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2014 DIGILAW 948 (PAT)

State of Bihar v. United Commercial Bank Ltd.

2014-09-04

MUNGESHWAR SAHOO

body2014
JUDGMENT 1. The defendant-State of Bihar has filed this First Appeal against the judgment and decree dated 24.09.1977 passed by the learned 1st Additional Subordinate Judge, Muzaffarpur in Title Suit No.63 of 1965. 2. The plaintiff, Chandeshwar Prasad Narain Singh, who was respondent no.1 in this appeal has died and his name has been deleted as his son is already on record as respondent no.3. The original plaintiff filed the aforesaid suit praying for setting aside the order dated 07.07.1964 passed by Execution Court in Misc. Case No.109 of 1961 and further for declaration that the suit properties belonged to the plaintiff. 3. The plaintiff claimed the aforesaid relief alleging that the suit properties are the self-acquired properties of the plaintiff and not the ancestral properties. Defendant no.2, Sushil Kumar Singh is his eldest son but he has no right over the property. The defendant no.1, Bank obtained a money decree from the Court of 5th Additional Sub Judge, Nagpur against Sushil Kumar Singh and others and filed Execution Case No.78 of 1959. The plaintiff has nothing to do with the said decree and execution case but the defendant no.1 got attachment issued against the property of the plaintiff. The plaintiff had been Indian Ambassador to Japan till 01.02.1960 and thereafter he is residing in Delhi. He had no knowledge about the attachment. The plaintiff came to know about the attachment on 22.11.1961 and inspected the record and came to know about the fraud committed by the defendant 1st party. The further case of the plaintiff is that the State of Bihar acquired a part of the suit properties to which the plaintiff agreed. At that time, the plaintiff and State of Bihar had no knowledge about the attachment so the plaintiff put the State of Bihar in possession of the property. Since the property belonged to the plaintiff, the same are not liable to be attached in Misc. Case No.109 of 1961 under Order XXI Rule 58. Defendant no.2 had neither any saleable interest in the property nor was in possession. 4. The defendant no.1, United Commercial Bank Limited, Nagpur through Branch Manager, Muzaffarpur filed contesting written statement alleging that in fact, the property is the joint family property and moreover, on the date of attachment, the property was in possession of defendant no.2, therefore, defendant no.2(defendant 2nd party) has got right, title and interest in the suit property. 4. The defendant no.1, United Commercial Bank Limited, Nagpur through Branch Manager, Muzaffarpur filed contesting written statement alleging that in fact, the property is the joint family property and moreover, on the date of attachment, the property was in possession of defendant no.2, therefore, defendant no.2(defendant 2nd party) has got right, title and interest in the suit property. The properties are ancestral properties of defendant 2nd party. Even if it is held that the property belonged to Babu Krishna Kishori Narain Singh and others of village Sursand, the same was acquired after a protracted and costly litigation, the expenses of which were met from the ancestral properties of the plaintiff and defendant 2nd party and the Sursand properties were also placed in the hotch-potch of joint family properties of the plaintiff and defendant 2nd party. The plaintiff had got the knowledge of the attachment earlier. The State of Bihar cannot derive any advantage of the alleged land acquisition. The papers have been fabricated and the plaintiff has filed the suit with malafide intention. The Miscellaneous Case was dismissed for default which was filed by the plaintiff. 5. The defendant no.2 i.e. son of the plaintiff neither appeared nor filed written statement nor contested the suit. 6. The State of Bihar-appellant filed application under Order I Rule 10 C.P.C. for being impleaded as party which was allowed. The State of Bihar in the written statement alleged that the suit properties are the self-acquired properties of the plaintiff including the house standing in survey plot no.21 which have been rightly and validly acquired by the State of Bihar under the Land Acquisition Act in the year 1961 which was within the knowledge of the plaintiff and defendant nos.1 and 2. Vacant possession has already been made over by the plaintiff to the State of Bihar. The land was acquired for construction of office of Joint Director, Agriculture, Tirhut Division, Muzaffarpur. On 10.08.1976, two sale proclamations were found attached to the wall of the office of Joint Director, Agriculture, Muzaffarpur and then State of Bihar came to know about this attachment order. After enquiry, defendant filed Miscellaneous Case wherein the Sub Judge held that the attachment order will not be confirmed till the disposal of Miscellaneous Case which is still pending for disposal. After enquiry, defendant filed Miscellaneous Case wherein the Sub Judge held that the attachment order will not be confirmed till the disposal of Miscellaneous Case which is still pending for disposal. The properties have been acquired lawfully, therefore, the decree obtained against defendant no.2 by defendant no.1 in the Court of Nagpur is not binding either on the plaintiff or on the State of Bihar who is successor in interest of the plaintiff as the properties have been acquired under the Land Acquisition Act. 7. The further defence is that the plaintiff happened to be the absolute owner and it was agreed that the compensation amounting to Rs.2,32,800 would be paid by the State of Bihar to the plaintiff who is owner. The agreement was entered into to avoid unnecessary prolonged litigation for compensation under Section 18 of the Land Acquisition Act. A registered power of attorney was executed by the plaintiff in favour of his son being Deed No.296 dated 25.09.1954 to act on behalf of the plaintiff and accordingly, agreement dated 27.03.1961 was executed and registered between Collector and defendant no.2, acting as power of attorney of plaintiff. Therefore, the compensation amount settled was paid to the defendant no.2. 