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2019 DIGILAW 1197 (PAT)

Rajiya Devi @ Raj Kumari v. Rajballabh Prasad

2019-08-27

SANJAY PRIYA

body2019
ORDER : I. A. No.01 of 2019: 1. This Interlocutory Application has been filed on behalf of appellants for restraining the respondents from forcefully interfering with peaceful possession of the appellants and changing physical feature of the suit property. 2. Heard counsel for the appellants as well as counsel for respondent Nos.1, 5, 6, 7, 8, 14 and 15. 3. Counsel for the appellants have prayed for restraining the respondents from forcefully interfering with peaceful possession of the appellants and changing physical feature of the suit property. 4. Counsel for the respondent No.5 has submitted that at this stage the Court is only required to see whether appellants have prima facie case for grant of status quo or restraining the defendants from forcefully interfering with peaceful possession of the appellants as claimed by the appellants. 5. During course of argument, main ground taken by the counsel for the appellants to show their possession over the suit property is the order dated 17.07.1989 passed by the Executive Magistrate, Nawada, in Case No.241 (M) of 1988 (Annexure-2) in a proceeding under Section 145 Cr.P.C. 6. Counsel for the appellants has submitted that appellants are coming in possession over the aforesaid property. During hearing of the suit in the Court below no any evidence was brought by the plaintiffs-respondents to show that they are in possession over the suit land. 7. In reply to aforesaid submission, counsel for the respondents have pointed out Annexure- A and B to the rejoinder which was also filed before the trial Court as Ext.-8/1 and Ext.6/1 respectively. 8. Counsel for the respondents submits that Ext. A and B show that vendors of respondents were in possession over the suit property. He further submits that after passing of the judgment and decree in civil suit (impugned judgment), the order passed in a proceeding under Section 145 Cr.P.C. will have no relevance. 9. The case of plaintiffs-respondents is that land appertaining to Khata No.608, Plot No.3139 as detailed in Schedule-A of the plaint originally owned by one Rai Badshah Bahadur, who died a per-matured death on 05.10.1923 leaving behind his widow Darshan Kunwar and minor son Rai Shyam Bahadur. 9. The case of plaintiffs-respondents is that land appertaining to Khata No.608, Plot No.3139 as detailed in Schedule-A of the plaint originally owned by one Rai Badshah Bahadur, who died a per-matured death on 05.10.1923 leaving behind his widow Darshan Kunwar and minor son Rai Shyam Bahadur. The said property during the period of 1334 to 1344 Fasli i.e. the year 1927-1937 was under mortgage, by virtue of a usufructory mortgage made in favour of Shyam Sundar Kunwar and he was put in possession by virtue of the said registered deed of mortgage dated 21.01.1927. 10. Shyam Sundar Kunwar died leaving behind Raj Kishore Narayan Prasad Singh, who inherited and came in possession as landlord of the said village. The said Raj Kishore Narayan Prasad Singh settled the suit land besides other land to one Mishri Prasad Singh followed by a Hukumnama on 25th Jeith 1347 Fasli and put him in possession thereof. The said settlement was duly recognized and acknowledged by the then landlord and by recognizing the said Mishri Prasad Singh as raiyat of the said land he received rent and issued rent receipt in favour of the said raiyat Mishri Prasad Singh. Accordingly, the said raiyat Mishri Prasad Singh continued to make payment of rent as a raiyat of the land settled to the then landlord and continued to get receipt of payment of rent issued by the landlord in recognition of his tenancy right. After vesting of the said zamindari the said raiyat Mishri Prasad Singh was also recognized as raiyat by the State of Bihar and Jamabandi was opened in his name vide Jamabandi No.13. The name of said Mishri Prasad Singh was also entered into Register-II pursuant to the said Jamabandi. 11. Due to non-payment of arrears of rent a certificate proceeding being Certificate Case No.49/N of 1962-63 was also initiated by the State of Bihar against the said raiyat Mishri Prasad Singh, which fact along with aforesaid facts undisputedly proves that the said Mishri Prasad Singh was always duly recognized as the raiyat/tenant of the aforesaid land, which the said Mishri Prasad Singh held with absolute right, title and interest and peacefully possessed the same. 12. 