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2011 DIGILAW 899 (JHR)

Sudarshan Nayak v. State of Bihar

2011-09-19

N.N.TIWARI

body2011
JUDGMENT This second appeal is against the judgment and decree dated 12.2.2009 passed by learned Additional District Judge, FTC-II, Saraikella in Title Appeal No.10 of 1993. 2. The appellants had filed Title Suit in the court of Munsif, Saraikella being Title Suit No.17 of 1990 praying for declaration of their title and for confirmation of possession in respect of the land of R.S. Khata No.50, Plot No.268, area 7 Acres, corresponding to C.S. Plot No.255/A, area 14 Bigha towards northern side of Mouza Repcha, Thana No.27, P.S. Gamharia, District Singhbhum East. 3. The case of the plaintiff was that the said land originally belonged to erstwhile Seraikella Estate before its merger into the dominion of India on 16th August, 1957. During the regime of Rulars there were various agencies to look after and control the revenue affairs of the villages such as Thikedar, Dakua and Village Pradhan. Thikedar of village was vested with power to settle waste land to the villagers and collect rent. The village Thikedar of Repcha settled northern side of C.S. Plot No.255 to the plaintiff. After settlement, the plaintiff converted the settled land in the cultivable land after incurring huge expenses. Such settlements were also made in favour of several other persons who also cleared forests and made the land cultivable. The land was also used for residential purposes. The plaintiff has been coming in possession of the land after the settlement for more than 49 years openly and adversely to all concerned. He acquired indefeasible raiyati right over the same. Contrary to the plaintiff's right the said land was wrongly recorded in the name of Forest Department, Government of Bihar “Van Vibhag Bihar Sarkar” in the last survey settlement Operation of 1958-61. A new Khata No.50 was carved out of the land. The plaintiff, for the first time, came to know about the said wrong entry after 7.11.1989 when the Staff of the defendant No.1 threatened the plaintiff to implicate in criminal cases if he fails to vacate the suit land. That gave rise to the cause of action for the suit. Notice, as required under Section 80 of the Code of Civil Procedure, was thereafter served on the defendant and after expiry of the statutory period the suit was filed. 4. The defendant-Divisional Forest Officer, North Division, Chaibasa contested the suit by filing written statement. That gave rise to the cause of action for the suit. Notice, as required under Section 80 of the Code of Civil Procedure, was thereafter served on the defendant and after expiry of the statutory period the suit was filed. 4. The defendant-Divisional Forest Officer, North Division, Chaibasa contested the suit by filing written statement. The defendant challenged the maintainability of the suit on various grounds including limitation, waiver, acquisence, estoppel and vagueness in the description of the suit land. The defendant admitted that the suit land was once held and possessed by the Ruler of Seraikella Estate and that Ruler had power to settle the land and the Thikedars were not empowered to settle any land. In the C.S. Record of Right suit land was recorded in C.S. Plot No.255 of village Repcha as jungle land. The Raja had absolute authority to settle waste land and forest land by an order or by issuing “Angya Patra”. No settlement was made in favour of the plaintiff by the Ruler of the Estate, neither the Ruler had recognised the plaintiff as raiyat. The Seraikella Estate was annexed with the dominion of India and control thereof was taken over by the Government of Bihar. By notification dated 14th October, 1954 the Government of Bihar brought the forest land of village Repcha under 'protected forest' under Section 29 of the Indian Forest Act, 1927 and the administration and control of the said forest land came under the Forest Department. During the survey and settlement of 1958-61 the said jungle land in C.S. Plot No.255 was recorded as new Plot No.268 under Khata No.50 of village Repcha in the name of “Van Vibhag Bihar Sarkar”. The plaintiff never raised any objection at any stage of the survey operation. The plaintiff also never challenged the notification of Forest Department declaring the jungle land of village Repcha as protected forest. The forest lands are marked by planting pillars. Suit Plot No.268 is within the boundary of the forest pillars. The plaintiff was not in possession of the land at any point of time and he has not acquired any right, title over the suit land. The story of alleged settlement by the Thikedar is wholly false and concocted. The plaintiff has been trying to grab the forest land. The suit filed by the plaintiff is frivolous and is liable to be dismissed. 5. The story of alleged settlement by the Thikedar is wholly false and concocted. The plaintiff has been trying to grab the forest land. The suit filed by the plaintiff is frivolous and is liable to be dismissed. 5. Learned trial court, on the basis of the said pleadings of the parties, framed several issues. 