APPEAL FROM THE APPELLATE DECREE NO. 143 OF 1994 …… Against the judgment and decree dated 27th January, 1994 passed by 6th Additional District Judge, Motihari in Title Appeal no.164/120 of 1990/92 setting aside the judgement and decree dated 09.11.1990 passed by 4th Additional Sub-Judge, Motihari in Title Suit No.29 of 1985 ( 130/87). …… 1(a) Baleshwar Upadhaya S/o Late Chandrika Upadhyaya R/o Tola, P.O. Ijra, P.S. Sangrampur, District-East Champaran. 1(b) Babunti Debi, D/o Late Chandrika Upadhaya, w/o Baban Nath Tiwary, R/o Bhojpurwa, P.O. Bhojpurwa, P.S. Manjhe, district-Gopalganj. 1(c) Jogotara Kuer, D/o Late Chandrika Upadhaya, widow of Late Trijogi Ram Tiwary, resident of Gausia, P.O.- Gousia, P.S. Manjha, District-Gopalganj. 1(d) Shakuntala Devi D/o Late Chandrika Upadhaya, W/o Madan Upadhaya, R/o Bhopatpur Purani Dih, P.O.& P.S. Kotwa, District-East Champaran. 1(e) Kripawali Debi, D/o Late Chandrika Upadhaya, W/o Jagat Nr. Dubey, R/o Phulia Khar, P.O. Sheorajpur, P.S. Nautan, District-West Champaran. 2. Bipin Singh @ Bipin Bihari Singh son of Nageshwar Singh, resident of village Machhagawa Rahua, P.S. Kotwa, District- East Champaran. 3. Manbharan Kuwer, Wife of Bhola Pandey 4. Kheda Kuer Wife of Sudama Upadhaya, W/o Bajhawano Pandey, both resident of Village Nawada Pandey Tola, P.S. Kotwa District -East Champaran. 5(a) Shaila Kuer, widow of Late Binda Singh 5(b) Dilip Kr. Singh, S/o Late Binda Singh, Both R/o Machargawan-Rahua, P.O.-Machargawan, P.S. Kotwa, District-East Champaran. 5(c) Sangeeta Devi, D/o Late Binda Singh, W/o Surendra Kumar Singh, R/o- Pakari Bathani Tola, P.O.-Pakri, P.S.-Domaria Ghat, District- East Champaran. 6. Ashar Singh 7. Manoj Singh Both minor sons of Binda Singh under the guardianship of Binda Singh father guardian and well wishers of the minors, by caste Hindu by occupation cultivation of Machchayarwa P.S. Kotwa, P.O. Machhargawa, District East Champaran. …. Defendants/ Respondents/ Appellants. Versus 1. Jagernath Pandey son of late Lagandeo Pandey by caste Brahman by occupation cultivation of village Nawada Pandey Tola P.S. Kotwa, P.O. Machhargaw District East Champaran. …. Plaintiff/ Appellant/ Respondent. 2. Ghuna Devi D/O Chingi Pandey (deceased) W/o Rajendra Upadhaya by caste Hindu by occupation cultivation of Hassanpurwa, P.S. Kalyanpur, P.S. Basghat, District East Champaran.….Defendant/Respondent/ Respondent. ….. For the appellants : M/s Kalyan Kumar Ghose, Rajni Kant Jha and Ashok Kumar Verma, Advocates. For the respondents : M/s Krishna Kumar Singh, Dinesh Lal Parmanik and Dinesh Pd. Singh, Advocates. ….. - 2 - P R E S E N T Hon’ble Mr. Justice S. N. Hussain ….. S .N. Hussain, J. This second appeal has been filed by defendants-respondents- appellants challenging the judgment and decree of the learned court of appeal below. 2. The matter arises out of Title Suit No.29 of 1985 (130/87) filed by the sole plaintiff-appellant-respondent no.1 for declaration of his title over the suit property detailed in Schedule-I of the plaint and also for confirmation of possession and in the alternative recovery of possession with respect thereto. The claim of the plaintiff was that the suit land was the ancestral property of Libar Pandey who left behind two sons Haricharan Pandey and Parmarath Pandey, out of whom Haricharan died before the survey leaving behind three sons, namely Bujhawan, Khelawan and Lalji Pandey and hence the suit land was recorded in the name of Parmarath (one share) and Bujhawan, Khelawan and Lalji (one share). It is also claimed by the plaintiff that three to four years after survey there was a partition between the two branches by metes and bounds and the suit land fell into the share of branch of Parmarath who had died in the year 1946 leaving behind a daughter Ramsawari, who also died leaving behind a son Chingi Pandey who sold the lands to Shivadeni Singh by registered deed dated 27.04.1966 ( Ext-3), whereafter Shivadeni Singh also sold the suit land to the plaintiff by registered deed dated 08.12.1983 ( Ext. 1/A) and in the meantime, Chingi Pandey died leaving behind a daughter Ghuna Devi (defendant no.5), who never raised any objection. It was also claimed by the plaintiff that Khelawan and Lalji died issueless and their entire share devolved upon Bujhawan who left behind a widow Shivkalo, a son Bhola and a daguther Kheda Kuar and Defendant Ist Party being cunning and clever persons obtained some document in their names by bringing Manbharan Kuar (defendant no.3), the widow of Bhola, by collusion and illegality and on the basis of those documents they started creating trouble over the suit land interfering with the peaceful possession of the plaintiff and hence the said suit was filed. - 3 - 3. Defendant no.5 Ghuna Devi, who is the daughter of Chingi Pandey (vendor of the plaintiff), filed her written statement fully supporting the claim of the plaintiff. 