Letters Patent Appeal No.849 OF 1998 ---- Appeal against judgment dated 25.6.1998 passed by a learned Single Judge in F.A.No.818 of 1978. --- 1. Expunged 2. Narshing Mishra 3. Narmadeshwar Mishra, both sons of Late Shiv Balak Mishra, R/O of village- Bannaiya Bigha, P.S. Kuchaikote, District- Gopalganj 4. Smt. Ram Kumari Devi daughter of Late Shiv Balak Mishra, wife of Surendra Pandey, R/O village- Parauli, P.S. Shore, District-Gopalganj 5. Shambhu Dubey 6. Rabindra Dubey both sons of Raghunath Dubey of pre-deceased, daughter of late Shiv Balak Mishra. 7. Suganti Devi daughter of Raghunath Dubney of pre- deceased, daughter of late Shiv Balak Mishra, all resident of village- Sukul Narhwa, P.S.Kuchaikote, District Gopalganj 8. Most.Ram Kali Devi wife of Late Ramchandra Mishra 9. Saliram Mishra 10. Trilokinath Mishra 11. Dinath Mishra, all sons of Ramchandra Mishra, R/O village Bannaiya Bisha, P.S. Kuchay Kote, District Gopalganj 12. Smt. Arti Devi daughter of Late Ramchanra Mishra wife of Salal Dubey, R/O village Salasara, P.s. Mirganj, District- Gopalganj 13 Smt. Gyanti Devi daughter of Late Ramchandra Mishra, wife of Gorakh Pathak, R/O village- Katahri, P.S.Paterhwa, District- Deoria (UP), 14. Smt. Durgawati Devi daughter of Late Ramchandra Mishra, W/o Bishwamitra Choubey, R/O village- Khutwaria, P.s. Kuchaiya Kote, District- Gopalganj, 15. Urmila Devi daughter of Late Ramchandra Mishra, R/O village- Barniya Bisha, P.S. Kouchaya Kote, District- Gopalganj 16. Expunged 16(a).Godawari Kuer, widow 2 16(b).Renu Devi, daughter of late Brahamchari Mishra, W/o Achchitanand Dubey 16©. Rajan Devi, daudghter of late Brahamchari Mishra, W/o Bind Shukla R/o village & P.O. Dharhara Mela, District- Gopalganj 16(d) Sima Devi D/o late Brahamchari Mishra,R/O vill+ P.O. Kuchaikote, District-Gopalganj 16(e).Jhuni Kumari D/O Late Brahamchari Mishra, R/O Barnaiya Bisha P.S.Kuchaikote, District- Gopalganj, 17. Surendrea Mishra 18. Yognedra Mishra 19. Mohan Prasad Mishra, all sons of Late Ramai Mishra, and residents of village-Bannaiya Bisha, P.S. Kuchaikote, District- Gopalganj 20. Janardan Mishra son of late Raghubir Mishram, R/O village-Barniya Bisha, P.S. Kuchaikote, District- Gopalganj. Versus 1. Expunged 1(a) Rajendra Mishra 1(b) Byas Mishra 1© Lallan Mishra 2. Expunged 2(a). Mautaisara Devi 2(b). Paspati Mishra 2©. Balishwar Mishra 2(d). Magistar Mishra 2(e). Prabhawati Devi, All are sons and legal representatives of Bishundeo Mishra, and R/O of Hembardaha, P.S. Kuchaikote, District- Gopalganj. For the appellants : Mr. Ram Kumar Sharma, Senior Advocate with Mr. Ajay Mishra For the respondents : Mr. Rakesh Kumar Srivastava ----- 3 P R E S E N T THE HON'BLE MR. JUSTICE CHANDRAMAULI KUMAR PRASAD THE HON'BLE DR. JUSTICE RAVI RANJAN Prasad & Ranjan,JJ. Appellants, being aggrieved by the judgment and decree dated 25th of June, 1998 passed by a learned Single Judge of this Court dismissing the First Appeal No.818 of 1978 and affirming the judgment and decree dated 11th of September, 1978 passed by the trial court in Title Suit No.650/132 of 1974/1978, have preferred this appeal under Clause 10 of the Letters Patent. During the pendency of the first appeal aforesaid, the original plaintiffs (appellant nos.1,2 and 3 in the first appeal) died and the present appellant nos.1 to 14 were substituted in their place being their regal representatives. Defendant No.3 also died during the pendency of the first appeal and his legal representatives were also substituted in his place. Appellant no.20 is original defendant no.4 himself. Original defendant nos.1 and 2 (Respondent Nos.1 and 2 herein) died during the pendency of this appeal and the present respondents were substituted in their place being their legal representatives. Similarly appellant nos.1 and 16 also died during the pending of this 4 appeal. The legal representatives of appellant no.1 were already on record whereas the legal representatives of appellant no.16 were substituted in his place. Original plaintiffs filed Title Suit No.650/132 of 1974/1978 seeking partition of their 1/8th share out of the suit property measuring an area of 11 bighas 2 kathas and 14 dhoors pertaining to Khata No.115 situate at Village-Hembardaha, Pargana Kuari, P.S.Kuchaikote, District Gopalganj, which are described in Schedule-I of the plaint. Shorn of details, plaintiff’s case in brief is that the suit land described in Schedule-I of the plaint was joint property of Ramhit Missir, Ram Sewak Missir, both sons of Rameshwar Missir, Deoki Missir son of Doulat Misshir, Bishwanath Missir son of Hira Misshir and Indradeo Missir son of Ram Prasad Missir, their common ancestor being Radha Missir. According to the plaintiff-appellants, the suit property stood recorded in the names of their ancestors in the