12. Under the Bihar Tenancy Act, in case of wrongful dispossession of any landlord or any person there was a statutory period of limitation prescribed of two years to bring a suit vide Article 3 of Part I of Schedule III of the Bihar Tenancy Act, but against Msihri Prasad Singh neither the then landlord nor anybody else ever brought any suit in any Court of law. Not only that but even after vesting of zamindari in the State of Bihar, when Jamabandi was duly created in favour of Mishri Prasad Singh and his name was duly entered in Register-II nobody ever challenged the same, and therefore, even after 1956, the statutory period of limitation for making any claim or bringing any suit expired long long back, which leaves no scope at all for anybody whosoever he/she may be to make any claim of title against the said Mishri Prasad Singh or his transferee. 13. A Land Encroachment Case No.04/N/75-76 was initiated in connection with the said land appertaining CS Khata No.608, CS Plot No.3139, Area 66 Dec. of Mauza Kamalpur Gonawan Barawan against the said Mishri Prasad Singh and without giving opportunity of hearing concluded the said land encroachment proceeding with the demolition of outer house standing over the aforesaid land situated in one corner of the land which was being used by said Mishri Prasad Singh to look after the cultivation and storage of agriculture produce on the said land. 14. The State of Bihar also proposed to construct a Harizan Hostel on the land in question and for that purpose District Welfare Officer had initiated a proceeding vide Case No.06/78-79. On the protest of the answering respondent a report with regard to status/nature of the land was called for from the Anchal Adhikari, Nawada. Thereafter, during the pendency of the said proceeding, GI pipes were stored on that land by the Executive Engineer, PHED, Nawada, without the permission of the settlee or his family members. The answering respondent had filed a protest/objection before the authorities. After that proposal for construction of approach road was forwarded to the Collector, Nawada, by the District Industries Centre, Nawada. In the said situation, the wife of Mishri Prasad Singh, namely, Bahoran Devi had to file writ applications to protect her rights to property. The answering respondent had filed a protest/objection before the authorities. After that proposal for construction of approach road was forwarded to the Collector, Nawada, by the District Industries Centre, Nawada. In the said situation, the wife of Mishri Prasad Singh, namely, Bahoran Devi had to file writ applications to protect her rights to property. She further filed a writ petition in sequel to the earlier writ petitions against the arbitrary action of the authorities of the State interfering with the right, title and possession of the raiyat of the said land, Mishri Prasad Singh, before the High Court vide CWJC No.4455 of 1981 and CWJC No.3355 of 1984. 15. CWJC No.4455 of 1981 was filed to challenge the order dated 13.11.1981, passed by the learned Sub Divisional Officer, Nawada, in Case No.06/78-79 by which the learned Sub Divisional Officer held that land, in question, is the government land concurring with the findings of the Deputy Collector, Land Reforms. The Hon’ble Court vide order dated 13.01.1982 directed the Collector to hear the writ petitioner, Bahoran Devi, and to keep the construction of proposed Harizan Hostel in abeyance. 16. Learned Collector in compliance of the order of the Hon’ble Court passed in CWJC No.4455 of 1981 heard Bahoran Devi, wife of Mishri Prasad Singh and vide order dated 13.12.1983 held that the raiyat has failed to establish possession over the land in question. Against the order dated 13.12.1983 passed by the Collector, Bahoran Devi, wife of said Mishri Prasad Singh, had filed CWJC No.3355 of 1984 against the said order of the Collector before the Hon’ble Court. The Hon’ble Court quashed the order dated 13.12.1983 passed by the Collector and observed that State has remedy either to proceed to acquire the land in question under Land Acquisition Act or Public Land Encroachment Act or under Section 4(h) of the Land Reforms Act. Aforesaid order of the Hon’ble Court is substantive evidence that the said Mishri Prasad Singh held a subsisting title and possession over the land in question and the State can take over the said land only after acquisition of the said land by initiating a land acquisition proceeding or may proceed under Section 4-H of Bihar Land Reforms Act. As such, title and possession on the land, in question, of the plaintiffs respondents was recognized by the Hon’ble Court. 17. As such, title and possession on the land, in question, of the plaintiffs respondents was recognized by the Hon’ble Court. 