IN THE HIGH COURT OF JUDICATURE AT PATNA S.A. No.114 of 2008 Rajendra Prasad Choubey son fo Sudarshan Choubey, resident of village Catariya, P.O. Catariya, P.S. Rajpur, District Buxar. ………Plaintiff-Appellant-Appellant. Versus Kedar Nath Sharma son of Ram Karan Sharma, resident of village and P.O. Catariya, P.S. Rajpur, District Buxar. ……..Defendant-Respondent-Respondent. For the appellant : Mr. Shashi Shekhar Dviwedi, Sr.Advocate with Mr. Sangeeta Sharma, Advocate. For respondent : M/s V. Nath, Ashok Kumar, Sandep Singh, Ramakant Yadav and Satish Kumar, Advocates. ----------- 05/ 02.02.2010 Heard learned counsel for the appellant and learned counsel for the respondent. 2. This second appeal has been filed by the sole plaintiff- appellant-appellant challenging the judgments and decree of both the learned courts below. 3. The matter arises out of Title Suit No.33 of 2002 which was filed by the plaintiff-appellant for cancellation of deed of exchange between the parties dated 23.10.1992, as the defendant had no right over 16 decimals of land including the land in question measuring 5 decimals, which he had given in exchange to the plaintiff and for other ancillary reliefs. The said suit was dismissed on contest by the learned Civil Judge (Junior Division)-II, Buxar vide his judgment and decree dated 30.11.2006. 4. Against the aforesaid judgment and decree of the trial court the plaintiff filed Title Appeal No.85 of 2006 which was also 2 dismissed on contest by the learned Additional District Judge-cum- Fast Track Court No.I, Buxar vide his judgment and decree dated 17.03.2008. The aforesaid judgments and decree of the learned courts below are under challenge in the instant second appeal. 5. Leaned counsel for the appellant vehemently challenges the impugned judgments and decree of the learned courts below claiming as substantial question of law (i) that the courts below had failed to appreciate that once the defendant accepted the settlement from the State as a landlord, he was stopped from contending about his earlier title, based on some rent receipts by the State, which were without prejudice; (ii) that the learned courts below had committed gross error in upholding deed of exchange dated 23.10.1992 without appreciating the impact of Ext.A/5, Ext.A/8, Ext.B/1, Ext.B/3 and Ext.C produced by the defendant himself which according to the appellant demolished the genesis of exchange and showed that defendant was dealing with Plot No.1017 (5 decimals) even after the exchange. 6. So far the first question raised by the appellant is concerned, the learned courts below had considered the pleadings and evidence of the parties, whereafter they came to specific conclusion that defendant had got the aforesaid 5 decimals of Plot No.1017 in settlement by ex-landlord by receipts, but due to mistake of survey authorities the said land was recorded as Anabad Bihar Sarkar against which the defendant filed application for correction of the entry in Government Records and in enquiry the Circle Officer found the said 3 5 decimals of land in possession of defendant as settlement by ex- landlord by granting receipts and acknowledging the said settlement, the authorities ordered on 14.09.1989 for correction in official records and accordingly in Chakbandi also the correction was made and the deed of exchange was executed on 23.10.1992. From the evidence of the parties it was also found by the learned courts below that both the parties had executed with consent the deed of exchange on 23.10.1992 which showed that plaintiff himself initiated the talk of exchange and he was interested in getting the said land of the defendant in exchange. In the aforesaid circumstances, it is quite apparent that defendant was the Raiyat of the aforesaid 5 decimals of land and his title over the said land was not defective and the deed of exchange executed on 23.10.1992 conveyed title of 5 decimals of disputed land as well as other land which was binding on the parties. 7. So far Ext.B/1 is concerned, it includes order of settlement dated 14.09.1989 passed by the Circle Officer which went up to the Commissioner and also the order of Consolidation Authorities dated 15.06.1992 which was considered in detail by both the learned courts below specially the learned court of appeal below in paragraph-19 of its judgment and found that a Circle Officer made local inspection and found that the said land had wrongly been entered by mistake of survey as Anabad Bihar Sarkar whereas the said land was coming in possession of Kedar Sharma and further fact had also come in report that the said land was settled by the ex-landlord by granting receipts and defendant also had rent receipts up to 1990-1991 4 and furthermore that the nature of land had changed from ditch land to culturable land and same was ordered by the authorities concerned to be settled in the name of defendant Kedar Sharma, which is also supported by Ext.B/2. 8. So far Ext.B/3 and Ext.C are concerned, they are order of D.D.C., Bhojpur dated 08.09.2004 and the map dated 30.03.1987 in which learned counsel for the appellant submits that there is no mention of Plot No.1017. These exhibits have been considered by the learned court below in second sub-para of paragraph-19 and it was specifically held that on the basis of order passed by Circle Officer, in Case No.18 of 1990-1991 regarding settlement of 5 decimals of land of Plot No.1017 which was wrongly not mentioned in the Chak Confirmation Map due to clerical error, the same was ordered to be corrected. 9. So far Ext.A/5 andA/8 are concerned, they are rent receipts of 5 decimals of land for 1994-1995 and 2000-2001 which showed payment made by the defendant which had been considered along with other documents at the beginning of paragraph-19 of the judgment of the learned court of appeal below which specifically found that the said receipts were on the basis of wrong entries which were made by mistake which was subsequently corrected by the authorities themselves and hence the said documents will have no effect on the right and title of the defendant as well as on the deed of exchange in question. 10. In the aforesaid facts and circumstances, this court 5 does not find any illegality in the impugned judgments and decree of the learned courts below nor does it find any substantial question of law involved in this second appeal, which is accordingly, dismissed at this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. harish (S.N. Hussain, J.)