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2023 DIGILAW 941 (JHR)

Kulwa Devi v. Bishwanath Singh

2023-07-28

SANJAY KUMAR DWIVEDI

body2023
JUDGMENT : Heard Mr. Manjul Prasad, learned senior counsel assisted by Mr. Baban Prasad, Mr. Praveen Kumar Verma, Mr. Akhouri Prakhar Sinha and Mr. Arbind Kumar Sinha, learned counsel for the appellants and Mr. Amar Kumar Sinha assisted by Mr. K.K. Ambastha and Mr. Sudhansu Kumar Deo, learned counsel for the respondents. 2. Being aggrieved and dissatisfied with the judgment and decree dated 24.03.2006 passed by the learned 4th Additional District Judge, Palamau at Daltonganj in T.A. No.20 of 1999 setting aside the judgment and decree dated 15.04.1999 (decree sealed and signed on 17.05.1999) passed by the learned Sub-Judge No.1, Palamau at Daltonganj in Title Suit No.89/1988, the present second appeal has been filed by the plaintiffs/ respondents/ appellants. 3. Title Suit No.89/1988 was instituted by the appellants herein for declaration of land detailed in Schedule-B of the plaint, which are occupancy raiyati land of the plaintiffs, acquired by virtue of settlement and also for declaration that the orders of L.R.D.C. dated 22.09.1981 and order of C.O., Panki for staying the order dated 16.02.1981 passed in Misc. Case No.01/1977-78 are without jurisdiction and void and do not affect in any way the right, title, interest and possession of the plaintiffs/appellants over the suit land. The prayer was also made for confirmation of their possession over the suit land and if they are found out of possession, be put in possession by evicting defendant nos.2 to 9, who are respondents herein, through the process of the court. 4. The said suit was filed by the plaintiffs stating therein that the land under Khata no.72 Plot No.597, total area of 163.25 acres under Khewat no.5, Thana no.458 of village Dhuo P.S. Panki, District-Palamau was recorded as Gairmazarua Malik Jungle Jhari during the last cadestral survey. Plaintiff nos. 1 and 2, father of plaintiff nos. 3 to 6 (Dhanu Mahto) and father of plaintiff nos. 7 and 8 (Kanhai Mahto), Late Bisar Mahto and Harbansh Mahto were the settled raiyat of village Dhuo, P.S. Panki, District-Palamau having their occupancy right in 2.36 acres of land in plot no.597. There was a Partition Suit No.28/1923 in the court of the learned Sub-Judge, Palamau amongst the co-sharer landlords of the village in which Parmeshwar Dayal Singh, Nathuni Singh, Sardari Singh, Mahadeo Singh and Kashinath Singh, the ancestors of defendant nos. There was a Partition Suit No.28/1923 in the court of the learned Sub-Judge, Palamau amongst the co-sharer landlords of the village in which Parmeshwar Dayal Singh, Nathuni Singh, Sardari Singh, Mahadeo Singh and Kashinath Singh, the ancestors of defendant nos. 2 to 9, were allotted a separate Takhta on an area of 39.36 acres delineated as plot no.597/B. The landlords and extensive Bakast land in several villages which were more than sufficient for their cultivation and, therefore, they could not have reclaimed the land which required clearing of bushes, levelling for bringing into cultivation which involved much manual labour and cost. As from the land, there was no income, they settled 10 acres of land out of the said Gairmazarua land allotted to them i.e. an area of 39.36 acres to the plaintiffs' or their ancestor by means of Sada Hukumnama dated 26.05.1944 followed by rent receipts confirming the settlement on payment of Rs.40/-as salami and it was agreed that the full rent of the land amounting to Rs.45/-will be payable after three years from the date of settlement and in the meantime, rent would be payable @ Rs.3/-per Bigha to the extent of the area of reclamation and the plaintiffs and their ancestors were inducted in possession of the land from the date of settlement. The description of the land was mentioned in Schedule-A of the plaint which was not under dispute. It was further stated that the plaintiffs and their ancestors cleared the bushes and thorns and levelled the land and constructed reservoir for collecting rainy water for irrigation or entire land and they reclimated the land in three years as Dhany and Tanr land by Korkar and, thereafter, the land became fertile. The plaintiffs and their ancestors further reclaimed the land in continuation with 10.00 acres of already settled land and they fix the rent and salami after completion of the reclamation in the manner as per records of right. The settlees plaintiffs and their ancestors accordingly did further reclamation in continuation of the lands mentioned in Schedule-A and they reclaimed about 32 Bighas of land as paddy lands and Tanr lands and they amalgamated the said land with their already settled land on an area of 10.00 acres. The settlees plaintiffs and their ancestors accordingly did further reclamation in continuation of the lands mentioned in Schedule-A and they reclaimed about 32 Bighas of land as paddy lands and Tanr lands and they amalgamated the said land with their already settled land on an area