Letters Patent Appeal No.906 OF 1997 Against the judgment dated 23rd May, 1997 passed by a learned Single Judge of this Court in First Appeal No. 544 of 1977. MAHENDRA MANDAL & ORS. ……. APPELLANTS Versus UPENDRA PRASAD & ORS. ……..RESPONDENTS **** For the Appellants: 1. Mr. Rajendra Prasad, Sr. Advocate 2. Mr. Vinod Shankar Modi, Advocate. For the Respondents: 1. Mr. Vijayendra Nath, Advocate, 2. Mr. Ashok Kumar, Advocate, 3. Mr. Mrigendra, Advocate. *** P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE KISHORE KUMAR MANDAL ** K. K. Mandal, J. Present appeal filed under clause 10 of the Letters Patent Appeal of the High Court of Judicature at Patna, is directed against the order dated 23rd May, 1997, passed by a learned Single Judge of this Court in First Appeal No. 544 of 1977 (Upendra Prasad Mandal and others Versus Mahendra Mandal and others), whereby the appeal preferred by the respondents herein has been allowed. 2. A brief background of the case may first be indicated. Plaintiffs (appellants herein) filed Title Suit No. 21 of 1972, seeking the relief of declaration that they are occupancy ‘raiyats’ in respect of the suit properties detailed in schedule 1-19 of the plaint, and for the 2 further declaration that different sale-deeds executed by defendant nos. 4 and 5 in favour of defendant nos. 1 to 3, be declared as forged, fabricated, in-operative, and not binding on the plaintiffs. The said suit was decreed on contest by the learned trial Judge by the Judgment and decree dated 30.06.1977. Being aggrieved by the aforesaid judgment and decree, defendant nos. 1 to 3 ( the contesting defendants), filed aforesaid First Appeal No. 544 of 1997. A learned Single Judge of this Court allowed the aforesaid appeal, and set aside the judgment and decree passed by the learned Trial Court. Aggrieved by the said judgment dated 23.05.1997, the plaintiffs (appellants herein) filed the present appeal which was dismissed by this Court by order dated 28.10.1997. Aggrieved by the said order dated 28.10.1997, the present appellants approached the Apex Court in Civil Appeal Nos. 1540 of 1998, which was allowed by order dated 19.11.2003, the order of the High Court has been set aside, and the present appeal has been remitted to this Court for re-consideration/re-hearing and decision on merits. That is how the present appeal has been laid before us for hearing and final disposal. We shall prefer to go by the description of the parties occurring in the plaint. 3. The case of the plaintiffs as set out in the plaint is that one Sukhai Mandal was the tenure holder in respect of several acres of land falling under C.S. Khata No. 508, Mouza Bhutauli, Touji no.4920, Thana no.174. In an auction sale, Mahabir Prasad Singh purchased 62 and odd Bighas of suit land and became the tenure holder. Sometime in 1908, the aforesaid Mahabir Prasad Singh settled 3 around 60 Bighas of land in question with one Dip Narain Singh and Narsingh Lal by way of a Parwana (Exhibit-6). As per the arrangement between Dip Narain Singh and Narsingh Lal, 20 Bighas out of 60 Bighas of land so settled with Dip Narain Singh fell in the share of Narsingh Lal. By different sale-deeds, executed in respect of small tracts of land executed on different dates (Exhibit-2 series), parts of the suit land were sold to the plaintiffs or their vendors by the aforesaid Dip Narain Singh. It is the plaintiffs’ case that sometime in 1919-20, the aforesaid Mahabir Prasad Singh died leaving behind his two sons, namely, Surendra Narayan Singh (defendant no.4), and Jitendra Narayan Singh (defendant no.5). They were minors at that point of time and as such their estate was taken over and managed by the Courts of Wards until they became major. Sometime in 1927-28, the suit properties, on their attaining majority, were released. Subsequently some issues between the sons of Mahabir Prasad Singh (auction purchaser), and Dip Narain Singh ( settlee), arose as a result whereof, returns in respect of suit land were got filed by the sons of Mahabir Prasad Singh ( defendant nos. 4 and 5), in which name(s) of the settlee(s), namely, Dip Narain Singh and Narsingh Lal, were not mentioned. On 11.08.1970, the aforesaid two defendants executed three sale-deeds in favour of defendant nos.1 to 3 (contesting respondents herein). These sales were effected in respect of lands covered by the Parwana (Exhibit-6), earlier executed on