FIRST APPEAL No. 797 OF 1979 Against the judgment and decree dated 04.08.1979 passed by Sri Lala Anjani Kumar Sinha, 4th Additional Subordinate Judge, Darbhanga in Title Suit No. 243 of 1967. GOBIND MOHAN MISHRA & ORS. ………. Plaintiffs/Appellants Versus STATE OF BIHAR & ORS. ……… Defendants/Respondents ******** For the appellants : Mr. Shashi Shekhar Dwivedi, Sr. Advocate Mr. Sachchidanand Chaudhri, Advocate Mr. Sadanand Jha, Advocate Mr. Madan Prasad Jha, Advocate Mr. Lavkush Prasad, Advocate For the respondent/State : Mr. Chakradhari Saran Singh, Sr. Advocate AAG – 6. Mr. Rai Saurabh Nath AC to AAG – 6. ___________________ Dated : 31st day of March, 2011 P R E S E N T THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO J U D G M E N T 1. The plaintiffs have filed this appeal challenging the judgment and decree dated 04.08.1979 passed by Sri Lala Anjani Kumar Sinha, the learned 4th Additional Subordinate Judge, Darbhanga in Title Suit No. 243 of 1967 dismissing the plaintiffs-appellants’ suit for declaration of title and for permanent injunction restraining the defendants-respondents from interfering with the possession of the plaintiffs-appellants. Mungeshwar Sahoo, J. -2- 2. The plaintiffs-appellants claimed the aforesaid relief on allegation that late Maharajadhiraja, Darbhanga was the owner of the suit property consisting of various municipal plots which is situated to the south east of tank known as Harahi tank and west of Darbhanga Railway Station. All the said plots have been amalgamated into one plot. Most of the plots forming the block previously were owned by different tenants under various Maliks of the Tauji. Subsequently, the Darbhanga Improvement Trust constituted under the Darbhanga Improvement Trust Act of 1934 under an Improvement Acquisition Scheme acquired the aforesaid plots of land in the year 1936 and came in possession. On 1.11.1936 late Maharajadhiraja, Darbhanga purchased the suit land from the Improvement Trust for a consideration of Rs.2000/- by a registered sale deed. In the said sale deed the suit land has been described as one block. After purchase late Maharajadhiraja came in possession and continued in possession thereof. He leveled the land at huge cost and brought under his Khas cultivation and on behalf of him several plants, flowers and vegetables were being grown. Thereafter, in 1941 the suit land was enclosed by a boundary wall constructed in three sides i.e. east, north and south. In the west, the tank is situated. After obtaining due permission from the municipality the said boundary wall was constructed and three feet wide road was left towards the east of the compound wall. Late Maharajadhiraja continued in possession thereof by growing vegetables and flowers and also after vesting of Estate of Raj Darbhanga in 1951 he continued in possession thereof. Subsequently, an application was filed for fixation of rent for the said land in the year 1960 which remained un-disposed of. During the life time of Maharajadhiraja there was a proposal for construction of houses but Maharajadhiraja died and the plaintiffs assume the charge of -3- administration of the Estate of Raj Darbhanga and took of the charge of construction of buildings on the suit land after sanctioned of the plan. 3. The further case of the plaintiffs is that the then D.M. personally gave instruction to stop the construction of buildings and directed the Additional Collector to make inquiry and in course of the said inquiry Anchal Adhikari issued notice to the plaintiffs calling upon him to produce evidence of title. The plaintiffs produced the documents of title and the Anchal Adhikari submitted his report but no order was passed. The plaintiffs filed several petition before the authority and also before the Government and thereafter order was passed holding that the land belong to the Government and action would be taken under Public Land Encroachment Act. 4. The further case is that the land never vested in the State of Bihar. Maharajadhiraja was in cultivating possession of the land from before and at the time of vesting of State and, therefore, under the B.L.R. Act it will be deemed to have been settled with the Maharajadhiraja of Darbhanga and the State of Bihar is only entitled to a fair rent in respect of the same. To have an amicable settlement the plaintiffs filed a petition before the Government proposing that without prejudice to the rights of the plaintiffs the Government may agree to the settlement of the land with the plaintiffs at a fair rate of rent and thereafter subsequently, he was directed to file the said application before the Collector, Darbhanga. As directed by the Government the plaintiffs filed application for settlement of disputed land on a fair reasonable rent. The said application was transferred to the Additional Collector, Darbhanga. The Additional Collector proceeded assuming that the land has been vested in the State of Bihar indicating that it -4- could be settled with the plaintiffs on such terms as usual in the case of ordinary settlement of the Government lands. 