IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.180 of 2007 1. The State of Bihar through the Collector, Katihar 2. The Commissioner, Katihar Municipality, Katrihar. ….Defendant-Appellant-Appellants versus Smt. Chandrawati Devi, wife of Late Shila Kant Thakur And d/o late Ganesh Kant Choudhary, resident of Mangal Mangal Bazar, Katihar Town, P.S. & District Katihar. …Plaintifff-Respondent-Respondents. with SA No.183 of 2007 The Commissioner of the Katihar Municipality, District Katihar through its Executive Officer, Sri Umahankar Prasad, son of name not known, Nagar Parishad (Katihar Municipality), Katihar. …Defendant-Appellant-Appellant Versus 1. Smt. Chandrawati Devi, wife of Late Shila Kant Thakur and d/o late Ganesh Kant Choudhary, resident of Mangal Mangal Bazar, Katihar Town, P.S. & District Katihar. …Plaintiff-Respondent-Respondent. 3. The State of Bihar through the Collector of Katihar, District Katihar. -Defendant-Respondent-Respondent ----------- For the Appellants : Mr. Naresh Kumar Sinha, Advocate. in S.A. No. 183 of 2007. Mr. Narmadeshwar Jha, A.A.G. 7 with Sri Anand Bhushan, Advocate in S.A. No. 180 of 2007. For the respondents : M/s V. Nath, Ashok Kumar and in both the appeals Satish Kumar, Advocates. --------- 05/ 15.04.2010 Heard learned counsel for the appellants and learned counsel for the respondents in both the aforesaid appeals. 2. Both the second appeals have been heard together as they arise out of common judgment of the court of appeal below, by which two title appeals; one by the State of Bihar through the Collector, Katihar and the other by the Commissioner, Katihar 2 Municipality, against the judgment and decree of the trial court in Title Suit No.103 of 1963 (51/1992), were decided. 3. The matter arises out of Title Suit No. 103 of 1963 (51/1992) , which was filed by the original plaintiff Ganesh Kant Choudhary for declaration that he was the sole owner of the suit land, detailed in Schedule `A’ of the plaint and was coming in possession thereof till 1956 when he was forcibly dispossessed from the suit land. Another declaration was sought that the defendants had no title and possession over the suit land and were liable to be ousted therefrom and hence decree of recovery of possession of the suit land along with injunction, mesne profit, cost etc. were also sought. 4. In the said suit, defendant no.1 was the State of Bihar through the Collector, Katihar, whereas defendant no.2 was Commissioner, Katihar Municipality, both of whom contested the suit separately, but the grounds taken by them were similar in support of which they also led their respective evidence. The said suit was decreed on contest by Subordinate Judge-III, Katihar, vide his judgment and decree dated 22.12.1995. 5. Against the aforesaid judgment and decree of the trial court, the State of Bihar through the Collector, Katihar filed Title Appeal No. 03 of 1996, whereas, the Commissioner, Katihar Municipality filed Title Appeal no.04 of 1996, which were heard analogous and were dismissed on contest by the Additional District Judge-cum-F.T.C.-V, Katihar vide his common judgment dated 3 11.06.2007, according to which decrees were prepared. 6. Against the aforesaid judgment and decree of the court of appeal below passed in Title Appeal No. 03 of 1996, the State of Bihar through the Collector along with the Commissioner, Katihar Municipality filed Second appeal No.180 of 2007. Similarly against the judgment passed in Title Appeal No. 04 of 1996, the Commissioner, Katihar Municipality filed Second Appeal No.183 of 2007. Both the aforesaid second appeals were heard together under Order XLI Rule 11 of the Code of Civil Procedure. 7. Learned counsel for both the appellants vehemently challenged the judgments and decree of the courts below stating that the alleged deed of settlement of 1934 was not produced by the plaintiffs and the plaintiffs’ case was based merely on some Zamindari receipts and hence in view of the law settled by a Full Bench of this Court in case of Bastacolla Colliery Co. Ltd. v. Bandhu Beldar and another, reported in A.I.R. 1960 Patna 344, there cannot be any settlement after 1929 without any registered Parwana or document. 8. It was also claimed on behalf of the appellants that the courts below wrongly relied upon the decision in the earlier suits bearing Title Suit Nos.76 to 96 of 1954, in which judgment and decree was passed merely on the point of encroachment and hence the said judgment and decree of that title suit cannot act as res judicata in the instant case, in which reliefs sought are completely different. It was further claimed on behalf of the appellants that the 4 suit land had already been acquired by the State of Bengal as far back as in the year 1909 and hence the plaintiffs cannot have any claim of right and title with respect to the suit properties. 9. On the other hand, learned counsel for the plaintiffs-respondents argued that all the points taken by the appellants have been fully considered by the courts below and hence on the basis of the respective pleadings and evidence of the parties, the trial court as well as the court of appeal below both have arrived at concurrent findings of facts, which cannot be legally interfered in these second appeals. 10. It is true that although the plaintiff had claimed that the suit lands were settled with the original plaintiff by the ex- intermediary in the year 1934, but no deed of settlement has been produced, rather he only produced Zamindari receipts issued by the ex-intermediary (Exts. 11 series), in addition to which the ex- intermediary had himself deposed as a witness in a previous suit and the said deposition had been made Ext.8 in the instant suit, which clearly showed that he admitted that he had settled the suit land with the original plaintiff in the year 1934. 