4. On the other hand, defendants no. 1 to 4 and 6 filed their joint written statement claiming that no doubt Libar Pandey had two sons, namely Haricharan and Parmarath, but Parmarath died in the year 1934 unmarried and issueless, whereafter Khelawan and Lalji also died issueless and hence the entire ancestral property, including the suit land, devolved upon Bujhawan in whose name Jamabandi was created. It is also claimed that Parmarath having died issueless, Chingi Pandey, the vendor of the plaintiff, was neither his grand son, nor was entitled to execute any sale deed with respect to the suit land which are void ab initio and without any effect and the said sale deeds were never acted upon since 1966 as there was neither any mutation nor any receipt was issued in the name of the plaintiff or his vendor. The contesting defendants further claimed that Shivakalo, the widow of Bujhawan, and Manbharan Kuer, the widow of Bhola, had full right, title and interest over the suit land and in the year 1956 they transferred the suit land along with other lands by registered deeds in favour of Chandrika Upadhaya and Madhusudan Upadhaya and put them in possession of the said lands, whereafter Chandrika Upadhaya sold three bighas of land to defendant no.4 and put her in possession thereof and also sold 10 kathas, 10 dhurs of his purchased land to defendant no.2 by virtue of registered sale deed dated 01.02.1984, whereafter he also sold 9 kathas 4 ½ dhurs to defendant no.7 by virtue of registered deed dated 16.02.1984 and the said purchasers came and remained in possession of their purchased lands, including the suit land, and dealt with them in their own right as absolute owners in exclusive possession and hence it is claimed by the contesting defendants that the case of the plaintiff is absolutely frivolous and he has got no right, title and interest in the suit property, nor he is entitled to any relief as claimed by him. - 4 - 5. After considering the respective claims of the parties, the learned trial court framed the following issues:- i. Is the suit as framed maintainable? ii. Has the plaintiff got any valid cause of action and right to sue? iii. Whether Parmarath died issueless or leaving behind him his Nati Chingi in state of separation for his brother? iv. Whether Chingi had any right, title and interest in the property of Parmarath? v. Is the sale deed dated 04.12.83 executed by Sheodeni in favour of the plaintiff valid, genuine and with consideration? vi. Is the story of possession dispossession as set up by the plaintiff correct? vii. Has the plaintiff right, title and possession over the suit land? viii. To what relief or reliefs if any is the plaintiff entitled? 6. On the basis of the aforesaid issues evidences were led and arguments were made on behalf of both the parties, whereafter the learned Subordinate Judge 4, Motihari dismissed the suit on contest with cost by judgment and decree dated 09.11.1990 after arriving at the following findings:- (a) So far the claim of the plaintiff regarding partition between Haricharan and Parmarath is concerned, there is admittedly no documentary or oral evidence on record to prove the said partition. (b) Khatian Ext.4 shows that Khata nos. 64 and 85 stand recorded in the names of Bujhawan, Khelawan, Lalji (one share) and Parmarath Pandey (one share), but although there were Makan with Sahan, there was nothing to show in the khatian that the said recorded persons were residing separately by virtue of any partition. (c) The definement of share in the revenue record does not sufficiently prove any regular partition by metes and bounds between the parties. - 5 - (d) Khatian (Ext.-4) clearly shows that plot no.2020 was recorded as joint property in the remarks column, but in spite of that Chingi Pandey sold the same. (e) The statement of Ghuna Devi (defendant no.5), the daughter of Chingi Pandey ( vendor of the plaintiff), as P.W.9 clearly shows that after the death of Parmarath Pandey, his entire property was inherited by the heirs of Haricharan Pandey, who remained in possession and, hence it belied the story of the plaintiff. (f) The properties of khata no. 85 were never partitioned by metes and bounds and the suit property could not be allotted to the share of Parmarath Pandey. (g) In the earlier Title Suit no.114/63, the question whether Parmarath had died issueless or died leaving behind a daughter or a grand son was not decided as no separate issue was framed, although it was in controversy in the said suit, and hence there was no question of res judicata. (h) From the documentary evidence of the parties, it is quite apparent that the evidence on behalf of the defendants with respect to relationship between Parmarath and Chingi was more superior and convincing than that of the plaintiff. The evidence and circumstances prove the defendants’ case that Parmarath died issueless in jointness with his brother Haricharan and hence the entire property belonging to Parmarth devolved after his death upon the heir of Haricharan. - 6 - (i) Parmarath had no issue and the plaintiff’s story of relationship between Parmarath and Chingi is not convincing and is rejected. (j) Parmarath died unmarried and issueless in jointness with his brother which is proved by P.W.9, who is the daughter of Chingi Pandey. (k) Ext.