CAV JUDGMENT 1. The defendant has filed this Second Appeal against the Judgment and Decree of the lower appellate Court dated 05.08.1998 passed by the learned 9th Addl. District Judge, Bhojpur at Ara in title appeal No.28 of 1981 whereby the learned lower appellate Court set aside the Judgment and Decree of the trial Court dated 24.01.1981 passed by the learned Execution Munsif, Ara in title suit No.186 of 1976 / 117 of 1980. 2. The sole plaintiff, Kedar Singh, who died during the pendency of the Second Appeal had filed the title suit for declaration that he is raiyat of the suit land under the State of Bihar because of settlement made by Raj in favour of him and that the suit land never vested in the State of Bihar. Further, prayer was made for declaration of title of the plaintiff over the suit land and in the alternative for recovery of possession and mean profit. The plaintiff also prayed for permanent injunction restraining the defendant from disturbing and dispossessing the plaintiff. 3. The plaintiff claimed the aforesaid relief alleging that C.S. Khata No.106 was recovered in the name of Chalfox and others in the cadastral survey khatiyan. Dumrao Raj was proprietor and the landlord of the said khata. Dumrao Raj acquired lands of khata No.106 from recorded raiyat. The plaintiff took settlement of 29 biggha 4 katha out of khata No.106 of Bihiya Jungle in 1951. Dumrao Raj in token of settlement granted rent receipt dated 9.10.1951 and the settlement was made for agricultural purposes and the plaintiff came in possession of the land taken in settlement. The state of Bihar acquired some of the lands out of the lands settled in land acquisition proceeding for construction of Block Development Office. The plaintiff had received the compensation. Dumrao Raj submitted return showing the plaintiff to be raiyat of 29 biggha 4 katha. The plaintiffs’ name was entered in Register II. In the recent survey, the name of State of Bihar has been recorded after rejecting the objections of the plaintiff. 4. The defendants, i.e., State of Bihar filed contesting written statement. The settlement is denied by the State of Bihar. According to the State of Bihar, the land vested in the State of Bihar and there was a kachahari on the suit land. 5. 4. The defendants, i.e., State of Bihar filed contesting written statement. The settlement is denied by the State of Bihar. According to the State of Bihar, the land vested in the State of Bihar and there was a kachahari on the suit land. 5. The trial Court considering the materials available on record came to the conclusion that the land acquisition proceeding, ext.15, does not appear to be related with the suit property and that all the evidences produced by the plaintiff are of Dumrao Raj and that the settlement alleged by the plaintiff was just one month prior to the date of vesting and the counter foil has been produced by the plaintiff which is expected to be in possession of the ex. landlord, therefore, ultimately held that the land was not settled with the plaintiff. Plaintiffs suit was thus dismissed. 6. The plaintiff thereafter filed title appeal. The lower appellate Court relying on ext.15 and ext.2 allowed the appeal and set aside the Judgment of the trial Court. 7. At the time of admission on 23.07.2003, the following substantial question of law were formulated :- (1) Whether the finding of the learned appellate Court as regards the alleged settlement of the land measuring 29 Bighas 4 kathas, on the basis of the rent receipt dated 07.10.1951, without application of sanction and sanction papers of the Dumraon Raj and also without any kabuiliat and patta specially when the area of alleged settlement was 29 Bighas and 4 kathas is with material illegality? (2) Whether the learned appellate Court below erred in law in relying upon a rent receipt of the year 1957 when the Zamindari itself was on the verge of abolition? (3) Whether the learned Court below acted illegally in relying upon the evidence of P.W.5, Gobardhan Singh, who has admitted that the plaintiff-respondent executed a power of attorney in favour of P.W.5 who was an ex.-manager of the Dumraon Raj who was responsible for manipulating all the documents, rent receipt, return etc.? 8. The learned counsel appearing on behalf of the appellant submitted that while reversing the Judgment, the lower appellate Court gave much emphasis on ext.2 and ext.15 and without their being any Kabuliat and Patta and even the receipt in token of settlement held that the lands were settled with the plaintiff. 