8. On the basis of the aforesaid pleadings of the parties, the learned court below framed the following issues: I. Is the suit, as framed, maintainable? II. Has the plaintiff got valid cause of action or right to sue? III. Is the suit bad for defects of parties? IV. Whether the court fee paid is sufficient? V. Whether the attached property in Execution Case No.78 of 1959 are the separate properties of the plaintiff alone or also in possession of defendant no.2 on the date of attachment? VI. Whether the attachment of the suit properties was illegal and fraudulent as alleged by the plaintiff? VII. Whether the acquisition of the part of the land and house mentioned in appendix of the written statement of defendant no.3, by the State of Bihar under Land Acquisition Act, is legal and valid? VIII. Is the plaintiff entitled to declarations sought for? IX. To what relief or reliefs, if any, is the plaintiff entitled? 9. VII. Whether the acquisition of the part of the land and house mentioned in appendix of the written statement of defendant no.3, by the State of Bihar under Land Acquisition Act, is legal and valid? VIII. Is the plaintiff entitled to declarations sought for? IX. To what relief or reliefs, if any, is the plaintiff entitled? 9. After trial, the trial court recorded a finding that the plaintiff failed to prove that the property is the self-acquired property of the plaintiff and further recorded that the attachment is valid and legal, accordingly, dismissed the plaintiff’s suit. 10. The learned S.C.22, Mr. Kundan Bahadur Singh appearing on behalf of the appellant submitted that after acquisition of the property, the State of Bihar is the owner of the property. Therefore, although, the plaintiff’s suit has been dismissed, the finding recorded by the court below is affecting the right, title and interest of the State of Bihar and, therefore, the State of Bihar was compelled to file this First Appeal. The learned S.C.22 further submitted that the court below wrongly recorded the finding that the property belonged to defendant no.2 and this finding is based on surmises and conjectures. The court below wrongly discarded the registered sale deeds produced by the plaintiff in support of the fact that the properties have been purchased by the plaintiff. The son of the plaintiff i.e. defendant no.2 neither appeared nor contested the suit, therefore, impliedly he admitted the case of the plaintiff but the court below without properly appreciating the evidences in their right perspective held that property belonged to defendant no.2. It is further alleged that once it is held that the property belonged to the plaintiff then automatically, the attachment order will go because the decree was obtained by the Bank against the defendant no.2 and in that decree, neither the plaintiff is party nor the plaintiff’s property is mortgaged against the loan obtained by defendant no.2. So, there is no question for attachment of plaintiff’s property. 11. Nobody appeared on behalf of the respondent nos.1 and 2. 12. In view of the submission of the learned counsel for the appellant, the only point arises for consideration in this appeal is “as to whether the suit property is the self-acquired property of the plaintiff or is the property of defendant no.2 or that the property is joint family property?” 13. 12. In view of the submission of the learned counsel for the appellant, the only point arises for consideration in this appeal is “as to whether the suit property is the self-acquired property of the plaintiff or is the property of defendant no.2 or that the property is joint family property?” 13. In support of the claim of the plaintiff, the plaintiff has produced documentary evidences and also has examined oral evidences. P.W.2 and 3 both have clearly stated that the suit properties are the exclusive properties of plaintiff. The court below disbelieved the evidence of P.W.3 on the ground that this witness at paragraph 14 has stated that he had no idea about the document by which the property was purchased and when the constructions were made. Likewise, the evidence of P.W.2 has been disbelieved on the same ground, the reasons assigned by the court are untenable reasons. The plaintiff has produced Exhibit 5 series which are the registered sale deeds in the name of the plaintiff. The court below disbelieved/discarded and did not rely upon these registered sale deeds on the ground that there is fluctuation in the area mentioned in the sale deed and in the area mentioned in the schedule of the plaint. In my opinion, on this ground, the registered sale deeds could not have been discarded. Exhibit 1 has been produced by the plaintiff to show the purcha wherein the name of the plaintiff has been recorded but the court below erroneously did not rely on this, on the ground that the plaintiff should have produced the khatiyan instead of raiyati purcha. 