Research › Search › Judgment

Patna High Court · body

2006 DIGILAW 501 (PAT)

Tulsi Kendu v. Prahalad Sukula

2006-06-20

SYED MD.MAHFOOZ ALAM

body2006
Judgment Syed Md.Mahfooz Alam, J. 1. This second appeal has been preferred against the judgment and decree dated 31.3.1989 passed by Sri Narendra Kumar Lal, 4th Additional District Judge, Gaya in Title Appeal No. 41 of 1987/31 of 1987 whereby he has been pleased to reverse the judgment and decree passed by Sri Jamilur Rahman, Subordinate Judge, Gaya on 10th April, 1987 in Title Suit No. 59 of 1985 and dismissed the suit of the plaintiff - appellant. 2. The case of the plaintiff - appellant is that the suit land described in Schedule A of the plaint appertaining to plot No. 116 of khata No. 79 measuring an area of 57 decimals situated in village Deodharpur Bahelia Bigha, Thana Tekari District Gaya stands recorded in the name of Balkishun Kandu, grand-father of the plaintiff and defendant No. 2 in the cadastral survey. The said Balkishun Kandu had three sons, namely, Bigan Kandu, Suraj Kandu and Ekadashi Kandu. The said Balkishun Kandu died after cadastral survey in the state of jointness with his abovementioned three sons and as such after his death all the three sons came in joint possession of the suit land. Further case is that Suraj Kandu and Ekadashi Kandu died issueless in the state of jointness with their brother Bigan Kandu and as such, Bigan Kandu came in exclusive possession over the suit land by way of right of survivorship. After the death of the said Bigan Kandu, the plaintiff and the defendant No. 2 being his sons, inherited the properties of their father and came in joint possession of the same including the lands of khata No. 79 of plot N. 116 (suit property). Both the brothers (plaintiff and defendant No. 2) sold portions of the land of plot No. 116 to different persons, namely, Srimati Rajkumari Devi wife of Krishnandan Prasad, Srimati Rajarani Devi wife of Paras Nath Singh, Srimati Sanju Devi wife of Ram Kishun Singh, Srimati Sharda Devi wife of Bishwanath Prasad Singh, Srimati Chanchla Devi wife of Mithilesh Singh, Srimati Shanti Devi wife of Laldeo Sharma and Srimati Uma Devi wife of Rajendra Singh and the purchasers are in possession over the portions of their purchased land. They have also constructed houses over the same. They have also constructed houses over the same. It is said that the entire suit plot i.e. plot No. 116 comprises an area of 1 acre 47 decimals and after sale of portions of the said plot, the plaintiff and defendant No. 2 are in possession of about 1 bigha and 6 kathas of land out of 1.47 acres of the total area of plot No. 116. Further case is that defendant No. 1 is a shrewd and cunning litigant. He is also a rich and influential person. He managed to bring into existence some false and illegal papers in respect of the suit land which are all collusive documents and cannot create title in favour of defendant No. 1. It is further said that on the strength of false and fabricated documents, the defendant No. 1 started laying false claim over the suit land in the month of November, 1984 which was resisted by the plaintiff and then on the petition filed by the plaintiff before the Sub-Divisional Officer, Gaya, a proceeding under Section 144 of the Code of Criminal Procedure was drawn up. In the said proceeding the defendant No. 1 alleged that the suit lands were auction purchased in a decree by the ex-landlord and later on, the land became Bakast land of the ex-landlord who settled the suit land with the ancestor of defendant No. 1. It is stated that the ex-landlord never obtained any decree either against the father or grand-father of the plaintiff and the ex-landlord never got the suit land auction sold in any execution case and it is false to say that the ex-landlord came in possession of the suit land and settled the land in favour of the ancestor of defendant No. 1. It is further stated that the proceeding under Sec. 144, Cr.P.C. was decided against the plaintiff but inspite of that, the plaintiff remained in possession of the suit land. Since the proceeding under Sec. 144, Cr.P.C. was decided against the plaintiff, hence the necessity of filing of this suit arose. 3. Defendant No. 1 (respondent in this appeal) appeared in the suit and contested the claim of the plaintiff by filing written statement. However, the defendant No. 2 did not appear. The case of defendant No. 1 is that the suit, as framed, is not maintainable. 3. Defendant No. 1 (respondent in this appeal) appeared in the suit and contested the claim of the plaintiff by filing written statement. However, the defendant No. 2 did not appear. The case of defendant No. 1 is that the suit, as framed, is not maintainable. The plaintiff has got no cause of action for the suit and the suit is under-valued and the court-fee paid is insufficient. The suit is barred by law of limitation and adverse possession as the defendant has been coming in peaceful cultivating possession of the suit property for several 12 years continuously and openly to the knowledge of all including the plaintiff and thus, he has acquired title over the suit properties. Further case of the defendant is that the suit land falls within Tekari Municipality and the municipal demand stands in the name of defendant No. 1 in Tekari Municipality and defendant No. 1 has been paying municipal taxes of the suit land for the last more than 50 years. It is further contended that the suit