IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.204 of 2008 ASHOK KUMAR THAKUR, Son of Late Chandradeo Thakur, resident of village and P.O. Tetri, P.S. Naugachia, District Bhagalpur …. Plaintiff - Appellant - Appellant Versus 1. MOSTT. PUNAM DEVI. Wife of late Vikram Kumar, daughter of Late Ramballav Sahu 2. Mridula Devi, W/o Chandra Shekhar Chourasia, D/o late Ram Ballav Sahu 3. Bina Devi @ Meena Dei, w/o Dipk Kunja, D/o late Rmballav Sahu 4. Mamta Devi, w/o Prafullav Chandra Sah, D/o late Ramballav Sahu 5. Prafulla Chandra Sahu, Son of late Ramballav Sahu 6. Raj Kumar Sah, Son of late Ramballav Sahu 7. Pradip Kumar Sahu, Son of late Ramballav Sahu 8. Smt. Savitri Devi, w/o Pravin Kumar Sahu 9. Smt. Kamla Devi, W/o Raj Kumar Sahu 10. Smt. Sudama Devi, W/o Pradeep Kumar Sahu All residents of village Parbatta, Sub Division Naugachia, District Bhagalpur 11. Gopi Nath Mishra, son of late Shiv Narain Mishra 12. Rajani Kant Mishra, son of late Shiv Narain Mishra, Both residents of village Sihoul, P.S. Saharsa, District Saharsa 13. Bhagwan Kumar , Son of Kusheshwar Kumar @ Pilo Kumar 14. Uma Devi, wife of Bhagwan Kumar, Both residents of village Tetri, P.S. Naugachia, District Bhagalpur 15. Umesh Jha, Son of Raitinath Jha, resident of village Shahpur, P.S. Gopalpur, District Bhagalpur .. Defendants .. Respondents 16. Mostt. Sudama Thakur, wife of late Chandradeo Thakur 17. Mira Jha, Daughter of Late Chandradeo Thakur 18. Saroj Jha, daughter of Late Chandradeo Thakur 19. Asha Kumari Jha, daughter of late Chandradeo Thakur 20. Kalyani Jha, daughter of late Chandradeo Thakur 21. Sadhna Jha, daughter of late Chandradeo Thakur 22. Subodh Kumar Thakur, son of late Chandradeo Thakur 2 All residents of village Tetri, P.S. Naughachia, District – Bhagalpur …Plaintiffs-Appellants-Respondents ----------- For the appellants : M/s Uday Chand Prasad and Binod Kumar Sinha, Advocates ---- 3 31.08.2010 Heard learned counsel for the appellant. This appeal has been preferred against the judgment and decree passed by the 3rd Additional District Judge, Naugachia in Title Appeal No. 42 of 2002, whereby he has dismissed the appeal and affirmed the judgment and decree passed by the Sub Judge II, Naugachia in Title Suit No. 32 of 1989. The plaintiff – appellant had brought Title Suit No. 32 of 1989 against the defendants for declaration that they have absolute title over the suit land better than the defendant first set , who are not in possession, and also for grant of permanent injunction. The plaintiff – appellant’s case is that the land in dispute is the ancestral joint family property of the plaintiffs and they are coming in joint possession of the same for more than 50 years. In the cadastral survey of rights the land stood recorded in the names of Haldhar Thakur and others, who are brothers of plaintiff no. 1 3 Chandradeo Thakur and in oral partition amongst brothers land in question was allotted to the plaintiff no. 1. It is also stated that the father of the plaintiff no. 1 was Zamindar and he had created sham Jamabandi in the name of Bhagina of plaintiff no. 1 Gopinath Mishra, who had lost his father at the age of 4 years and was being maintained by the family of the plaintiffs but neither the land was given in his possession nor was the same legally transferred either by sale to him. Further case of the plaintiff was that after vesting of Zamindari the name of aforesaid Gopi Nath Mishra was recorded in Jamabandi but was without any possession and valid title. Further case of the plaintiff is that the name of aforesaid Gopi Nath Mishra was allowed to enter in raiyati survey records of right upon a compromise having been reached between the parties. However, it is clearly stated in a column that he was divested from the right to alienate the property. The defendants appeared by filing the written statement making their claim that the land was orally settled by the erstwhile Zamindar, i.e., father of the plaintiff no. 1 and possession was handed over to the 4 concerned defendant. It is submitted that in the return filed by the Zamindar at the time of vesting of the Zamindari the defendant concerned was shown as raiyat of the land in