APPEAL FROM APPELLATE DECREE NO.362 OF 1988 **** (Against the judgment and decree passed by Sri Prem Narain Shukla, Additional District Judge-II, Siwan in Title Appeal No.143 of 1985 reversing the judgment and decree passed by Sri Ganga Ram, Additional Subordinate Judge-II, Siwan in Title Suit No.90 of 1979.) **** 1. Bishundeo Manjhi 2. Ram Awatar Manjhi 3. Dharmanath Manjhi 4. Bhuwan Manjhi @ Sudama Manjhi Sons of Narain Manjhi All residents of village Hakam, P.S. Siwan Moffasil, District Siwan. ………..Plaintiffs-Respondents 1st set-Appellants. Versus 1(a) Smt. Parwati Devi widow of Late Mahendra Prasad Gupta. 1(b) Sri Madan Prasad Gupta 1(c) Sri Krishna Jee Gupta 1(d) Sri Indranath Prasad Gupta 1(e) Smt. Vijaylakshmi Devi 1(f) Sri Triloki Nath Gupta All residents of Mohalla Kagzi, Town & P.S. Siwan, District Siwan. ………..Defendants-Appellants-Respondents 1st set. 2(a) Smt. Sona Devi widow of Late Sheo Kumar Gupta 2(b) Rakesh Kumar son of Late Sheo Kumar Gupta 2(c) Ritesh Kumar 2(d) Rishikesh Kumar 2(e) Sila Kumari, daughter of Late Sheo Kumar Gupta 2(f) Suman Kumari minor daughter of Late Sheo Kumar Gupta under the guardianship of her mother. 3. Ram Kumar Gupta 4. Krishna Kumar Gupta 5. Rabindra Kumar Gupta 6. Indrawati 7. Bijay Laxmi 8. Bijay Nandini Nos.2-8 residents of Mohalla Nai Killa Chiktoli, Town and P.S. Siwan, District Siwan. 9. Smt. Ramawati Devi wife of Sri Bindeshwari Prasad Gupta daughter of Late Bishwanath Prasad. Resident of village Bangara, P.S. Chapra, District Saran at present Siwan, P.S. Siwan, District Siwan. 10. Smt. Krishnawati wife of Sri Ramseshwar Prasad Gupta daughter of Late Bishwanath Prasad, Resident of Jhajhar Bazar, P.S. Manjhagarh, District Gopalganj. 11. Badri Narain Gupta son of Late Raghunath Prasad Gupta. 12. Smt. Annapurna Devi wife of Late Raghunath Prasad Gupta. Nos.11&12 residents of Mohalla Nai Quilla Chiktoli, Town and P.S. Siwan, District Siwan. 13. Smt. Chandrawati Devi wife of Sri Ramdular Prasad Gupta daughter of Late Raghunath Prasad Gupta. Resident of Majhauli Raj, P.S. Majhauli, District Deoria. 14(a) Om Nath Prasad, s/o Late Sheokumari Devi 14(b) Munna Prasad, s/o Late Sheokumari Devi 14(c) Geeta Kumari, d/o Late Sheokumari Devi 14(d) Nagmani Devi, d/o Late Sheokumari Devi Nos.14 series residents of village Mirganj, P.S. Mirganj, District Siwan. Sons and daughters of Late Mahendra Prasad Gupta Minor sons of Late Sheo Kumar Gupta under the guardianship of their mother. Sons of Late Bishwanath Prasad. Daughters of Late Bishwanath Prasad. 2 15(a) Rajendra Prasad, s/o Ram Singari Devi 15(b) Jhunni Devi, d/o Ram Singari Devi Resident of Mohalla Sahebganj, Town & P.S. Chapra, District Saran. 16(a) Panmati, w/o Bunni Lal Manjhi and daughter of deceased Narain Dusadh, Resident of village Hakam, P.S. Siwan Mufassil, District Siwan. ………Defendants-Respondents-Respondents 2nd set. For the appellants : Mr. S.K. Majumdar, Sr. Advocate with Mr. Sudhir Ranjan, Advocate. For the respondents : M/s Chandra Kant and A.P. Shrivastava, Advocates. **** P R E S E N T HON'BLE MR. JUSTICE S.N. HUSSAIN **** S.N. Hussain, J. This second appeal has been filed by plaintiffs-respondents 1st set-appellants challenging the judgment and decree of the court of appeal below by which the judgment and decree of the trial court was reversed. 2. The matter arises out of Title Suit No.90 of 1979 (22/1985) which was filed by the plaintiffs-appellants with respect to 2 Bigha 13 Katha 1 Dhur of Plot Nos.138, 442 (of Khata No.2), Plot Nos.411, 139 (of Khata No.97) and Plot No.265 (of Khata No.151) situated at Mauza Hakam in Pargana Bara within Thana No.252 of Tauzi No.1128 under Siwan Police Station within the district of Siwan detailed in the Schedule at the foot of the plaint for the following reliefs:- (a) Declaration of exclusive title of the plaintiffs over the suit land and also for declaration that defendants had no title over the same and they cannot legally try to oust the plaintiffs. (b) Confirmation of plaintiffs’ possession over the suit land. (c) Decree of injunction restraining the defendants from interfering with the plaintiffs’ possession. (d) Decree of cost of the suit in favour of the plaintiffs. (e) Any other relief to which the plaintiffs are deemed entitled. 