FIRST APPEAL No. 58 OF 1979 Against the judgment and decree dated 23.9.1978 passed by Sri Bishwadeo Narain Singh, Additional Subordinate Judge-9th, Patna in Title Suit No. 96 of 1975/ 4 of 1977. BHUKHALU RAI & OTHERS …… Plaintiffs/Appellants Versus PATNA JASUIT SOCIETY & OTHERS …… Defendants/Respondents ******** For the appellants : Mr. Bamdeo Pandey, Advocate Mr. Jitendra Pandey, Advocate For the respondent Nos.1 & 2 : Mr. Kamal Nayan Chaubey, Sr. Advocate. Mr. K.M. Joseph, Advocate Mr. Hemant Kumar, Advocate. ============================================= Dated : 6th day of September, 2011 P R E S E N T THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO J U D G M E N T 1. The plaintiffs have filed this first appeal against the impugned judgment and decree dated 23.9.1978 passed by Sri Bishwadeo Narain Singh the learned Additional Subordinate Judge, 9th Patna in Title Suit No. 96 of 1975/ 4 of 1977 dismissing the plaintiffs’ suit for declaration of title and confirmation of possession. 2. The plaintiffs- appellants filed the aforesaid Title Suit No. 96 of 1975 praying for declaration of title and confirmation of possession with respect to Plot No. 3499 measuring 0.55 acres of Khata No. 1989 and plot No. 3500 measuring 0.53 acres of kahata No. 1173 in village Mungeshwar Sahoo, J. -2- Muzaffarpore Digha, P.S. Digha District Patna. According to their case they are the heirs of Beni Raut and Tahal Raut who died in the year 1931-32. Both of them had executed a Rehan deed on 11.4.1905 conveying both the above plots in favour of one Zanzir Bux of Bibiganj for a period of 5 years for Rs.350/-. The said Rehan deed was redeemed in 1931 and got back the possession of the lands and continued in possession thereof. After their death the plaintiffs are continuing in possession all along. For the first time in 1959 they came to know that the defendant No.1 Patna Jesuit Society applied for mutation in the Circle Office, Sadar Patna on the basis of sale deed executed by Ahmadi Begam on 25.6.1978. They objected to the mutation which was rejected and then they filed appeal which was also dismissed. In 145 Cr.P.C. proceeding the possession has been declared in favour of Patna Jesuit Society defendant No.1. 3. The present suit was filed in the court of Munsif Patna in 1970 but the plaint was returned and then it was filed in the court of Subordinate Judge, Patna in 1975. 4. After notice the defendants appeared and filed contesting written statement. Besides taking various legal and ornamental pleas the defendants mainly contended that the plaintiffs were never in possession of the suit property since after execution of the Rehan deed in the year 1905. The plaintiffs’ ancestors also never came in possession as the Rehan deed was never redeemed. According to them after execution of the Rehan deed ancestors of the plaintiffs further borrowed Rs.300/- from Zanzir Bux on a simple mortgage bond dated 6.11.1914. After death of Zanzir Bux his sons namely Seikh Manoo and Abdul Latif and others instituted a Mortgage Suit No. 60 of 1929 against the ancestors of the plaintiffs wherein a preliminary decree was passed on 29.11.1929 and final decree was -3- passed on 26.7.1930. In Execution of the final decree the plots in question were auction sold and the heirs of Zanzir Bux obtained delivery for possession through the court. Subsequently a money suit was filed by a trading firm namely Jaidayal Madangopal of Gaya against the heirs of Manoo and against Abdul Latif. The said money suit was decreed and Execution Case No. 628 of 1937 was filed by the said trading firm in which the plots were auction sold and the trading firm purchased the same in auction sale and obtained delivery of possession on 29.1.1939. Thereafter one of the partner of the firm sold the plots on 20.4.1940 to Syed Ali Wahid. Subsequently, the said Syed Ali Wahid sold the plots to Ahmadi Begum on 22.5.1945 from whom the defendant No.1 Patna Jesuit Society purchased the lands in suit on 25.6.1958 for a consideration of Rs.5000/-. Since purchase the defendants are coming in possession of the land and are obtaining rent receipt on payment of rent to the State Government. 5. The further case of the defendants is that out of plot No.3499 the Patna Jesuit Society had sold 5 kattha of land to defendant No.3 a cooperative society for building a devi temple for a consideration of Rs.1500/- and a sale deed was executed and registered on 14.2.1962. The defendant No.3 built a temple on the purchased land. After purchase the defendant No.3 is also paying rent against the grant of rent receipts. According to these defendants the plaintiffs have got no subsisting title and possession over the suit lands. 6. On the aforesaid pleading of the parties the learned court below framed the following issue. “1. Is the suit as framed maintainable ? 2. Have the plaintiffs got any cause of action for the suit ? -4- 3. Is the suit barred by limitation ? 4. Have the plaintiffs got right, title and interest over the suit property ? 5. Are the plaintiffs entitled to recover possession of the suit lands from the defendants ? 6. Is the suit barred by adverse possession ? 7. To what relief or reliefs, if any are the plaintiffs entitled ?” 7. After trial the learned court below came to the finding that the plaintiffs have got no subsisting title. The so called endorsement on redemption made on Rehan deed is forged. The learned court below also found that the ancestors of the plaintiffs never came in possession and the plaintiffs are never in possession of the suit property. On these findings the plaintiffs’ suit was dismissed. 