FIRST APPEAL No. 537 of 1993 Against the Judgment and Decree dated 29th May, 1993 passed by Sri Abid Ansari, Sub Judge 2nd, Munger in Title Suit No.6 of 1985. HIRA PASWAN & ORS. ………… Plaintiffs/Appellants Versus BADRI NARAYAN SINGH & ORS. ……… Defendants/Respondents ---------- For the Appellant : Sri Devendra Kumar Sinha, Sr. Advocate Sri Ambika Prasad Bhagat, Advocate For the Respondent : Sri J.S. Arora, Advocate, Sri Akhileshwar Prasad Singh, Advocate, Sri Ajay Kumar Singh, Advocate. Dated : 28th day of July, 2010 P R E S E N T HON'BLE MR. JUSTICE MUNGESHWAR SAHOO J U D G M E N T Mungeshwar Sahoo, J. 1. This first appeal has been filed by the plaintiffs-appellants against the judgment and decree dated 29th May 1993 passed by the learned Sub Judge 2nd Munger in Title Suit No. 6 of 1985 dismissing the plaintiffs-appellants’ suit for declaration of title and confirmation/recovery of possession of the suit property. 2. The plaintiffs-appellants filed the aforesaid suit claiming for the said reliefs for declaration of title and confirmation of possession and in the alternative for recovery of possession on the suit property as described in detail in Schedule-I to the plaint on the facts inter alia that the suit property comprising within survey plot Nos. 560, 562, 563 and 559 measuring 63 decimals, 74 decimals, 4 decimals and 74 decimals respectively total being 2.15 acres of village Jainagar are the Nagadi Rayatee Kayamy Jot land of their ancestor Choa Dusadh. He died 2 leaving behind only son Dhobi Dusadh, who intern died leaving behind two sons Balchand Paswan and Baiju Paswan. The plaintiff Nos. 1 to 3 are sons of Balchand Paswan whereas, the plaintiff No.4 is son of Baiju Paswan. The further case is that Choa Dusadh remained in possession during his lifetime and after his death his son came in possession and then his grand-sons and plaintiffs were coming in possession over the suit land. They have also partitioned the suit property between them. The further case is that the plaintiffs’ ancestors were paying rent to the ex-landlord against the grant of rent receipts but the ex-landlord did not file return at the time of vesting of Zamindari. Therefore, the plaintiffs filed Kabil Lagan Case No. 6 of 1982-83 before Anchal Adhikari, who allowed the same on 20.5.1982 and then the plaintiffs paid rent to the State of Bihar. One Ram Ratan Das filed Zamabandi Correction Case No.1 of 1982-83 before Anchal Adhikari, who cancelled the Zamabandi in the name of plaintiffs. The Dy. Collector In-charge, Land Reforms in Case No. 6 of 1983 at the instance of Manohar Paswan also directed to correct the Zamabandi on the recommendation of Anchal Adhikari. The appeal filed by the plaintiffs was dismissed on 4.8.1989. 3. The further case of the plaintiffs is that the Case No. 38 of 1909- 10 was started for the transfer of Chaukidari chakaran land under Section 50 of the Village Chaukidari Act, 1870. The suit land was not auction sold nor delivery of possession was given to the auction purchaser of the suit land in the said case No. 38 of 1909-10. The Character of the suit land has changed much before the survey operation and it is no longer Chaukidar chakran land, so Choa Dusadh became permanent Raiyat of the suit land. No delivery of possession was affected. The landlord was entitled to rent of Rs. 10 - 10 ana. Choa Dusadh had been paying the said rent and the landlord was assessed under Section 47 of the said Chaukidari Act at Rs.5 – 5 ana. The 3 plaintiff also challenged the orders passed in Zamabandi Correction Case No. 6 of 1982-83. The further case of the plaintiffs is that the story of gift by the defendants in favour of Sri Thakur Ram Janaki is void because the executants of gift had no title. 4. On being noticed, the defendants-respondents appeared and filed a contesting written statement. Besides taking various legal pleas mainly, it was contended that Choa Dusadh had no Rayatee Kayami right to the suit land and plaintiffs are not his heirs. Choa Dusadh was not in possession till his death and the plaintiffs never came in possession over the suit land. The ancestors of the plaintiffs and the plaintiffs were never recorded in the Sirista of ex-landlord nor they paid any rent and therefore, the landlord rightly did not file return in their names. Zamabandi and correction have been made on the basis of finding of possession. 