Appeal From Appellate Decree No.62 OF 1994 Against the judgment dated 07.12.1993 and decree dated 14.12.1993, passed by Sri Md. Zeauddin, the 5th Additional District Judge, Saran in T.A. No. 46 of 1989 setting aside the judgment dated 31.03.1989 and the decree dated 07.04.1989 passed in T.S. No. 27 of 1986. -------- RAM GOPAL RAI & ORS----- ------ ------ ---------AppellantVersus -Versus- MANAGER RAI & ORS-------- -------- ----------- Respondents --------- For the Appellants : Mr. Arun Kumar Singh No.3, Adv. For the respondents : M/S Suresh Chand Giri & Raghvendra Sharan Pandey, Advocates. P R E S E N T THE HON'BLE MR. JUSTICE S.NAYER HUSSAIN ------------- S.N.Hussain,J : This second appeal has been filed by the plaintiffs- respondents- appellants challenging the order of the learned court of appeal below. 2. The matter arises out of Title Suit No. 27 of 1986 which was filed by the appellants for declaration of their title and confirmation of possession and in the alternative recovery of possession and also for permanent injunction and other ancillary reliefs. 3. The plaintiffs claim the suit properties to be their ancestral properties which they inherited and remained in possession. They further claimed that one Sajivan Singh executed a sale deed with respect to the suit land in favour of defendant No. 1, Manager Rai which is forged and fabricated but on its basis defendant no.1 got his name mutated in collusion with the Circle Officer and tried to dispossess the plaintiffs. 4. The aforesaid suit was contested by the defendants No. 1 to 3 who claimed that the suit lands never belonged to the ancestors of the plaintiffs rather the Khesara and Barbarda of the ex. intermediary clearly - 2 - showed that it belonged to Sajivan Singh who sold it to the defendant by registered sale deeds dated 17.03.1971 on receipt of consideration money where-after the said defendants came in possession of the said lands and got their names mutated. 5. On the pleadings of the parties the learned trial court formulated the following issues for deciding the suit :- (i) Is the suit, as framed, maintainable ? (ii) Have the plaintiffs got any cause of action for the suit ? (iii) Whether the plaintiffs have got title and possession of the suit land ? (iv) Whether the sale-deed alleged to be executed by Sajiwan Singhdated 17.03.1971 in favour of the ddefendant legal, valid and operative ? (v) Whether the plaintiffs are entitled to a decree as prayed for ? (vi) To what relief, if any, are the plaintiffs entitled ? 6. After considering the pleadings and evidence of the parties on the said issues the learned 4th Subordinate Judge, Chapra, decreed the suit on contest with cost by judgment and decree dated 31.03.1989 after arriving at the following findings :- (a) Evidence of the plaintiff is better than the evidence of the defendants. (b) It is shown by the evidence that there was no Sajiwan Singh in village Purainiya and there is contradiction in evidence of the defendants on the point of Sajiwan Singh. Hence the defendants have failed to establish the existence of Sajiwan Singh. ( c) The documentary evidence supports the title of the plaintiffs. (d) Sale deed dated 17.03.1971 ( Ext. b ) executed by Sajiwan Singh in favour of defendants is illegal, invalid and inoperative, creating no title in the defendant. (e) The plaintiffs have been able to prove the title and possession of the suit land and hence they are entitled to a decree as prayed for. - 3 - 7. Against the aforesaid judgment and decree of the learned trial court the defendants filed Title Appeal No. 46 of 1989 in which the learned court of appeal below formulated the following points for deciding the appeal :- (i) Whether the plaintiffs have got right, title, interest and possession over the disputed land ? (ii) Whether the sale deed dated 17.03.1971 executed in favour of defendant No.1 is forged and fabricated document ? (iii) Is the suit barred by law of Limitation ? 8. After considering the averments of the parties and the materials on record the learned 5th Additional District Judge, Chapra allowed the appeal and set-aside the judgment and decree of the learned trial court and dismissed the claim of the plaintiffs by judgment and decree dated 07.12.1993 after arriving at the following findings :- (a) In the Khesara , Ext. 1 produced by the plaintiffs no plot number is mentioned nor any date is indicated on which it was prepared nor even the area of the land was mentioned. (b) The Barbarda, Ext.-2, produced by the plaintiffs is not legible and only some guess can be made on its basis. ( c ) The plaintiffs filed an application under section 146 of the Code of Criminal Procedure for attachment of the land which is a strong circumstance to suggest that they were not in possession over the suit land . (d) The defendants applied for appointment of Commissioner for local inspection in order to ascertain the real state of affairs regarding Palani, Bathan and possession over the disputed land but the plaintiffs objected to it, due to which the said application was rejected. - 4 - (e) The plaintiffs cannot derive any benefit from the pleadings of the defendants as it is established principle of law that the plaintiffs have to prove their case and burden of proving the case lies on their shoulder. (f) The subsequent conduct of the parties and follow up action go to show that Ext.