C.S and R.S. khatians in defined shares. Further contention of the plaintiff is that the recorded co-sharers and their descendents have even sold part of their shares to the ancestors of the contesting defendant nos.1 and 2 by sale deeds dated 22.7.1918 and 14.9.1922. The claim of the 5 plaintiffs is that since they felt inconvenience in cultivating the suit property jointly with the contesting defendants, they wanted partition by carving out their shares out of the suit property. Since defendant nos.1 and 2 did not agree, the present suit was filed by the plaintiffs. Defendant nos.1 and 2 filed written statement jointly. Their case in short is that the property in question originally belonged to one Sharda Shukul of Village-Hembardaha, which was part of 34-35 bighas of lands held by him as Brit Belagan land (Rent free lands), which after his death, came in the possession of his sons Kandhar Shukul, Nidhi Shukul and Anant Shukul. Aforesid three sons after the death of their father, divided the lands between themselves as a result of which, 11 bighas 8 kathas and 14 dhoors of land, which is the suit property and has been described in Schedule-I of the plaint, was allotted to Kandhar Shukul. On the death of Kandhar Shukul, the property came in possession of his widow Mostt. Tarwana, who remained in possession of the same through out her life time. Further case of the contesting defendants is that one of the Kandhar Shukul’s daughter, namely, Ganpati was married to Bujhawan Missir of Village- Barnaiya Bissa (grand-father of Bishundeo Missir- 6 defendant no.1 and great-grand father of Ram Swarup Missir-Defendant no.2), whereas other daughter of Tarwana, namely, Mahesha was married with Tahlu Pandey of village- Hathua, who subsequently died issuelss. Hence, the case of contesting defendants is that all the properties of Kandhar Shukul including the suit property, devolved upon the sons of Bujhawan Missir after the death of the widow of Kandhar Shukul, namely, Mostt.Tarwana, and thereafter, Nand Keshwar Missir son of Bujhawan Missir remained in possession of the same. The contesting defendants, by filing written statement, vehemently denied that the property in question ever belonged to or possessed by Ramhit Missir, Ram Sewak Missir, Deoki Missir etc. They claimed that the suit property was mortgaged to Ram Tahlu Pandey by Kandhar Shukul by executing the deed of mortgage dated 18.9.1984. The aforesaid Ram Tahlu Pandey filed T.S.No.222 of 1895 on the basis of aforesaid simple deed of mortgage against Mostt.Tarwana, the widow of Kandhar Shukul and got decree against her. Subsequently, he filed Execution Case and in the execution case, entire property measuring 11 bighas 8 kathas 14 dhoors of land was put to auction sale. 7 In order to save the property, Bujhawan Missir, the eldest son-in-law of Mostt. Tarwana, got a farzi settlement made with respect to the aforesaid property in the name of his pattidar Rameshwar Missir. The claim of aforesaid contesting defendants is that the suit property was Brit Belagan land and names of their ancestors were recorded in the C.S.Khewat as well as R.S.Khewat. They used to pay cess to Hathua Raj. The suit property is situated in Village Hembardaha, whereas the plaintiffs/appellants are resident of Village Barnaiya Bissa and thus, they never came in possession of the same. Further claim of the contesting defendants is that they remained continuously in possession of the suit property. At the time of abolition of Zamindari, their ancestor Nand Keshwar Missir did not file return because there was no raiyati sairat in the khewat and the land of the khewat was in possession of Nand Keshwar Missir as Khewatdar (Tenure holder). Since the suit land was Maliki Brit Belagan land of the ancestors of the defendants, there was no question of payment of rent and they only use to pay cess to Hathua Raj and got receipts thereof. After the vesting of Zamindari in the State of Bihar, their ancestors 8 became Kashtkar with respect to the land in question and the State of Bihar created jamabandi and fixed rent and since then the ancestors and subsequently the defendants continuously paid rent to the State of Bihar. In acknowledgment thereof, the State of Bihar issued rent receipt in their names. According to the defendants, the names of plaintiffs/appellants were found recorded in C.S.Khatian and R.S. Khatina only on the basis of farzi settlement engineered by Bujhawan Misir in order to save the land from being auctioned sold at the instance of Ram Tahlu Pandey. Defendant nos.3 and 4 filed their joint written statement. However, they fully supported the case of the plaintiffs. On the pleadings of the party, the trial court framed the following issues: 1. Is the suit, as framed, maintainable? 