5. The further case of the defendants is that immediately after cadastral survey Choa Dusadh left the suit land from his possession so Bansi Singh came in possession on the basis of delivery of possession given by Collector because Bansi Singh was the proprietor of the suit land. Choa Dusadh had signed on delivery of possession given to Bansi Singh as such he had accepted the possession of Bansi Singh which was given to him in Case No. 38 of 1909-10. The land was Bakast land of the ex-landlord. Bansi Singh and others gifted some properties out of suit properties in favour of deities of Sri Thakur Ram Janki through Sevaiat Baba Devnarayan Das by registered gift deed dated 25.7.1956. Out of the suit land 2 decimals of plot No. 559 was acquired under the Land Acquisition Act for Bazar Samiti. The award was prepared in the name of Thakur Ram Janaki and for enhancement of compensation at the instance of Sevaiat the matter was referred to Civil Court. The plaintiffs knew the facts but did not object. 6. On the basis of the aforesaid pleadings, the learned Court below 4 framed as many as 9 issues. Issue No.6 is has the plaintiffs got right title to the suit land. Issue No. 7 is for the plaintiffs’ possession over the suit land. After trial the lower Court below by the impugned judgment held that the evidence adduced on behalf of the defendants on these issues i.e. issue Nos. 6 and 7 are better than that of the plaintiffs and decided both these issues against the plaintiffs. On this finding, the learned Court below dismissed the plaintiffs’ suit. 7. Learned Senior Counsel appearing on behalf of the appellant submitted that the lower Court below has wrongly relied upon the delivery of possession in Case No. 38 of 1909-10. The learned counsel further submitted that in fact, it was only a paper transaction and the delivery of possession was never affected. The plaintiffs-appellants continued in possession and they have paid rent against the grant of rent receipts but the learned Court below has wrongly not relied upon the rent receipts and also has wrongly relied upon the delivery of possession. The learned counsel further submitted that the said proceeding under the Village Chaukidar Act, 1870 being Case No. 38 of 1909-10 was illegal and, therefore, no title was passed to the so called proprietor. The learned counsel further submitted that in fact, Choa Dusadh was in possession and on his death his son and then grand- sons and then the plaintiffs are in continuous possession of the suit land and also they have partitioned between them the suit property but the learned Court below has wrongly not relied upon the evidence of the plaintiffs. On these grounds, learned counsel submitted that the impugned judgment and decree are liable to be set aside. 8. On the other hand, learned counsel for the respondents submitted that in fact, the suit itself was not maintainable and moreover, this appeal is also liable to be dismissed as having abated in toto because originally the suit was filed against the defendants- respondents mentioning that only the head of the family of the 5 defendants are added as defendants and, therefore, it is admitted that the other owners of the property were not made defendants. During the pendency of this appeal respondent No.1 Badri Narayan Singh, respondent No.2 Jagdish Singh and respondent No.7 Shrideo Nandan Prasad Singh died and instead of substituting their representatives at the instance of the appellants their names have been deleted. Now therefore, the estate of deceased-respondent Nos.1, 2 and 7 are not represented in this appeal. Therefore, the judgment and decree, so far it relates to the said deceased-respondents are concerned, cannot be modified in absence of the legal representatives of the said deceased- respondents. 9. The learned counsel on the merit submitted that in fact the suit land was the Chaukidar chakrana land and the same was given to Choa Dusadh for his maintenance because he was Chaukidar of village. After cadastral survey Choa Dusadh left possession of the said land and the ex-landlord took possession of the said land under the provision of Village Chaukidari Act, 1870 and therefore, there is no question of auction sale or auction purchase of anyone. The learned counsel further submitted that during the pendency of the said case being No. 38 of 1909-10 Choa Dusadh filed an application before the Collector praying therein that he may be allowed to continue in possession of the land which was rejected and thereafter delivery of possession was given to Bansi Singh, the ex-landlord. Choa Dusadh had signed on the delivery of possession paper. In such circumstances, unless the order passed in the said proceeding is set aside, no relief cannot be granted to the plaintiffs. The learned counsel further submitted that because the plaintiffs or their ancestors were never in possession of the suit property on the date of vesting, therefore, the ex-landlord did not file any return in their name. The plaintiffs never raised any objection and for the first time in 1982, they filed Zamindari Case No. 5 of 1982-83. 