-A series, the transfer deeds executed by Shivkalo and Manbharan and their vendees since 1956 were never challenged by the plaintiff. (l) Ext.B and Ext.-C are mortgaged deeds which fully support the claim of the defendants, but none of the said transactions were challenged by Chingi or anyone else. (m) The possession of Chingi or his vendee or even the plaintiff is not substantiated by any valid or reliable piece of document. (n) Exts. 1/A and 1/B executed by Chingi Pandey and his vendee are not valid, genuine and operative and on their basis, the plaintiff has failed to prove his right, title and interest in the suit property. 7. Against the aforesaid judgment and decree of the trial court, the plaintiff filed Title Appeal No.164/1990 (120/92) and after considering the respective claims of the parties, the learned court of appeal below formulated the following points for deciding the title appeal:- (i) Whether or not Parmarath Pandey died issueless and without marriage? (ii) Whether or not Ramswari Devi was the daughter of Parmarath Pandey and Chingi Pandey was the Nati of Parmarath Pandey? (iii) Whether or not there was separation and definement of share between Haricharan Pandey and Parmarath Pandey ? (iv) Whether or not the story of possession and dispossession as claimed and as alleged by the plaintiff-appellant is correct? - 7 - (v) Whether or not the suit is barred by principle of adverse possession? (vi) Whether or not this title appeal has got merit fit to be allowed? 8. After considering the respective claims of the parties as well as the evidence on record on the aforesaid points, the learned Additional District Judge 6, East Champaran allowed the title appeal on contest with cost, set aside the judgment and decree of the trial court and decreed the claim of the plaintiff by judgment and decree dated 27.01.1994 after arriving at the following findings:- (a) The defendants’ witnesses contradict each other on the point of relationship of Parmarath and Ramswari. (b) It is fully proved by valid evidence that Parmarath was not unmarried and issueless and he died leaving behind a daughter Ramswari Devi and a grand son Chingi Pandey. (c) From the survey khatian (Ext.-4) it is quite clear that there was definement of share between Haricharan and Parmarath and, accordingly, partition was complete. (d) The presumption of law is that entry in the survey khatian shall be presumed to be correct until it is disproved by cogent evidence, but in the instant case neither there was any pleading, nor there was any evidence to disprove the said entry in the revisional survey khatian. (e) The Khatian fully proved that Parmarath Pandey was living with his family members separately as per the definement of share according to partition which proved partition by metes and bounds. (f) So far the issue of adverse possession raised by the defendants is concerned, the said plea was neither taken by the defendants in the trial court nor any issue was framed and the defendants themselves never disclosed the specific point or the period of - 8 - possession and furthermore there was absolutely no evidence as to whether the possession of the defendants ever became adverse. (g) Mere suggestion that there was an uninterrupted possession for several 12 years cannot be enough as all long possession cannot necessarily be adverse possession, and hence pleading of adverse possession is not at all proved. (h) Defendant no.1 had taken the main role in making plan to deprive Chingi Pandey from his rightful title and interest in the property of his grand father Parmarath Pandey. 9. Against the aforesaid judgment and decree of the learned court of appeal below, the contesting defendants filed the instant second appeal on 15.04.1994. whereafter on 14.07.1997 the said second appeal was admitted for final hearing on the following substantial questions of law as framed:- (i) Whether the finding of the lower appellate court regarding separation of the two branches of Haricharan Pandey and Parmarath Pandey is erroneous? (ii) Whether the finding of the lower appellate court respecting possession of the parties is perverse? 10. It is an admitted fact that Libar Pandey was the original owner of the suit property and he had two sons Haricharan and Parmarath. It is also admitted that Haricharan left behind three sons Bujhawan, Khelawan and Lalji, out of whom, Khalawan and Lalji died issueless and hence the entire share of Haricharan devolved upon Bujhawan, who died leaving behind a widow Shivakalo, a son Bhola (husband of Manharan-defendant no.3) and a daughter Kheda Kuer (defendant no.4). The matter in dispute regarding which substantial question no.(i) mentioned above has been formulated is that whether Parmarath left behind a daughter Ramsawari and that whether there was - 9 - separation between the two branches of Haricharan Pandey and Parmarath Pandey. 