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2019 DIGILAW 521 (SC)

Tulsi Prasad (dead) Thr. Lrs. v. Nagendra Singh

2019-02-07

ARUN MISHRA, VINEET SARAN

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ORDER 1. Heard learned counsel for the parties. 2. The plaintiff(s)/appellant(s) filed a suit for declaration of title and confirmation of possession. Alternative prayer was made for restoration of the possession. Following is the genealogy tree of the plaintiff's family:- 3. The case of the plaintiffs was that he inherited the property of Rajpati Bind and in R.S. Khatiyan his name came to be recorded. Rajpati Bind was the uncle of the plaintiff. He died heirless except the plaintiff. After few years Tokhan Bind, father of the plaintiff, also died leaving behind the plaintiff. After death of Rajpati Bind and Tokhan Bind, the plaintiff came in possession over their shares of the land. 4. Jagdish Singh the ancestor of the defendant(s) was ex landlord of Tauzi No.1693 of village Khulase, Khata Nos.223 and 224. The lands of above said khatas were in possession of Rajpati and Tokhan during their lifetime and after their death the plaintiff came in possession. The rent of Khata Nos.223, 224 and 228 has been commutted in favour of the plaintiff by Government of Bihar and the plaintiff has paid the rent. Disputed R.S. Nos.1387 and 2462 area 1 Bigha 11 Khtha and 9 Dhur is including Bag also. In R.S. No.1384, the plaintiff planted trees, 11 to 12 years before rest of the portion was cultivated. On 02.10.1966, the defendant(s) tried to interrupt the peaceful possession of the plaintiff. 5. The defendant(s) set up the case that genealogy tree given by the plaintiff is not correct. The plaintiff is not the member of the Goga Bind's family. After Rajpati Bind died heirless then all his lands were taken in possession by grandfather of the defendant(s) as he was landlord, since then the defendant(s) came in possession of the land. Plaintiff is not the heir of Rajpati Bind and had never been in possession of the land possessed by Rajpati Bind. In addition, plea was also taken that Tokhan Bind has relinquished certain land in favour of the defendant(s). Tokhan Bind relinquished Plot No.1750/2559. As such defendant(s) came in possession of that land also. The defendent(s) put up the case of exchange also. The defendant(s) took the plea of adverse possession also. 6. The Trial Court dismissed the suit. However, on appeal being preferred by the plaintiff, the First Appellate Court decreed the suit vide judgment and decree dated 29.04.1988 in T.A. No.125/1986. 7. As such defendant(s) came in possession of that land also. The defendent(s) put up the case of exchange also. The defendant(s) took the plea of adverse possession also. 6. The Trial Court dismissed the suit. However, on appeal being preferred by the plaintiff, the First Appellate Court decreed the suit vide judgment and decree dated 29.04.1988 in T.A. No.125/1986. 7. The First Appellate Court on consideration of the oral and documentary evidence given a finding in favour of the plaintiff that he was the heir of Rajpati. The evidence of DW.21, defendant No.2 has been taken into consideration besides that of PW.3, PW.4, PW.11, PW.14 and PW.15 besides the First Appellate Court relied upon the Register II of Village Khulasa. Exhibit 2/A indicated that the name of the raiyat of holding No.168, Khata No.228 which originally belonged to Rajpati had been entered in the name of Sheodeni Bind and rent has been paid up to 1975-76 right from 1962-63. Thus the First Appellate Court concluded that the oral evidence of PWs considered alongwith entries in Exhibit 2/A proves that Sheodeni's name had been entered in register with respect to the property of Rajpati and that was the strong circumstance in favour of the plaintiff/appellants claimed that Rajpati and Sheodeni belong to common ancestor, namely, Bhanwar Bind. The First Appellate Court also took note of the fact that the defendant(s)/respondents have pleaded in para 6 that Goga Bind was the the son of Bhanwar Bind and it was not disputed that Rajpati was the descendants of Goga Bind and this fact was admitted by DW.22 also. 8. The First Appellate Court also found that the plaintiff had been paying the rent to the Government. Certain counterfoils were sought to be produced by the defendant(s), but they did not requisitioned them from the Government to indicate that they had practice of granting rent receipts to the raiyat. 