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2003 DIGILAW 1316 (PAT)

Shree Niwas Pandey v. State Of Bihar

2003-12-19

ASHOK KUMAR VERMA

body2003
Judgment Ashok Kumar Verma, J. 1. The appellants have filed this appeal against the judgment and decree dated 20.9.1989 passed by the Sub-ordinate Judge I, Bhabhua in Title Appeal No.9 of 1983, whereby the learned Sub-ordinate Judge had dismissed the title appeal and confirmed the Judgment and decree passed in Title Suit No.58 of 1977/94 of 1979 by the Additional Munsif, Bhabhua. The learned Additional Munsif had dismissed the title suit of the plaintiffs who are appellants in this appeal. It has been prayed to set aside the judgment and decree of the courts below and to decree the suit in full. The plaintiffs had filed the suit for declaration of title and confirmation of possession over that suit land. 2. The substantial question of law in this second appeal is: Whether the court below isright in refusing the decree and dismissing the appeal in absence of any contest by the State Government and on the basis of the attitude of the defendant no.4, who supported the case of the-plaintiff? 3. In short, the case of the plaintiffs-appellants is that plot no. 523, Khata no.118 has been entered in Cadestral Survey Khatian as Gairmazurwa Malik. Plot No. 523 was a big plot in which there were some trees and bamboo clumps at the time of Cadestral survey. After a few years of the Cadestral survey the trees and bamboo clumps gradually mostly ended. About 40 years back the maalik settled 1 Acre 8 Decimals of land with Ram Lagan Pandey, ancestor of the plaintiffs. After the settlement, the ancestor of the plaintiffs made the land culturable and started growing crops. Now the plaintiff who are descendants of Ram Lagan Pande, grow crops on it and they are coming in possession over it. In the revisional survey the plot number of the suit land is 1620. The plaintiff were in possession of the land before vesting of the Zamindari and also at the time of vesting of the Zamindari. The plaintiffs have got title over the disputed land. Further according to the plaintiff in recent revisional survey wrong Khatian has been prepared in respect of new plots of C.S.PIot No.523 due to mislead by Cadestral survey. Due to annoyance with the plaintiffs the maalik filed the return of the land in his own name, which is false and mala fide. The plaintiffs have also acquired title by adverse possession. Due to annoyance with the plaintiffs the maalik filed the return of the land in his own name, which is false and mala fide. The plaintiffs have also acquired title by adverse possession. It has been mentioned in the judgment of the trial court that written statement has not been filed on behalf of the defendants but defendant no.1 State of Bihar has contested the suit without filing written statement. 4. It was argued by the learned lawyer for the appellants that no written statement had been filed by the State Government and no evidence had been adduced on behalf of the State in the trial court. 5. It was submitted by the learned lawyer appearing on behalf of the respondent-State of Bihar that a mere omission to file written statement does not amount to admission of the facts stated in the plaint. In support of his contention the learned State counsel relied on a decision of Patna High Court in the case of Sonabati Kumari vs. Kirtayanand Singh and others reported in A.I.R. 1935 Patna 306. It was also argued by the State counsel that written statement was not filed but the State had contested the case. 6. According to the judgment passed by the learned Munsif in Title suit no.58 of 1977/94 of 1979 defendant no.4 had not been examined in the case as witness. It has been held by the trial court that the Maalik had not settled the disputed land with the plaintiffs. It has been mentioned by the learned Munsif in the judgment of Title Suit No.58 of 1977/94 of 1979 that before vesting of the Zamindari and at the time of vesting of Zamindari and after its vesting, plaintiffs were not in possession of the disputed land. The trial court had rejected the claim of title of the plaintiffs over the disputed land. The trial court has also held that the plaintiffs are not entitled to any relief. 7. The lower appellate court has held that Ram Lagan Pandey had never title over the disputed land. The lower appellate court has mentioned in the judgment that the appellants have not produced any proof before the court on the basis of which it could be held that the recent Survey Khatian is wrong. The trial court has dismissed the suit of the plaintiffs. The lower appellate court has mentioned in the judgment that the appellants have not produced any proof before the court on the basis of which it could be held that the recent Survey Khatian is wrong. The trial court has dismissed the suit of the plaintiffs. The lower appellate court has dismissed the title appeal filed by the plaintiffs-appellants. 8. it has been held by the Supreme Court in the case of Kondiba Dagadu Kadam vs. Savitribai Sopan Gujar and others reported in (1999) 3 Supreme Court Cases 722 that concurrent findings of fact, however erroneous, cannot be disturbed under Section 100 of the Code of Civil Procedure. 9. In the facts and circumstances of the case, there is no merit in this second appeal. It is, accordingly, dismissed.