dispute and, accordingly, in the revisional survey record of right also his name appears as raiyat and, thus, land is in exclusive possession of aforesaid Gopi Nath Mishra and Rajani Kant Mishra as they are the rightful owners. It is submitted that the entry made in the remarks column of revisional survey khatian not as per the requirement of law under section 102 read with 103 of the Bihar Tenancy Act is null and void. The trial court after hearing the matter recorded finding that the land was settled in favour of the defendant Gopi Nath Mishra and the same is in actual possession of aforesaid Gopi Nath Mishra having been settled by the erstwhile Zamindar. In the return filed at the time of vesting of the Zamindari also same fact has been shown. So far as the entry made in remark column regarding the fact that the raiyat was not entitled to alienate the property of Chandradeo Thakur is concened, it has been observed by the trial court that such entry not being required to be entered into the provisions of the Bihar 5 Tenancy Act, 1885 during survey proceeding, the same cannot be considered as a conclusive evidence and no presumption of correctness could be accorded to such entry. The trial court has also noticed that the plaintiff has neither challenged the settlement in favour of the defendant concerned nor has he challenged the entry made in the revisional survey record of rights in favour of the defendants. Thus, the suit was dismissed. The judgment and decree of the trial court was challenged in appeal by filing Title Appeal No. 42 of 2002. The lower appellate court also came to the conclusion that the defendants are in possession of the suit property since there is a settlement in their favour and has also observed that the entry in the remarks column restraining the raiyat from alienating the land described therein, is in teeth of provisions as contained in Section 10 of the Transfer of Property Act, 1882. It has been also noticed by the lower appellate court that the plaintiffs are not found in possession and they have not sought for any relief for recovery of possession of the suit land from the defendants and if they are found in possession, the suit would be barred by the provisions of 6 the Specific Relief Act. As such, the judgment and decree of trial court was affirmed by the lower appellate court. Learned counsel appearing on behalf of the appellant submitted that both the courts have failed to appreciate the evidence on record in its proper perspective and failed to appreciate that the settlement in favour of the defendants is showy and sham in nature. However, learned counsel appearing on behalf of the appellant could not show any material even before this Court so as to substantiate his claim. The decisions of the court below are concluded by concurrent findings on fact and the appellant could not point out any error committed by the court concerned while passing such judgment and decree. That apart, this Court in its decision in Mohan Jha v. Shivadayal Prasad, AIR (37) 1950 293 had held that an entry in the remarks column of the record of rights with regard to certain plots that a suit was brought in respect of those plots by a plaintiff on the strength of sale deed and it was dismissed does not carry with it any statutory presumption of accuracy under Section 103(B) of the Bihar Tenancy Act, the entry being 7 not one of the particulars required to be entered under Section 102, and the finding of the lower appellate Court in this regard that such entry in the remarks column of the revisional survey khatian divesting the defendant from the right of alienating the property, since not required under the Act to be made, cannot carry with it any statutory presumption with accuracy under Section 103(B) of the Bihar Tenancy Act, also seems to be correct. Learned counsel appearing on behalf of the appellant could not point out any error in the findings of the courts below, specially in view of the provisions as contained in Section 10 of the Transfer of Property Act. As a result, this court is of the opinion that this appeal is devoid of any merit. Accordingly, the same is dismissed. Spd/- ( Dr. Ravi Ranjan, J.)