IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.43 of 2001 1.Nagina Ahir s/o of Sri Jokhandi Ahir 2. Shirpujan Ahir s/o Sri Ram Subhag Ahir 3. Moti Ahir s/o Shivdani Ahir 4. Parsuram Yadav s/o late Thag Ahir 5. Smt Panmati Devi w/o Shivdeni Yadav 6. Smt Budha Devi w/o Nanjee Yadav 7. Smt Sudha Devi w/o Lal Bahadur Yadav 8.Moshmat Raghia Devi w/o late Ram Narayan Ahir 9. Tulsi Choudhary s/o late Ram Nr. Choudhary 10. Setban Choudhary s/o late Ram Nr. Ahir 11. Indrawati Devi d/o late Ram Nr. Choudhary 12. Pameshwar Ahir s/o Ramyadi Ahir 13.Rameshwar Ahir s/o Ramyadi Ahir All resident of Village Tiwari Tarwa P.S. Gulhani Dist. Siwan Plaintiffs- Appellants- Appellants Versus 1. Ramayan Choudhary 2. Shiv Bachan Choudhary both sons of Moti Ahir 3. Rajdeo Choudhary s/o Palakdhari Choudhary 4. Suresh Choudhary s/o Bhagdu Choudhry 5. Mahesh Choudhary s/o Bhagdu Choudhary 6. Nanhaku s/o Khelawan Choudhary 7. Rajbali Choudhary s/o Khelawan Choudhary 8. Mangal Choudhary s/o Palakdhari Choudhary All resident of Village Tiwari Tarwa P.S. Gulhani Dist. Siwan Defendants- respondents- Respondent Ist set 9. Chandeshwar Ahir s/o Late Ram Awtar Ahir 10. Nandji Ahir s/o late Ram Awtar Ahir 11. Bachcha @ Ramlal Ahir s/o Ramawtar Ahir 12. Parbatia D/o Ram Awtar Ahir son of Bachcha Ahir resident of village Tikampur P.S. Bhatpar Dist. Deoria (U.P) 13. Ram Nand Ahir s/o late Deomuni Ahir 14. Baleshwar Ahir s/o late Deomuni Ahir 15. Bawki d/o Deomuni Ahir w/o Ramjee Ahir resident of village Sundar chowk P.S. Bankata Dist. Deoria (U.P.) 16. Rukhia d/o Deomuni Ahir w/o Maharaj Ahir, resident of village Tikaampar P.S. Bahatpar Dist. Deoria (U.P.) 17. Chandrabhan s/o Ram Briksh 18. Rudal Ahir s/o Ram Briksh 19. Jitendra Ahir s/o Ram Brikash All resident of Village Tiwari Tarwa P.S. Gulhani Dist. Siwan Defendants-Respondents-Respondents 2nd set ----------------------- For the appellants: Mr J.P.Bhagat, Advocate Mr D.N.Tewari, Advocate For respondent no.1: Mr Shailedra Kumar Dwivedi, Advocate ------------------- - 2 - 08/ 29.03.2010 Heard learned counsel for the appellants and learned counsel for respondent no.1. 2. This second appeal has been filed by the plaintiffs- appellants-appellants challenging the judgments and decree of both the courts below. 3. The matter arises out of Title Suit no.40 of 1983 which was filed by the plaintiffs for declaration of their title and for injunction as well as other ancillary reliefs. The said suit was dismissed on contest by Subordinate Judge V, Siwan vide his judgment and decree dated 29.08.1992. 4. Against the aforesaid judgment and decree of the trial court, the plaintiffs-appellants filed Title Appeal no.35 of 1992 which was also dismissed on contest by Additional District Judge V, Siwan, vide his judgment and decree dated 11.09.2000.Against the aforesaid judgments and decree of the courts below instant second appeal has been filed. 5. Learned counsel for the appellants vehemently challenges the aforesaid judgments and decree of the courts below on the ground that the plaintiffs had specifically claimed settlement of the suit land with them by the admitted Ex-intermediatory who had submitted Return (exhibit 4) of the said land in the names of plaintiffs at the time of vesting of Zamindari in the State of Bihar under the Bihar Land Reforms Act 1950, on the basis of which Jamabandi (exhibit 5) was created in the names of the plaintiffs and their names were duly mutated and rent receipts were granted to them. Hence it was claimed by the appellants that they were entitled to declaration of title on the basis of the aforesaid documents and as such there could be no bar under section 34 of the Specific Relief Act, because the - 3 - plaintiffs did not claim any confirmation or recovery of possession on any portion of the suit land although a portion of the suit land had been found in possession of the defendants. 6. From the arguments of the parties as well as from the materials on record including the impugned judgments and decree of both the courts below, it is quite apparent that both the courts below had very carefully gone through the pleadings and evidence of the parties and had come to the definite conclusion that the basis of plaintiffs’ claim was Return (exhibit 4) and Jamabandi (exhibit 5). The said Return (exhibit 4) was merely on a Sada paper and not on the form prescribed for the purpose. It was also found that although the said return was called from the authorities concerned but the person who had produced it before the court was not even examined by the plaintiffs to prove the same, nor the decendants of the Ex-interemediatory were interested in proving the said return. 7. Furthermore, there was no material at all to prove any settlement by the Ex-interemediatory in favour of the plaintiffs with respect to the suit land on the basis of which any such return could be submitted. It is also found that the plaintiffs had failed to give even the date of the alleged oral settlement and the witnesses deposing for the plaintiffs were not consistent with the pleadings of the plaint and were full of contradictions. In the said circumstances, the courts below were quite justified in not relying upon the said return (exhibit 4). 8. So far Jamabandi (exhibit 5) is concerned, it is said to have been prepared on the basis of the said return but the said return having itself found to be unreliable, Jamabandi on its basis can not be held to be - 4 - legal and proper. Furthermore the authorities themselves had cancelled the said Jamabandi by the respective orders and the said orders of the revenue authorities have not been challenged before any appropriate authority nor any relief has been sought against the said order in the instant suit. In the said circumstances, Jamabandi can not legally support the claim of the plaintiffs. 9. Thus it is quite apparent that the plaintiffs miserably failed to prove their title over the suit land by any legal and valid material although onus was squarely upon them to prove their claim and hence the courts below had no option but to reject their claim and dismiss the suit. 10. Furthermore, when the plaintiffs have themselves miserably failed to prove their claim of title over the suit land, there is no occasion to consider the question of bar of the provision of section 34 of the Specific Relief Act to the suit. However, it is an admitted fact that the defendants are in possession of a portion of the suit land. 11. In the aforesaid facts and circumstances, this Court does not find any illegality in the impugned judgments and decree of the courts below, nor does it find any substantial question of law involved in the instant second appeal, which is accordingly dismissed at this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. (S.N.Hussain,J) shahid