8. The learned counsel appearing on behalf of the appellant submitted that while reversing the Judgment, the lower appellate Court gave much emphasis on ext.2 and ext.15 and without their being any Kabuliat and Patta and even the receipt in token of settlement held that the lands were settled with the plaintiff. According to the learned counsel, the land acquisition proceeding, ext.15, do not relate to the suit property. The plaintiff himself pleaded that he took settlement for the purpose of agriculture but in the land acquisition proceeding wherein 12 acres and odd land was acquired (including the lands of others) the lands acquired are parti Jadid and the parti Kadim. Therefore, the lands acquired are not the agricultural land rather the lands were parti lands. The word ‘Parti Jadid’ and ‘Parti Kadim’ means that the acquired lands were not cultivated for last 3 years or more than 3 years. The plaintiff nowhere pleaded that what is the area acquired by the State in which plot and what is the area remained in possession of the plaintiff in each plot. Only general plots numbers have been given. If ext.15 is relied on then all the plots have been acquired by the State of Bihar then what remained in possession of the plaintiff. Although the plaintiff pleaded specifically that land was settled with the plaintiff and in token thereof, rent receipt was granted on 07.10.1951 but the plaintiff never filed the said rent receipt rather ext.2 was filed which is not in the name of the original plaintiff nor it relates to the suit property but the lower appellate Court also heavily relied upon this ext.2 without going to the contents of ext.2. 9. The learned counsel further submitted that ext.3 has been filed in support of the fact that rent receipts were granted by the Dumraon Raj but in fact these are not rent receipt rather those are the counterfoils. According to the learned counsel for the appellant, this counter foil is expected to be in possession of the landlord but the same has been produced by the plaintiff. In stead of producing the rent receipt granted by the landlord, the plaintiff has produced the counterfoil. According to the learned counsel for the appellant, this counter foil is expected to be in possession of the landlord but the same has been produced by the plaintiff. In stead of producing the rent receipt granted by the landlord, the plaintiff has produced the counterfoil. Considering these aspects of the matter, the trial Court had dismissed the plaintiff’s suit disbelieving the case of settlement but the lower appellate Court relying on these documents without meeting the reasonings of the trial Court has allowed the appeal. Whether any application was filed by plaintiff or not or the lands were settled suomoto by the landlord is not clear. 10. The learned counsel further submitted that P.W.5 was the Manager of Dumraon Raj. It is admitted fact that after taking settlement as alleged by the plaintiff, the plaintiff executed a power of attorney in favour of P.W.5 with respect to the entire suit property for looking after the same on the ground that it is not possible for him to look after the land. P.W.5 has produced the counterfoil and in fact he is the main person who is fighting the case in the name of the plaintiff by manipulating the documents. The alleged settlement was made just one month prior to vesting of the Jamindari. It is the specific case of the State of Bihar that there was a Kachahari on the suit land which was never denied by the plaintiff. The learned counsel further submitted that agricultural lease for year to year cannot be made by grant of rent receipt only. According to Section 106, 107 of the Transfer of Property Act, the documents required registration. In the present case, the plaintiff neither produced the registered document nor even the rent receipt granted in token of settlement. The plaintiff has not even filed the return in support of his case that the ex-landlord submitted return showing him as tenant under him nor he filed anything to show that he had applied for settlement. On these grounds, the learned counsel submitted that the appeal be allowed and the trial Court Judgment and Decree be restored after setting aside the appellate Court Judgment and Decree. 11. On the other hand, the learned counsel appearing on behalf of the respondent submitted that settlement of land for agriculture purpose can be made orally coupled with delivery of possession. 11. On the other hand, the learned counsel appearing on behalf of the respondent submitted that settlement of land for agriculture purpose can be made orally coupled with delivery of possession. In the present case, the plaintiff has produced the counterfoil to show that he was recognized as tenant by the ex-landlord. On vesting, return was submitted and on the basis of that return, Jamabandi was opened in the name of plaintiff and the State of Bihar has granted receipt ext.1. 12. In support of his contention that oral settlement can be made coupled with delivery of possession, the learned counsel relied upon Mostt. Ugani A.I.R. 1968 Patna page 302 Full Bench = 1968 P.L.J.R. 3 Full Bench and 1987 P.L.J.R. 1050 Yadunandan Yadav Vs. Ram Prasad Yadav. The learned counsel further submitted that ext.15 relates to the suit land, therefore, the State of Bihar cannot be allowed to blow hot and cold at the same time. If the suit property is not the land of the plaintiff, how the State of Bihar acquired the land and paid compensation to the plaintiff. Now, after acquiring the land in the present case, the defence has been taken by the State of Bihar to the effect that land vested with the State of Bihar. The learned counsel further submitted that in the land acquisition proceeding, all the plots of Khata No.106 has been mentioned in addition to the plots of other persons and in the plaint, the same plots have been mentioned by the plaintiff in the schedule. Out of settled land measuring 29 bigha 4 katha, 7 acre 82 decimal have been acquired by the State of Bihar and the remaining lands are in possession of the plaintiff. The plaintiff, to prove his possession has produced Register II which has been marked as ext.