IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.14 of 2004 1. MD. MANSOOR ALIAS MANSOOR ALAM. 2. MD. YAQUB. SONS OF LATE HANIF NADAF, RESIDENTS OF MOHALLA- NASIRGANJ KATIHAR, P.S. AND DISTRICT-KATIHAR. ……………........DEFENDANTS-APPELLANTS-APPELLANTS. Versus 1(a). MOSTT. JULEKHA KHATOON, WIFE OF LATE MD. ABDUL QUASHIM. 1(b). MD. AZAD. 1(c). MD. SAJJAD. 1(d). MD. SHAMSHER. SONS OF LATE MD. ABDUL QUASHIM. ALL RESIDENTS OF MOHALLA-NASIRGANJ, P.O. + P.S. + DISTRICT-KATIHAR. 1(e). BIBI JAIBUN NISHA, DAUGHTER OF LATE MD. ABDUL QUASHIM, WIFE OF MD. MOJAHID, RESIDENT OF NAUGACHIA, MOMTAZ MOHALLA, P.S. NAUGACHIA, DISTRICT-BHAGALPUR. 1(f). BIBI HAMIDA KHATOON, DAUGHTER OF LATE MD. ABDUL QUASHIM, WIFE OF MD. QUASHIM, RESIDENT OF VILLAGE + POST-GOHAD, DISTRICT- BHIND(PUNJAB). 1(g). BIBI KHAIRUN NISHA, DAUGHTER OF LATE MD. ABDUL QUASHIM, WIFE OF MD. QUAIUM, RESIDENT OF VILLAGE-SHARIFGANJ KATIHAR, P.S. AND DISTRICT- KATIHAR. 1(h). MEHRUN NISHA. 1(i). KHADIJA. DAUGHTERS OF LATE MD. ABDUL QUASHIM, RESIDENT OF MOHALLA-NASIRGANJ KATIHAR, P.O. KATIHAR, P.S. AND DISTRICT-KATIHAR. ………………...PLAINTIFFS-RESPONDENTS IST PARTY- RESPONDENTS 1ST PARTY. 2. MD. PAIDLA, SON OF LATE MD. HASSAN, SON OF LATE HANIF NADAF. 3. MD. SHAMIM. 4. MD. NAYEEM. NOS.3 AND 4 SONS OF LATE KULSUM, DAUGHTER OF LATE HANIF NADAF. 2 5. BIBI RUKHSANA, DAUGHTER OF LATE KULSUM, DAUGHTER OF LATE HANIF NADAF. 6. AMNA KHATOON, WIFE OF LATE MD. HASSAN. 7. MD. ZAMIR, H/O LATE KULSUM, DAUGHTER OF MD. HASSAN. 8. MD. SALAMAT, H/O LATE BATAI, DAUGHTER OF LATE HANIF NADAF. NO.2 RESIDENT OF MOHALLA-NASIRGANJ KATIHAR, P.O. KATIHAR, P.S. AND DISTRICT-KATIHAR. NOS.3 TO 7 RESIDENT OF VILLAGE-DANDKHORA, P.O. DANDKHORA, P.S. DANDKHORA, DISTRICT-KATIHAR. NO.8 RESIDENT OF MOHALLA-MANIHARI BUS STAND, P.O. MANIHARI, P.S. MANIHARI, DISTRICT-KATIHAR. ............................DEFENDANTS-RESPONDENTS 2ND PARTY- RESPONDENTS 2ND PARTY. ----------- For the Appellants : M/s. N. Hoda and Md. Q. Hoda, Advocates. For Respondent Nos.: M/s. Mukesh Kumar Jha and Bhola Prasad, 1(a) to 1(d) Advocates. ---------- 20. 23.8.2010. Perused the office notes. In view of the objection raised by the office, vakalatnama filed on behalf of the Respondent Nos.1(a) to 1(d) is accepted and the same is not accepted on behalf of Respondent Nos.1(e) to 1(i). Heard learned counsel for the appellants and the Respondent Nos.1(a) to 1(d). The defendants-appellants have preferred this appeal against the judgment and decree dated 28.11.2003 passed by the Additional District Judge-II, Katihar, in Title 3 Appeal No.16 of 1998, whereby he has dismissed the appeal and affirmed the judgment and decree dated 16.6.1998 passed in Title Suit No.130 of 1994 by the Munsif, Katihar. The plaintiff filed the Title Suit No.130 of 1994 for declaration of right, title and interest upon 2 kathas and 8 dhoors of the suit land and for further declaration that the defendants being only the licencees of the plaintiff do not have any right, title and interest upon the same and further for recovery of possession after holding that the defendants are liable to be evicted on account of being tresspassers. The case of the plaintiff in brief is that the suit land was owned and possessed as kayami raiyat by one Pamni Nadaf which was sold to Garbhu Mian on 20.4.1929 by executing a deed of sale and vendee was put in possession of the land. After the death of aforesaid Garbhu Mian, his son Md. Ismail, inherited property and subsequently sold away the suit land by executing a sale deed dated 4.10.1963 in favour of the plaintiff and since then the plaintiff came in possession of the entire 2 kathas and 8 dhoors of land as aforesaid. It is also the case of the plaintiff that he got his name mutated in the records of rights maintained by the State of Bihar and paid rent and obtained rent receipts and Jamabandi No.264 was 4 created in his name. It is also stated that one Hanif Nadaf, an ancestor of the defendants, was allowed to construct a temporary khapra phus house over 1½ decimals of land within the aforesaid 2 kathas and 8 dhoors of the land on the eastern side about 25 years ago. However, at the time of municipal survey that part has wrongly been recorded in the name of aforesaid Hanif Nadaf, though neither he nor his heirs had any right, title and interest over the same. When the plaintiff asked the defendants to remove the house and deliver vacant possession, they deferred the same on one pretext or the other. Thus, the suit concerned has been filed. The defendant nos.1 and 3 had appeared and filed a common written statement. The