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2013 DIGILAW 123 (PAT)

Rameshwar Singh v. State of Bihar

2013-01-28

CHAKRADHARI SHARAN SINGH

body2013
ORAL ORDER Heard learned counsel for the Appellant and learned counsel appearing for the Respondents. 2. The present Second Appeal under Section 100 of the Code of Civil Procedure (hereinafter referred to as the “Code”) has been filed against the judgment and decree dated 29.09.2011 passed by learned Additional District Judge, F.T.C. II, Gaya in Title Appeal No. 14/2010/59/2008 whereby he has confirmed the judgment and decree passed by learned Execution Munsif, Gaya in Title Suit No. 74/1994/170/1991 and has dismissed the Appeal. 3. Plaintiff is the Appellant before this Court. Suit land is part of C.S. plot No. 344 under Khata No. 144 as detailed in Schedule “A” of the plaint. 4. The plaintiff-appellant filed the title suit for declaration of his title and confirmation of possession over Schedule “A” land and alternatively prayed for recovery of possession, if he was found dispossessed. The case of the plaintiff before the Court below was that his grandfather Babu Kali Charan Singh had acquired land measuring an area of 67 decimals detailed in Schedule of the plaint through oral settlement whereafter he was given delivery of possession on nakdi rental and 15 decimals belagan khidmati jagir for which a sada hukumnama by way of memorandum dated 30th Jeth 1351 Fashli was granted in village Surajpura Revenue Thana Mufassil, Thana No. 325, District Gaya. 5. The plea was that out of the said land the plaintiff transferred some land to other persons also on the basis of which such transferees are in possession. According to the plaintiff, the Ex-landlord had issued rent receipt to the said Kali Charan Singh in token of payment of rent and after his demise the plaintiff”s father late Babu Bulu Singh paid the rent. He claimed that the was an occupancy raiyat of the State after vesting of Zamindari and further that his grandfather converted the barren land into agriculturable land and since the date of settlement the grand-father and father of the plaintiff and thereafter the plaintiff himself had been coming into peaceful possession over the suit land without any obstruction. 6. Plaintiff”s further plea before the Courts below was that during revisional survey a wrong entry was made by local Amin showing the suit land in Khata of “Anabad Sarwsadharn” though the land was being cultivated by the plaintiff. 6. Plaintiff”s further plea before the Courts below was that during revisional survey a wrong entry was made by local Amin showing the suit land in Khata of “Anabad Sarwsadharn” though the land was being cultivated by the plaintiff. Further case of the plaintiff is that on 29.03.1991, when Halka Karamchari refused to accept the rent on the basis that land was recorded as Sarwsadharan, cause of action arose for the plaintiff to file the suit for declaration of his title and also for confirmation of his possession. 7. The State of Bihar was impleaded as defendant and as is the usual practice, no written statement was filed on behalf of the State of Bihar or its officials. The Trial Court, however, on the basis of the evidence adduced by the plaintiff came to finding that the plaintiff could not prove his title over the suit land for the reasons detailed in the judgment. The learned Trial Court took into account the fact that there was a presumption of correctness regarding entries made in Khatiyan unless it was duly rebutted and that in C.S. record of rights, Khata No. 144 was recorded as “Gairmazura Aam” and subsequently in the revisional survey operation the said Khata was recorded as “Anabad Sarwsadharan” referring to Exhibit 7/A, the certified copy of the revisional survey Khatiyan. He considered this aspect that the plaintiff”s father had full knowledge of the fact that revisional survey operation was going on and that he could have challenged the entries in the revisional survey if he would have had any bona fide claim of title within a reasonable period from the date of completion of survey in 1981. However, the suit was filed more than a decade thereafter. 8. Learned Appellate Court also on the basis of the materials available on record and after reappraising the evidence held that the plaintiff-appellant failed to prove his case of title and possession over the disputed land and thus affirmed the findings of the Trial Court. 9. Learned counsel for the appellant has submitted that the Courts below have either not taken into consideration the material available on record or they have misconstrued them and thus they have reached to erroneous finding that the plaintiff could not prove his claim of title and possession over the suit land. According to him the appeal involves following substantial questions of law:- “1. According to him the appeal involves following substantial questions of law:- “1. Whether the statement of oral witnesses and the rent receipts granted by the Ex-Zamindar (Ext. 1 and 1/a) and Government rent receipt (Ext.2) in favour of the plaintiff can be treated to be evidence? 2. Whether non-consideration of the evidence of possession of the plaintiff over the suit land vitiates the findings of the trial court as well as appellate court that the plaintiff failed to prove his title and possession over the disputed land by cogent evidence and requires interference by this Court?” 10. On the perusal of the Judgments of the Courts below I find that the Exhibits “1” and “1/a” have been considered by learned by learned Trial Court as well as learned First Appellate Court. The oral evidence have also been considered and on the basis of appreciation and re-appreciation of oral and documentary evidence the Courts below concurrently reached to the finding that the Appellant-Plaintiff could not prove his title and possession over the suit. There is no plea that such finding is based on misconstruction of a particular documentary evidence or contrary to evidence available on record. 11. Further, I am of the view, the above do not constitute such questions of law or substantial questions of law which require consideration in an appeal under Section 100 of the Code of Civil Procedure. It is settled law that the High Court in exercise of power under Section 100 of the Code will interfere only if the appeal involves such substantial questions of law which have been wrongly answered or dealt with by the Courts below or have failed to consider or answer such questions of law and such wrong consideration or non-consideration has materially affected the result of the case or where findings are perverse. 12. There being concurrent findings of facts of the Courts below and there is no perversity in the judgments, the appeal does not merit admission and is, accordingly, dismissed.