IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.239 of 2005 Satendra Kumar Singh Son of Late Godadhar Prasad Singh @ Godhadhar Prasad Singh resident of village + P.O. Bhikhanpur P.S. Amarpur Dist. Banka Plaintiff-Appellant- Appellant Versus 1. Anirudh Choudhary Son of Sukhdeo Choudhary resident of village Bhikhanpur P.S. Amarpur Dist. Banka Defendnt Ist party-Respondent Ist party-Respondent Ist party 2. Ganesh Hazara son of Feku Hazra resident of village Bhikhanpur P.S. Amarpur Dist. Banka Defendant 2nd party-Respondent 2nd party -Respondent 2nd party ----------- For the appellant: Mr Binod Kumar Singh For the respondents: None ------------ 6 05.02.2009 Heard learned counsel for the appellant. 2. This second appeal has been filed by the plaintiff- appellant-appellant challenging the judgments and decree of both the learned courts below. 3. This matter arises out of Title Suit no.42 of 1984 which was filed by the sole plaintiff- appellant-appellant for permanent injunction against the defendants claming that they have acquired title by way of sale deed executed in his favour by his vendors and hence defendants had no right to disturb the peaceful possession of the plaintiff. 4. The said suit was dismissed on contest by the learned Munsif, Banka vide judgment and decree dated 7.10.1996. Against the aforesaid judgment and decree of the trial court, the plaintiff filed Title Appeal no.112 of 1996 which was also dismissed on contest but without cost by the learned Addl. District Judge, IV, Banka, vide judgment and decree dated 13.5.2005. The said judgments and decree of the learned courts below have been challenged in the instant - 2 - second appeal. 5. The plaintiff had filed the said title suit on the basis of sale deed of 1983 which was claimed to have been executed in his favour by JairamYadav and Doman Yadav without permission of the Consolidation Officer although Consolidation proceeding had started in the area. On the other hand the defendants contested the case on the basis of registered sale deed executed by their vendor after taking due permission from the Consolidation authority. It was also claimed by the defendants that they had definite case of title and possession of the suit land but the plaintiff failed to come up with any definite case nor has he claimed relief of declaration of title and confirmation of possession in his pleading. 6. However, after considering evidence both oral and documentary on behalf of the parties as well as their respective pleadings, the learned courts below came to the conclusion that the plaintiff had not acquired any title on the basis of his deed as the said deed was illegal conferring no title upon the plaintiff. Further more with respect to the relief of injunction for restraining the defendants from interfering in possession of the plaintiff , the learned courts below came to specific findings that the plaintiff had miserably failed to prove his possession over the suit land by any valid material whereas the defendants had proved their possession over the suit land by valid evidence including notices by the authority concerned, order of mutation as well as rent fixation, receipts, orders of the Consolidation authority up to the Director of Consolidation, order of the court in a - 3 - proceeding under section 144 of the Code of Criminal Procedure along with other documents apart from oral evidence which clearly showed that it was the defendants who were in possession of the suit premises and hence there was no occasion for passing any order against the defendants restraining them from interfering in plaintiff’s possession which was not proved. 7. Although learned counsel for the appellant has stated that the question of abandonment was not legally proved by the defendants but since the plaintiff had not been found in possession of the suit land there is no question of decreeing the suit filed only for such injunction. Learned counsel for the appellant has also raised a question that since the suit land was an orchard it was not covered within the meaning of the land under Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 but although it was a question of fact the said point was never raised by the plaintiff in the courts below, nor there is any evidence on record to show that the said land was not connected with agriculture in any manner, whatsoever. Hence this court in a second appeal cannot go into such matter and the submission of the learned counsel for the appellant appears to be devoid of any merit. Further more no such question was raised by the plaintiff appellant in the learned court below, clearly because the said point was not available to the plaintiff and only as a last resort the said point is sought to be taken in the second appeal but the said ground is not sustainable in the eye of law. 8. Further more learned counsel for the appellant has - 4 - placed much stress on the question of the appellant’s vendors but it is quite apparent from the judgment of the learned court below that they have rightly refrained from deciding title of vendors of the plaintiff because the suit was filed by the plaintiff only for a decree of injunction and for that purpose deeds of the parties were considered whereupon deed in favour of the plaintiff was found illegal conferring no title upon him whereas the deed of title of the defendants was found to be legal and proper on the basis of which defendants were found to be possession also. 9. In the aforesaid facts and circumstances of the case, this Court 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 the instant second appeal, which is accordingly dismissed at this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. shahid (S.N.Hussain,J) - 5 -