‘7’. The plaintiff has also produced the rent receipt granted by the State of Bihar, ext.1, which shows that the plaintiff paid the rent to the State of Bihar in 1963 for the period from 1951 to 1963. Now, therefore, the State of Bihar cannot deny that the plaintiff is not the raiyat of the suit land. Moreover the plaintiff was in possession for more than 12 years, therefore, he became occupancy raiyat but the State of Bihar rejected all the objections of the plaintiff and entered the name of State of Bihar. Now, therefore, the State of Bihar cannot deny that the plaintiff is not the raiyat of the suit land. Moreover the plaintiff was in possession for more than 12 years, therefore, he became occupancy raiyat but the State of Bihar rejected all the objections of the plaintiff and entered the name of State of Bihar. The learned counsel further submitted that the lower appellate Court after considering the materials recorded the finding that in fact settlement was made in favour of the plaintiff, therefore, it is a finding of fact which cannot be interfered with. According to the learned counsel, ext.2 was filed by the plaintiff in support of the fact that the lands were being settled by Dumraon Raj to different persons orally. The lower appellate Court on the basis of ext.2 only has not decreed the plaintiff’s suit rather the appellate Court has discussed all the evidences, therefore, the same cannot be interfered with in Second appellate jurisdiction. On these grounds, the learned counsel submitted that all the substantial questions of law formulated be answered against the appellant and the Second Appeal be dismissed. 13. From perusal of the Judgment of the lower appellate Court, it appears that the lower appellate Court has relied upon the case of the plaintiff regarding settlement only on the basis of ext.‘2’ and ‘15’ as would be evident from paragraph 11 of the Judgment The learned lower appellate Court observed that ext.‘2’ is the rent receipt in the name of Kedar Singh granted by the ex-landlord for the year 1952-53. It may be mentioned here that it is not the fact at all. Ext.‘2’ is the rent receipt in the name of different persons for different properties and neither it is in the name of the plaintiff nor it is with respect to the suit properties. Therefore, the reliance placed by the lower appellate Court on ext.‘2’ is wrong and based on inadmissible or not relevant document. The learned counsel for the appellant submitted that the lower appellate Court without going into the contents of ext.2 relied on the same. In view of the submission of the learned counsel, this Court personally examined ext.2 and found that it is in the name of Kunjan Dubey and it relates to different properties. The learned counsel for the appellant submitted that the lower appellate Court without going into the contents of ext.2 relied on the same. In view of the submission of the learned counsel, this Court personally examined ext.2 and found that it is in the name of Kunjan Dubey and it relates to different properties. So far ext.15 is concerned, it is the case of the plaintiff that he took settlement from the ex-landlord for agriculture purpose but in the proceeding of land acquisition case No.4 of 1956-57, 12 acre 32 decimal land was acquired including the lands of the plaintiffs. The nature of the land has been mentioned as parti Jadid, 2 acres and odd and Parti Kadim 9 acres and 98 decimal. Therefore, no agriculture land has been acquired. Although, the plot numbers of khata number 106 has been mentioned but what area of which plot or the entire plot has been acquired or not, it is no clear. It further appears that the rate was fixed for Rs.750/- per acre for parti Jadid and Rs.200/- for parti Kadim. What is the nature of the land of the plaintiff has not been clarified by the plaintiff either in the plaint or in the evidence as stated above. There is no clarification also that after acquisition in plot number mentioned in the land acquisition proceeding what is the area remained in possession of the plaintiff in each plot. It is necessary because near about 10 acre lands acquired are parti Kadim for which only Rs.200/- per acre was fixed by the State Government. If the plaintiffs lands settled are agricultural land then parti lands have been acquired by the State of Bihar which are not connected with the nature of land settled. In such circumstances, the learned lower appellate Court has observed that the State of Bihar cannot be allowed to blow hot and cold without considering all these aspects of the matter. The lower appellate Court while reversing the Judgment of the trial Court did not consider the finding of the trial Court to the effect that this ext.‘15’ do not relate to the suit property and without going through the contents of ext.‘15’ held that it relates to the suit property. The lower appellate Court while reversing the Judgment of the trial Court did not consider the finding of the trial Court to the effect that this ext.‘15’ do not relate to the suit property and without going through the contents of ext.