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2002 DIGILAW 771 (JHR)

Leda Mahato v. State Of Bihar

2002-07-18

LAKSHMAN URAON, SUDHANSU JYOTI MUKHOPADHAYA

body2002
JUDGMENT S.J. Mukhopadhaya, J. 1. This letters patent appeal has been preferred by plaintiff-appellant, Leda Mahato against the appellate order and judgment dated 14.3.1997 passed by the learned single Judge in Appeal from the Original Decree No. 225 of 1995 (R). The learned single Judge dismissed the first appeal and affirmed the judgment and decree dated 30th August, 1995/11th September, 1995 passed by learned sub-Judge Ist, Dhanbad in Title Suit No. 26/88. 2. The sole plaintiff, Leda Mahato brought the suit in question against the defendant for declaration of his permanent raiyati right in the tank and its ridge forming part of the suit land. The tank is commonly known as Purana Bandh situated in Mauza Telmocha bearing plot No. 1411 area 6.78 acres and plot No. 1413 area 52 decimals having total area 7.30 acres appertaining to Khata No. 133. 3. The case of plaintiff-appellant was that the tank Purana Bandh was excavated by his ancestors for the purpose of irrigating the paddy fields contiguous to the aforesaid tank and remained in peaceful possession of the plaintiff. Moti Mahato, father of plaintiff and his co-sharers, Smt. Omia Mahato in and Dandu Mahato inherited the suit property on the death of their ancestors and were in peaceful possession of the suit tank, irrigating paddy fields, repairing the ridge of the tank and desilting the bed of the tank, growing vegetables on the various ridges and also exercising other acts of possession. It was pleaded that during the last survey settlement operation, the suit tank was wrongly included in the Gairbad Khatian No. 33 of the landlord of Mauza Telocho although the aforesaid tank and its ridge was in peaceful possession of his ancestor and co-sharers as evident from irrigation records of right. The aforesaid mistake of wrong entry of the suit tank in Gairbad Khatian No. 33 when detected, it was brought to the notice of the landlord, namely, Raj Kumar Thakur Ram Bahadur Singh, who by deed of relinquishment dated 26th June, 1929 rectified the mistake and released the tank in favour of the father of the plaintiff and other two co-sharers from Gairbad Khatian No. 33 reserving annual rent of Rs. 5/- more for the tank and its ridge in question. 5/- more for the tank and its ridge in question. Accordingly, Moti Mahato, father of plaintiff-appellant used to pay rent to the landlord, who granted receipts and Moti Mahato as also plaintiff both remained in peaceful possession of the suit land. Further case of plaintiff-appellant was that two co-sharers, namely, Omia Mahtain and Dando Mahato by Chharpatra dated 20th September, 1930 relinquished their 2/3rd share in the tank in question in favour of Moti Mahato father of plaintiff on receipt of consideration of Rs. 731/- from Moti Mahato. The landlord accepted the relinquishment to the extent of their 2/3rd share and in acknowledgement, put his signature in the aforesaid Chharpatra whereinafter Moti Mahato, father of plaintiff became exclusive owner to the extent of 16 annas share in the tank in question and remained in peaceful possession thereof exercising various acts of possession in respect of the tank and its ridge. It was further pleaded that after vesting of intermediary interest in the State, Moti Mahato and thereafter the plaintiff approached the C.O., C.I. and Karamachari for acceptance of rent reserved by the ex-landlord but they put off the matter as a result thereof they approached the L.R.D.C., Chas by registered Miscellaneous Case No. 2(b) of 1984-85. It was contested by Krishna Mohan Singh and B.K. Prasad of village Telmocho, who filed objection whereinafter the L.R.D.C., Chas on perusal of the reports, recommended for acceptance of rent from the plaintiff and forwarded the records to the learned S.D.M. for such acceptance. The S.D.M., Chas after having satisfied regarding the actual physical possession of the plaintiff over the suit tank in question, recommended for removing the suit tank from the list of Sairat maintained by the Circle Officer, Baghmara and recommended for sending the file to the Additional Collector, Dhanbad for needful. It was also recommended by the Additional Collector, Dhanbad but the Deputy Commissioner, Dhanbad rejected all those recommendations and proposals and ordered to put the suit tank to public auction vide order dated 27th October, 1987 though it was a case of acceptance of rent. It was also recommended by the Additional Collector, Dhanbad but the Deputy Commissioner, Dhanbad rejected all those recommendations and proposals and ordered to put the suit tank to public auction vide order dated 27th October, 1987 though it was a case of acceptance of rent. The plaintiff-appellant took plea that the order of Deputy Commissioner, Dhanbad dated 27th October, 1987 was illegal, ultra vires and without jurisdiction, those defendants having knowledge that the suit tank and its ridge in question being the raiyat property of the plaintiff, who is in uninterrupted peaceful physical possession together with the ancestors for more than 80 years. Altogether six issues were framed as taken into consideration by the learned Single Judge and mentioned hereunder : 1. Whether the suit as framed is maintainable? 2. Whether the plaintiff has got any cause of action for the suit? 3. Whether the suit is barred by law of limitation, waiver, estoppel and acquiescence? 4. Whether the plaintiff has got permanent raiyati right, title and interest in respect of the suit tank and its ridge? 5. Whether the plaintiff has been coming in peaceful possession of the suit tank and its ridge? 