8. The learned counsel Mr. Bamdeo Pandey appearing on behalf of the plaintiffs submitted that the learned court below has wrongly dismissed the plaintiffs’ suit in spite of the fact that the plaintiffs have adduced reliable evidences regarding their title and possession. Ext. 2 has been filed by the plaintiffs which is the Rehan deed and the endorsement of redemption has been marked as Ext.3 which is 30 years old and, therefore, the learned court below should have relied upon the said endorsement and redemption but wrongly held it to be forged. The learned counsel further submitted that after redemption the ancestors of the plaintiffs were in possession and after their death the plaintiffs are in possession without any interpretation. They had no knowledge about series of transaction alleged by the defendants therefore, because the plaintiffs have got title over the property and they are in possession the transaction alleged by the defendant which are not within the knowledge of the appellants will never bind the appellants. The learned counsel in support of the proof -5- of their possession placed the oral evidences in ex tenso. So far documentary evidences are concerned the plaintiffs appellants relied upon only on Ext.2 and the endorsement of redemption which is marked as Ext.3 on the back of Ext.2. On these grounds, the learned counsel submitted that the impugned judgment and decree are liable to be set aside. 9. On the other hand, the learned senior counsel Mr. Kamal Nayan Chaubey appearing on behalf of the respondents submitted that twice the properties in suit were auction sold through the court and delivery of possession were affected and the purchasers in auction came in possession of the property thereafter they sold the property to the purchasers as stated by the defendants and lastly the defendants have purchased the land in the year 1958 through registered sale deed and since then they are continuing in possession of the property. The defendants have produced the decrees of the courts and delivery of possession made through the courts to the auction purchasers and they have also produced the registered sale deeds. The learned counsel further submitted that in fact in the mutation case the Rehan deed was filed by the defendants but the plaintiffs got it disappeared from the court of L.R.D.C. In the mutation case it was not their case that they redeem the Rehan and they are in possession of Rehan deed and it was also not their case that they filed the Rehan deed in the mutation case. Only after disappearance of the Rehan deed from the said court which was filed by the defendants the endorsement Ext.3 was forged by the plaintiff and a case has been made out that the Rehan deed was redeemed. 10. The learned counsel next submitted that except the oral evidence and this endorsement the plaintiffs have not brought on record any other material in support of their case of title and -6- possession. So far question of possession is concerned the learned court below came to the finding of possession on the basis of the oral evidences adduced by the parties and in first appeal the court should be slow in interfering with the finding of fact recorded on the basis of oral evidences because the appellate court does not enjoy the advantage which the trial court had in watching the witness before it and of observing the manner in which they gave their testimony. The learned counsel next submitted that the plaintiffs never prayed for setting aside the auction sale which has been done twice in the present case. The plaintiffs have also not filed any rent receipt granted by the State of Bihar after vesting with respect to one plot which was their privilege land. They have also not filed any copy of return showing that they were in Khas possession of that plot which was their privilege land. Considering all these aspects of the matter the learned court below has rightly found that the plaintiffs have failed to prove their subsisting title and possession. On these grounds the learned counsel submitted that the first appeal is liable to be dismissed with costs. 11. In view of the above contentions of the parties, the points arises for consideration in this appeal is as to whether the plaintiffs have been able to prove their subsisting title on the suit property and whether they are in possession of the same and whether the impugned judgment and decree are sustainable in the eye of law. 12. According to the plaintiffs the two plots belonged to their ancestors namely Beni Raut and Tahal Raut sons of Jeetu Raut of village Banskothi. It is admitted that the said Beni and Tahal Raut died in the year 1931-32. Rehan deed was executed by them on 11.4.1905 in favour of Zanzir Bux. According to them the said Rehan deed was redeemed in 1931 and the ancestors of the plaintiffs got -7- back possession of the plots in question and after death of their ancestors the plaintiffs are in possession. To prove their case, the plaintiffs have adduced oral as well as documentary evidences. Let us consider the oral evidence first. 