11.. So far the decision of a Full Bench of this Court in case of Bastacolla Colliery Co. (supra), relied upon by the appellants is concerned, it was specifically held in paragraphs no. 11,12 and 15 thereof as follows :- “(11) In so far as the second point raised by Mr. De is concerned, two principles which are well-settled are (1) that the possession of a lessee who enters into possession on the basis of an invalid lease becomes wrongful, and 5 he must be treated to be a trespasser from the time of his entry; and (2) that possession of a limited interest may be just as such adverse for the purpose of barring a suit relating to that interest as the possession of a complete interest may be adverse for the purpose of barring a suit for recovery of the property, or in other words, a person in possession of land may prescribe for a limited interest like that of permanent tenancy. Both Mr. De and Mr. Chatterji accept these principles. Mr. De has, however, argued that payment of rent by the lessee and its acceptance by the lessor make a difference because the relationship of landlord and tenant comes into existence, and the lesssee’s possession ceases to be adverse for any purpose. Mr. Chatterji has admitted that, if a person is found to be a tenant of some kind, he cannot seek to enlarge his rights by prescription; but he has argued that mere payment and acceptance of rent cannot prevent the acquisition of the right of permanent tenancy by adverse possession when it appears from the invalid document executed for the creation of the lease that the parties intended to create a permanent lease, or when it is clear that the lessee was all along claiming the right of permanent tenancy. It seems to me that the true principles are as follows : (12.) The possession of a lessee becomes wrongful from the time of his entry on the basis of a void or invalid lease; but if he pays rent, which is accepted by the lessor, his possession ceases to be adverse to the lessor, and relationship of landlord and tenant comes into existence. In other words, he no longer remains a trespasser but becomes a tenant. The question then arises what the duration of his tenancy would be. (15) There are, however, some cases in which a lessee can acquire the right of the permanent tenant by prescription inspite of payment and acceptance of rent. Those are cases where the lessee pays rent on the basis of a notorious claim of permanent tenancy to the knowledge of the owner. Acceptance of rent by the owner on the basis of the lessee’s claim as a permanent tenant will not prevent the acquisition of such a right by the lessee. If the lessee tenders the rent on the basis of the permanent tenancy and the owner refuses to accept it on that basis, the parties are at arm’s length, and no relationship of landlord and tenant can come into existence between them. Hence the lessee’s possession is adverse to the lessor, and he may acquire a limited right of permanent tenancy by being in adverse possession for the statutory period.” 6 12. Considering the aforesaid decision of the Full Bench along with the evidence adduced on behalf of the plaintiff, it is quite apparent that after the said oral settlement rent was paid by the plaintiff and accepted by the landlord, hence there was relationship of landlord and tenant between them and the plaintiff was merely tenant. Thus, it is quite apparent that only due to absence of a registered deed of settlement, raiyati interest of the original plaintiff cannot be legally discarded. 13. So far the question of acquisition of the suit land by the State of Bengal in the year 1909 raised by the defendants is concerned, there is no document at all, which could show that any notification was issued or any award was prepared under the Land Acquisition Act in any land acquisition proceeding in favour of the State of Bengal with respect to the suit land. The courts below very carefully considered the pleadings and evidence of the parties and, thereafter, came to the specific conclusion that the suit land was never the subject matter of any such proceeding and hence it was never acquired. Moreover, the State of Bihar as well as the Katihar Municipality are blowing hot and cold at the same time by claiming that it was acquired as far back as in the year 1909 and also claiming that there was no registered document for settlement. Furthermore, they had failed to produce any chit of paper to show that after acquisition any step had been taken by the authorities with respect to the suit land, whereas to the contrary the State of Bihar had itself accepted the original plaintiff as its raiyat and issued rent receipts in 7 his favour after receiving rent for the suit premises. 14. Moreover, there are concurrent findings of both the courts below that the plaintiff was in continuous possession of the suit land as a raiyat from 1934 till 1954 when he was dispossessed. This aspect of the matter was considered in earlier suits bearing Title Suit No.76 to 96 of 1954, which were filed by the plaintiff against the Katihar Municipality against his ouster in 1954 on the allegation of encroachment. The said suits were decreed by the trial court which was affirmed uptill the High Court vide its judgment dated 21.10.1960 passed in Second Appeal Nos. 569 to 589 of 1957. Both the learned courts below very carefully considered the above mentioned judgments passed in the said earlier cases and found that in these cases it was held up to the High Court that the plaintiff was in possession of the suit land as owner on the basis of the settlement made by the ex-intermediary and was not encroachers. The reliefs in the aforesaid earlier suits may be different from the reliefs sought in the instant suit, but it is quite apparent that the findings with respect to title given in those suits affirmed up till the High Court were binding on the defendants- authorities and hence principle of res judicata would apply against the defendants while challenging the title of the plaintiffs. 15. In addition to the aforesaid matter, Ext. 3 is a deed of gift dated 12.12.1953 executed by the original plaintiff in favour of the Katihar Thana Shiv Mandir, which was being constructed by the Police officials, on the land donated by the plaintiff, which was 8 part of the land settled with him by the ex-intermediary. On the basis of the evidence on record, the courts below found that Ext. 3 was a valid document, on the basis of which land was transferred and construction had been made and no one had ever come forward to challenge the same and hence the said exhibit and the subsequent construction of the Mandir etc. completely demolishes the claim of the defendants. 16. 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 either of the second appeals, both of which are, thus, dismissed at this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. MPS/ ( S. N. Hussain, J. )