6. Whether the plaintiff is entitled to any other relief? 4. The fourth issue was the main issue i.e. whether the plaintiff-appellant herein has got permanent raiyati right, title and interest in respect of the suit tank and its ridge or not. The plaintiff-appellant, in fact, filed to produce any evidence, such as, registered deed before the first court or appellate court to show that the suit tank and its ridge was transferred in favour of his ancestors. The claim was mainly dependent on two unregistered deed of relinquishment which have been proved as Exhibits 7 and 7/A. Before the first court and appellate court, plaintiff took plea that the Exhibit 7 is a deed of relinquishment dated 26th September, 1929 whereby Raj Kuamr Thakur Ran Bahadur Singh rectified mistakes crept in the cadestral survey settlement. The other Exhibits 7/A dated 20th September, 1930 was stated to be a deed of relinquishment, executed by two other co-sharers in favour of father of plaintiff. Admittedly, those two deeds of relinquishment being unregistered document, they were not accepted as admissible evidence by both the courts to decide raiyat right in favour of plaintiff- appellant. The other Exhibits 7/A dated 20th September, 1930 was stated to be a deed of relinquishment, executed by two other co-sharers in favour of father of plaintiff. Admittedly, those two deeds of relinquishment being unregistered document, they were not accepted as admissible evidence by both the courts to decide raiyat right in favour of plaintiff- appellant. I find nothing wrong in non- accepting the unregistered documents (deed of relinquishment) for giving any decision of right, title and interest in favour of plaintiff-appellant. 5. Mr. Rajnandan Sahay, learned counsel for the plaintiff-appellant submitted that the Exhibit 7 dated 26th September, 1929 should not be construed as a deed of relinquishment but it was a deed of rectification of mistake as was made in C.S. records of right. Such submission cannot be accepted as rectification of mistake can be made only under Section 87 of the C.N.T. Act by the competent authority in a suit if preferred by an aggrieved person for correction of records of right within three months from the date of final publication of record. 6. It is not in dispute that the suit tank and its ridge has been shown as Gair-mazarua Malik in C.S. records in favour of landlord. None of the ancestors of plaintiff were shown in possession of the suit tank and ridge in the records of right, nor mutation was made in the name of any of his predecessor-in- interest or plaintiff. After vesting of land to the State, neither predecessor in interest of plaintiff, nor the plaintiff was recognised as raiyat. Thus, there is no evidence on record to suggest that the predecessor-in-interest or the plaintiff was in peaceful possession over the suit tank and ridge. On the other hand, Exhibit J produced by the defendant No. 5 suggest that the landlords amongst themselves transferred the zomindori rights and not the raiyati rights. In the aforesaid circumstances, if no declaration of right, title or interest given in favour of plaintiff-appellant, in absence of specific evidence, I find no reason to differ with the concurrent finding given by the first court and appellate court. 7. One of the grievances raised by Mr. Rajnandan Sahay, counsel for the plaintiff-appellant that though there was no claim for declaration of right, title and possession was made by the 5th defendant, learned trial Court made declaration in favour of 5th defendant without framing any such issue. 7. One of the grievances raised by Mr. Rajnandan Sahay, counsel for the plaintiff-appellant that though there was no claim for declaration of right, title and possession was made by the 5th defendant, learned trial Court made declaration in favour of 5th defendant without framing any such issue. It was refuted by the counsel for the 5th defendant-respondent, who submitted that no declaration of right, title and interest of 5th defendant over the suit tank and ridge has been given but for determination of issues as were framed and on appreciation of evidence, it came to the notice of the trial Court that the 5th defendant is in possession of the suit tank and ridge and not the plaintiff. 8. Counsel for the 5th defendant-respondent relied on Exhibits D and F series to suggest that the trial Court was satisfied that the suit tank and ridge was settled by ex-landlord by a registered deed of settlement dated 30th July, 1928 in favour of the predecessors-in-interest of 5 defendant. It was submitted that after 30th July, 1928, the ex-landlord had no right to execute any document in favour of one or other including predecessors-in-interest of the plaintiff in respect to said suit tank and ridge in question. He also placed reliance on Exhibits A series and G series to suggest that the predecessors-in-interest of 5th defendant was in continuous peaceful possession over the suit property as concurrently held by first court and appellate court. 9. In this appeal, I am not inclined to give any finding relating to right, title and interest of 5th defendant-respondent over the suit tank and ridge in question, no such issue having been framed. The main issue was whether the plaintiff had right, title and interest on the suit tank and ridge or not. In view of discussion made above and concurrent finding of first court and the appellant court, I find no reason to disagree, this issue stands decided against the plaintiff-appellant. 10. There being no merit, this appeal is dismissed. However, in the facts and circumstances, there shall be no order as to costs. Lakshman Uraon, J. 11. I agree.