land was recorded in the name of grand-father of defendant No. 1 in the seristha of the ex-landlord, and after vesting of the estate in the year, 1953 the demand was also opened in the name of defendant No. 1 and since then defendant No. 1 has been paying rent of the suit land to the State of Bihar and obtaining rent receipts. Further case is that the suit land was auction sold by the ex-landlord soon after the cadastral survey and the land became Bakast land of the ex-landlord. It is further said that the ex-landlord. (Tekari Raj) settled the lands orally with the ancestor of defendant No. 1 and put him in possession. The ex-landlord realised rent and granted rent receipts to the ancestor of defendant No. 1 and the plaintiff has neither title nor possession over the suit land. It is further said that in the recent revisional survey, khata was opened in the name of defendant No. 1 with respect to the suit plot for which a Tanaza case being Tanaza Case No. 2 was filed but the Settlement Officer found title and possession of the defendant and passed orders for opening of khata in the name of defendant No. 1. The plaintiff at the instance of the enemies of defendant No. 1 filed a petition for cancellation of the demand of the defendant before the Anchal Adhikari but the Anchal Adhikari after holding local inspection and perusing the previous records found the plaintiffs claim untenable and held that the demand was correctly opened in the name of defendant No. 1. The Anchal Adhikari sent his recommendation and report to the L.R.D.C. Gaya, who after hearing the parties, upheld the finding of the Anchal Adhikari, The plaintiff also got a proceeding u/s. 144 Cr.P.C. initiated but the same was also decided against the plaintiff. Again the plaintiff got started a proceeding under sec. 144, Cr.P.C. but again he lost the aforesaid, case. A third proceeding u/s. 144, Cr.P.C. was also started but the same was dropped in favour of defendant No. 1 on 30.9.1986. It is further said that defendant No. 1 has constructed an open Boring and fitted the same, with electric pump on the disputed plot in the year, 1966. He had also taken loan from Magadh Gramin Bank for construction of Boring on the said plot. It is further said that the plaintiff himself has admitted possession of defendant No. 1 over the suit land vide Sanha Entry No. 492 dated 27.7.1984 lodged by the plaintiff. On the basis of above pleadings, the defendant No. 1 has prayed to dismiss the suit of the plaintiff. 4. From perusal of the record of the trial court, it appears that on the basis of the pleadings of both the parties, the trial court framed as many as five issues which are as follows: (1) Is the suit, as framed, maintainable? (2) Has the plaintiff got any cause of action for the suit? (3) Whether the plaintiff has right, title, interest and possession over the suit land? (4) Whether the suit land was auction purchased by the ex-landlord and the same was settled with the defendants ancestors and whether the suit is barred by adverse possession? (5) To what relief or reliefs, if any, is the plaintiff entitled to? 5. From perusal of the judgment of the trial court, it appears that the trial court has considered issue Nos. (5) To what relief or reliefs, if any, is the plaintiff entitled to? 5. From perusal of the judgment of the trial court, it appears that the trial court has considered issue Nos. 3 and 4 as the main issues in the suit and after making elaborate discussion on the issues it came to the conclusion that the plaintiff has got subsisting title over the suit land. The trial court further held that in view of the admitted position, it is clear that the ancestor of the plaintiff had title over the suit property and that title and possession continued. It further held that there is strong presumption of correctness, regarding the entry of survey record of right and the presumption has to be accepted unless it is rebutted by cogent evidence. The trial court further held that there is no material on the record to displace the presumption of correctness attached with Ext. 5 and in view of this admitted position, it is clear that the plaintiff has succeeded in proving his title over the suit property. The learned trial court has further held that the defendant has not been able to prove his possession over the suit land as alleged. He has based his claim on the basis of the settlement by the ex-landlord who made the land Bakast by taking in auction purchase but the defendant has miserably failed to prove this contention. He has futher held that the defendant himself at para 4 of his evidence has stated that the title of the plaintiff extinguished as soon as the land was put in auction but when this story of auction purchase has not been substantiated, the title of the plaintiff continued. Finally, the trial court at para 20 of the judgment has held that from the discussion noted above, he has come to the conclusion that the plaintiff has succeeded in proving his right, title and interest over the suit land but the defendant has failed to prove that the land was ever put on auction and was settled with the ancestor of defendant No. 1. Thus, from perusal of the judgment of the trial court it appears that the learned trial court in his judgment has made elaborate discussion on the respective claim of title of the parties over the suit land and after making discussion on the respective claim of the parties regarding title the trial court came