3. The said claim of the plaintiffs was contested by defendant no.17, who in his written statement claimed that the suit properties 3 belonged to and was in possession of defendant nos.1 to 17, whereas defendant nos.1 to 4 and 12 in their written statement claimed that the suit properties were only in their possession. On the basis of the respective claims of the parties the trial court framed the following issues:- (i) Is the suit, as framed, maintainable? (ii) Have the plaintiffs got any cause of action or right to sue? (iii) Is the suit hit by the principle of limitation, estoppel, waiver and acquiescence? (iv) Is the court fee paid sufficient? (v) Were the suit properties given to Muneshwar Dusadh in lieu of services rendered by him and his ancestors to the ancestors of the contesting defendants? (vi) Have the plaintiffs been coming in possession of the disputed properties from before revisional survey operation? (vii) Are the plaintiffs entitled to a decree of confirmation of possession? (viii) Have the plaintiffs got right, title and interest in the suit properties? (ix) To what other relief or reliefs, if any, are plaintiffs entitled? 4. The aforesaid suit was decreed in full by Additional Subordinate Judge-II, Siwan, vide his judgment and decree dated 06.09.1985 after arriving at the following findings:- (a) Suit is fully maintainable. (b) Plaintiffs have valid cause of action and right to sue. (c) Suit is not hit by limitation, estoppel, waiver and acquiescence. (d) Court fee paid is sufficient. (e) Suit properties were given to Muneshwar Dusadh by ex-landlord in lieu of services rendered by him. (f) Plaintiffs have perfected their title by adverse possession also. (g) Plaintiffs are entitled to a decree of confirmation of possession. (h) Plaintiffs have got title and possession over the suit properties. (i) Plaintiffs are entitled to a decree of confirmation of possession. 5. The aforesaid judgment and decree of the trial court was challenged only by defendant no.17 Mahendra Prasad Gupta, who filed 4 Title Appeal No.143 of 1985 (98/1987) in which the plaintiffs appeared and contested, whereafter the following points were formulated by the court of appeal below for deciding the title appeal:- (i) Is the suit, as framed, maintainable? (ii) Was Muneshwar Prasad gorait of the ex-landlord, if so, were the suit properties given to Muneshwar Dusadh in lieu of services rendered by him and his ancestors to the ancestors of defendants? (iii) Whether the plaintiffs are coming in possession of the suit land since before revisional survey? (iv) Whether the plaintiffs have got title to the suit land? 6. After considering the respective claims of the parties and the evidence on record the Additional District Judge-II, Siwan allowed title appeal on contest vide his judgment and decree dated 30.04.1988 setting aside the judgment and decree of the trial court and rejecting the claim and suit of the plaintiffs after arriving at the following findings:- (a) There is no document to show that the suit plots were given by ex-landlord to Muneshwar Dusadh in recognition of his past services – there is only oral assertion of PWs.3 and 17 in that regard, out of whom PW.17 being one of the plaintiffs is a highly interested person, whereas PW.3 has also not withstood the test of cross-examination and they are not supported by any other evidence – as against it plaintiffs’ documents Ext.8 and Ext.9 are supported by Ext.P of defendants i.e. Revisional Survey Khatian which falsified plaintiffs’ case. (b) The Unit Register (Ext.H) and the signature of C.O. on it (Ext.C/2) showed that Narain was karta of the family, but it was disbelieved by the trial court merely on the ground that there is overwhelming evidence on behalf of the plaintiffs which falsified it – there is no overwhelming evidence of the plaintiffs which could falsify the said documents. (c) Admittedly there was a partition suit between defendant 1st set in which defendant no.17 was intervener. (d) Plaintiffs have not been able to prove their case that the disputed properties were given to their ancestors Muneshwar Dusadh in lieu of past services rendered by him – plaintiffs also failed to prove that they are coming in possession of disputed land since the time of their forefathers – they failed to prove their title over the suit properties. (e) Ext.M/8 is the certified copy of order sheet of the court passed on petition under Order I Rule 10 of the Code of Civil Procedure filed by defendant no.18 Narain Dusadh, but neither any permission was 5 granted by the said order to the plaintiffs to file a suit nor the conclusion of the trial court that receiver never came over the suit properties is correct – even if it is correct it was mandatory for the plaintiffs to obtain permission from the court for filing suit against the receiver. (f) There is no chit of paper to show that plaintiffs ever intended to seek permission – suit as framed is not maintainable. (g) Suit cannot be maintained as it should have been filed within five years of the knowledge about the khatian. 