2. Have the plaintiffs got any valid cause of action for the suit? 3. Is the suit barred by the law of limitation? 4. Is the court fee paid by the plaintiffs sufficient? 5. Is there any unity of title and possession between the parties over the suit land? 6. Are the plaintiffs entitled to a decree for partition, if so, to what extent and with respect to what property? 7. To what relief or reliefs, if any, are the plaintiffs entitled? The trial court took up issue nos.5 and 6 together as they were the main issues involved in 9 the case and has held that the plaintiffs had failed to prove that they had got unity of title to and unity of possession over the suit land and thus the suit for partition brought by them was fond not maintainable and was dismissed with contest against defendant nos.1 and 2. Aggrieved thereof, the plaintiffs as well as defendant nos.3 and 4 preferred F.A.No.818 of 1978 before this Court and the learned Single Judge, after hearing the matter at length and on consideration thereof, dismissed the aforesaid appeal by the impugned judgment. The plaintiff/appellants and the supporting defendants have preferred this appeal challenging the aforesaid judgment and decree of the learned Single Judge. Heard Shri Ram Kumar Sharma for the appellants and Shri Rakesh Kumar Srivastava for the respondents. Learned counsel appearing for the appellants has mainly centered his submissions on two issues. His first contention is that the entries in the C.S. as well as R.S. Khatians are conclusive proof of title and continuous possession of the appellants over the suit property. He submitted that in this case, the entries were made in the C.S. Khatian and later on in R.S. khatian also in the names of the ancestors 10 of the plaintiffs/appellants, which according to him, is conclusive evidence fully admissible in law proving the title and uninterrupted possession of the plaintiffs over the suit land. Further contention is that even if the entries are forged one, since having not been challenged, those are binding upon the defendants/respondents and as such, they are estopped from challenging the title and possession of the appellants. So far as the entries in C.S. and R.S. Khewats and Khatians are concerned, it was submitted that the entries made in Khatian being latter entries, shall prevail and thus, the trial court as well as the learned Single Judge ought to have decreed the suit in favour of the plaintiff-appellants. Second submission on behalf of the appellants is that defendant nos.1 and 2 could not establish the relationship between their ancestors Bujhawan Missir, Kandhar Shukul and Mostt. Tarwana. Since the entire case of the contesting defendants is revolving around the aforesaid relationship, the same in absence of cogent evidence, should have been discarded by the trial court. Shri Rakesh Kumar Srivastava, learned counsel for the respondents, vehemently opposed the submissions raised on behalf of the appellants contending that 11 the law is well settled that the presumption regarding the entries made in the record of rights are rebuttable, specially so, when the Khewat of the corresponding survey goes to show that the lands are Brit Belagan (Rent free) land and the same devolved upon the ancestors of the contesting defendants after the death of Mostt. Tanwara. He contended that the plaintiffs have miserably failed to prove as to how the suit property was acquired by them or their family and also failed to prove their continuous possession thereof. According to him, merely the entries in the Khatian will not do in this case as entries in the Khewat are contrary to the aforesaid raiyati entries in the khatian. Therefore, the plaintiffs were bound to disclose as to how these properties were acquired by their family. The trial court, on appreciation of both documentary as well as oral evidence, came to the conclusion that the plaintiffs failed to prove as to how the suit property was acquired by them. According to the trial court, they have also failed to prove the subsequent continuous possession after the alleged acquisition of the property. Apart from the entries in the survey records, the plaintiffs could not produce any piece of documentary evidence 12 to show their continuous possession, whereas the contesting defendants proved their title and possession by showing payment of cess to Hathua Raj and entries in R.S. khewat along with several rent receipts granted by the State of Bihar after fixing rent and creation of jamabandi in favoaur of their ancestors subsequent to the abolition of the Zamindari. The aforesaid rent receipts are marked as Ext.A to A (51). One rent receipt Ext.A(52) has also been brought on record by the contesting defendants to show that Kandhar Missir was paying cess to the Hathua