13. PW 1 Ramesh Chandra Singh stated that he knows the parties and the plaintiffs are in possession of the suit property. PW 2 Gurudayal Mahto. He has stated that he had taken Mango trees on lease from the plaintiff 16 years ago. PW 3 has stated that he had dug the well 40 years ago at the instance of plaintiff. PW 4 is the plaintiff No.4 himself Karmu Rai. He has stated the same thing as stated in the plaint. He has stated that his father was not knowing about title suit No.60 of 1929 and no drum was beaten in auction sale. 14. PW 5 has stated that on the land there was Mango orchard. 15 -16 years ago plaintiffs got the Mango trees cut and the plaintiffs are in possession of the same since last 40 -50 years. The other witness PW 6 has also stated about the possession of the plaintiffs. PW 7 has stated that he was looking after the temple which was constructed by Tahal Raut. PW 8 has also stated only the possession of the plaintiffs over the suit lands. PW 9 has stated that the amount of Rs.900/- was paid to the mortgagee Zanzir Bux in his presence and then endorsement was made in the back of Ext.2. On the land the well was dug by Tahal Raut. PW 10 has stated that on the land there was mango orchard but 40 years ago the plaintiffs cut the trees. PW 11 has stated that Manoo was knowing Urdu and Manoo had made the endorsement on the back of Ext.2 in Urdu. These are the oral evidences produced by the plaintiffs. 15. Ext. 2 is the Rehan deed. PW 12 has been examined by the plaintiff to examine the age of endorsement i.e. Ext.3 made in the -8- back of Ext.2. He has stated that he is unable to give the age of the writing. On the contrary DW 18 has been examined on behalf of the defendants who have stated that the age of Ext.3 could not be more than 15 to 20 years. Admittedly, according to the defendants themselves redemption was made in the year 1931 therefore, 70 years ago. According to DW 18 the age of the endorsement cannot be more than 15 to 20 years ago. 16. According the learned counsel for the appellants the learned court below has wrongly discarded this endorsement Ext.3. From the above discussions of the evidences oral and documentary it appears that these are only the material produced by the appellants. They are giving much emphasis on Ext.3 and the oral evidences of possession. Now let us consider the evidences adduced by the defendants contrary to the plaintiffs in support of their case. 17. According to the defendants after execution of Rehan deed in 1905 for Rs.350/- the ancestors of the plaintiffs again borrowed Rs.300/- from Zanzir Bux. To prove this fact the defendants have produced Ext. N which is a registered simple mortgage bond of the year 1914. According to the defendants both the mortgages were redeemed in 1931. As stated above DW 18 the expert has stated that the age of this endorsement is more than 15 or 20 years ago. Ext. O is the mortgage decree passed in Title Mortgage Suit No.60 of 1929 on the basis of mortgage bond dated 6.11.1914 Ext.N. 18. The defendants have also filed sale certificate dated 3.1.1939 which has been marked as Ext.P to show that both the suit plots were sold in auction in Execution Case No. 628 of 1937 on the basis of money decree obtained by firm Jaidayal Madangopal. This decree was obtained against Seikh Manoo and Latif and others who -9- were admittedly the heirs of Zanzir Bux and ancestors of the plaintiffs. Ext. J is the order sheet dated 21.1.1939 which was passed for issuance of delivery of possession and Ext.K is the receipts granted by the agent of auction purchaser in token of receipts for delivery of possession on 29.1.1939. 19. Ext. H is the certified copy of registered sale deed dated 20.04.1940 executed by the sons of Jaidayal in favour of Syed Ali Wahid. Ext. H/1 is the sale deed dated 22.5.1945 executed by said Ali Wahid in favour of Ahmadi Begum. Ext. H/2 is the registered sale deed dated 25.6.1958 executed by Ahmadi Begam in favour of defendant No.1. From the above documentary evidences produced by the defendants from the year 1929 upto 1958 it appears that the lands were auction sold though the court and delivery of possession was given to the heirs of Zanzir Bux. The heirs of Zanzir Bux after purchasing the property in auction sale came in possession. Subsequently, money suit was filed by a firm of Gaya and in execution of the said money decree the suit property was again auction sold and the firm purchased the same and through the court obtained delivery of possession. On partition the suit plot fell in the share of sons of Jaidayal who sold it to Ali Wahid in 1940, who in turn sold it to Ahmadi Begum in 1945 and thereafter Ahmadi Begum sold it to the defendant No.1 in 1958. These series of documents and transactions clearly proves that the Rehan was never redeemed by Manoo or his ancestors. The only explanation given by the plaintiff is that no drum was beaten affecting delivery of possession. As discussed above the witnesses of the plaintiffs have stated that the plaintiffs are in possession. In my opinion, in fact all these documentary evidences and the oral evidences produced by the plaintiffs cannot be relied upon. The only bald statements of the -10- witness cannot wipeout evidentiary value of the documentary evidence. It may be mentioned here that the defendants have produced the documents which were executed through the courts. Delivery of possession have been affected through the courts therefore, the plaintiffs are challenging the course of conduct of judicial activities by merely saying that no drum were beaten. They never prayed for setting aside the auction sale nor they ever prayed for setting