defendant no.5 had appeared but did not file any written statement whereas the other defendants had not appeared and contested the suit. The case of the defendants is that the suit is barred by limitation, adverse possession, estoppel, waiver and acquiescence and since the plaintiff is not in possession of the suit land for more than 12 years, he does not have any right to file the suit. The main issue raised by the defendants is that since they are coming in continuous possession of the suit land for several decades and since the name of the ancestor of the defendants- 5 appellants, namely, Hanif Nadaf, stands recorded in the municipal survey records, they cannot be thrown out. A plea has also been taken that in fact, the portion upon which the defendants-appellants are residing and which is in their possession, has not been carved out of the Cadastral Survey Plot No.1332 rather the same has been carved out of the Cadastral Survey Plot Nos.1333 and 1335. The trial court after consideration of the materials on record recorded the finding that the plaintiff purchased 2 kathas and 8 dhoors of land of Plot No.1332 on 4.10.1963 from Md. Ismail, son of Garbhu Mian and started paying rent to the State of Bihar thereof. The suit land is part and parcel of Cadastral Survey Plot No.1332 and the defendants were merely the licensees of the plaintiff. It has also been held that though the case regarding continuous possession over the suit land has been put forward but so far as the adverse possession is concerned, neither there is specific pleading regarding the date etc. from which adverse possession was there nor has any evidence been led on that account. It has also been noticed that the defendants were not able to show as to how they or their ancestors got a title over the suit land. In fact, their case revolves around their long possession of the suit property 6 which was held to be permissive one by the trial court. Thus, the suit was decreed. The defendants-appellants preferred Title Appeal No.16 of 1998, however, the same was also dismissed upholding the judgment and decree passed by the trial court. Learned counsel appearing for the defendants- appellants submitted that the suit property was not carved out of the Cadastral Survey Plot No.1332 rather it was carved out of Plot Nos.1333 and 1335 and evidence led on his behalf has not been considered by the trial court. It is next submitted that the defendants have remained in continuous possession of the suit property from several decades though they have perfected their title. It has also been submitted that in paragraph-3 of the written statement the defendants has specifically stated that the suit is barred by the limitation as well as law of adverse possession and in support of these, a copy of the written statement was produced before this Court at the time of hearing of this appeal. However, I do not find any substance in the submissions made on behalf of the defendants-appellants. The trial court and the appellate court, both have considered the documentary evidence and oral evidence 7 including documentary evidence regarding the carving out of the plots either from Cadastral Survey Plot Nos.1333, 1334 and 1335 or from Cadastral Survey Plot No. 1332, which have been brought on record as Exts.2 and 3 and Exts. C, D and E. Ext.C has specifically been discarded on the ground that the parcha is apparently forged and fabricated and does not bear even the signature of the Officer concerned, who has issued the same. So far as the question of adverse possession is concerned, learned counsel for the defendants-appellants could not show any substance in written statement of the concerned defendants. In fact, when the defendants do not accept the plaintiff as owner of the suit property, there is no question of taking a plea regarding the adverse possession. It is well settled that the plea of adverse possession has to be taken and proved, which the defendants-appellants have miserably failed to do. So far as the continuous possession is concerned, in law, that itself does not ipso facto create title in favour of the person, who is in possession of the same specially when such possession has been held to be a permissive one by the concurrent finding of both the courts below. Thus, in the opinion of this Court, the appellants have failed to point out any substantial error committed by the 8 courts below and the lis stands set at rest by concurrent findings of the courts below. As a result, this Appeal fails and is dismissed. P.S. ( Dr. Ravi Ranjan, J)