of 10.00 acres. While the defendants could make the settlement and realise rent and salami the intermediary interest vested into the State of Bihar and accordingly the right to settle the lands and realise the rent and salami vested into the State of Bihar and all the remaining land described in Schedule-B became cultivable and under the possession of the plaintiffs. After vesting of the intermediary interest into the State of Bihar, the plaintiffs and their ancestors made application before the Circle Officer, Panki for settlement of about 32 Bighas of land in the name of Harbansh Mahto, Bisar Mahto and Lalpat Mahto and Dhanus Dhary Mahto having equal share each in three sets. Those applications were delineated as Settlement Case No. V/5, V/6 and V/7 of the year 1962-63 respectively. The Circle Officer called for the report from the K.C. And C.I. after inquiry and in the meanwhile issued Ishtehar inviting objections if any in the settlement. The lands were measured and found to be 7.70 acres in possession of each set of the applicant in three sets. Therefore, the settlement of the same was made which was approved by the L.R.D.C. in the name of the applicants above name. Thereafter, the settlements were made and assessment of rent was done by the S.D.O., Sadar on 16.02.1981 in Misc. Case No.1/1977-78 and this order of the revenue Court became final and absolute and binding upon defendant nos. 2 to 9. But the L.R.D.C. stayed the order dated 16.02.1981 passed in Misc. Case No.1/1977-78 without hearing the plaintiffs. The plaintiffs could know about the stay of order on 10.06.1988 when they obtained certified copy of Settlement Case No.V/7 of 1962-63. According to the plaintiffs, the order of stay of the L.R.D.C. Staying the order dated 16.02.1981 after seven months without hearing the plaintiffs is without jurisdiction and void. Case No.1/1977-78 without hearing the plaintiffs. The plaintiffs could know about the stay of order on 10.06.1988 when they obtained certified copy of Settlement Case No.V/7 of 1962-63. According to the plaintiffs, the order of stay of the L.R.D.C. Staying the order dated 16.02.1981 after seven months without hearing the plaintiffs is without jurisdiction and void. It was also stated that Kashinath Singh, Vindiyachal Singh, Shital Singh, Baidnath Singh, Shivnandan Singh and Kritnarayan Singh got initiated a proceeding u/s 144 Cr.P.C. in the court of the S.D.M., Sadar, Daltonganj on the basis of a police report with regard to claim and possession over 39.36 acres of land of plot no.597(B) on 22.02.1971 which was numbered as Misc. Case No.134/1971. The proceeding was converted into a proceeding u/s 145 Cr.P.C. which was later on referred to the learned Munsif, Palamau u/s 146(1) Cr.P.C on 19.04.1974 for his opinion. The learned Munsif without considering the facts and law and on erroneous view gave opinion vide order dated 25.08.1975 that Kashinath Singh and others (the defendants) were in possession to the extent of 29.36 acres of land and Lalpat Mahto and others (plaintiffs) were in possession over 10.00 acres of land acquired by virtue of settlement on 26.05.1944. On the basis of opinion of the Munsif, the possession of Kashinath Singh and others was declared over 29.36 acres on 21.06.1976. Against that order, the plaintiffs filed Cr. Revision No.58/1976 before the learned Sessions Judge, Palamau on 28.06.1976, which was dismissed on 23.07.1977, which was further challenged before this Court in Cr. Misc. Case No.732/1977(R) and the same was ultimately converted into Cr. W.J.C. 84/1980(R) and the said writ petition was also rejected by this Court on 15.04.1988 as not maintainable. It was further stated in the plaint that the defendants got initiated A.R. Case No.19/1965-66, 18/1965-66 and 20/1965-66 u/s 5, 6 and 7 of the Bihar Land Reforms Act for the suit land, but on enquiry it was found that the defendants were not in possession of any inch of the suit land and, hence, their prayer for assessment of rent was rejected on 12.12.1970, against which, an appeal was filed by the defendants being A/R Appeal No.104/1970-71, which was also dismissed on 24.03.1975 by the Additional Collector, Palamau, thus the claim of the defendants was finally decided by the revenue courts against which no appeal or revision whatsoever was filed. It was further stated in the plaint that the defendants had always greedy eye upon the land of the plaintiffs and they always tried to lay false claims on the land in different manner, but they always failed. When the defendants failed in getting favourable order in the revenue courts, they formed an unlawful assembly and tried to loot away the crops grown by the plaintiffs. It was also stated in the plaint that the settlee of Case No. V/5 of 1962-63 Harbansh Mahto in exercise of his right, title, interest and possession sold his 7.70 acres of land, described in Schedule-B item no.1 through a registered sale deed dated 24.09.1974 for consideration with plaintiff nos. 3 to 6 and put them in possession of the same. Similarly, Bisar