Raj with respect to the suit land. That apart, several other documents have also been brought on record by the defendants in support of their case. Ext.E/1 is Zarpeshgi deed dated 10.8.1931 executed by Bujhawan Missir son of Madho Missir and his son Nand keshwar Missir with respect to 2 bighas and 5 kaths of land out of the suit land in favour of one Babu Ram Autar Rai. The trial court has also considered two Ladabi deeds (deed of relinquishment) executed by the ancestors of the plaintiffs in favour of defendant nos.1 and 2. The trial court has also considered the oral evidence led by the parties and observed that the plaintiffs could not examine any witness from village Hembardaha, to where the suit property 13 belong or situate whereas the contesting defendants had been able to examine many witness from the aforesaid village. Even a few of the adjoining raiyats of the suit property were also exmined as witnesses by them. One of the persons of the branch of Nidhi Shukul (brother of Kandhar Shukul), namely, Harkesh Pandey has been examined as D.W.4, who has fully supported the case. D.W.5 Satyadhari Missir is also of the branch of Anant Missir. He has got his land at the boundary of the suit land. The trial court, on appreciation of documentary as well as oral evidence, has observed and held as follows: “29.- The aforesaid facts amply prove that the property in suit was originally the properties of Kandhar Shkul. The names of family members of Kandhar Shukul viz Anant Shukul, Nidhi Shukul or their representative found mentioned on the boundaries of the properties mentioned in the C.S. of the simple mortgage deed Ext.1 of the year 1884 and also on the boundaries of the C.S.Plot in the C.S. Khatian the c.c. of which has been filed on behalf of the defendants 1 and 2 which has been marked as Exts.1. If the suit properties belonged to Mishra family of the parties of village Barnaiya Bisa their names would have been mentioned on the boundaries of all the properties in Exts.1 and 1(1) but the name of none of them found mentioned therein on the boundaries. During the life time of Bujhawan Missir his sons Nand Keshwar Missir and Thakur Missir inherited the property and their names were entered in C.S. as well as R.S. Khaewats. The case for the defendants 1 and 2 that the suit property was inherited by Nand Keshwar Missir and Thakur Missir being daughter’s sons of Kandhar Shukul is proved. 14 30.It is necessary to consider as to whether Bujhawan Missir is the son-in-law of Kandhar Shukur. Ram Tahal Pandey had filed a title suit being Title Suit No.282 of 1895 against Lal Behari Shukul and others on the basis of the simple mortgage bond executed by Kandhar Shukul and others in his favour in which decree was passed and the same put in execution which was numbered as Ex.Case No.11 of 1896. In the execution case, notice dated 18.7.1896 was issued against judgment debtors. That notice has been filed on behalf of the defendant nos.1 and 2 which has been marked as Ext.G. That notice had been issued against Lal Bihari Shukul through Bujhawan Missir, husband of Ganpati Kuar. This notice clearly shows that Ganpati Kuar the daughter of Kandhar Shukul had been married with Bujhawan Missir. The c.c. of the deposition of the witnesses examined in the Title suit No.282/1895 has been filed on behalf of the defendants 1 and 2 which has been marked as Ext.H. Bujhawan Missir had stated in that suit that he was married to Ganpati Kuer about 15 or l6 years ago. He has been examined on 14.1.1996. The c.c. of the suit Register of that suit has been filed on behalf of the defendant nos.1 and 2 which has been marked as Ext.K. which shows that the property had been auction sold. The document mentioned above clearly indicate that Bujhawan Kissir of village Barnaiya Bisa was the son in law of Kandhar Shukulr. The plaintiff no.1 Sheobalak Missir in his evidence as P.W.6 has stated that Nand Keshwar Missir and Thakur Missir were daughters sons of Kandhar Shukul in whose names the C.S. as well as the R.S. Khewat with respect to the suit land had been prepared. He admits that Ganpati was the daughter of Kandhar Shukul. Several witnesses have been examined on behalf of the defendant nos.1 and 2 on this point who are D.W.4 Markesh Pandey, D.W.5 Satyaddhari Missir, D.W.8 Shyambaran Singh, D.W.9 Rambishwas Ram, D.W.12 Sheodhari Mistry and D.w.22 who is Bishundeo Missir the defendant no.1 who have consistently stated that Mostt. Tarwana Kuar was the daughter of Kandhar Shukul, who had been married with Bujhawan Missir of village Barnaiya Bisa. Nand Keshwar Missir and Thakur Missir were 15 the dauther’s son of Kandhar Shukul and sons of Bujhawan Missir. 