‘15’ held that it relates to the suit property. At the time of argument, the learned counsel for the appellant submitted that State of Bihar has received the rent and has granted rent receipt, therefore, the appellant has been recognized by the State of Bihar. It may be mentioned here that ext.1 is the rent receipt. From perusal of the same, it appears that the rent has been paid in the year 1963 for the first time by the plaintiff from the year 1951 to the year 1963. If at all return was submitted by the ex-landlord then the plaintiff should have paid the rent just after vesting of the Jamindari. The plaintiff has not filed the return submitted by the ex. landlord. 14. From perusal of the ext.4, the power of attorney executed by the original plaintiff, Kedar Singh in favour of Gowardhan Singh, it appears that in the said power of attorney, the original plaintiff specifically mentioned that he resides at a considerable distance from the properties and his occupation in life is such that it is not possible for him to manage the property efficiently. If this is the fact then there is no reason as to why he obtained the settlement from the ex-landlord for agriculture purpose. The power of attorney holder, i.e., Gowardhan Singh who has been examined as P.W.5 of the plaintiff was the admitted Manager of the Raj prior to vesting. Although, it is the case of the plaintiff as has been deposed by him that prior to settlement, the Dumraon Raj sanctioned the settlement but no such sanctioned order was produced. There is no explanation as to why the plaintiff obtained the settlement for agriculture purpose, particularly when he was residing in a considerable distance and it was not easy to manage by him. It is not clear that for obtaining settlement plaintiff had filed application or not. There is no explanation as to why the plaintiff obtained the settlement for agriculture purpose, particularly when he was residing in a considerable distance and it was not easy to manage by him. It is not clear that for obtaining settlement plaintiff had filed application or not. From perusal of the Judgment of the trial Court, it appears that the trial Court recorded a finding that vesting took place on 6.11.1951, ext.14, and the settlement was made just one month prior to vesting and there is no explanation as to under what circumstances just one month prior to vesting, such a big area of land was settled with the plaintiff. The plaintiff although pleaded that in token of settlement, rent receipt was grated to the plaintiff on 9.10.1951 but the said receipt was never produced before the Court. Although it is submitted by the appellant that regularly subsequent thereafter, rent receipts were granted by the ex-landlord but instead of filing the rent receipt, ext.3 has been filed which are counterfoil and produced by the power of attorney holder, P.W.5, who was the Manager of Dumraon Raj who was in fact managing the affairs of the property. Neither any Patta nor any Kabuliat has been produced by the plaintiff in support of the alleged settlement. 15. The trial Court considering ext.15 held that some lands of the plaintiff might have been acquired out of the plots but on the basis of the said acquisition proceeding, it cannot be said that the whole plots were settled with the plaintiff in absence of any pleading or evidences. Only in general term, it is pleaded that 29 bigha and 4 katha lands was settled. The plaintiff did not produced any documentary evidence in support of this fact, i.e., neither Kabuliat nor Patta nor the rent receipt nor the return. Only it is pleaded in the plaint. So far the other documentary evidences are concerned, those are with respect to the Register II, ext.7, and then the other documents relates to the 103 of Bihar Tenancy proceeding. It is settled principle of law that entry in the revenue record of right neither creates title nor extinguishes title. The main question in the present case is that whether the property was settled by ex-landlord in the name of the plaintiff or not. It is settled principle of law that entry in the revenue record of right neither creates title nor extinguishes title. The main question in the present case is that whether the property was settled by ex-landlord in the name of the plaintiff or not. As stated above to substantiate this claim, the plaintiff has produced the aforesaid documentary evidences. Considering all these aspects of the matter, the trial Court held that the plaintiff failed to prove settlement. The lower appellate Court without considering the reasonings of the trial Court relied much on ext.2 which is not related to the property claimed by the plaintiff and ext.15 and set aside the Judgment of the trial court. The lower appellate Court also did not consider that there is no explanation as to why the settlement was made just one month prior to the vesting. There is no explanation as to why the plaintiff obtained settlement for agricultural purpose although he was residing at a considerable distance and was not able to manage the property. 16. The learned counsel for the respondent submitted that settlement can be made orally coupled with delivery of possession. In support of his contention, the learned counsel relied upon the case of Mostt. Ugani A.I.R. 1968 Patna page 302 Full Bench = 1968 P.L.J.R. 3 Full Bench which has been followed in the case of Yadunandan Yadav Vs. Ram Prasad Yadav 1987 P.L.J.R.1050. 