Mahto the settlee of Settlement Case No. V/6 of 196263, described in Schedule-B item no.11 of the plaint, sold 7.70 acres of land to plaintiff nos. 7 and 8 through registered sale deed dated 12.11.1974 and Lalpat Mahto sold his share of 3.85 acres to plaintiff nos. 1 and 1A through registered sale deed on 03.10.1991. The plaintiffs have been coming in peaceful cultivating possession even during the pendency of proceeding u/s 145 Cr.P.C with which the defendants have had nothing to do. It was also stated that the order dated 21.06.1976 passed in proceeding u/s 145 Cr.P.C., order dated 23.07.1977 passed in Cr. Revision No.58/1976 and order dated 26.09.1981 passed by the L.R.D.C., Daltonganj in Misc. Case No.1/1977-78 have cast cloud over the title of the plaintiffs and, therefore, the suit was instituted. In the suit, the State of Bihar through the Deputy Commissioner, Palamau was made defendant no.1 and, therefore, notice under Section 80 C.P.C. was served upon defendant no.1 and, thereafter, the suit was filed. 5. The defendant no.1 i.e. the Government of Bihar had appeared through the Government Pleader who had filed a separate written statement dated 12.06.1991. The contesting defendant nos. 2 to 9 appeared and filed their separate written statement on 15.04.1991. The defendant nos. 2 to 9 have challenged the case put forth by the plaintiffs in the plaint. They contended that the suit as framed is not maintainable. The plaintiffs have no cause of action for the suit. The defendants had also pleaded that the suit is hit by the principles of estoppel, waiver and acquiescence. The defendant nos. 2 to 9 have challenged the case put forth by the plaintiffs in the plaint. They contended that the suit as framed is not maintainable. The plaintiffs have no cause of action for the suit. The defendants had also pleaded that the suit is hit by the principles of estoppel, waiver and acquiescence. It was also pleaded that the suit is barred by law of limitation. In the written statement, it was admitted that there was a Partition Suit No.28/1923 amongst the co-sharers landlords in which a separate Takhta to the extent of 39.36 acres in plot no.597 delineated as plot no.597B was allotted to Jaisher Dayal Singh, Parmeshwar Dayal Singh, Mahadeo Singh, Nathuni Singh and Sardari Singh, the predecessors in interest of the defendant nos.2 to 9. It was also admitted that an area of 10 acres of land out of 39.36 acres was settled with the plaintiffs by the defendants over which the plaintiffs possession is continuing and accordingly their possession has also been declared in a proceeding u/s 145 and 146 Cr.P.C. and remaining 29.36 acres of land was declared to have been in possession of the defendants or their predecessor in interest. It was further pleaded that the land mentioned in Schedule-B of the plaint did not remain jungle jhari, but it was made cultivable by the defendants and their ancestor long before the vesting of intermediary and, as such, the suit land became Bakast of the defendants which was confirmed by the State of Bihar by making assessment of rent u/s 5, 6 and 7 of the Bihar Land Reforms Act in favour of the defendants to the extent of 4.59 acres in the name of Nathuni Singh and Sardari Singh, to the extent of 4.59 acres in the name of Kashinath Singh, to the extent of 4.59 acres in the name of Baidnath Singh and Shivnath Singh and an area of 4.59 acres in the name of Kritnarayan Singh and Shital Singh. Thus, the total area of assessment comes to 18.36 acres. It was also pleaded in the written statement that according to the revenue records, an area of 11.00 acres was found in possession of Harijans and, as such, assessment of rent of that area of 11.00 acres was not made in the name of the defendants. Thus, the total area of assessment comes to 18.36 acres. It was also pleaded in the written statement that according to the revenue records, an area of 11.00 acres was found in possession of Harijans and, as such, assessment of rent of that area of 11.00 acres was not made in the name of the defendants. The plaintiffs or their ancestors did not reclaim any portion of the suit land nor they had any permission for reclamation from the then landlord i.e. defendants as per mandatory requirements according to the statement made in the plaint itself on the basis of entry made in the Cadestral Survey, records of right. It was further pleaded that though the suit land had become Bakast land of the defendants at the time of vesting, but the plaintiffs had filed a partition before the Circle Officer, Panki for settlement as Case No.V/5, V/6 and V/7 of 1962-63, but they were never found in possession. They are said to have obtained some order by duping the revenue staff but ultimately the proposal for settlement was negatived. No parwana was issued to the defendants nor rent ever realised from them. The possession of the defendants was declared in a proceeding u/s 145, 146 Cr.P.C. against which the plaintiffs' went up to the High Court, where, they also lost. Defendant no.1 (State of Bihar) in