behalf of their father, namely, Mahabir Prasad Singh and sold to the plaintiffs or their vendors by means of several sale-deeds (Exhibit-2 series), and 4 they were in physical possession thereof and were paying rent initially to aforesaid Mahabir Prasad Singh and subsequently to the State of Bihar. Defendant nos. 4 and 5 appeared in the suit but did not contest the same. They seem to have supported the case put up by defendant nos. 1 to 3. Defendant nos. 1 to 3 ( purchasers) contested the suit by filing written statement. Their case is that Mahabir Prasad Singh was not tenure holder/ ex-land lord or proprietor in respect of 62 and odd Bighas of land which is claimed to have been purchased by Mahabir Prasad Singh in an auction sale. He was a ‘raiyat’ and as such he had no right to settle the suit lands with Dip Narain Singh or others by way of Parwana (Exhibit-6). The Trial Court on consideration of the materials on record found and held that Mahabir Prasad Singh had, in fact, purchased 62 and odd Bighas of land in auction sale and became tenure holder respecting the suit land which was subsequently settled with the vendor(s) of the plaintiffs. The suit was decreed. 4. Mr. Rajendra Prasad, learned senior counsel appearing in support of the appeal, submitted that Mahabir Prasad Singh was tenure holder is not in dispute. Referring to the evidence of P.W.27 (son of Dip Narain Singh; original settlee), as also the evidence of D.W.26 ( para 4), it is submitted that Mahabir Prasad Singh had during the relevant time more than 700 Bighas of land. Although the case of the plaintiff is in respect of auction sale and purchase by Mahabir Prasad Singh only in respect of 62 and odd Bighas of land, but referring to their evidence and other materials on record, it has been contended that said Mahabir Prasad Singh definitely held more 5 than 700 Bighas of land spread over several villages/moujas. He then referred to Section 5 of the B.T.Act. Relevant parts/portion of Section 5 of the B.T. Act are quoted here under: 5. Meaning of „ tenure-holder” and raiyat- (1) “ Tenure- holder‟ means primarily a person who has acquired from a proprietor or from another tenureholder a right to hold for the purpose of collecting rents or bringing it under cultivation by establishing tenants on it, and includes also the successors in interest of persons who have acquired such a right. (2) ………. (3)……….. (4)……….. (5)Where the area held by tenant exceeds one hundred standard bighas, the tenant shall be presumed to be a tenure holder until the contrary is shown. It has thus been submitted that a presumption in law is raised and the Court may accept the case of the plaintiffs that Mahabir Prasad Singh acquired tenure holdership by way of auction purchase from Sukhai Mandal in respect of 62 and odd Bighas of the suit land. Learned counsel then referred to the provisions of the Court of Wards Act 1879. He placed reliance on Section 6 (b) of the said Act. Relevant portion(s) of the same read as under: 6. Power of the Court to take charge of property of certain persons. –(1) the Court shall have power to take charge of the property of the following proprietors or trustees- (a) female proprietors declared by the Court incompetent to manage their own property; (b) proprietors declared by the Court to be minors; (c )……….. (d..……….. (f)….…….. In the submission of learned counsel presumption raised under Section 5(5) of the B.T.Act in the light of materials available on 6 record do indicate that what Mahabir Prasad Singh purchased in auction sale was the tenure holdership of Sukhai Mandal in respect of 62 and odd bighas of land and as such he was legally justified and entitled to settle those lands or parts thereof with aforesaid Dip Narain Singh by way of Parwana (Exhibit-6) in order to get the suit land tilled by the tenants/settlees and collect rent etc. 5. Learned counsel for the defendants( respondents herein), while supporting the impugned judgment, submits that there is absolutely no assertion in the plaint that Mahabir Prasad Singh acquired tenure holdership in respect of the land so auction purchased by him from one Sukhai Mandal. Exhibit- D & D/1 is/are the returns filed by the landlord(s) of Touji No. 4920 at the time of vesting of Zamindari accepting defendant nos. 4 & 5 ( sons of Mahabir Prasad Singh), as raiyats respecting suit land appertaining to C.S. Khata No. 508 of Mouja