6. The parties adduced their evidences. By judgment and decree dated 23rd January, 1993 learned trial court decreed the plaintiff's suit. 7. Learned trial court held that though it is an admitted fact that the land has been recorded as forest land in the name of “Van Vibhag Bihar Sarkar”, the plaintiff has claimed his title on the basis of settlement of the Thikedar of the village. On the other hand, the defendants have not been able to bring any document to show that the Thikedars were not entitled to settle the land. The plaintiff has brought rent receipts (Exbt.1 to 1/c) which are old documents and there is nothing on record to doubt its genuineness. The plaintiff witnesses have supported the plaintiff's claim of possession. The defendants' claim that the land is a reserved forest or protected forest cannot be accepted in view of the fact that the notification came in the year 1950, whereas according to the plaintiff's claim that settlement made in his favour 50 years back which comes to 1942. In view thereof the plaintiff has been able to establish valid right, title over the suit land and the same was wrongly recorded in the name of “Van Vibhag Bihar Sarkar”. 8. Aggrieved by the said judgment and decree of learned trial court, the defendant-Divisional Forest Officer preferred appeal in the court of the District Judge, Seraikella-Kharsawan being Title Appeal No.10/1993. 9. The said appeal was transferred to the court of the Additional District Judge, FTC-II, Seraikella who finally heard and disposed of the same by the impugned judgment and decree dated 12.2.2009. 10. Learned lower appellate court heard the parties and considered the facts, evidences and materials on record in detail. 11. Learned lower appellate court held, inter alia, that the Record of Rrights prepared and published under Section 84 of the Chota Nagpur Tenancy Act has presumption of correctness and burden was on the plaintiff to rebut the presumption and prove the entries as wrong and incorrect. But the plaintiff failed to rebut the presumption by adducing any cogent evidence. 11. Learned lower appellate court held, inter alia, that the Record of Rrights prepared and published under Section 84 of the Chota Nagpur Tenancy Act has presumption of correctness and burden was on the plaintiff to rebut the presumption and prove the entries as wrong and incorrect. But the plaintiff failed to rebut the presumption by adducing any cogent evidence. On the other hand, the defendants have established that the suit land has been recorded in the name of “Van Vibhag Bihar Sarkar” after observing all legal formalities by the Survey and Settlement Authorities. Learned trial court, contrary to the established principles of law, erroneously discarded the weighty documentary evidences of the defendants and relied on the rent receipts issued by the Thikedar. The said rent receipts (Exbt.1 to 1/c) are not genuine, reliable and believable documents. The description of land given in the said document is vague. There is no evidence to even locate or identify the said land. No attempt was made by the plaintiff even in the suit to prove its identity of the land by appointing survey knowing Commissioner. In absence of proper description and identity of the property, relief cannot be granted to the parties. The plaintiff claimed possession for more than statutory period of limitation but failed to prove the specific date of coming into possession of the land and that the possession was uninterrupted and hostile to the defendants. Learned lower appellate court, having considered all the aspects, facts and evidences on record, came to the finding that the plaintiff could not prove his right, title or interest in support of the suit land and that the findings of learned Munsif was not supported by any legal evidence and the same is liable to be set aside. Learned lower appellate court, thus, set aside the judgment and decree of learned Munsif passed in Title Suit No.17 of 1990 and allowed the appeal. 12. In this second appeal, the judgment and decree of learned lower appellate court has been assailed on the ground that learned lower appellate court has not met the reasons recorded by learned trial court and in as much as the plaintiff had proved his continuous possession coupled with the old rent receipts granted by the Thikedar of Ex-Ruler of Seraikella Estate. The said evidence goes to establish the plaintiff's title, which cannot be taken away by the wrong entry in survey and settlement record. 13. I have heard learned counsel for the appellant and perused the judgment and decree of learned courts below. 14. I find that the plaintiff brought the suit challenging the entry in the finally published survey record of right which has presumption of correctness under Section 84 of the Chota Nagpur Tenency Act. The said entry has been made in the year 1961. The plaintiff has failed to bring on record any chit of paper to rebut the said entry. The rent receipts (Exbt.1 series) are said to be issued by the Thikedar who had no authority to settle land and issue rent receipts. Even if the said rent receipts are taken into consideration, the same cannot be said to be the document of title. Even in the said alleged rent receipts there is no definite description of land. The plaintiff has not been able to bring any impeachable document to show his continuous possession over the land. Learned trial court has based his finding only on the basis of the claim of the settlement without any legal evidence. Learned lower appellate court has thoroughly considered the oral and documentary evidence and has rightly come to the finding that the plaintiff failed to establish any right, title and interest in the suit land and also that the entry made in the finally published record of right is incorrect and has rightly allowed the appeal and dismissed the plaintiff's suit. 15. The judgment and decree of learned lower appellate court is based on due appreciation of facts and evidences on record and his finding of facts is binding on this Court. 16. I find no infirmity or illegality in the impugned judgment/decree giving rise to any substantial question of law in this second appeal. This appeal is, accordingly, dismissed.