a separate written statement had pleaded that the suit is not maintainable. The plaintiffs have got no action and the suit is barred by law of limitation. The defendant no.1 had also pleaded that the order staying the issue of parchas to the plaintiffs be deemed to be properly passed because there is presumption of correctness of all official act done u/s 114 of the Evidence Act. 6. Thus on the aforesaid facts, the learned trial court has framed eight issues and decided the suit in favour of the plaintiffs/appellants and the same was decreed in favour of the plaintiffs/appellants. Aggrieved with that, the defendants/respondents moved before the appellate court in Title Appeal No.20/1999 and vide judgment dated 24.03.2006, the learned appellate court has been pleased to reverse the judgment of the learned trial court and has dismissed the suit. Being aggrieved with the judgment passed in the said title appeal, the plaintiffs/appellants have preferred this second appeal. 7. Aggrieved with that, the defendants/respondents moved before the appellate court in Title Appeal No.20/1999 and vide judgment dated 24.03.2006, the learned appellate court has been pleased to reverse the judgment of the learned trial court and has dismissed the suit. Being aggrieved with the judgment passed in the said title appeal, the plaintiffs/appellants have preferred this second appeal. 7. This second appeal was admitted vide order dated 17.08.2009 on the following substantial questions of law: (1) Whether the Court of Appeal below has erred in law in reversing the judgment and decree of the trial Court without meeting the reasonings? (2) Whether the finding of the Court of Appeal below is vitiated in law for mis-appreciation and non-consideration of the vital documents i.e. Exts.9, 10 and 11? 8. Mr. Manjul Prasad, learned senior counsel appearing for the appellants by way of taking the Court to the finding of the learned trial court, submits that the learned trial court has dealt with every aspects of the matter including exhibits as well as oral evidences and, thereafter, has decreed the suit in favour of the plaintiffs/appellants, however, the learned appellate court without looking into the requirement of Order XLI Rule 31 of the Code of Civil Procedure (C.P.C.) has been pleased to reverse the said finding, which is against the mandate of law. He draws attention of the Court to the appellate court's judgment and submits that so far as issue nos. V and VI are concerned, that were the decisive issues, which have been dealt with by the learned appellate court in paragraph 26 of the judgment. He further submits that the learned appellate court has wrongly interpreted the provisions of the Bihar Land Reforms Act and has not taken into consideration the permission, which was required to be taken under the Chotanagpur Tenancy Act by the Deputy Commissioner. He also submits that the appellants were already in possession by way of settlement they are put in possession in view of Zamindar at that time. He submits that when the appellants are already in possession, there was no question of taking permission afresh. He also submits that the appellants were already in possession by way of settlement they are put in possession in view of Zamindar at that time. He submits that when the appellants are already in possession, there was no question of taking permission afresh. He further submits that the land was already mutated in favour of the appellants and subsequently L.R.D.C has stayed the same and due to that the documents with regard to settlement was not with the appellants and they have not been able to produce the documents before the court. He submits that the learned appellate court has not appreciated Exts.9, 10 and 11 series, which are Khatian, Kheshara and Hukumnama respectively. He further submits that Section 145 Cr.P.C. proceeding was the subject matter before this Court in Cr. W.J.C. No.84 of 1980(R) and the order under Section 145 Cr.P.C. was upheld, which was in favour of the defendants/respondents, however the observation was made therein that so far as right, title and interest is concerned, for that the parties are at liberty to obtain decree from the competent court. He submits that in this background, the suit was contested and the learned appellate court has erred in reversing the finding of the learned trial court without discussing these documents. On these grounds, he submits that the law points framed by this Court may kindly be answered in favour of the plaintiffs/appellants. 