14. The plaintiff in support of his case that Will was executed in his favour and he has obtained Probate with regard to some suit property has produced Exhibit 4, the original Will and the Probate, Exhibit 3 but the court below observed that these documents will not help the plaintiff in the present suit. No reason has been assigned as to how and why it will not help the plaintiff. The further reason has been assigned that these documents only show that the plaintiff is “duttak putra” i.e. adopted son without considering that Probate has been obtained by the plaintiff. No reason has been assigned as to how and why it will not help the plaintiff. The further reason has been assigned that these documents only show that the plaintiff is “duttak putra” i.e. adopted son without considering that Probate has been obtained by the plaintiff. Exhibit 6, a deed of release in favour of the plaintiff executed by Visheshwar Prasad with respect to the property purchased by plaintiff by sale deed No.8053 has also been not relied upon. These are the documentary evidences and oral evidences produced by the plaintiff in support of the case that the suit properties are the self-acquired properties. The court below wrongly discarded all these evidences on untenable reasons. 15. On the contrary, the defendant, Bank has examined D.W.1 to 4. D.W.1 has stated that he got the matter investigated and the Advocate who investigated the matter told him that defendant no.2 is the owner of the property who is in possession. D.W.2 is the „karpardaz? of defendant no.1 and the defendant no.3 is the retired clerk of the Bank. He has stated that he has found possession of the defendant no.2. These are the evidences produced by the State Bank of India. The State of Bihar produced Exhibit B which is the agreement entered into between Collector, Muzaffarpur and the defendant no.2 to show that defendant no.2 entered into agreement with the Collector on behalf of plaintiff on the basis of power of attorney. In the agreement itself, it is mentioned that defendant no.2 has entered into agreement on behalf of the plaintiff but the court below did not rely on this, on the ground that the power of attorney has not been produced. In my opinion, this approach of the court below is not acceptable. Exhibit C has been produced to show that possession was delivered by the plaintiff to the State of Bihar, defendant no.3. Exhibit E has been produced by the State of Bihar to show that compensation was received by defendant no.2. It may be mentioned here that the case of the plaintiff is that he was embassy to Japan and after 1960, he was residing in Delhi. Therefore, he executed power of attorney in favour of his eldest son, defendant no.2. This is mentioned in the agreement itself. It may be mentioned here that the case of the plaintiff is that he was embassy to Japan and after 1960, he was residing in Delhi. Therefore, he executed power of attorney in favour of his eldest son, defendant no.2. This is mentioned in the agreement itself. Defendant no.2 was appointed as power of attorney to look after land acquisition case and received the compensation, therefore, the defendant no.2 has received the compensation. The question is only because he has received the compensation, can it be said that he is the owner of the property. The court below further considering Exhibit J held that defendant no.2 is the owner. This Exhibit J is khatiyan prepared in land acquisition case by State of Bihar. It is settled principles of law that revenue records neither create tile nor extinguish title and on the basis of Exhibit J, no conclusive finding can be recorded that the suit property is the joint family property or that the defendant no.2 is the exclusive owner of the property in face of the overwhelming documentary evidences including the title deeds produced by the plaintiff. 16. In view of the above discussion, I find that the court below wrongly approached the case and has not appreciated the evidences in their right perspective. The defendant no.2 has not produced any document or adduced any evidence to show that it is his property. Likewise, the defendant no.1 also did not produce any reliable evidence on the basis of which it can be recorded finding that defendantno.2 is the owner of suit property. The nature of evidence adduced by defendant no.1 is that a lawyer investigated the matter and informed that defendant no.2 is owner and is in possession. It may be mentioned here that Advocate has not been examined. In view of the above, I find that the plaintiff has been able to prove that he was the owner of the property which was his self-acquired property. The finding of the trial court on this question is, therefore, reversed. Since the properties belonged to the plaintiff, it could not have been attached by the defendant no.1 in the execution case which was obtained against defendant no.2. 17. The finding of the trial court on this question is, therefore, reversed. Since the properties belonged to the plaintiff, it could not have been attached by the defendant no.1 in the execution case which was obtained against defendant no.2. 17. In the result, the part of the judgment and decree whereby it was held that the property was not the self-acquired property of the plaintiff is hereby set aside and it is held that the property belonged to the plaintiff and the State of Bihar has acquired the same according to law. Accordingly, this First Appeal is allowed and the judgment and decree of the court below is modified to that extent. No order as to costs.