IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.167 of 2010 SMT. SABITRI DEVI wife of Sogarath Poddar, resident of mohalla Khiru Chowk Bhatta, P.S. Khazanchi Hat, Purnea, District Purnea… Defendant..Appellant..Appellant Versus DILIP KUMAR son of late Sitaram Kahar @ Chulhai Ram, resident of mohalla Khiru Chowk Bhatta, P.S. Khazanchi Hat, Purnea, District Purnea… Plaintiff/Respondent/Respondent For the Appellant: Mr. Ajat Shatru, Advocate For the Respondent: Mr. Kumar Uday Singh, Advocate ----------- 12 09.08.2010 Heard learned counsel for the appellant as well as the sole respondent. The defendant-appellant is aggrieved by the judgment and decree dated 26th February, 2010 passed by the Ist Additional District Judge, Purnea in Title Appeal No. 84 of 2001/5 of 2003 affirming the judgment dated 15.10.2001 and the decree dated 29.11.2001 passed by the Munsif Sadar, Purnea in Title Suit No. 355 of 1990. The plaintiff-sole respondent had brought Title Suit No. 355 of 1990 for declaration of title over 5 dhurs of land towards extreme east of town survey plot no. 104 and 3 dhurs of land towards extreme west of town survey plot no. 102 with a further relief that if the plaintiff is found dispossessed from the suit land, a decree for recovery of possession against the defendants be passed and the 2 defendant be permanently restrained from interfering with the peaceful possession of the plaintiff. The case of the plaintiff, in brief, is that the father of the plaintiff, namely, late Sitaram Kahar held and possessed 5 kathas and 3 dhurs of land in mouja Madhubani,P.S. K. Hat, District Purnea within Ward No. 6(old) of Purnea Municipality by virtue of settlement from the ex-landlord. The name of aforesaid Sitaram Kahar was recorded in Register II and rent was being tendered by him and accepted by the State of Bihar, which in turn granted rent receipts to him acknowledging the payment of such rent. Further case is that the aforesaid Sitaram Kahar, out of the lands mentioned above, sold 2 kathas of land towards west of plot to defendant no. 1 Smt. Sabitri Devi(the appellant herein) and 1 katha 5 dhurs of land to defendant no. 2 Smt. Chandrakala Devi through registered sale deeds of the years 1964 and 1969, respectively. In the town survey of Purnea, which began in the year 1976 and final record of right was published on 05.08.1989 as claimed by the plaintiff, the defendants were shown in possession of the excess land than they had actually purchased. Hence, the suit was filed for the reliefs as mentioned above. 3 The defendants contested the suit by filing written statement and claimed that they are not in possession of more than the area they had purchased. Pleader Commissioner was appointed for determination of the following questions:- (a) Whether the excess land was purchased by the defendant nos. 1 and 2 ? (b) Whether the defendant nos. 1 and 2 are in possession of excess land with respect to the plot concerned ? (c) What is the area of the land, over which the plaintiff is in possession? The Pleader Commissioner has examined plaintiff witness no. 1 and submitted his report. The trial court, after consideration of the materials on record including the evidence led on behalf of the parties has come to the conclusion that the defendant no. 1 is in excess possession of 3½ dhurs of land, for which the plaintiff has been found entitled to. The suit was decreed to that extent and the municipal records were directed to be corrected accordingly. Defendant no. 1, namely, Sabitri Devi, preferred Title Suit No. 84 of 2001. The appellate court at the first 4 instance remanded back the matter to the court below after setting aside the decree. The plaintiff-respondent challenged the order of remand in Miscellaneous Appeal No. 320 of 2008, which was allowed by this Court and the appellate court was directed to decide the appeal on its own merit. Thereafter the appeal was heard on merit and on appreciation of the materials on record, the decree of the trial court has been affirmed by the appellate court. Learned counsel for the appellant submitted that more than one Advocate Commissioners were appointed but report of one Advocate Commissioner has been considered. Secondly, a question was raised that in one of the sale deeds concerned the plaintiff’s settled area has been shown as 6 kathas, whereas in the other sale deed it was shown as 5 kathas 15 dhurs and this fact has not been ascertained as to how much land the plaintiff had actually possessed. That apart, it has also been submitted that the municipal records have been directed to be corrected without impleading the State of Bihar as a party. Learned counsel for the sole respondent, on the other hand, submitted that apart from the concerned report, which has been considered by the courts below, neither any 5 report of the Advocate Commissioner has been exhibited nor this issue has been raised by the appellant on any other occasion either before the trial court or the appellate court. So far the question of impleading the State of Bihar as a party in the suit is concerned, learned counsel for the respondent submitted that this issue was already decided in Miscellaneous Appeal No. 320 of 2008, wherein this Court had held that correction of municipal survey record was a consequential relief, which had been granted to the plaintiff, and, thus, it was not necessary to implead the State of Bihar as a party in the suit, as in the entry in the record of right either in the name the plaintiff or the defendants would not affect the interest of the State of Bihar in any manner. Learned counsel for the respondent produced certified copy of the order dated 04.12.2008 passed in Miscellaneous Appeal No. 320 of 2008 at the time of hearing of this appeal. On consideration of the aforesaid submissions of the parties, this Court is also of the opinion that the case of the plaintiff in the plaint is admittedly that the aforesaid Sitaram Kahar was possessing 5 kathas 15 dhurs of land. Thus, the question to be decided in this appeal would be as to 6 whether the defendants were possessing the land in excess to their purchase or not, which has been answered by both the courts below by recording concurrent findings that the defendant no. 1 possessed 3½ dhurs of land in excess and the plaintiff is entitled for return of the same. So far the other report of the Advocate Commissioner is concerned, the appellant could not show any material in support of his submission at the time of hearing of this appeal that any such report other than the one which has been considered by the courts below was on record. The question of impleadment of the State of Bihar has already been answered by order dated 04.12.2008 passed by this Court in Miscellaneous Appeal No. 320 of 2008. The decisions of the courts below are concluded by the concurrent findings of facts. The appellant could not point out any substantial error leading to substantial question of law. Thus, it is held that this Court does not find any merit in this appeal and the same is, accordingly, dismissed. Since this appeal has already been dismissed, I.A. No. 6387 of 2010 filed on behalf of the appellant for the purpose of staying the further proceeding in Execution Case No. 12 of 2001 is also dismissed and the interim relief 7 granted by this Court vide earlier order dated 02.08.2010 stands vacated. SC ( Dr. Ravi Ranjan, J.)