9. Per contra, Mr. Amar Kumar Sinha, learned counsel for the defendants/respondents straightway draws attention of the Court to paragraphs 9, 10, 11 and 15 of written statements of defendant nos.2 to 9 and submits that Partition Suit No.28/1923 was between the predecessor in successor of the defendants and pursuant to that decree was already passed and that was exhibited as Ext.9. He submits that when the appellants have got the order of settlement stayed, that was the cause of the action in Section 145 Cr.P.C. proceeding. He submits that Section 145 Cr.P.C. proceeding was also subject matter before this Court in Cr. W.J.C. No.84 of 1980(R) in which the finding of the learned court was not interfered with, however observation was made that that the parties can settle the dispute by way of filing appropriate suit. He further submits that the respondents/defendants are in possession of the plot in question, which has been discussed elaborately by way of considering Ext.A series, which are rent receipts. He further submits that the respondents/defendants are in possession of the plot in question, which has been discussed elaborately by way of considering Ext.A series, which are rent receipts. He submits that Form-M was also considered by the learned appellate court pursuant to the order passed under Sections 5, 6 and 7 of the Bihar Land Reforms Act, 1950. The said Form M are Exts. F to F/3. He further submits that there is no appeal with regard to Ext.J and in view of that, the said order has attained finality, however there is specific provision of appeal under Section 8 of the Bihar Land Reforms Act. He submits that the possession of the respondents/defendants further fortified in view of Ext.J, which is the order passed under Sections 5, 6 and 7 of the Bihar Land Reforms Act for assessment of rent. He further submits that the possession and title was further fortified in view of Ext.G, which is the tenants ledger with regard to Schedule-B property which was the disputed land in the suit property. He submits that Ext.8 series are the rent receipts which further suggest that the respondents/defendants are in possession of the plot in question. He submits that the learned appellate court has framed the point at paragraph 31 of the judgment and, thereafter, has decided the appeal and there is no violation of Order XLI Rule 31 of C.P.C.. To buttress his argument, he relied upon the judgment passed by the Hon'ble Supreme Court in Laliteshwar Prasad Singh and others v. S.P.Srivastava (Dead) through Legal Representatives; [ (2017) 2 SCC 415 ]. 10. Paragraph 12 of the said judgment is quoted hereinbelow: “12. As per Order 41 Rule 31 CPC, the judgment of the first appellate court must explicitly set out the points for determination, record its reasons thereon and to give its reasonings based on evidence. Order 41 Rule 31 CPC reads as under: “31: Contents, date and signature of judgment. 10. Paragraph 12 of the said judgment is quoted hereinbelow: “12. As per Order 41 Rule 31 CPC, the judgment of the first appellate court must explicitly set out the points for determination, record its reasons thereon and to give its reasonings based on evidence. Order 41 Rule 31 CPC reads as under: “31: Contents, date and signature of judgment. – The judgment of the Appellate Court shall be in writing and shall state – a. the points for determination; b. the decision thereon; c. the reasons for the decision; and d. where the decree appealed from is reversed or varied, the relief to which the appellant is entitled; and shall at the time that it is propounded be signed and dated by the Judge or by the Judges concurring therein.” It is well settled that the first appellate court shall state the points for determination, the decision thereon and the reasons for decision. However, it is equally well settled that mere omission to frame point/points for determination does not vitiate the judgment of the first appellate court provided that the first appellate court records its reasons based on evidence adduced by both the parties.” 11. Mr. Amar Kumar Sinha, learned counsel for the respondents further submits that the documents are on the record which has been appreciated by the learned appellate court which proved the better right, title and interest of the defendants/respondents and that is why, the case has been rightly appreciated by the learned appellate court. To buttress his argument, he relied upon the judgment passed by the Hon'ble Supreme Court in Smriti Debbarma (Dead) through Legal Representative v. Prabha Ranjan Debbarma and others; [(2023) SCCR 228]. 12. Paragraphs 30, 31 and 32 of the said judgment are quoted hereinbelow: “30. In the above factual background, for the plaintiff to succeed, she has to establish that she has a legal title to the Schedule ‘A’ property, and consequently, is entitled to a decree of possession. The defendants cannot be dispossessed unless the plaintiff has established a better title and rights over the Schedule ‘A’ property. A person in possession of land in the assumed character as the owner, and exercising peaceably the ordinary rights of ownership, has a legal right against the entire world except the rightful owner. A decree of possession cannot be passed in favour of the plaintiff on the ground that defendant nos. A person in possession of land in the assumed character as the owner, and exercising peaceably the ordinary rights of ownership, has a legal right against the entire world except the rightful owner. A decree of possession cannot be passed in favour of the plaintiff on the ground that defendant nos. 1 to 12 have not been able to fully establish their right, title and interest in the Schedule ‘A’ property. The defendants, being in possession, would be entitled to protect and save their possession, unless the person who seeks to dispossess them has a better legal right in the form of ownership or entitlement to possession. 