7. Against the aforesaid judgment and decree of the lower appellate court, the plaintiffs filed the instant second appeal which was admitted by a Bench of this court on 07.05.1992 framing only the following substantial question of law:- (i) “Whether the finding of the court below that the suit was not maintainable as the appellants were required to obtain permission of the court before its institution can be sustained in law?” 8. However, when the instant second appeal was taken up for final hearing learned counsel for the appellants raised three more substantial questions of law, which are as follows:- (ii) Whether the suit is maintainable as no permission was taken from the court which appointed receiver before filing the suit? (iii) Whether the failure of lower appellate court in not considering the reasoning of the trial court and the plaintiffs’ evidence, both oral and documentary, has made the finding of lower appellate court not legal and binding? (iv) Whether the failure of lower appellate court in not considering the fact that originally defendant no.17 was not a party in Partition Suit No.08 of 1975 and was added as a party later under Order I Rule 10 of the Code of Civil Procedure and subsequently partition suit was dismissed with no finding that defendant no.17 has got share in the disputed property, has vitiated the judgment of lower appellate court as defendant no.17 has no share in the property? 9. Learned counsel for the appellants has stated that Partition Suit No.08 of 1975 was with respect to the same properties which are involved in the Title Suit No.90 of 1979, but in the partition suit defendant nos.1 to 16 of the title suit were parties, whereas plaintiffs and defendant 6 no.17 of the title suit were not parties. It was also asserted that in the partition suit defendant no.17 was added as an intervener defendant and was appointed receiver vide order dated 17.01.1978 (Ext.M/7), but subsequently vide order dated 09.12.1982, partition suit was dismissed for default. It was also asserted that in the meantime the plaintiffs of the title suit, who were not parties to the partition suit, filed Title Suit No.90 of 1979 on 05.03.1979 with respect to the same properties which was decreed by the Additional Subordinate Judge, Siwan on contest vide his judgment and decree dated 06.09.1985. 10. Learned counsel for the appellants has submitted that the plaintiffs of the title suit had earlier filed application dated 20.07.1978 in the partition suit for being added as a party thereto because their properties were involved, but the said intervention application was rejected by Subordinate Judge, Siwan vide his order dated 11.08.1978 (Ext.M) holding that they can file separate suit. Hence it was claimed by the appellants that in view of the aforesaid order dated 11.08.1978 permission was clearly granted by the Subordinate Judge, Siwan for filing a separate suit, hence he claims that presumption of lower appellate court regarding non-maintainability of suit due to absence of permission is not legal. He also relied upon on a decision of the Apex Court in case of Everest Coal Company Pvt. Ltd. vs. State of Bihar and others, reported in A.I.R. 1977 SC 2304 claiming that even during the pendency of the partition suit, possession could have been taken, but in the meantime the partition suit itself was dismissed for default and hence there was no fault of the plaintiffs of the title suit. 11. Learned counsel for the appellants further argued that the lower appellate court did not consider the reasonings and plaintiffs’ evidence while deciding the case against the plaintiffs which is quite apparent from paragraphs-13 and 22 of the impugned judgment. It is also stated that continuous rent receipts (Ext.1 series) in favour of the plaintiffs as well as the report of Karmchari (Ext.2), who made local inspection 7 along with Circle Inspector filed in Rent Fixation Case No.06 of 1974-75 before the D.C.L.R. as well as the rent fixation order (Ext.9[a]) passed by the authorities concerned, hence the impugned judgment and decree of the court of appeal below is vitiated. 