IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.301 of 2004 1. MAHESHWAR MEHTO, S/o Late Adhik Mehto 2. Akhilesh Mehto 3. Awadesh Mehto Minor sons of Maheshwar Mehto, who were presented through father Guardian, Maheshwar Mehto All resident of Mouza – Fulout, P.s. Chousa, District Madhepura ..(Defendants 1st set in the original T.S. No. 111/89) and appellants of T.A. No. 4/94 ….. Appellants Versus 1. SMT.TULA DEVI, wife of Late Chamak Lal Mehta, resident of Mouza – Fulout, P.S. Chousa, District Madhepura 1.k. Smt. Parvati Devi, wife of Nawal Kishore Mehta, resident of Mania Kor Chaka, P.S. Nawgachiya, District Bhagalpur 1.kh. smt. Shanti Devi, wife of Subodh Pd. Singh, resident of Kamlakund, P.S. Gopalpur, District Bhagalpur 1.g. Sampati Devi, wife of Maheshwar Pd. Singh, resident of Kamlakund, P.s. Dholbazza, District Bhagalpur 1.gh. Phul Kumari, minor daughter of Chamak Lal Mehta, resident of Mouza – Fulout, P.s. Chousa, District Madhepura through mother guardian Tula Devi 2. Hari Balak Mehta 3. Dev Balak Mehta both sons of late Chamak Lal Mehta 4. Krishna Balak Mehta 5. Ram Balak Mehta 6. Dharam Balak Mehta Minors sons of late Chamal lal Mehta through Borther Guardian Hari Balak Mehta (Plaintiff in the original T.S. No. 111/89) and Respondents 1st party in T.A. No. 4 of 1994 …. Respondents 1st Party And 6. Bijendra Jha alias Bholi Jha 7. Shatrughan Jha Both sons of late Tej Narain Jha All resident of village Mohanpur, P.S. Baluahat, District 2 Saharsa …. Respondents 2nd Party (Defendants 2nd set in the original T.S. no. 111/89) and Respondents IInd Party of T.A. No. 4 of 1994 --------- For the Appellants : M/s Aditya Sharan, P.K.Sharan & J.K.Sharan, Advocates -------- 6 02.08.2010 Heard learned counsel for the appellants. The appellants have preferred this appeal against the judgment and decree dated 17.7.2004 passed by the Additional District Judge, F.T.C. II, Madhepura in Title Appeal No. 4 of 1994 affirming the judgment and decree dated 12.1.1994 passed by the Munsif, Madhepura in Title Suit No. 111 of 1989. The plaintiffs – respondents had brought the Title Suit No. 111 of 1989 for declaration of their title and confirmation of their possession over the suit land and also for declaration that the sale deed executed by defendant no. 4 in favour of defendants 1st set - appellants is illegal, forged and void document and is not binding upon the plaintiffs. Further relief was sought for declaration that the revisional survey khatian entry with regard to suit land in the name of Tej Narain Jha is not correct and not binding upon the plaintiffs. 3 The case of the plaintiffs is that the suit land which was Gair Majarua Khas land of Ex- landlord which was orally settled in favour of one Manti Mandal son of Taleswar Mandal in the year 1312 Fasli on payment of Rs. 5 as salami. The aforesaid Manti Mandal was put in possession over the land. Later on, the Ex-landlord got a Parmangi deed signed one by one Basukilal, Tasildar of Ex- landlord in favour of Manti Mandal , who started paying rent and obtaining receipt from the landlord concerned. The aforesaid Manti Mandal died leaving behind his son, namely, Ramdhari Mehta, who came in possession over the suit land. After his death, his three sons, namely, Naresh Mehta, Sant Kumar Mehta and Nand Kishore Mehta came in possession of the suit land. Aforesaid sons of Ramdhari Mehta sold the suit land by a registered sale deed dated 17.3.1975 in favour of one Mangal Singh, who again subsequently by a registered sale deed dated 16.6.1986 transferred the property in favour of the plaintiff no. 1, who subsequently constructed his new house made of “phus” after demolishing the 4 existed house standing over the suit land. It is further case of the plaintiffs that actually the oral sale had taken place much earlier on payment of consideration money and they came in possession over the suit land in the year 1975 and they have also claimed that they have perfected their title by means of adverse possession also. However, when the defendant 1st party threatened the plaintiffs to dispossess them from the suit land on 27.9.1989, i.e. after the sale deed executed in their favour on 18.9.1989, then after inquiry they would come to know that the father of the defendants second party had got his name wrongly entered in the revisional survey khatian in respect of the suit land. The defendants 1st party filed their written statement refuting the allegations and claimed that the suit is barred by law of limitation and also that the vendor of the plaintiffs did not have any right, title and possession over the suit land rather the suit land was orally gifted in favour of the father of the defendants 2nd set, namely, Tej Narain Jha, who 5 was „purjari’ of a temple, by the