31. The burden of proof to establish a title in the present case lies upon the plaintiff as this burden lies on the party who asserts the existence of a particular state of things on the basis of which she claims relief. This is mandated in terms of Section 101 of the Evidence Act, which states that burden on proving the fact rests with party who substantially asserts in the affirmative and not on the party which is denying it. This rule may not be universal and has exceptions, but in the factual background of the present case, the general principle is applicable. In terms of Section 102 of the Evidence Act, if both parties fail to adduce evidence, the suit must fail. Onus of proof, no doubt shifts and the shifting is a continuous process in the evaluation of evidence, but this happens when in a suit for title and possession, the plaintiff has been able to create a high degree of probability to shift the onus on the defendant. In the absence of such evidence, the burden of proof lies on the plaintiff and can be discharged only when he is able to prove title. The weakness of the defence cannot be a justification to decree the suit. The plaintiff could have succeeded in respect of the Schedule ‘A’ property if she had discharged the burden to prove the title to the Schedule ‘A’ property which squarely falls on her. This would be the true effect of Sections 101 and 102 of the Evidence Act. Therefore, it follows that the plaintiff should have satisfied and discharged the burden under the provisions of the Evidence Act, failing which the suit would be liable to be dismissed. This would be the true effect of Sections 101 and 102 of the Evidence Act. Therefore, it follows that the plaintiff should have satisfied and discharged the burden under the provisions of the Evidence Act, failing which the suit would be liable to be dismissed. Thus, the impugned judgment by the High Court had rightly allowed the appeal and set aside the judgment and decree of the trial court. We, therefore, uphold the findings of the High Court that the suit should be dismissed. We clarify that we have not interfered or set aside any observations of the High Court in re the Tripura Land Revenue and Land Reforms Act, or defendants’ claim etc. Notably, M/s. Hotel Khosh Mahal Limited is not a party to the present proceedings. 32. In view of the aforesaid discussion and legal position, the present appeal must be dismissed. We order accordingly. In the facts of the case, there will be no order as to costs.” 13. Mr. Amar Kumar Sinha, learned counsel for the respondents also submits that it is well settled that only on the extent of their own title irrespective of whether the respondents/defendants proved the case or not, the title can be declared in favour of any of the party, which was considered by the Hon'ble Supreme Court in Jagdish Prasad Patel (Dead) through Legal Representatives and another v. Shivnath and others; [ (2019) 6 SCC 82 ]. 14. Paragraph 45 of the said judgment is quoted hereinbelow: “45. Observing that in a suit for declaration of title, the respondents- plaintiffs are to succeed only on the strength of their own title irrespective of whether the defendants-appellants have proved their case or not, in Union of India and others v. Vasavi Cooperative Housing Society Limited and others (2014) 2 SCC 269 , it was held as under:- “15. It is trite law that, in a suit for declaration of title, the burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration and the weakness, if any, of the case set up by the defendants would not be a ground to grant relief to the plaintiff.” 15. In these premises, Mr. Amar Kumar Sinha, learned counsel for the respondents submits that the law points framed by this Court may kindly be answered in favour of the defendants/respondents. 16. In these premises, Mr. Amar Kumar Sinha, learned counsel for the respondents submits that the law points framed by this Court may kindly be answered in favour of the defendants/respondents. 16. The learned trial court has framed 8 issues to decide the suit. The issue nos. 5 and 6 were main issues and that is why both the issues were taken up together by the learned trial court. The learned trial court has considered Ext.7 and 7/A, 7/B and 7/C, which are order-sheets of A.R. Case No.18/1965-66, 19/1965-66, 20/1965-66 and 22/1965-66, which were initiated on the application of Kritnarayan Singh (original defendant no.9) and found that in all the said four cases, the Circle Officer, Panki directed the applicants to file certified copy of the return filed under Section 3-B of the Bihar Land Reforms Act, but both the partied did not file the same and that is why the Circle Officer has dropped the proceeding, however, subsequently the same was filed and rent was fixed. Ext.