11. So far the first part of the said question no. (i) is concerned, it relates to the contest between the parties as to whether Ramsawari (mother of Chingi Pandey) was the daughter of Parmarath Pandey. On the said point, specific pleadings were present in the plaint and P.Ws. 2, 3, 4, 6, 7, 8, 9 and 10, including the persons of the family, proved the said pleadings. Apart from the aforesaid oral evidence, the plaintiff had produced several documentary evidence also which fully proved the plaintiff’s case and has been duly considered by the learned court of appeal below. Although the defendants specifically claimed that Ramsawari was not the daughter of Parmarath Pandey and hence Chingi Pandey, son of Ramsawari, was not the grand son of Paramarath, but there was no pleading in their written statement to show as to who was the father of Ramsawari. So far the evidence of the defendants is concerned, the learned court of appeal below has considered them in detail in paragraph 9 of its judgment and found that the evidence of the defendants’ witnesses were contradictory to each other and as such they were unreliable, some of them being minor kids at the time of death of Parmarath, some of them having no concern with the family, some of them not even being able to name the members of the family, some of them not even stating the time and reason of the death of Parmarath and one of them, namely D.W.15, was a witness to the sale deed (Ext.1/A) which was executed by Chingi Pandey specifically mentioning therein that he was the grand son (Nati) of Parmarath, which was the claim of the plaintiff. It has also been found by the lower appellate court that no valid documentary evidence in that regard had been produced on behalf of the defendants, whereas the documents of both the parties regarding earlier Title Suit No.114 of 1963, including Ext. 2, Ext. 3, Ext. 5, Ext.-D, Ext. H etc. fully proved that the said Title Suit No.114 of 1963 with respect to Khata no.85 was filed in which Chingi Pandey was impleaded at - 10 - the instance of the plaintiff of that suit as one of defendants and the said suit was disposed of without any finding on the question as to whether Chingi Pandey was the grand son of Parmarath. In the said circumstances, the learned court of appeal below rightly held that the said earlier suit did not help the defendants, whereas other evidence fully proved that Parmarath was not unmarried and issueless, rather he died leaving behind a daughter Ramsawari and a grand son Chingi Pandey. 12. So far the second part of the aforesaid substantial question no.(i) is concerned, no doubt the presumption in law is that entry in the survey khatian shall be presumed to be correct unless it is disproved by cogent evidence, but here in the instant case, the survey khatian (Ext.4) is jointly in the name of Parmarath Pandey as well as Bujhawan, Khelawan and Lalji and it was mentioned therein that Parmarath Pandey had one share therein, whereas Bujhawan, Khelawan and Lalji had one share jointly. The said khatian, however, clearly showed that both the branches of the family were living separately as per the definement of share according to partition. Furthermore, the evidence of the plaintiff fully proved partition by metes and bounds between the two branches. In the said circumstances, the learned court of appeal below rightly came to the conclusion that the said property was in the share of Parmarath as per the said khatian and it rightly devolved upon Chingi Pandey as there was no material to disprove the said Khatian. 13. So far the above mentioned question of law no.(ii) with regard to claim of the defendants regarding adverse possession is concerned, no such plea has been made in the written statement, nor any issue was framed in the trial court and there was absolutely no evidence on behalf of the defendants to show as to when they came in possession and when they acquired right by adverse possession, nor even they disclosed the specific point about the period of adverse possession. Hence the essential requirements of adverse possession were not - 11 - fulfilled by the defendants themselves, nor it was claimed, shown or proved that their possession became adverse at any given time. The mere suggestion that there was uninterrupted possession of twelve years was rightly found by the learned court of appeal below to be not sufficient for the purpose as the law is well settled that all long possessions cannot necessarily be adverse possession. 14. In view of the aforesaid discussions, it is quite apparent that the said questions framed at the time of hearing of the second appeal under Order XLI Rule 11 of the Code of Civil Procedure cannot legally be decided in favour of the appellants as this court does not find any illegality on the said points in the impugned judgment and decree of the learned court of appeal below. 15. Accordingly, this second appeal is dismissed on contest, but there will be no order as to costs. ( S.N.Hussain,J.) Patna High Court, Dated, 10th February, 2009. Sunil/ N.A.F.R