IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.436 of 2008 Baijnath Sah s/o late Jangi Sah resident of Village Nauhatta P.S. Nauhatta Dist. Rohtas Plaintiff-Appellant- Appellant. Versus 1. The State of Bihar through the Collector Rohtas Defendant-Respondent- Respondent Ist set 2. Sukhdeo Mahto 3. Ramdhani Mahto 4. Jagdish Mahto 5. Kameshwar Mahto All sons of late Ramdutt Mahto 6. Ramjhari Kuer w/o of late Ramdutt Mahto 7. Satendra Singh 8. Raj Nath Singh 9. Ajay Singh 10. Ashok Singh 11. Bipin Singh All sons of Bilash Singh 12. Bhogia Devi w/o late Bilash Singh All resident of Village Nauhatta P.S. Nauhatta Dist. Rohtas Defendants-Respondents- Respondents 2nd set ------------- For the Appellant: Mr Nagendra Prasad, Advocate Mr Bajarangi Lal, Advocate ------------ 04/ 01.04.2010 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 courts below. 3. The matter arises out of Title Suit no.150 of 1988 which was filed by the plaintiff-appellant for declaration of his title and confirmation of possession over the suit land and also for restraining defendants Ist set (State of Bihar through Collector, Rohtas) from interfering in the title and possession of the plaintiff as well as other ancillary reliefs. The said suit was dismissed on contest by Munsif II Sasaram vide his judgment and decree dated 26.11.1997. 4. Against the aforesaid judgment and decree of the trial court, the plaintiff-appellant filed Title Appeal no.25 of 1998 which was - 2 - also dismissed by Additional District Judge-cum-Fast Track Court No.II, Rohtas, vide his judgment and decree dated 18.12.2007.Against the aforesaid judgments and decree of the courts below instant second appeal has been filed. 5. Although learned counsel for the appellant vehemently challenges the aforesaid judgments and decree of the courts below but from the materials on record including the impugned judgments of the courts below, it is quite apparent that State of Bihar through Collector, Rohtas was defendant Ist set whereas defendants 2nd set were private individuals, who did not produce any witness and remained absent at the time of hearing of the title suit. 6. The claim of the plaintiff was that the suit property belonged to Rameshwar Dubey and Bhuneswar Dubey and they executed a registered sale deed dated 12.07.1960 (exhibit 5) in favour of Baijnath Sah (plaintiff), Lochan Mahto and Mostt. Sanijhari Kuer (not made parties to the suit), but the entire consideration money was paid by the plaintiff- Baijnath Sah and names of Lochan Mahto and Mostt. Sanijhari Kuer were inserted fraudulently. It was also claimed that although the suit property belonged to individuals but name of the State of Bihar through Collector, Rohtas was mentioned in the revisional survey khatiyan (exhibit 4) with respect to the suit land. The plaintiff also claimed that he acquired title over the suit property by adverse possession. 7. On the other hand, defendant Ist set namely State of Bihar through Collector, Rohtas denied the entire claim of plaintiff stating that the revisional survey entry with regard to suit land was correct as khata - 3 - and plot mentioned therein were Gairmazarua aam land of Bihar Sarkar, who were duly recorded as such. 8. From the aforesaid facts and circumstances of the case, it transpires that the plaintiff had never challenged the entry made in the revisional survey khatiyan either before any authority or even in the instant suit which he had filed merely for declaration of his title and confirmation of possession along with relief of injunction. So far the claim of plaintiff regarding fraud due to insertion of names of Lochan Mahto and Mostt. Sanijhari Kuer in the sale deed in question is concerned, no case of fraud is made out and it has been specifically claimed by defendants 2nd set in their pleadings that the consideration amount was also paid by the said Lochan Mahto and Mostt. Sanijhari Kuer and no documentary evidence was produced by the plaintiff to nullify the insertion of names of Lochan Mahto and Mostt. Sanijhari Kuer in the sale deed in question and hence no case of fraud could be made out by the plaintiff although onus was squarely upon him to prove the same. 9. So far the plea of plaintiff regarding provision of the Benami Transaction Act being applicable to the sale deed is concerned, neither any case is made out that the said Lochan Mahto and Mostt. Sanijhari Kuer were named lendors nor even the requirement of the said Act was sought to be fulfilled by the pleadings and evidence of the plaintiff. So far the question of adverse possession is concerned, the original title holder, according to the plaintiff, was Rameshwar Dubey and Bhuneshwar Dubey but the said vendors were not made parties to the suit and hence claim of adverse possession against them can not stand. So far claim of the plaintiff - 4 - with regard to adverse possession against the State of Bihar is concerned, the plaintiff nowhere accepted the title of the State of Bihar and hence the first requirement of adverse possession was absent from his pleadings. The lower courts very thoroughly considered the pleadings and evidence of the parties and on their basis had come to specific finding that khata no. 14 (old) did not pertain to khata no. 81(new) but to khata no.75 (new). Hence the claim of plaintiff over khata and plot mentioned in the suit was not legal and proper as khata no. 14 (old) did not pertain to khata no.81 (new) but it pertains to khata no.75 (new) whereas khata no. 81(new) belongs specifically to the State of Bihar with respect to plot mentioned therein. 10. From the aforesaid facts and circumstances, this Court does not find any illegality in the impugned judgments and decree of the 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. (S.N.Hussain,J) shahid