IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.71 of 2006 1.Yogendra Sahani 2.Rajender Sahani Both sons of late Saryug Sahani resident of Village Mathaura P.O. Bishanpur P.S. Dumra Dist. Sitamarhi Defendants Ist set-Respondents- Appellants Versus 1.Bhola Mahto 2.Shivaji Mahto Both sons of Ram Dayal Mahto resident of Village Mathaura P.O. Bishanpur P.S. Dumra Dist. Sitamarhi Plaintiffs-Appellants- Respondents Ist set 3. Janki Sah son of late Chulahi Sah resident of Village Mathaura P.O. Bishanpur P.S. Dumra Dist. Sitamarhi Defendant 2nd set-Respondent- Respondent 2nd set ------------ For the appellants: Mr Vishundeo Narayan, Advocate Mr Manoj Kumar Manoj, Advocate For the respondents:Mr Sachhidanand Choudhary, Advocate Mr Alok Kumar Jha, Advocate ---------- 18/ 21.05.2010 I.A. No. 1786 of 2006 has been filed on behalf of the appellants for condoning delay in the filing of the aforesaid second appeal. Although learned counsel for the respondents vehemently opposes the contention of learned counsel for the appellants but from the facts and circumstances of the case as well the statement made in the interlocutory application, it appears that some reasons have been shown due to which delay has occurred. Accordingly, this interlocutory application is allowed and delay in the filing of this second appeal is condoned. 2. Heard learned counsel for the appellants and learned counsel for respondent nos. 1 and 2. 3. This second appeal has been filed by defendants Ist set- respondents-appellants challenging the judgment and decree of the court of appeal below. - 2 - 4. The matter arises out of Title Suit no.62 of 1997 which was filed by the plaintiffs-appellants-respondents Ist set for deceleration of their title and for confirmation of possession and in the alternative recovery of possession from the suit land and for other ancillary reliefs. The said title suit was dismissed on contest by Munsif Sadar, Sitamarhi vide his judgment and decree dated 26.09.1998. 5. Against the said judgment and decree of the trial court, the plaintiffs filed Title Appeal no.51 of 1998(24/2001) which was allowed on contest by Additional District Judge I, Sitamarhi, vide his judgment and decree dated 22.08.2005 setting aside the judgment and decree of the trial court and decreeing the suit and claim of the plaintiffs. Against the above mentioned judgment and decree of the lower appellate court, this second appeal has been filed. 6. Leaned counsel for the appellants vehemently challenges the aforesaid judgment and decree of the lower appellate court claiming their own title over the suit property and absence of any title of the plaintiffs over the same. With respect to the question of title and possession the plaintiffs had produced six witnesses along with four sets of exhibit. It was claimed that Janki Sah was owner of the suit premises and was duly recorded in the revisional survey Khatiyan (exhibit 4 series) which was prepared in 1970’s and thereafter the plaintiffs purchased the suit premises from the said Janki Sah (defendant no.3) by registered deed dated 07.02.1997 (exhibit 1) and since then they were in possession of the suit premises but subsequently they were dispossessed during the pendency of the suit by the defendants. 7. On the other hand, defendants produced six - 3 - witnesses apart from a rent receipt dated 17.12.1997 (exhibit A); Raiyati Parcha (exhibit B); report of the Amin (exhibit C); topographic map(exhibit C/1); new Khatiyan (exhibit D); and certified copy of old khatiyan (exhibit D/1). On the basis of the aforesaid evidence, it was claimed by the defendants that the suit property was recorded in the old survey khatiyan (exhibit D/1) and the said land was shown as Zirat land of the ex-intermediatory. It was further claimed by the defendants that they got the suit land as Khidmati Jagir from intermediatory much before vesting of zamindari in the State of Bihar and since then they were in possession of the suit land continuously without any objection from any quarter having their house on the said land. 8. Learned counsel for the appellants has stated that the trial court rightly rejected the claim of the plaintiffs but lower appellate court without considering the effect of the said evidence Exhibit D/1 decided title appeal in favour of the plaintiffs. With regard to their claim of Khidmati Jagir, learned counsel for the appellants relies upon a decision of the Privy Council in case of Anup Mahto vs Mita Dusadh and others reported in the Patna Law Times Vol. XV 115. Furthermore, with respect to the effect of the survey entry, he relies upon a decision of this court in case of Mosstt. Mohni and others vs. Fariduddin and others reported in 1966 BLJR 761. 