31. Thus, from the discussions made above, it is clear that Bujhawan Missir of village Barnaiya Bisa was the son of Kandhar Shukul. Kandhar Shukul was the Nana of Nand Keshwar Missir and Thakur Missir. It is also clear that Bujhawan Missir had settled at his Sasural village Ram Bardaha. It is admitted case of the parties that the defendants 1 and 2 who are descendants of Bujhawan Missir reside at village Hembardaha.” The trial court further found that the plaintiffs could not prove as to how Ram Sewak Missir acquired the suit property. In the C.S. Khatian, Rs.10 has been shown as the rent of the suit land but there is nothing to show that Ram Sewak Missir ever paid any rent with regard to the aforesaid lands. It has been found by the trial court that there is absolutely nothing on the record to show that aforesaid, Ram Sewak Missir was ever in possession of the suit property. Peculiarly, in the R.S.Khatian, the names of heirs not only of Ram Sewak Missir but also of other branches were recorded along with them. There is no explanation as to how these persons got interest in the property. Finally, the trial court, while dismissing the suit, held as follows: “63.- it has been seen above that the suit land was originally Bakast brit land of Kandhar Shukul. Nand Keshwar Missir and Thakur Missir were daughter’s sons of Kandhar Shukul and they inherited that property after the death of their mother Ganpati Devi. That land became their Bakast 16 Brit land. They were in Khas possession thereof and they used to pay cess to Hathua Raj with respect to that land as was recorded in C.S. Khest in the name of Nand Keshwar Missir and in the R.S. Khewat in the names of Nand Keshar Missir and Thakur Missir both sons of Bujhawan Missir. They had been dealing with that property. It was a rent free land. There was no Raiyat on that land because it was in khas possession of the tenure holder Nand Keshwar Missir and that Thakur Missir. In this view of the matter the C.S.Khatian recorded in the name of Rameshwar Missir with respect to that land was incorrect. The R.S.Khatian prepared with respect to the suit land in the names of Ramhit Missir and others was also incorrect. There is absolutely nothing to show that those persons ever came in possession of that land. Therefore, the rulings cited by the learned lawyer appearing on behalf of the plaintiffs is not applicable to the facts of the present case. 64.Thus, from the discussions of the oral as well as documentary evidence adduced on behalf of both he parties, I come to the conclusion that the plaintiffs have utterly failed to prove that they have got unity of title to and unity of possession over the suit land and so the suit for partition brought by them is bond to fail. Hence, these two issues are decided against the plaintiffs and in favour of the defendants 1 and 2.” In appeal thereof, learned Single Judge, while dealing with the aforesaid issues, has observed as follows: “9.The trial court on detailed consideration held that the plaintiffs have failed to prove as to how Rameshwar Missir acquired that property, over which they are silent, and on the other hand defendant nos.1 and 2 have given explanation as to how the suit land got recorded in the name of Rameshar Missir by 17 Bujhawan Missir, and rightly felt convinced that the explanation given by the defendant nos.1 and 2 is convincing and fit to be relied upon. It is the settled principle of law that the entry in survey khatian is not an evidence of title. In C.S. khatian Rs.10/ has been shown as rent of the suit land and nothing has been pointed out by the learned counsel for the appellants to show that Rameshwar Missir ever paid rent for the land in question. The trial court has considered the explanation of defendant nos.1 and 2 in paragraph 32 of onwards of the impugned judgment, and the learned counsel for the appellants has failed to point out any infirmity in the same, except that according to them the entry of a latter date made in two khatians are the conclusive proof of their title and uninterrupted possession which are unrebuttable. I do not find any substance in the said submissions of the learned counsel for the appellants. Entry in the record of rights is mere rebuttable piece of evidence. Entries though important evidence, but it cannot be conclusive inasmuch as facts of partition or separation of shares is not a matter dealt with in such records. 10.The trial court on detailed consideration has found that the suit land was Bakast Brit land of Kandhar Shukul, which was later on inherited by his daughter’s sons Nand Keshwar Missir and Thakur Missir, who are sons of Bujhawan Missir. It was a rent free land. C.S. Khewat and R.S.Khewat were prepared in the names of sons of Bujhawan Missir and it was recorded as rent free land in their Khas possession. It has also come in evidence that the ancestors of