IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.134 of 2007 1. Smt Fulo Devi w/o late Ram Jatan Mahto @ Jatan Mahto 2. Sri Arjun Mahto 3. Sri Madan Mahto Both sons of late Ram Jatan Mahto @ Jatan Mahto All resident of village Alapur P.O Dhankaul P.S. Teghra Dist. Begusarai 4. Smt Bhulli Devi @ Buli Devi w/o Madan Mahto 5. Smt Asha Devi w/o Sri Sudhir Mahto 6. Smt Usha Devi w/p Pavitra Mahton Both resident of village Ahiyapur P.S. Mansur chak Sub- Division Teghra Dist. Begusarai 7. Ram Bahadur Mahton 8. Bir Bahadur Mahton Both sons of Ram Autar Mahto resident of village Alapur Pergana Malki P.S. Teghra Dist. Begusarai Defendants- Appellants- Appellants Versus Kedar Nath Choudhry s/o Ram Purpan Narain Choudhary Plaintiff- Respondent-Respondent ----------------------- For the appellants: Mr Balmukund Pd. Sinha, Advocate Mr Ramswarup Prasad, Advocate ----------------- 06 12.11.2009 Heard learned counsel for the appellants . 2. This second appeal has been filed by the defendants- appellants-appellants challenging the judgments and decree of both the learned courts below. 3. The matter arises out of Title Suit no.51 of 1996 which was filed by the sole plaintiff-respondent-respondent for declaration of his title and confirmation of possession with respect to the suit land as well as for other ancillary reliefs. The aforesaid suit was decreed on contest with cost by the learned Subordinate Judge VI, Begusarai vide his judgment and decree dated 28.02.2001. 4. The judgment and decree of the trial court was challenged by the defendants-appellants in Title Appeal no.04 of 2001. The said title appeal was dismissed on contest by the learned Additional - 2 - District Judge, Begusarai vide his judgment and decree dated 28.03.2007 after considering the matter in detail. The aforesaid judgments and decree of both the learned courts below are under challenge in the instant second appeal. 5. The claim of the plaintiff was that the ex- intermediatory settled the suit land in favour of Babu Ram Parpan Chaudhary and issued Hukumnama in their favour and also granted zamindari receipts on payment of rent. Thereafter the said settlee remained in possession of the suit land but subsequently he died leaving behind a son Kedar Nath Choudhary, namely, plaintiff who inherited the suit property and came in possession thereof where after on his application rent was fixed in his favour by the order of the Deputy Collector Land Reform on the recommendation of the Anchal Adhikari and after creation of Jamabandi government rent receipts were also issued to the plaintiff with regard to the suit land. It was also stated that out of the said property the plaintiff sold 10 dhurs of land of plot no.814 from east by registered deed dated 19.05.1990 . It was further averred that the plaintiff executed sale deed after taking permission from the Collector, Begusarai in Land Ceiling Case no. 07/1973-74, whereafter he was in possession of three kathas of plot which is the suit property and he amalgamated the same with other plot nos. 815,813 and 793 forming one block at the spot. It was also claimed that the plaintiff was trying to raise the same claim and disturb the possession of the plaintiff on the basis of some order passed under section 145 of the Code of Criminal Procedure (hereinafter referred to as ‘the Code’ for the sake of brevity) - 3 - and hence the plaintiff was constrained to file the instant suit. 6. On the other hand, claim of the defendants was that the said land was Gair Mazarua Parti Kadeem land and there was no settlement by the ex-intermediatory in favour of Babu Ram Prapan Chaudhary who did not derive any title over the same. It was also claimed that the plaintiff never came in possession of the suit land rather it was the defendants who remained in possession of the suit land since several decades and perfected their title by adverse possession. The defendants further claimed that the proceeding under section 144 of the Code was initiated in the year 1981 which was subsequently converted in a proceeding under section 145 of the Code which was finally decided in the year 1991 in which possession of the defendants was found. 7. Learned counsel for the appellants has raised several questions claiming that the Hukumnama claimed by the plaintiff was forged , fabricated and hence the learned courts below should not have relied upon the said document. The second question raised by learned counsel for the appellants was that the order passed under section 145 of the Code clearly shows that the defendants were in possession of the suit land since several decades and hence they had perfected their title by adverse possession and the learned courts below wrongly discarded the said order under section 145 of the Code on the basis of the order of merely revenue authority. Learned counsel for the appellants raised third question that exhibit D which was a deed of transfer executed in favour of the defendants by their predecessor has not been considered by the learned court of appeal below in its proper perspective. - 4 - 8. So far as the Hukumnama produced by the plaintiff is concerned, it has been marked as exhibit 8 and is fully supported by exhibits 1 and 7 series which are government rent receipts and zamindari receipts and also followed by exhibit 5 certified copy of the sale deed executed by the plaintiff in favour of others with respect to a part of the plot in question. Furthermore the said Hukumnama (Exhibit 8) is more than 30 years old document and is supported by exhibits 9 and 10 which are orders in Mutation case and certified copy of Khesra. In the said circumstances, the learned courts below were quite justified in holding that the said Hukumnama was executed by ex-intermediatory and was throughout acted upon. Hence the claim of the defendants against Hukumnama was absolutely frivolous and baseless. 9. So far as second and third questions are concerned, the only document in favour of the defendants are the sale deed executed in their favour (exhibit B) as well as the orders passed in a proceeding under section 145 of the Code (exhibit C series). The said exhibit B is a self serving document said to have been executed by the predecessor of the defendants in favour of the defendants without having any semblance of right in the said property. So far as exhibit C series orders passed in a proceeding under section 145 of the Code are concerned, it was passed in the year 1991 and it has been found by the learned court below that there is nothing in the order to show as to from when the defendants were in possession. Furthermore, there is no material to support the said finding of criminal court. In the said circumstances, the said order alone can not be legally held to be a proof - 5 - of possession of the defendants in absence of any material whatsoever to support his claim. 10.Furthermore, it has been rightly found by the courts below that the defendants had not pleaded their case of adverse possession and they had not stated on which date they or their ancestors came in possession and on which date their possession became adverse to the possession of the plaintiff. Furthermore, since the defendants are denying the right and title of the plaintiff their claim of adverse possession becomes contradictory to their own case. On the other hand possession of the plaintiff has been proved not only by the Hukumnama or by the zamindari or government receipts but also by the continuous orders passed in that regard by the authorities concerned. Furthermore, both the learned courts below were satisfied by the said documentary evidence. 11. In the aforesaid facts and circumstance, it is quite apparent that the learned court below after considering the entire pleadings and evidence of the parties in accordance with law has rightly come to the conclusion that the plaintiff’s claim of title and possession has been validly proved and the defendants have failed to prove their claim of adverse possession or even of simple possession over the suit land. 12. In the aforesaid facts and circumstances, this Court does not find any illegality in the impugned judgments and decree of the learned courts below, nor does it find any substantial question of law involved in the instant second appeal, which is accordingly dismissed at - 6 - this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. (S.N.Hussain,J) shahid