IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.199 of 1994 NAGJADI DEVI & ORS Versus VISHWANATH SINGH & ORS ----------- 09/ 22.09.2008 Heard learned counsel for the appellants. This second appeal has been filed by plaintiff- respondent-appellants against the judgment and decree of reversal. The matter arises out of Title Suit No. 159 of 1985, which was filed by the appellants for declaration of their title, confirmation of their possession, recovery of possession in case of dispossession and injunction etc. with respect to revisional survey plot no.1500, which, according to the plaintiffs, was carved out of cadestral survey plot no.1443. situated in Mouza Majhagarh of Pargana Sipah under P.S. Majhagarh within the district of Gopalganj. The said suit was decreed on contest with cost against defendants no. 1 to 4 and ex parte against defendant no.5 by learned Subordinate Judge-III, Gopalganj, vide judgment and decree dated 27.07.1989, which was challenged by defendants no. 1 to 4 in Title Appeal No. 63 of 1989 ( 232/ 1991). The said title appeal was allowed by learned 3rd Additional District Judge, Gopalganj, vide judgment and decree dated 19.03.2004, setting aside the judgment and decree of the trial court and dismissing the claim and suit of the plaintiffs. From the averments as well as the materials on record, including the judgments and decree of the learned courts below, it is quite apparent that the plaintiffs were banking only on a Ladawi deed (Ext.12) in support of their title. The learned court of appeal below has 2 rightly found that a deed of Ladawi in itself could not be the basis of title of as it is only a deed of renunciation and it cannot create or confer any title to any one. Hence, in view of the doubtful character of the said deed and the absence of any other document of title, the learned court of appeal below came to the conclusion that the said deed of Ladawi was not sufficient to prove the title of the plaintiffs. Furthermore, in view of the findings of the learned court below that the defendants were found in possession of the disputed plot in the year 1981, it was all the more necessary for the plaintiffs to prove their title by unimpeachable and positive evidences, in which they miserably failed. The claim of the plaintiffs was that the suit land was numbered as Plot no.1443 at the time of cadastral survey and was recorded in the name of Gaya Singh, but subsequently, during revisional survey operation it was numbered as plot no.1500 and was recorded in the name of Ranglal Singh. However, there is nothing on the record to show that the plaintiffs ever took any step to correct the said entries either by filing a suit or by getting their names mutated in the State Sarishta. In that regard, there is absolute absence of pleadings and evidence on behalf of the plaintiffs, whereas, the defendants have brought on record an order in Tanaja (Ext.E’), which shows that with respect to the said revisional survey entry, there was a case between the ex-landlord on one hand and Gaya Singh and Ranglal Singh on the other with respect to plot no.1500 and the decision went in favour of Ranglal Singh for plot no.1500 in its entirety, but neither Gaya Singh nor the plaintiffs ever raised any objection. In the said circumstances, the 3 learned court of appeal below was quite justified in holding that the plaintiffs had failed to prove their title on the basis of cogent, positive and unimpeachable evidence. So far the question of possession is concerned, the plaintiffs could not produce any documentary evidence to assert their claim except some receipts and even they were found to be in the name of Ranglal Singh. In the said circumstances, the learned court of appeal below found that there were oral evidence on behalf of both the parties, but the same were merely oath against oath, not leading to clear conclusion. However, since the plaintiffs were claiming possession and were not able to prove it by any cogent evidence nor even any order of mutation was produced, whereas, on the other hand, the defendants were claiming possession on the basis of revisional survey entry and other evidence. The learned court of appeal below also found that the plaintiffs have not claimed adverse possession by any specific pleading and mere claim of possession cannot be assumed to be a claim of adverse possession and hence there was no question of framing any issue with respect to adverse possession. Furthermore, the plaintiffs having failed to prove their possession, there was no question of any adverse possession also. The learned court of appeal below has also found that the trial court did not take any trouble to analyse the evidence of the parties and give any finding even on the basis of oral evidence and hence the said judgment and decree of the trial court were not sustainable in law. 4 The learned court of appeal below was the final court of facts and it arrived at specific findings on the basis of materials on record and the principle of law applicable to the claim of the parties. Hence this Court does not find any illegality in the impugned judgment and decree of the learned court of appeal below nor does it find any substantial question of law involved in this second appeal, which is, accordingly, dismissed at this stage of hearing under Order 41 Rule 11 of the Code of Civil Procedure. MPS/ ( S. N. Hussain, J. )