-8 Series are the certified copy of ishtehar with regard to settlement case numbers and Ext.9 Series are are Khatiyans prepared by the Circle Officer in the said settlement cases. Exts.10 Series and 11 Series are Kheshara and Hukumnama prepared by the Circle Officer after approval of the settlement by the Sub-Divisional Officer, Sadar, which were also considered by the learned trial court. The learned trial court has further considered the order of this Court passed in Cr. Exts.10 Series and 11 Series are Kheshara and Hukumnama prepared by the Circle Officer after approval of the settlement by the Sub-Divisional Officer, Sadar, which were also considered by the learned trial court. The learned trial court has further considered the order of this Court passed in Cr. W.J.C. 84 of 1980(R) and in paragraph 28 of the judgment, the learned trial court has found after appreciating all the entire evidences, both oral and documentary on a thorough enquiry at several stages, the defendants/ respondents were found in possession of the suit land at the time of vesting the Zamindari and accordingly the assessment of rent was ordered to be fixed up to the court of the Additional Collector, however the D.C.L.R. stayed the order dated 06.02.1981, however it has been vehemently argued on behalf of the learned counsel for the appellants that there was typographical mistake and from reading of the entire judgment of the learned trial court, it can be easily found out that the plaintiffs/appellants were in possession and that was countered in course of argument by the learned counsel for the respondents that if any mistake was there, it was required to be corrected by the appellants in view of Section 152 of C.P.C. In light of the above discussions, the learned trial court has decreed the suit in favour of the plaintiffs/appellants. 17. The learned appellate court has framed point at paragraph 31 of the judgment 'whether the plaintiffs have any subsisting title or any right and interest to possess the land in suit or not?' The learned appellate court has appreciated the proceeding under Section 145 Cr.P.C. at paragraph 32 of the judgment and he has taken care of the observation made by the High Court in Cr. W.J.C. No.84 of 1980(R). The learned appellate court has dealt with Sections 6 and 35 of the Bihar Land Reforms Act and found that without considering the provision of Section 35 of the said Act, the suit for declaration of title, confirmation of possession or recovery of possession are not barred. The learned appellate court further considered Ext.7/E to 7/M and Ext.8 Series as well as Exts. The learned appellate court further considered Ext.7/E to 7/M and Ext.8 Series as well as Exts. 9, 10, 11 Series and 12 Series, which are the documents to be considered in view of the law points framed by this Court while admitting the second appeal and held that the plaintiffs were found in possession and the settlement was ordered in their favour, but the same was subsequently stayed and since the possession of the plaintiffs/ appellants has been admitted by the functionary of the State since the date of vesting under the provisions of law and have given some rights in accordance with the provisions of the act and the right having been accrued in favour of the plaintiffs/appellants, that cannot be taken away by way of proceeding under Section 145 Cr.P.C. In paragraph 40 of the appellate court's judgment, the learned appellate court held that the plaintiffs/ appellants have admitted the title of the defendants and have claimed settlement from the defendants or their predecessor-in-interest. The witness of the plaintiffs/appellants, who were examined and even the plaintiff who was examined as P.W.11 had not said as to when and on which year, the ex-intermediary permitted him or their predecessor to make Korkar over the lands or over the piece of land measuring 23.10 acres neither the date, nor year nor month is stated by the witness and it was definite case of the plaintiffs that the landlord had permitted them to make the land cultivable and they done so but due to vesting of the said tenure the formalities of the settlement could not be done and was not found as an evidence and it was only the pleadings. The learned appellate court has further found that after vesting of such tenure under the Bihar Land Reforms act, rights of the landlord vested in the then State of Bihar and in view of that analogy of events, there is also no amount of evidence and held that the plaintiffs/appellants have not taken permission, which was pre-requisite in view of the remark made in the Khatian as Khatian (Ext.9) in which it has been disclosed that on permission, the land can be developed. The plaintiffs' witnesses P.W.4 and P.W.6 in their evidence have stated that the plaintiffs were cultivating the lands since 30 years. The plaintiffs' witnesses P.W.4 and P.W.6 in their evidence have stated that the plaintiffs were