to the conclusion that the plaintiff has succeeded in proving his right, title and interest over the suit property whereas the defendant has failed to prove that the land was ever put on auction and was settled with the ancestor of defendant No. 1. But the judgment of the first appellate court shows that, the first appellate court framed only one question regarding claim of adverse possession and did not frame any question regarding respective claim of the title to the suit property. According to the judgment of the first, appellate court, the only pertinent and vital question for determination in the appeal was - whether the defendant No. 1 had satisfactorily proved his case of adverse possession and his perfection of title through adverse possession or not? Accordingly he formulated this solitary question and decided the appeal and held that the defendant has been able to prove his case of adverse possession. 6. The submission of the learned Advocate of the appellant is that the learned first appellate court has committed grave error of law by not discussing all the issues framed and discussed by the trial court specially issue Nos. 3 and 4 regarding the right, title and interest of the plaintiff over the suit land and right, title and interest of the defendant over the suit land. He submitted that as per the plaint, the case of the plaintiff was that the suit property was recorded in the name of his grand-father in the cadastral survey and after the death of his grand-father, his father inherited the entire property and thereafter he inherited the property. The learned Advocate submitted that so far as genealogical table is concerned, there is no dispute that the plaintiff was not the grand-son of the recorded tenant. The learned Advocate of the appellant submitted that the trial court has also found that the plaintiffs ancestor was the recorded tenant of the suit land and the plaintiff inherited the suit property from his ancestor. The learned Advocate of the appellant submitted that the trial court has also found that the plaintiffs ancestor was the recorded tenant of the suit land and the plaintiff inherited the suit property from his ancestor. He further submitted that the trial court in his judgment has held that the defendant No. 1 has failed to prove that the suit land was auction purchased by the ex-landlord, who settled the same with defendants ancestor and, therefore, it was absolutely necessary for the first appellate court to make discussion on the respective claim of title over the suit land, and should have come to the conclusion as to whether the finding of the learned trial court that the plaintiff has succeeded in proving his right, title and interest over the suit land and the defendant, has failed to prove that the ex-landlord has got the suit land auction purchased and then settled the land to his ancestor is correct or not. The learned Advocate of the appellant submitted that since the first appellate court was the last, court of fact, as such the learned appellate court was bound to discuss all the issues involved in the suit but by making discussion only on the point of adverse possession the learned court has committed grave error of law. I am of the view that the argument of the learned Advocate of the appellant appears to be correct specially in view of the fact that the defendant No. 1 has specifically pleaded at para-8 of the written statement that the suit land was auction sold by the ex-landlord soon after the survey and was made Bakast land by the proprietor of Tekari Raj Estate and they settled this land orally with the ancestor, put him in possession and realised rent and granted rent receipts. This pleading of the defendant No. 1 makes out a specific case that the defendant No. 1 derived his title to the suit land by virtue of the oral settlement from the ex-landlord who got the suit land auction sold. According to the trial court, the defendant No. 1 has failed to prove this specific case regarding his title to the suit land. In such circumstance, it was essential for the first appellate court to formulate a point regarding the respective claim of the parties with regard to the title of the suit land. According to the trial court, the defendant No. 1 has failed to prove this specific case regarding his title to the suit land. In such circumstance, it was essential for the first appellate court to formulate a point regarding the respective claim of the parties with regard to the title of the suit land. It was also necessary in view of the fact that there is a settled law that no one can claim adverse possession against his own title and since the defendant has claimed at para 8 of the written statement that he had acquired title to the suit land by virtue of the oral settlement from the ex-landlord, the question - as to whether the plea, of adverse possession was available to him against his own tittle was a question of law as well as question of fact but unfortunately, the first appellate court has not considered this aspect of the matter in his judgment. In such view of the matter, I am of the view that it is a fit case for remand. 7. Accordingly, this appeal is allowed and the judgment and decree of the first appellate court are hereby set aside. The suit is remanded back to the first appellate court for giving its finding on all the issues framed by the trial court including the respective claim of the parties with regard to the title of the suit land.