encroachment. 16. Mr. K.D. Chatterjee, learned Senior Counsel for the appellants has submitted that any agricultural tenancy can be created in favour of the person who is in possession by receipt of rent, and no other evidence is necessary. Ext. 3 series are the receipts granted by the State for the suit land. These receipts were brushed aside by the appellate Court on the ground that they were issued without prejudice since the payment and receipt of money by way of rent was accepted and the receipt issued without prejudice was of no consequence. -- . Learned Counsel has submitted that in view of clear admission in the written statement that the land was measured by the Government Amin before the execution of formal deed and in accordance with the aforesaid deed, the Government was put in and came in possession and since then they have been in possession all along and there being no evidence that subsequently extra area was acquired including the suit land. The State cannot be said to have acquired title upon the suit land only because there was wrong entry in the cadestral survey. It was rightly contended that the appellate Court did not take into consideration the pleadings of the plaintiffs. The report of the Pleader Commissioner was accepted by both the parties confirming that the suit land is outside the Court compound. The appellate Court was under the wrong impression that the plaintiffs case was false that they have been dispossessed by the State from the land in question. Simple case of the appellants was that in terms of Ext. 2 a definite area was transferred to the State as admitted in the written statement and there is no evidence that the State occupied larger area than shown in Ext. 2. Simple case of the appellants was that in terms of Ext. 2 a definite area was transferred to the State as admitted in the written statement and there is no evidence that the State occupied larger area than shown in Ext. 2. The appellate Court, therefore, misconstrued the scope of the suit and reversed the well-considered judgment of the trial Court by giving arbitrary finding which are not legal. 17. There is clear admission in the written statement of the State that the Government was put in possession and is continuing in possession of no more land beyond the area donated by Baruari Estate in 1878. Nevertheless in the cadestral survey the area of plot No. 1629 was shown as 31.75 acres (36 Bigha 7 Katha 9 dhurs). The larger area shown in the cadestral survey is inconsistent with the deed of gift and the pleadings. The trial Court, therefore, came to the right conclusion that the survey entry was wrong and the plaintiffs had been able to rebut the presumption of correctness recorded by overwhelming evidence. The plaintiffs were found in possession of the disputed land since long as noticed earlier. Learned Munsif granted decree of holding of title to the plaintiffs. The title was claimed on the basis of settlement from Baruari Estate without impleading the settler. 18. The only question required to be decided was whether the suit land was part and parcel of the land which was gifted by Baruari Estate to the State Government for the construction of the S.D.O. Court. The plaintiffs, therefore, are entitled to only so much declaration that the suit land does not fall within the leasehold area of the State Government pursuant to donation by Baruari Estate in 1878. The decree of the Munsif has to be confined only to the extent that the suit land described in Schedule -1 of the plaint was not a public land and part and parcel of the land which had been transferred by registered deed dated 29.8.1878 by the erstwhile proprietor of the Baruari Estate. The other declaration granted by the Munsif is redundant. The State has recognised the appellants as tenant since after vesting of the Estate and Jamabandi was created. The Jamabandi was never cancelled. The appellants have made a fresh application for creation of Jamabandi. 19. In the result, this appeal is allowed in part. The other declaration granted by the Munsif is redundant. The State has recognised the appellants as tenant since after vesting of the Estate and Jamabandi was created. The Jamabandi was never cancelled. The appellants have made a fresh application for creation of Jamabandi. 19. In the result, this appeal is allowed in part. The decree of the 3rd Additional District Judge, Saharsa is set aside and the decree of the learned Munsif, Supaul is modified as indicated above. It is ordered that the appellants will be entitled for declaration that the State of Bihar has no interest in the suit land which is in possession of the appellants. No costs.