9. From the facts and circumstances of the case as well as the materials on record, it is quite apparent that in support of their claim, the plaintiffs had produced revisional survey khatiyan and registered sale deed. So far decision of Division Bench of this court in case of Mosstt. Mohni and others (supra) is concerned, it was - 4 - specifically held by his Lordships that an entry in the Record of Rights neither creates nor extinguishes any right, as it is merely a rebuttable piece of evidence. In the said circumstances when the revisional survey entries were produced by the plaintiffs along with registered deed of sale, onus shifted on the defendants to rebut the same but from the evidence produced by the defendants, it is quite apparent that the respondents had miserably failed to rebut the same as exhibit A was merely one rent receipt and that too obtained during the pendency of the suit, whereas exhibit B was a raiyati parcha and exhibit C was report of Amin and exhibit C/1 was topographic map which can not by any stretch of imagination be held to be either document supporting title or even supporting possession. So far exhibit D/1 old Khatiyan is concerned, it was a very old document and that too only in the name of ex- intermediatory and there is nothing at all to show what happened thereafter and hence entry in the new khatiyan (exhibit 4/A) can not be held to be bad on that account specifically in view of the facts that in the meantime, zamindari had vested in the State of Bihar under the Bihar Land Reforms Act but there is no material at all to show any settlement in favour of defendants. Furthermore although revisional survey khatiyan was prepared several decades back in the name of plaintiffs’ vendor but neither it was challenged by the defendants under the provision of Bihar Tenancy Act, 1885, nor any regular suit with respect thereto was filed by the defendants. 10. So far the decision in case of Anup Mahto(supra) is concerned, their lordships has held that there was a great distinction between the grant of lands on service tenure without revenue on rent free - 5 - to a raiyat to cultivate himself in lieu of wages and a grant to a tenure- holder whose emoluments are to be derived from the collection of rents from tenants holding under him as raiyats. It was held that in the former case the raiyat’s grant may well be said to be inconsistent with the acquisition of full occupancy rights, because the lands are only granted to him so long as he holds the office whereas on the other hand the grant to tenure-holder is in the nature of an assignment of the landlord’s right for the duration of the tenure and would not necessarily involve any interference with the raiytas’ customary rights. This proposition of law or case law is not at all attracted to the facts and circumstances of the case as the defendants had miserably failed to show that the grant of lands were made of service tenure revenue on rent free basis to any raiyat to cultivate or any purpose whatsoever. Neither any document of zamindari nor any document at the time of vesting of zamindari or any order thereafter has been produced by the defendants which clearly proved that their claim was absolutely frivolous. 11. The court of appeal below very elaborately considered the evidence, pleadings of the parties and the findings of the trial court and rightly came to the specific conclusion that the vendor of the plaintiffs had title over the suit land prior to the execution of the sale deed in favour of the plaintiffs whereas the plaintiffs acquired good title over the same. Furthermore, it was rightly found that defendants-Ist party themselves admitted Rasta of the plaintiffs in a compromise petition filed in a court of law (exhibit 2) . Hence the defendants had no right to make interference or to block Rasta which existed on plot no. 2704 which was already in the shape of rasta even prior to the purchase - 6 - made by the plaintiffs. 12. Learned counsel for the appellants also relies upon section 181 of the Bihar Tenancy Act,1885 which provides that nothing in the said Act shall after any incident of a ghatwali or other service tenure, or, in particular shall confer a right to transfer or bequeath service-tenure which, before passing of this Act, was not capable of being transferred or bequeathed. Reference to this provision is no less frivolous than the other points raised by the appellants as after their complete failure to show that they have obtained the suit land as Khidmati Jagir from the landlords and they were service tenure, the said provision is not at all applicable to the facts and circumstances of this case. 13. It may be noted that the provisions of law and the case laws are based on facts and they can not be used merely to decorate the claim of any party. Here in the instant case the very basis of the claim of the defendants is absurd, but their learned counsel is trying to beautify it by these methods which can not be allowed in a proceeding before a court of law. In the said circumstances, plaintiffs were fully entitled to the relief claimed by them. 14. This Court does not find any illegality in the impugned judgment and decree of the court of appeal below, nor does it find any substantial question of law involved in the instant second appeal, which is accordingly dismissed at this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. (S.N.Hussain,J) - 7 - shahid