17. Sons of Mishri Prasad Singh, namely, Rabinder Prasad Singh and Yogendra Prasad Singh inherited the said property and they in due course sold the same to the plaintiffs respondents including this respondent through several deeds of sale in the year 1998 and 2006 and they came and continued in possession of the land as owner thereof and they are still continuing as such. 18. The appellants-defendants entered appearance and filed their written statement stating therein that suit land as mentioned in Schedule-I of the plaint measuring area 66 decimals has been recorded in CS Khatiyan as Malik Gairmazaruwa which is situated in Nawda Town. Thus, the CS Khatiyan of the suit property was under ex-landlord Rai Badshah Bahadur and during course of revisional survey, plot No.498 measuring area 605 acre and revisional plot No.499 measuring area 2460 acre under RS Khata No.433 has been carved out and in RS Khatiyan name of raiyat has been mentioned as Muneshwari Devi wife of Shivdhari Yadav. It has been further propounded that the suit property under CS Khata No.608, Plot No.3131 area 66 decimal was rightful property of one Shohar Gope, who was previously jamabandi recorded raiyat in his exclusive name and after his death mutation case no.01 of 2006 in the name of Shodagar Yadav son of Shohar Gope was mutated and till year 2010-11, he had paid rent and rent receipt has been issued in the name of Sodagar Yadav. It has further been pleaded that the plaintiffs claim cannot stand for the reason that as per the settled law mortgagee cannot avail the right of true owner as in the case of mortgage only interest of the properties is given in favour of mortgagee and ownership of the property under mortgage always remains with true owner. 19. It has further been pleaded that in the mortgage deed itself it is clearly mentioned that the mortgagee will have limited right to collect rents and will have no right to alienate the said property. 19. It has further been pleaded that in the mortgage deed itself it is clearly mentioned that the mortgagee will have limited right to collect rents and will have no right to alienate the said property. Therefore, in view of recital made in the deed of mortgage Raj Kishore Prasad Narayan Singh had no right to settle the said land by Hukumnana in favour of Mishri Prasad Singh resultantly Mishri Prasad Singh, who is vendor of the plaintiffs, himself was not having right, title to convey any better title than which he had. 20. Counsel for the appellant has relied on the decision of Hon’ble Supreme Court reported in AIR 2004 Supreme Court 115 (Shanti Kumar Panda Vs. Shakuntala Devi) and has argued that effect of the Magistrate's order under Section 145 Cr.P.C. is that burden is thrown on unsuccessful party to prove its possession or entitlement to possession before competent Court. 21. The counsel for the respondents has submitted that injunction can be granted to defendants-appellants only when he has prima facie case and his dispossession from property shall cause irreparable loss to him. 22. Counsel for the State has submitted that he is claiming possession over the suit property. He has produced copy of judgment passed by this Court in CWJC No.5705 of 1991 dated 06.02.2015, whereby this Court has directed the Commissioner, Magadh Division, Gaya, to be custodia legis of the disputed land and will ensure safety of the said property. 23. Counsel for the respondents have submitted that this order was passed prior to passing of the impugned judgment and decree. 24. This Court has made reference of the aforesaid order only because the State is also challenging possession of the appellants over suit property. 25. The trial Court has given categorical finding with regard to possession and title with regard to suit property in favour of plaintiffs-respondents. The defendants-appellants have failed to prove prima facie title in respect of suit property. The appellants’ claim of possession over suit property on the basis of order passed in 145 Cr.P.C. proceeding is of no relevance after categorical finding given by the competent Civil Court with regard to title and possession over the suit property in favour of plaintiffs-appellants. 26. The State is also making claim over the suit property. 27. The appellants’ claim of possession over suit property on the basis of order passed in 145 Cr.P.C. proceeding is of no relevance after categorical finding given by the competent Civil Court with regard to title and possession over the suit property in favour of plaintiffs-appellants. 26. The State is also making claim over the suit property. 27. Therefore, this Court finds that at this stage appellants have no prima facie case for grant of injunction with respect to suit property. 28. I. A. No.01 of 2019 is, accordingly, dismissed.