12. Learned counsel for the appellants also averred that defendant no.17 had appeared in the partition suit and was added as intervener defendant, but the said partition suit having been dismissed without giving any share or interest to defendant no.1, he can have no valid claim over the suit properties, but without appreciating the said fact the lower appellate court allowed the claim of defendant no.17. 13. On the other hand, learned counsel for the defendants- respondents contested the claim of the appellants asserting that no question of law was involved in the title appeal, hence the court of appeal below rightly decided the issues involved between the parties and was quite justified in setting aside the judgment and decree of the trial court which was not on the basis of the pleadings and evidence of the parties as well as the specific provisions of law applicable to the case. 14. So far substantial question of law nos.(i) and (ii) are concerned, admitted facts are that earlier there was Partition Suit No.08 of 1975 in which only defendant nos.1 to 16 of the instant title suit were parties, whereas plaintiffs and defendant no.17 of the title suit were not parties in the partition suit, but defendant no.17 appeared and was impleaded as a defendant in the said partition suit and was appointed receiver by the trial court vide order dated 07.01.1978 (Ext.M/7). Plaintiffs of title suit filed an application in the partition suit for being impleaded as parties, but the said application was rejected by the trial court vide order dated 11.08.1978 (Ext.M) and finally Partition Suit No.08 of 1975 was itself dismissed for default vide order dated 09.12.1982, which was never challenged by anyone. On the basis of aforesaid facts, the question has arisen that whether the title suit (T.S. No.90 of 1979), having been filed by the plaintiffs on 05.03.1979 without permission from 8 the court before which partition suit was pending, was legal and maintainable. 15. It is also not in dispute that defendant no.17 of the title suit was appointed receiver on 17.01.1978 in the partition suit and only thereafter the plaintiffs of title suit applied for being impleaded as a party to the partition suit which was rejected by that court on 11.08.1978. Thus, it is quite apparent that plaintiffs of the title suit had full knowledge about the partition suit and the orders passed therein, including the order of appointment of receiver. In the said circumstances, when the plaintiffs of the title suit had filed the said suit with respect to title and possession it was incumbent upon them to take permission from the court before which partition suit was pending, as when a court puts a receiver in possession of the suit property it comes under court’s custody, as the receiver is merely an officer or agent of the court and any obstruction or interference with the court’s possession could amount to contempt of court, invalidating the suit itself. 16. Furthermore, the Apex Court in case of Everest Coal Company Pvt. Ltd. (Supra) had also held that although the permission is must in such cases, but prior permission is not condition precedent to the enforcement of the cause of action but if before the suit terminates, the relevant court must be moved and permission to sue or to prosecute further has to be obtained which is the requirement of law and failure to secure such leave till the end of lis may prove fatal. In the instant case the plaintiffs of the title suit having come to know in the year 1978 about the appointment of defendant no.17 of the title suit as receiver in Partition Suit No.08 of 1975 vide order dated 17.01.1978, the requirement of law was that before filing of Title Suit No.90 of 1979 on 05.03.1979 the plaintiffs of title suit should have obtained permission from the court hearing the partition suit and if they could not take prior permission due to any reason, at least after filing of the title suit they should have obtained permission from the court hearing the partition suit which continued till 9 09.12.1982 and no such permission having been obtained by the plaintiffs of the title suit, the title suit stands invalidated as it amounted to interference in the court’s possession of the suit property in the partition suit through its receiver. 