17. In the case of Mostt. Ugni (Supra), the Full Bench of this Court has held that Bihar Tenancy Act does not say that a Raiyati interest can be created only on the execution of a lease by the landlord. Actual possession for the purpose of cultivation coupled with recognition of the tenancy by the landlord which may be by mere acceptance of rent on granting rent receipt, may confer Raiyati interest. If the landlord does not object to his possession and subsequently accept rent from him, his implied consent would be inferred and tenancy would be created. The learned counsel on the same ground relied upon 1970 P.L.J.R. 7 Division Bench of this Court Md. Ahsan Vs. State of Bihar and submitted that the ex-landlord can settled Gair Majrua Aam land. So far the above settled proposition of law is concerned, there is no dispute about it. The learned counsel on the same ground relied upon 1970 P.L.J.R. 7 Division Bench of this Court Md. Ahsan Vs. State of Bihar and submitted that the ex-landlord can settled Gair Majrua Aam land. So far the above settled proposition of law is concerned, there is no dispute about it. In view of the Full Bench decision, the ex-landlord has the power to settle the land even if it is Gair Majrua land but then the fact of settlement has to be proved. Here, it may be mentioned that the specific case of the plaintiff is that the settlement was made and a rent receipt to that effect was granted and possession was delivered. In such circumstances not only the settlement but also the possession of the land has to be proved by the plaintiff. At paragraph 10 in the case of Mostt. Ugni (Supra), the Full Bench has held that if the lease is not registered, it is inadmissible as evidence of title but it will always be open to the tenant concerned to show that he obtained Raiyati interest on the strength of actual possession and acceptance of rent by the landlord. As stated above in the present case, no rent receipts have been produced by the plaintiff in support of the fact that the ex-landlord granted rent receipts. Ext.3 is the counter foil of the receipt produced by the Manager who is power of attorney holder and not by the ex-landlord. There is no order of sanction and it is not the case that the ex-landlord granted the rent receipt through the Manager or that the Manager was granting rent receipt. There is no explanation as to why the rent receipts granted to the plaintiff have not been produced. 18. So far possession of the plaintiff is concerned, it may be mentioned here that this Second Appeal was heard along with 10 writ applications. The lands have been sold by different persons to the purchasers, therefore, the State of Bihar issued notice to them for removal of encroachment. If the plaintiff was in possession, there is no explanation as to how the said land was sold by different persons. However, the order in the aforesaid writ applications are separately passed today itself by me. The lands have been sold by different persons to the purchasers, therefore, the State of Bihar issued notice to them for removal of encroachment. If the plaintiff was in possession, there is no explanation as to how the said land was sold by different persons. However, the order in the aforesaid writ applications are separately passed today itself by me. This is mentioned here because the purchasers are claiming to be in possession of the land and it was submitted that the purchased property of the purchasers are not the suit land whereas the case of the State of Bihar and plaintiff is that the purchased property are the suit land because after revisional survey, the plot number has been changed therefore, there is discrepancy in the plot number and khata number because in the sale deed, the old khata No.106 has not been mentioned. As stated above, this is the disputed question, therefore, it is dealt with in the writ application and not in this Second Appeal. But it creates doubt about the possession of the plaintiff. 19. It may be mentioned here that the trial Court considering all the evidences documentary as well as oral recorded the finding that the plaintiff failed to prove the settlement and possession. The appellate Court without considering the fact that the plaintiff neither filed the rent receipt dated 7.10.1951 nor produced sanction application or order and sanction papers of Duraon Raj nor produced Kabuliat and Patta decreed the plaintiff’s suit relying on ext.2 and 15. The lower appellate Court also did not consider the fact that P.W.5 was the Manager of Dumraon Raj who settled the land just one month prior to vesting and then he remained in possession and obtained the power of attorney. All the documents have been produced by this P.W.5. There is nothing on record to show that he had the authority to settle such a huge area of land of the ex. landlord when the Jamindari was at the end of vesting as has been considered by the trial Court. 20. In view of the above discussion, the substantial questions of law formulated are answered in favour of the appellant and against the plaintiff-respondent. Accordingly, this Second Appeal is allowed. The Judgment and Decree of the lower appellate Court is hereby set aside and that of the trial Court is restored. No order as to cost.