Ex-landlord and thereafter he remained in possession and his name was entered into the revisional survey record of rights in the year 1969, which was not challenged by the vendor of the plaintiffs. It is further case of the defendants - appellants that survey entry being of the year 1969 and the suit having been filed in the year 1989, would be is barred by the law of limitation. Both the courts below have recorded the findings that the suit is not barred by limitation and the plaintiffs – respondents 1st party have succeeded in proving their title and possession over the suit land and also that the entry in revisional survey khatian in respect of Tej Narain Jha, is incorrect. Learned counsel appearing for the appellants submitted that the story of oral gift cannot be rejected only in view of the fact that such oral transaction is not permissible under the Transfer of Property Act since the same was followed by possession in favour of the father of the 6 vendor of the defendants – appellants. Learned counsel has placed reliance upon a decision of this Court in Padma Kumari v. Nanda Padhan reported in AIR 1941 Patna 219 to impress upon that if unregistered gift is followed by possession of a donee that possession would be deemed to be the adverse to the donor as well as the rightful owner and, as such, such continuous adverse possession will also result into the perfection of title of the defendant appellant, on account of adverse possession. Thus, the sale deed executed by the vendor in favour of the appellant cannot be discarded. Secondly, it has been submitted that the survey entry being of the year 1969 and that not having been challenged by the vendor of the plaintiffs - respondents, the suit filed in the year 1989 would be barred by limitation. However, both the courts below have held that the story of oral gift is not well founded as even the defendants were not able to disclose even the name of the Ex- landlord who had gifted or donated the property in favour of Tej Narain Jha, the father of the vendor 7 of the defendants – appellants. That apart, even the date of the oral gift is also not disclosed. The defendants have also failed to show any cheat of paper in proof of their continuous possession as a result of the said oral gift and suddenly in the year 1969 the name of Tej Narain Jha got entered into in survey record of right. Whereas the plaintiffs have filed the Parmangi deed issued from the office of the Ex-landlord regarding settlement of the suit land bearing plot no. 1236 in faovur of Manti Mandal, which has been marked as Ext. 3. That apart, some rent receipts issued by the Ex-landlord have also been filed. Plaintiffs have also filed rent receipt issued by the State of Bihar in the name of Ramdhari Mehta, Son of Manti Mandal to show that Jamabandi No. 296 was created in the name of Ramdhari Mehta by the State of Bihar. The courts below have come to the conclusion that the evidence led on behalf of the plaintiffs heavily weigh in their favour in comparison to the evidence led on behalf of the defendants as the defendants even could not show that the Ex- 8 landlord had filed any return at the time of vesting of Zamindari showing Tej Narain Jha as his Raiyat or the aforesaid Tej Narain Jha had paid any rent with respect to the suit land in favour of the State of Bihar. The courts below have also come to the conclusion that the suit for declaration of title and confirmation of possession and ancillary to it the plaintiffs have also been sought defendant that the sale deed executed by the defendant 2nd set in favour of the defendant 1st set – appellants is not a legal document rather the same is void and not binding upon the plaintiffs and also that an entry of the name of Tej Narain Jha in the revisional survey record right, is not correct. The plaintiffs have stated that when their possession was threatened after the execution of the sale deed by the defendant 2nd set in favour of the defendant 1st set – appellants, cause of action arose for filing this suit in the year 1989 itself. It has also been held that entry in the revisional record of right cannot extinguish the title of the lawful owner as the plaintiffs were held to be the lawful owner of the 9 suit land and also since the cause of action arose after the execution of the sale deed that is Ext A in the year 1989, the suit cannot be held to be barred by law of limitation. Learned counsel appearing for the appellants was not able to point out any substantial error committed by courts below which may lead to a substantial question of law. The controversy having been set at rest by concurrent finding of both the courts below, I find no merit in this appeal. As a result, this appeal is dismissed. Spd/- (Dr. Ravi Ranjan, J.)