cultivating the lands since 30 years. The learned appellate court considered Ext.B, which is the order dated 25.08.1975 by the then learned Munsif, Palamau in Misc. Case No.40/1974 under Section 146 Cr.P.C. who referred in paragraph 5 the boundary of the lands of area 10 acres, which has been discussed in paragraph 43 of the appellate court's judgment and the learned appellate court has found that the area of the land which was settled to the landlord i.e. ex-intermediary having an area of 10 acres out of 39.36 acres towards east of the plot and the title of the defendants over 39.36 acres is not in dispute and also the settlement of 10 acres is also not disputed in favour of the plaintiffs though as observed, the said document of the settlement has not been exhibited, but there is observation of court of law regarding settlement of 10 acres and pursuant to that the boundary was described by the learned Munsif. The learned appellate court has further found that the entire pleadings or even the evidence of any of the P.Ws including P.W.11, none have stated about the boundary of settlement of 10 acres, however that is not disputed land and the disputed land is Schedule-B of the suit property. The use of the word 'Khet' was considered in view of not showing the same as cultivable or Bakast land and the learned appellate court has found that the use of 'Khet' shows that at the relevant point of time, when the settlement to the plaintiff was being effected for 10 acres of land nearby lands which were towards west of the plots was under cultivation of defendants and balance land since being under cultivation of the defendants was found to be Bakast land and after vesting of the Estate and tenure, they became raiyat under the State of Bihar and have also submitted return under the provisions of the Bihar Land Reforms Act in view of Sections 5, 6 and 7 of the said Act and the learned appellate court found that their name stood recorded with respect to their Bakast land and they became raiyats under the State of Bihar. The learned appellate court has further found that Ext.7/K is the order dated 30.06.1981 is the document by which the settlement was stayed and the said order was not challenged although provision to that effect is there under Section 8 of the Bihar Land Reforms Act. The said has attained the finality. In view of these facts, the learned appellate court has found that the documents relating to Ext-C, Ext.E, Ext.F to F/3, Ext.J, Ext.G and Ext.8 Series suggest that the defendants/respondents are in possession of the Schedule-B property and thereafter, he has come to the conclusion that the finding of the learned trial court is perverse. 18. The law in this regard is not resintegra as it is well settled that the person who is claiming right, title and interest, onus lies on him to prove the title by way of producing the documents as has been appreciated by the Hon'ble Supreme Court in several judgments as well as two judgments, which has been relied by the learned counsel for the respondents supra. In the case in hand, the exhibits which are the subject matter of the law points framed by this Court, have been rightly appreciated by the learned appellate court. The learned appellate court has dealt with all the points and it cannot be said that the appeal was decided without considering Order XLI Rule 31 of C.P.C. and in this point, the judgment relied by the learned counsel for the defendants/respondents in Laliteshwar Prasad Singh (supra) is in favour of the defendants/respondents. 19. The Court has looked into Ext.C, which is the order passed by this Court in Cr. W.J.C. No.84 of 1980(R) and finds that the finding of the Court has been rightly appreciated by the learned trial court as well as the appellate court. Exts. F to F/3 are the documents, which are in Form M. Ext.J is the order-sheet of A.R. Case No.4/1975-76, which is the order passed under Sections 5, 6 and 7 of the Bihar Land Reforms Act regarding assessment of the ancestor in which the area is disclosed as 18.36 acres. Ext.J is the tenants ledger and these documents have been rightly appreciated by the learned appellate court. This Court has also examined the said documents at bar and finds that the learned appellate court has rightly appreciated these documents. Ext.J is the tenants ledger and these documents have been rightly appreciated by the learned appellate court. This Court has also examined the said documents at bar and finds that the learned appellate court has rightly appreciated these documents. There is no illegality in appreciating those documents by the learned appellate court. 20. In view of the above facts, reasons and analysis, the law points are answered in favour of the defendants/respondents. The Court finds that there is no perversity with the judgment of the learned appellate court. 21. In view of that, this second appeal is dismissed. Consequently, Title Suit No.89 of 1988 is dismissed. 22. Let the L.C.R. be sent back to the learned court forthwith. 23. Pending I.A., if any, is disposed of.