IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.230 of 2009 Kishori Sah & Ors Versus Chansoor Devi & Ors ----------- 13 8-11-2011 Heard Mr. Dronachariya , learned counsel appearing on behalf of the appellants in support of this appeal. The plaintiff have filed this appeal against the judgment of reversal by which the appellate court has reversed the decree passed by the trial court in favour of the plaintiffs. The plaintiffs have filed a suit for declaration of title and recovery of possession over the suit land mentioned in the plaint with the assertion that the plaintiffs had been in possession of the suit land with the permission of the ex-landlord and thereafter they had also sold part of the suit land in the year 1953. It is the case of the plaintiffs that the defendants started creating dispute regarding their possession which led to a proceeding under section 145 Cr.P.C. which had been wrongly decided in favour of the defendants. The plaintiffs have also stated that the ex-landlord had submitted return with regard to the suit land in their favour and thereafter Register II was also prepared in the name of the plaintiffs creating Jamabandi in their favour. Survey Khatiyan had also been filed on behalf of the plaintiffs to substantiate their assertion. 2 The defendants have resisted the claim of the plaintiffs on the ground that they have been put in permissive possession by the ex-landlord over the suit land and they have also been dealing with the same by way of mortgage and sale and have been coming in exclusive possession of the suit property. In the trial court a specific issue was framed with regard to the location of the suit land either in Plot no.5 or Plot No. 17 as appearing from the rival claims of the parties and after considering the evidence the trial court came to the finding that the suit land is located in Plot no.17. However, while considering the issue of title the trial court has recorded the finding in favour of the plaintiffs and consequently decreed the suit. In appeal, however, the appellate court after considering the evidence and submissions of the parties, has reached to the finding that the plaintiffs have not been able to establish their title over the suit land. From the perusal of the judgment of the appellate court it appears that the appellate court below has proceeded to consider the evidence of the plaintiffs with regard to the title in view of the legal position that in view the nature of the suit filed by the plaintiffs it was for them to establish their title over the suit land as well as possession till the date of dispossession. The appellate court has considered the evidence on record brought on behalf of the plaintiffs to establish their case of title and has come to the conclusion that the description of the suit land as given in the Schedule of the plaint is vague and the plaintiffs have not filed the return submitted by the ex-landlord or 3 the Register II to substantiate their claim. Further, it has also been found that the rent receipts filed by the plaintiffs do not relate to the suit land. The learned counsel appearing on behalf of the appellants has submitted that it is the case of the defendants that they have been granted permissive possession over 2 katha 5 dhurs of land, which, according to their own case, had been mortgaged by them and thereafter part of the same had also been sold by them and in all those documents it had been clearly mentioned that the defendants had been dealing with Plot no.5 and not the suit land. It has been further urged that there had been ample material evidence on record to substantiate the case of the plaintiffs, but the appellate court has misdirected itself in appreciating the same and has wrongly discarded the rent receipts ignoring the specific case of the plaintiffs that 2 kathas 13 dhurs are the other lands of the plaintiffs which had no concern with the suit land. After hearing the submissions of the learned counsel for the appellants and perusing the impugned appellate court judgment, it appears that the appellate court has rightly held that the plaintiffs were under legal obligation to establish their title and possession till the date of their dispossession over the suit land. Thereafter, the appellate court has considered the evidence adduced by the plaintiffs and has recorded the finding of fact that the plaintiffs have failed to establish their title over the suit land, as claimed by them. The appellate court has also considered the rent receipts filed by the plaintiffs as well as the non-production of 4 the copy of Return or Register II, and has held that the rent receipts filed by the plaintiffs are not related to the suit land. It is well-settled that it is for the plaintiff to establish his case by leading best evidence in that regard and the weakness in the case of the defendant cannot be taken benefit by the plaintiff.The evidence adduced by the plaintiff have not disclosed the mode of devolution of title of the suit land upon him. There does not appear any legal infirmity in the conclusion arrived at by the appellate court below and there is no scope for interference in this second appeal. No substantial question of law thus arises for consideration in this appeal. This appeal is, accordingly, dismissed. ( V. Nath, J.)