Bhutauli. Exhibit-B series are the rent receipts relating to the suit land some of them were granted by the ex-landlord to Mahabir Prasad Singh ( auction sale purchaser) and after his death in favour of his two sons ( defendant Nos. 4 and 5). This was followed by rent receipt granted by the State of Bihar in favour of the two sons of the auction purchaser, namely, Mahabir Prasad Singh. The contesting defendant nos. 1 to 3 are purchasers of the disputed land from defendant nos. 4 and 5, (sons of Mahabir Prasad Singh). Exhibit- G is yet another document relating to cess valuation return which was filed by the ex-landlord of Touji No. 4920 sometime in the year 1921- 22 wherein Mahabir Prasad Singh was shown as ‘Raiyat’ of 62 7 bighas, 5 kathas and 12 dhurs of land( suit land) appertaining to C.S. khata no. 508 of mouza Malpa Bhutauli. Referring to Section 4 of Bihar Tenancy Act, 1885, it is contended that in law there are different classes of tenants which include tenure holder, raiyats and under raiyats. Section 5 of the Act contemplates that where the area held by tenants exceeds 100 standard bighas the tenant shall be presumed to be a tenure holder until the contrary is shown. Admitted case of the parties is/are that Mahabir Prasad Singh acquired only 62 and odd bighas of land by way of auction sale. Mahabir Prasad Singh may be holding more than 700 bighas of land during the relevant time but so far as the purchase in auction sale is concerned, the same was admittedly less than 100 bighas of land. According to him a person may be tenure holder in respect of some land and a ‘raiyat’ in respect of another tract of land. The presumption as provided under Section 5 (5) of B.T.Act cannot be applied in the present case in order to hold that aforesaid Mahabir Prasad Singh acquired tenure holdership in respect of 62 and odd bighas of land by way of auction sale purchase. There are adequate materials on record both oral and documentary to show that Mahabir Prasad Singh was a tenant/raiyat in respect of 62 and odd bighas of land (suit land). Once it is found and held that he was not having tenure holdership on the suit land then he was not legally entitled to settle the land by issuing Parwana (Exhibit-6) and thereby creating raiyats under him 6. We have perused the materials on record referred to by the parties and considered the submissions advanced in support of their 8 respective cases. It appears that the principal issues involved in the present case is/are the nature of interest/title/ownership acquired by Mahabir Prasad Singh in the auction sale effected in execution of decree and the validity and/or legal value of the settlement made by him with Dip Narain Singh ( vendor of the plaintiffs), by executing Parwana (Exhibit-6). Both the counsel have focussed their arguments on these aspects only. We, therefore, deem it appropriate to examine these issues in the light of materials available on record and referred to by the counsel. 7. Specific case of the plaintiffs in the suit is that the disputed land along with other lands of Touji No. 4920 of Mauza Malpa, Bhutauli, belonged to one Sukhai Mandal who was tenure holder and used to get them cultivated by ‘raiyats’ under him. In an auction sale, 60-62 bighas of land was purchased by Mahabir Prasad Singh and rest of the lands was/were purchased by one Janki Ram Marwari. Aforesaid Mahabir Prasad Singh thus became the tenure holder of the suit land. He settled them with Dip Narain Singh (original settlee) by executing parwana (Exhibit-6) in order to establish raiyats under him and thereby realize land rent. The defendants dispute this position. According to them, Mahabir Prasad Singh did not acquire tenure holdership. He was a raiyat of the suit land after purchasing them in an auction sale. Evidence on record indicate and the parties are in agreement that Mahabir Prasad Singh was a big landlord/zamindar having zamindari interest in respect of huge chunk of lands spread over several villages. Evidence of D.W.26 indubitably shows that sons 9 of Mahabir Prasad Singh (defendant nos. 4 and 5) still hold over 700 bighas of land. Sub-Section 5 of Section 5 of the B.T.Act raises a presumption that in such situation the land holder/owner shall be presumed to be a tenure holder in respect of the lands held by him. Rent receipts produced by the plaintiffs Exhibit 1 series and Exhibit 1 Z 19/24 would show that