IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.734 of 2010 Md. Newaji & Ors Versus Md. Farid & Ors ---------------------------------- 4 15-12-2011 Heard Mr. Ashok Kumar along with Mr. Sandip Singh , learned counsels appearing on behalf of the appellants. The plaintiffs are the appellants in this appeal against the judgment of affirmance. The suit has been filed for declaration of title and confirmation of possession and for further declaration that the revisional survey entries with regard to the suit land in favour of the defendants are wrong and not binding upon the plaintiffs. The case of the plaintiffs, in short, is that they had purchased 3.32 acres of land in the year 1938 and thereby have acquired valid right, title and interest over the same. However, during the recent survey operation 80 decimals and 3 decimals of their land have been wrongly included in R.S.Plot nos. 190 and 191 respectively in the names of the defendants and, therefore, the plaintiffs have filed the suit for the aforesaid reliefs. Both the courts below, after analysing the evidence of the parties, their pleadings and considering the submissions, have come to the conclusion that the plaintiffs have failed to establish their case that R.S.Plot nos. 190 and 191 include their land measuring 80 decimals and 3 decimals respectively. The learned counsel appearing on behalf of the appellants has strenuously argued that a pleader commissioner had been appointed by the trial court for scientific measurement of the land in order to find out whether plot nos. 190 and 191 include 2 the land of the plaintiffs also. It has been urged that the report of the pleader commissioner has been wrongly disbelieved by the trial court as well as the appellate court. It is the submission of the learned counsel that in such cases the courts should have appointed a fresh pleader commissioner in order to ascertain the real facts. After hearing the learned counsel for the appellants and considering the impugned judgments, it is clear that the primal issue between the parties was as to whether Plot nos. 190 and 191 have been carved out including 80 decimals and 3 decimals of land of the plaintiffs respectively, and clearly the burden of proof was on the plaintiffs to establish this fact, as admittedly the recent survey entries are in the names of the defendants. Very strangely the appellants have given up their claim with regard to Plot no.191, area 3 decimals without any reason. The report of the pleader commissioner who had been appointed at the instance of the plaintiffs to take the measurement of the plots in dispute has been disbelieved by both the courts below and the appellate court has held that the said report is a collusive one. The submission of the learned counsel that in such cases the courts should have appointed a fresh pleader commissioner after finding the earlier report to be unsatisfactory is not sustainable because it is not for the courts to be vigilant rather the parties are expected to be vigilant over their rights. After considering the withdrawal of the claim with regard to Plot no.191 and finding the report of the pleader commissioner to be not believable, the courts below have 3 been left with no other material to give verdict in favour of the plaintiffs and as such there is no illegality in the findings by both the courts below. The learned counsel has strenuously submitted that the statement made in paragraph no.6 of the plaint has not been specifically denied by the defendants in their written statement and due to evasive denial by them, the facts stated therein ought to have been accepted as admitted. It appears that this submission of the learned counsel would have some force when there would have been no withdrawal of the claim with regard to Plot no.191. The issues arising between the parties have been settled by the concurrent findings of fact by both the courts below. For the foregoing reasons, there is no substantial question of law arising in this appeal for consideration, which is, accordingly, dismissed. roy ( V. Nath, J.)