9. The First Appellate Court also took the note of the plea that the defendant(s) had pleaded that after Rajpati died issueless they had taken possession of the land and subsequently settled the same in favour of the another tenant. In our opinion, aforesaid plea by itself defeats the case set up by the plaintiff in case it was given to some other tenant, obviously the defendant(s) would have no right to possess the same. 10. In our opinion, aforesaid plea by itself defeats the case set up by the plaintiff in case it was given to some other tenant, obviously the defendant(s) would have no right to possess the same. 10. The plea of abandonment that was taken by the defendant(s), relinquishment and exchange have also been found proved by First Appellate Court on the ground that there was nothing on record that any step was taken under Section 87 of the Bihar Tenancy Act, 1885 under Section 87(2) to give the information to Collector's office regarding surrender and when Sheodeni's name had been entered in Register II of the State of Bihar the plea taken by the defendant(s) cannot be accepted. The plea of exchange has also not been accepted by the First Appellate Court as no document has been produced and it was the case set up by DW.9 that there was a deed of exchange that has not been produced. The plea of relinquishment has also not been found established on proper discussion of the evidence made by the First Appellate Court and the First Appellate Court found that admittedly Tokhan Bind was recorded as raiyat with respect to the disputed land in Khatiyan. 11. In the circumstances, the plaintiff has been able to establish his title and the defendant(s) could only succeed by proving the adverse possession, which has not been established. The plea of surrender, exchange and relinquishment has also not been found established. Thus, the suit was decreed by the First Appellate Court. 12. The High Court, on the second appeal, has observed that the evidence indicates that after the death of Rajpati the defendant(s) came in possession. It was not necessary to examine the question, whether plaintiff was agnate of Rajpati Bind or not and whether he inherited the property left by Rajpati Bind. Tokhan Bind has surrendered the land belonging to him long ago. Ancestors of defendant(s) were in possession of the suit land. As such plaintiff has no case. The High Court also observed that Bihar Tenancy Act does not apply for deciding the question of limitation. No finding has been given by the High Court as to the adverse possession. 13. Tokhan Bind has surrendered the land belonging to him long ago. Ancestors of defendant(s) were in possession of the suit land. As such plaintiff has no case. The High Court also observed that Bihar Tenancy Act does not apply for deciding the question of limitation. No finding has been given by the High Court as to the adverse possession. 13. After hearing learned counsel for the parties, in our opinion, the High Court has gravely erred in law in reversing the judgment and decree which was passed by the First Appellate Court in favour of the plaintiff. The First Appellate Court has arrived at the findings of fact with respect to the relationship of Rajpati and that of the plaintiff. There were certain admitted facts which were taken into consideration. Oral and documentary evidence was considered and thereafter findings as to the relationship has been arrived at. This is surprising that the High Court has held that it was not necessary to go into the question whether the plaintiff has inherited the property of Rajpati or not and whether he was agnate or not. This approach is not at all understandable. This was the most relevant question to be gone into. Whether the defendant(s) had 6 any right to enter into possession after the death of Rajpati was also the question to be gone into and they had taken the plea of not only that the land was surrendered they have taken the plea of relinquishment and exchange and nothing has been found established by assigning the cogent reasons by the First Appellate Court. The reasons employed by the First Appellate Court have not been adverted to by the High Court at all. It is the trite law that once the High Court is reversing the findings of the First Appellate Court it is bound to come the close quarter of the reasoning employed by the First Appellate Court, the High Court has miserably failed to do so and it has not considered the documentary as well as oral evidence on record that was extensively taken into consideration by the First Appellate Court while rendering the elaborate judgment. 14. Thus, in the circumstances, for want of proof of adverse possession, obviously title could not have been perfected by the defendant(s) and they have no right in the land. 14. Thus, in the circumstances, for want of proof of adverse possession, obviously title could not have been perfected by the defendant(s) and they have no right in the land. Consequently, we restore the judgment and decree of the First Appellate Court and set aside the judgment of the High Court. The appeal is, accordingly, allowed. 15. Pending application(s), if any, shall stand disposed of. 16. The parties to bear their own costs.