rents in respect of the suit land were being paid to and received by ‘sirista’ of Mahabir Prasad Singh, the Court of Wards and thereafter by the State of Bihar. Evidence adduced on behalf of the plaintiffs ( PW’s 9,15,17,18,20,23,24,30,31,32 and 38) indicate continued possession of the purchasers and/or their vendors over the pieces of lands purchased by plaintiffs. P.W.7 is the Advocate Commissioner who made local inspection and submitted his report (Exhibit-4). From his deposition read along with the field book and the report, it can be found that at the time of local inspection, the suit land was found split into several parcels/pieces of land in possession of the tenants/persons as spelt out in the plaint. Contention of the defendants, on the other hand, is that the Zamabandi Return(s) and Cess valuation returns (Exhibit D and G series) read along with rent receipts (Exhibit B series) would indicate that defendant nos. 4 and 5 (sons of auction sale purchaser) were tenants and continued in possession of the suit land. To us it appears that these documents do not take out ground beneath the case/stand put up by the plaintiffs. Specific allegation in the plaint is that having become hostile, subsequently the sons of original settlee suppressing the actual fact of settlement and cultivating possession of the raiyats got these returns 10 filed. These were alleged to be acts of fraud or artifice. It is the case of the parties that subsequently in the year 1946-47, defendant nos. 4 and 5 acquired co- proprietary interest in Touji No. 4920. They thus continued to claim themselves as tenant(s) to defeat the claim of the plaintiffs or their vendor(s) by conveniently ignoring the settlement respecting the suit land(s) already made by their father ( Mahabir Prasad Singh), in favour of Dip Narain Singh ( original settlee under Exhibit-6). Contention raised on behalf of the defendants that claim of auction sale purchase by Mahabir Prasad Singh in respect of only 60- 62 bighas of land notwithstanding the fact that aforesaid Mahabir Prasad Singh admittedly held several hundred bighas of land having Zamindari interest in respect of some of them such presumption raised in law under Section 5(5) of the B.T.Act shall not be attracted, in our view, is ill- founded. We are thus convinced that the case made out in the plaint that Mahabir Prasad Singh acquired tenure holdership in respect of 60/62 bighas of land ( suit land) purchased in an auction sale is proved by the plaintiffs. 8. Once it is found and held that in the auction sale Mahabir Prasad Singh acquired tenure holdership respecting the suit land, the next issue would be whether he was entitled to settle lands with raiyats and realize rent. This aspect of the matter would not detain us as the parties are in agreement that a tenure holder was entitled to permanently settle the lands and thereby create tenancy under him in order to realize land rent. This takes us on to consider the next issue i.e. validity/ genuineness of the document ( Exhibit-6) by which the 11 suit lands, as claimed by the plaintiffs, were permanently settled with Dip Narain Singh by Mahabir Prasad Singh. This document is scribed on a stamp paper and is unregistered. Executor of the document is a Moharir who claims execution on behalf of Mahabir Prasad Singh. This was brought in existence several decades ago, to be precise sometime in the year 1908, and pertains to 62 bighas, 5 kathas and 12 dhurs of land, situate in Mauza Malpa, Bhutauli ( excluding orchard etc), and recites settlement thereof with Mahabir Prasad Singh. Execution portion of this document written in ‘kaithi’ reads as under: “„MINJANIB JANAB BABU MAHABIR PRASAD SINGH, GORDAR, ALABD: RAM UDAR, KHARIDAR NEELAM HAJA.” 8.1 Exhibit-6 has been produced before the Court by one of the plaintiffs narrating the manner in which he obtained custody of the document. It has been admitted into evidence and marked Exhibit without any objection. It is well known fact that the zamindars and/or the tenure holders in respect of vast chunks of land used to settle lands by issuing parwanas executed by their employees on their behalf. Section 90 of the Evidence Act reads as under:- 90. Presumption as to documents thirty years old.- Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person‟s handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested. Explanation.- Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or the circumstances of the particular 12 case are such as to render such an origin probable. This explanation applies also to section 81. 8.2 Learned counsel for the defendants, on the other hand, submits that this document is inadmissible because it relates to the settlement of agriculture land/holding which required compulsory registration. The genuineness of this document has also been doubted on the ground that the authority of the executor who has settled these lands on behalf of Mahabir Prasad Singh is not mentioned. The document even if admitted into evidence shall not bind Mahabir Prasad Singh or his heirs (defendant nos. 4 and 5). The learned trial Court, on consideration of the submissions raised by the parties in this behalf, held, and rightly so, that it was admissible in evidence in order to depict the nature and character of possession of the persons who claimed to be in continued cultivating possession of the lands mentioned in the parwana (Exhibit-6). The other ground on which the genuineness of this document has been objected to by the defendants in the Court below have not been raised before us, and as such, we are not dealing with those objections. 8.3 To conclude this issue, we hold that the trial Court has rightly admitted the said document (Exhibit-6) in evidence and used for collateral purposes in order to find the true nature and character of the possession of the persons who claimed to be in cultivating possession of the lands mentioned in the parwana (Exhibit-6). We do not find any infirmity in the said finding of the learned trial Court. This Court further adds that Exhibit 7 and 7/b (mortgage deeds), executed by an stranger in favour of defendant no.2 and some other 13 stranger, depict that one of the plaintiffs holds and possesses lands adjacent to the land covered by those deeds. Exhibit-10 is/are the documents containing endorsement by defendant no.2 (Natheshwar), redeeming the mortgage. As noted earlier, Exhibit 1 series, Exhibit 1 Z 19 to 24 read along with the report of the Advocate Commissioner (Exhibit-4) and the oral evidence of the witnesses adduced on behalf of the plaintiffs do support the genuineness of Exhibit-6 as also the fact that it was acted upon. The contention of the defendants is rejected. 9. In fairness to the learned Counsel appearing on behalf of the defendants, we proceed to examine the case law cited by him. Learned counsel has referred to and relied upon a judgment rendered by a Division Bench of this Court in the case of Sukrit Sahani & Ors Versus Fuchai Sahani @ Rajendra & Ors. reported in 2009(3) PLJR 977, paragraph no.33. On the strength of this judgment (noted in paragraph no.33), it has been contended that the findings of facts recorded by the appellate court should not normally be interfered with in the Letters Patent jurisdiction, unless those are perverse or palpably unreasonable. This Court in the present case finds that the findings arrived at by the learned trial Court has been set aside by the learned Single Judge of this Court without taking into account the reasons assigned by the learned trial Court in arriving at these conclusions. It is the submission of learned counsel for the appellants that the case and the materials placed in support thereof by the plaintiffs which found favour with the learned trial Court has not at all been 14 considered by the learned single Judge. In that view of the matter, in our view, the ratio enunciated in the case relied upon by learned counsel for the defendants (respondents) is not applicable to the facts and circumstances of the present case. In the present case, the learned Single Judge has differed with the findings of facts arrived at by the learned trial Court based on materials placed on record. True it is that normally, the Court exercising its jurisdiction under Letters Patent of the Patna High Court refrains from interfering with the concurrent findings of facts arrived at by the two Courts but that is not the case here. 10. In the result, for the reasons indicated above, this Court respectfully disagrees with the impugned order and allows the appeal. The judgment and order recorded by the learned trial Court is hereby restored. 11. There shall be no order as to costs. I agree. (S.K.Katriar, J.) The Patna High Court, Dated 28th January, 2010, Sym/ (Kishore K. Mandal, J.) (S. K. Katriar,J.)