17. Although learned counsel for the appellants had claimed that permission was granted by the court hearing partition suit vide order dated 11.08.1978 (Ext.M/8) by which their intervention application was rejected, but a mere reading of the aforesaid exhibit reveals that the court hearing partition suit had merely observed that the interveners (plaintiffs of the title suit) had raised the controversial question which will have to be decided between the petitioners, the plaintiffs and defendants and would not be proper to introduce such a complicated question in this simple suit for partition. This observation in order dated 11.08.1978 (Ext.M/8) passed in Partition Suit No.08 of 1975 cannot legally be assumed as permission, rather it was merely a ground for rejection of the intervention application. Thus, it is quite apparent that the plaintiffs either before or after filing of the title suit never took any permission from the court hearing the partition suit for filing the said title suit with regard to their title and possession over the same properties for which defendant no.17 of title suit vide order dated 17.01.1978 was appointed receiver with a direction to manage the suit properties and to submit annual account of the income and expenditure of the suit properties in the partition suit. 18. So far substantial question of law no.(iii) raised by the appellants is concerned, it is quite apparent from a plain reading of pragraphs-15 to 21 of the impugned judgment that the lower appellate court had considered the pleadings and evidence of both the parties in detail and only thereafter it had arrived at its finding. It is also apparent that much stress has been placed by the appellants on Ext.2 and Ext.9(a) which are report of Karmchari and order sheet of D.C.L.R., Siwan, but no notice thereof was ever sent to the recorded tenant and hence it cannot 10 have any binding effect, specially when they are not supported by any valid or reliable evidence. 19. So far substantial question no.(iv) is concerned, admittedly Partition Suit No.08 of 1975 having been dismissed for default on 09.12.1982, neither the plaintiffs nor the defendants of the suit can take benefit of the said order against each other, as the said partition suit was not decided on merits nor its judgment/order was ever challenged. 20. Defendant no.17 had also filed Partition Suit No.151 of 1964 which was dismissed by Subordinate Judge-II, Chapra vide his judgment and decree dated 18.09.1968 (Ext.A/1) in which it was held that there was no material on record to show that revisional survey entry was incorrect. Against the said judgment and decree of the trial court F.A. No.673 of 1968 was filed which was allowed by the High Court on 20.09.1985 and the order of High Court was also affirmed by the Supreme Court vide order dated 01.09.1986 in S.L.A. (Civil) No.3246 of 1986. Ext.O/1 is the certified copy of deposition of father of plaintiff no.1 who deposed as DW.9 in Partition Suit No.151 of 1964 from which possession of defendants’ ancestor was clearly proved. 21. However, in any view of the matter the plaintiffs had claimed title over the suit property and also sought confirmation of their possession over the same and hence the entire onus was upon them to prove their claims, but from the materials on record it is quite apparent that they have not been able to prove their claim that disputed properties were ever given to their ancestor Muneshwar Dusadh in lieu of his services as gorait and have also miserably failed to prove by valid and reliable evidence that they have been coming in possession of the suit land since the time of their forefathers, whereas the defendants have been able to fully disprove the claim of the plaintiffs by valid and reliable evidence. Hence, this court does not find any merit in the claim of the plaintiffs with respect to the suit properties. 11 22. Considering the aforesaid matter in its entirety, it is quite apparent that the appellants have not been able to substantiate the aforesaid questions raised by them either by provisions of law or by materials on record and hence this court does not find any illegality in the impugned judgment and decree of the court of appeal below. Accordingly, this second appeal is dismissed, but in the facts of this case there will be no order as to cost. Patna High Court, (S.N. Hussain, J.) Dated 23rd April, 2010 N.A.F.R./harish