6 The learned counsel further submitted that considering all these aspects of the matter and also the evidences available on record, the learned Court below has rightly dismissed the plaintiffs’ suit which needs no interference. On these grounds, the learned counsel submitted that this first appeal is liable to be dismissed with costs. 10. In view of the above rival contentions of the parties, the only point arises for consideration in this appeal is :- (i) As to whether the plaintiffs have been able to prove their title and possession over the suit property on the date of vesting of Zamindari. FINDINGS 11. According to the plaintiffs’ case Choa Dusadh was Raiyat of the suit property and till his death he was in possession. It was never auction sold in Case No. 38 of 1909-10 and delivery of possession was never handed-over to the ex-landlord. On the contrary, according to the respondents there was no question of auction sale or purchase. 12. Now let us examine the legal position. “Chaukidar chakaran lands” has been defined in Section 1 of the Village Chaukidari Act, 1870, which is as follows : “Chaukidar chakaran lands”.- The words “chaukidari chakaran lands” shall mean lands which may have been assigned, otherwise than under a temporary settlement for the maintenance of the officer who may have been bound to keep watch in any village and report crime to the police, and in respect to which such officer may be at the time of the passing of this Act liable to render service to a zamindar :” 13. Therefore, according to the definition Choa Dusadh was given the land for his maintenance only. According to Section 48 of the said Act which provides for transfer of the land to Zamindar if in a village a Panchayat is appointed and the procedure for transfer of the land is 7 provided under Section 50 of the said Act. When Choa Dusadh left possession of the land, proceeding under Section 50 was initiated and after assessment as provided under Section 47 of the said Village Chaukidari Act, the land was transferred to the Zamindar. Therefore, no question of auction sale or purchase by Zamindar arises. The proceeding was initiated in the Court of Collector and from the perusal of Ext. J/1 which is entire case record of Case No. 38 of 1909-10, it appears that Choa Dusadh had appeared in that case. He also filed an application on 7.2.1910 which has been marked as Ext. E/2, wherein he has prayed to allow him to continue in possession. The said application was rejected by terms of order dated 19.12.1910. It further appears that the Zamindar filed an application on 17.3.1910 for delivery of possession and delivery of possession was affected on the Zamindar. It further appears that Choa Dusadh had signed on it. Ext. K and K-1 are the receipts in token of getting the delivery of possession and Ext. L is the order sheet. 14. The plaintiffs have examined 9 witnesses. Out of them PWs 1, 4, 6, 7 and 9 are formal in nature and they have proved various rent receipts and register sale deed. The rent receipt have been marked Ext. 1 series and the sale deed dated 22.6.1970 has been marked as Ext. 2. It appears that this sale deed was executed by Baiju Paswan and Manohar Paswan in favour of Hira Paswan. The other sale deed Ex. 2-b is dated 20.3.1972. The plaintiffs have proved these sale deeds to show that they are in possession so they have transferred the same to other persons. In my opinion, the defendants are not parties in the said sale deeds and, therefore, any statement made in the sale deed regarding possession will not bind the respondents. Moreover, it appears that those documents are self surveying documents. Other exhibits i.e. Ext. 3, Ext. 4 series, Ext. 5 relates to Zamabandi case and have got no bearing on the merits of this case. Likewise Ext. 5 is 8 certified copy of Khatiyan, Ext. 6 is map of village and Ext. 7 is Khewat. All these entries in exhibits 5, 6 and 7 are prior to cadastral survey of record of right. Admittedly, no return was filed by the Zamindar on the date of vesting of the Zamindari in the name of the plaintiffs. It was the crucial date on which the assessment of rent could have been made in the Sirista of State of Bihar. There is no rent receipt showing payment of rent to Zamindar. 