- B was with respect to the disputed land, whereafter the purchaser, namely, the defendants muted their name and have been paying rent to the State of Bihar. (g) Defendants have produced Register-II and rent receipts but as against this the plaintiffs could not file any document of possession, rather the claim of the plaintiffs is that they never paid rent to the State of Bihar. (h) The plaintiffs have failed to prove by any cogent evidence that they have got right, title and possession over the disputed land. (i) It is quite apparent that the defendants- appellants are paying rent to the State of Bihar since 1972 after mutation and in addition thereto they have been able to prove their possession over the suit land and as such they have perfected their title even by adverse possession. (j) The sale deed and possession of the defendants being from 1971 to the knowledge of the plaintiffs who filed Title suit in the year 1986, the defendants have also perfected their title by adverse possession. 9. Against the aforesaid judgment and decree of the learned lower appellate court the instant second appeal was filed on 08.02.2994, where- after it was admitted on 19.01.1995 on the basis of only one substantial question - 5 - of law detailed as follows: (i) Whether the learned court of appeal below is justified in recording a finding in favour of the defendants on the question of adverse possession in absence of such an issue recast by either of the court ? 10. Since at the time of admission it was observed by this Court that the appellants may formulate any other substantial question of law at the time of argument in the appeal, hence now the learned counsel for the appellants raises the following two more substantial questions of law :- (ii) Whether the learned lower appellate court committed error of record by rejecting plaintiffs’ document only on the ground that they were old documents ? (iii) Whether the learned lower appellate court can rely upon Barbarda which was relied by the trial court ? 11.. So far the first question raised by the appellants is concerned, although the issue of adverse possession was not one of the issues formulated by the trial court but the said issue was inherent in the issues of right, title and possession which were very well present in the issues formulated by the trial court. Furthermore, the said issue was a question of law which can be considered at any stage, specially when the pleadings and evidence of the parties were present on the record of the case with regard to the basis of right and title, the mode of transfer and the date of possession. The pleadings and evidence of the parties have been fully considered by the learned court of appeal below in paragraphs 7 to 14 of the impugned judgment whereafter the learned court of appeal below clearly came to the conclusion that the defendants were able to show that on the basis of sale deed dated 17.03.1971 they came and remained in possession of the suit land and the plaintiffs failed to prove their possession over the suit properties for any period upto or even after 1971 and even their acts by filing a petition for attachment of the land and resisting the defendants application for appointment of commissioner to ascertain the real state of affairs - 6 - regarding the suit land clearly show that they were not in possession. It is also not in dispute that the title suit was filed in the year 1986, i.e., much beyond the period of twelve years. In the said circumstances the learned court of appeal below was quite justified in arriving at the finding with regard to adverse possession. 12. So far the second question with regard to rejection of plaintiffs’ documents on the ground that they were old document is concerned, the learned court of appeal below has dealt with the matter in paragraphs 15, 18 and 19 of the impugned judgment in which it has been clearly found that the evidence of the defendants both oral and documentary were better than the evidence of the plaintiffs. The documents, Exhibits- 1 and 2, were rejected by the learned court of appeal below not only on the ground that they were old documents rather they were rejected, as Exhibit-1, Keshera of the ex- Intermediary did not bear either the date or year on which it was prepared nor any plot number or even area was given therein. Furthermore, Exhibit- 2, Barbarda of the Ex-Intermediary was rejected as it was not legible and did not bear the necessary details whereas on the other hand Exhibits A,B,C,D and E produced on behalf of the defendants clearly proved the purchase of the defendants and their possession since then. 13. So far the third question with regard to reliance upon any Barbarda produced by the defendants as Exhibit-F is concerned, from perusal of the judgment of the learned court of appeal below it is quite apparent that it is not dependant upon the said exhibit-F, rather the said judgment has been passed on the other evidence, both oral or documentary which proved the purchase by the defendants and their possession since the date of their purchase, as mentioned in the above paragraphs. - 7 - 14. In the said circumstances this Court does not find any illegality in the judgment and decree of the learned court of appeal below nor does it find the questions raised by the appellants to be legal, valid and substantial questions of law. Accordingly, this second appeal is dismissed. Patna High Court, Patna Dated, the Ist Sept. 2008 B.Tiwary/N.A.F.R. (S.N Hussain,J)