aside the registered sale deeds. Moreover there is not only a registered sale deed but there are series of transactions 20. It further appears that the plaintiffs did not file a rent receipt. According to the defendants they filed the original Rehan deed Ext.2 and the sale certificate issued in mortgage execution case after obtaining the same from the grand son of Zanzer Bux in the year 1959 in Mutation Case No. 513 of 1958-59 in support of their title. DW1 is the power of attorney holder of defendant No.1 and DW 6 is the grand son of Zanzir Bux who have supported the case of the defendants that the original Rehan deed was filed by the defendants. PW 4 the plaintiff No.2 himself in his evidence admitted the fact that the original Rehan deed was never filed by him in the mutation case Ext. Q/3 is the order of mutation dated 1.9.1959 wherein it was alleged by the plaintiff that their ancestors could not redeem the mortgage bond. It further appears from the said order that the defendant No.1 filed the mortgage deed dated 11.4.1905. Ext. O is the sale certificate issued on 6.2.1931 on the basis of final decree dated 26.7.1930. The delivery of possession was given on 27.3.1931 in favour of Seikh Manoo and others. If the Rehan was redeemed then it was expected that the Rehan deed would have been produced by the plaintiffs in the mutation case. As has been discussed above the said documents was produced on behalf of the defendants which was -11- made to disappear in the mutation case and thereafter the said document has been filed in the present case after making endorsement which ahs been marked has Ext.3. 21. It appears that the Ext. 3 is in Urdu language i.e. signature of Seikh Manoo. DW 6 is grand son of Zanzir Bux and nephew of Seikh Manooe has stated that Seikh Manoo was knowing only to write in Mahajani and was not knowing Urdu. In support of this fact Ext.R the registered partition deed of the family members of Seikh Manoo has been filed. Ext. C is another sale deed. In both these documents Seidh Manoo signed in Mahajani whereas in Ext. 2 the signature is in Urdu. 22. Ext. B-1 is the sale deed dated 12.2.1962 executed by defendant No.1 in favour of defendant No.3 whereby 5 kattha land was sold for Rs.1500/-. The defendant No.3 is cooperative society. After mutation defendant No.3 is paying rent in token of grant of rent receipt. Ext.C-1 is the rent receipt. A devi temple has been constructed thereon. Ext. A and A-1/1 have been produced by the defendants to show that in the year 1964 lottery was held for collecting fund and the purchaser of these two lottery won the price. This registered society has been registered in the year 1948. 23. Plot No.3500 is a kast bhauli land and therefore, the plaintiffs to show their possession could have produced Zamindari rent receipt and after vesting to prove their possession they could have produced the rent receipt granted by the State of Bihar but no paper has been produced except Ext.2 and 3 as stated above. 24. In view of the above discussions it appears that the plaintiffs have no subsisting title and their ancestors never came in possession of the suit property since after execution of the Rehan deed in the -12- year 1905. The plaintiffs also never came in possession of the suit property after death of their ancestors. The Rehan deed was produced by the defendants in the mutation case. After passing of mutation order the said Rehan deed was made to disappear and thereafter it appears that Ext.3 was created and on the basis of that the plaintiffs have filed this suit. In view of the above discussions I further find that the plaintiffs appellants have not approached the court with clean hand and dragged the defendants to the courts without any basis of their title and possession with ulterior motive. 25. In view of my above discussion, I find that the plaintiffs have failed to prove their subsisting title and possession over the suit property. Therefore, I find no reason to interfere with the findings of the learned court below. Accordingly, the finding of the court below is hereby confirmed. 26. In a decision reported in (2005) 6 SCC 344 Salem Advocate Bar Association, T.N. Vs. Union of India the Apex Court has held that judicial notice can be taken of the fact that many unscrupulous parties take advantage of the fact that either the costs are not awarded or nominal costs are awarded against the unsuccessful party. Unfortunately, it has become a practice to direct parties to bear their own costs. In a large number of cases, such an order is passed despite Section 35 (2) C.P.C. Such a practice also encourages the filing of frivolous suits. It also leads to the taking up of frivolous defences. Further whenever costs are awarded ordinarily the same are not realistic and are nominal. When Section 35(2) provides for costs to follow the event it is implicit that the costs have to be those which are reasonably incurred by a successful party except in those cases where the court is in its discretion may direct otherwise by recording reasons there for. -13- 27. In the result, I find no merit in this appeal and accordingly, this first appeal is dismissed with cost of Rs.15,000/- to be paid by the appellants to the respondents within one month from the decree, failing which the respondents shall be entitled to recover the same through process of the court. (Mungeshwar Sahoo, J.) Patna High Court, Patna The 6th September, 2011 S.S./A.F.R.