15. The defendants have proved the gift deeds of the year 1959-66 in the name of Thakur Ram Janki with respect to 4.93 acres. Ext. A is registered deed of gift dated 9.4.1984 with respect to plot Nos. 560, 562 measuring 22 decimals. Another gift deed dated 25.7.1966 is with respect to 8 acres of plot Nos. 560, 562, 563 and 559. Ext. A/1 is another registered gift deed dated 29.7.1959 which is with respect to 4.93 acres which is not the subject matter of the suit. Ext. D series (the rent receipts) have been filed by the defendants to show the possession of Thakur Ram Janaki. 16. It appears that the defendants have proved Ext. G series, which are the report of delivery of possession in Case No. 38 of 1909-10. Ext. I series are receipts of irrigation taxes. 17. Against these aforementioned documentary evidences the plaintiffs have not produced any reliable evidence to show their possession. No rent receipts have been filed to show that they were paying rent to the ex-landlord. According to them for the first time they applied for mutation in Kabil Lagan Case No. 5 of 1982-83. Therefore, admittedly prior to 1982-83 their names was nowhere in the Sirista of state. Therefore, the rent receipt prior to 1982-83 are concerned cannot be relied upon. Moreover, all the revenue records produced by the plaintiffs-appellants are of prior to cadastral survey. Moreover, it is well settled principle of law that revenue records neither create title nor extinguish title. No doubt, the witnesses PW 2, 3, 5 have stated that 9 the said Choa Dusadh was in possession thereafter his sons and grand- sons continued in possession but these oral evidences are belied by the documentary evidences. It appears that the learned Court below has found that the plaintiffs are the decedents of Choa Dusadh, so far this finding is concerned the respondents have not challenged the finding. PW 5 has stated that he has sold his share of the land. I have already stated that it is only self surveying document and his statement is also self surveying. 18. Another important fact is that 2 decimals of plot No.559 was acquired and award was prepared in the name of Thakur Ram Janaki. From perusal of Ext. N, it is clear that Collector referred the award to the Civil Court which was numbered as L.A. Case No. 27 of 1978 and the award was passed in the name of Thakur Ram Janaki through Siwayat Triveni Das. 19. From perusal of Ext.J/1 it appears that on the application of Zamindar the Collector by terms of order dated 17.3.2010 directed the Nazir to deliver the possession. Now after 100 years the legality or otherwise of the said Case No. 38 of 1909-10 cannot be examined in this case. Moreover, Choa Dusadh did not challenge the same during his life time. 20. The defendants have also adduced oral evidences. DW 2 to DW 6 all have stated the gift in favour of Thakur Ram Janaki and possession of Thakur Ram Janaki over the suit property. The other witnesses i.e. DW 8 to 14 are formal in nature. 21. In view of the discussion, I find that the plaintiffs have failed to prove their title and possession over the suit land since after 1909-10. The suit land was not the Rayatee land of Choa Dusadh. The land was Chaukidari chakaran land which was given to him for his maintenance and in 1909-10 in case No. 38 of 1909-10 possession was transferred to the Zamindar and since then Zamindar continued in possession and 10 gifted the properties as stated by the defendants to Sri Thakur Ram Janaki through Siwayat. The plaintiffs also failed to prove that they were in possession and were paying rent to ex-landlord. The plaintiffs also failed to prove that they were in Khas possession on the date of vesting of Zamindari in the year 1955. 22. It appears that after the death of respondent Nos.1, 2 and 7 their legal representatives have not been substituted. Therefore, in my opinion, the estates of those respondents are not represented by anyone in this appeal as such the appeal has become incompetent as a whole. 23. In view of the above discussions, I find that the plaintiffs are not entitled to any relief regarding the suit property. The finding of the lower Court below on these points are therefore, confirmed. 24. In the result, I find no merit in this first appeal and accordingly, this first appeal is dismissed. In the facts and circumstances of the case the parties shall bear their own costs. Patna High Court, Patna Dated 28thJuly, 2010 N.A.F.R./ S.S. (Mungeshwar Sahoo, J.)