5. The further case of the plaintiffs is that the disputed land has been the land of Maharajadhiraja who was in possession prior to vesting and was in Khas possession on the date of vesting and remains as such after vesting. The State of Bihar has no right on the land except fixing a fair rent as the disputed land was the Bakast land of late Maharajadhiraja. The construction on the land in dispute has almost been completed and only in a small portion construction remain to be completed but the respondents issued letters to stop construction and the respondents are threatening to interfere in the plaintiffs’ possession and they are contemplating to take action under Public Land Encroachment Act, therefore, the notice under Section 80 was served and the instant suit was filed. 6. The defendants filed contesting written statement. Besides taking various legal pleas it was contended that after purchase from Darbhanga Improvement Trust Maharajadhiraja never made all the lands in one block and got it fence and it was never made in one level as the eastern side of Harahi tank is sloping land and always being in one level. The allegation in plaint to the effect that Raj Darbhanga used the land for horticulture purposes was denied and it is stated that the land has been nothing less than a public latrine overgrown with wild shrubs. There was not any sign to show that the said land was ever used as horticulture purposes. No compound wall was constructed by the Raj Darbhanga on three sides of the suit land. It was further stated that the suit land was acquired by Darbhanga Improvement Trust under Section 41 of the Darbhanga Improvement Trust Act and not under Section 40 of the said Act and, therefore, all rights of the land vested in the trust. The proceedings under Land Acquisition Act -5- were completed in the year 1937. The right transferred to the Raj Darbhanga on 1.11.1936 by the Darbhanga Improvement Trust was merely a proprietary right which vested in the State of Bihar on vesting of Darbhanga Raj and since then the State of Bihar is in possession of the said land by principle of constructive possession. 7. The further case is that after the acquisition of the lands by Darbhanga Improvement Trust the land did not retain the character of tenancy land rather it had become the proprietors land and was never the tenancy land of Raj Darbhanga as the Raj Darbhanga had purchased the proprietary interest of the Darbhanga Improvement Trust. The plaintiffs were attempting to bring the land in possession so they went over the land for the first time in 1963 and started constructions of building over the lands in suit therefore, they were ordered to stop construction. Thereafter, the plaintiffs filed several petitions. The matter was examined and the plaintiffs’ plea was rejected and it was found that the land had vested into the State Government. The Government by letter No. 3496 L.R. dated 9/15 April 1965 intimated that the land in suit had vested and, therefore, the ex- intermediary has to take proper settlement from the Government. Accordingly, the plaintiffs filed a petition which was treated to be one for settlement of the said land and recommendation was made for settlement on annual rental of Rs.100/- besides Salami of Rs.70,000/-. The other allegations made in the plaint were denied. 8. On the basis of the aforesaid pleadings, the learned court below framed the following issues :- “i. Is the suit, as framed, maintainable ? ii. Have the plaintiffs got any cause of action or right to suit ? -6- iii. Whether the suit is barred by Section 35 of the B.L.R. Act ? iv. Is the suit barred by the law of limitation or the principles of estoppel, waiver and acquiescence ? v. Whether the plaintiffs have got a valid title over the suit land and whether the defendants are liable to be permanently restrained from interfering and intermeddling with plaintiffs’ possession over the suit land ? vi. To what other relief or reliefs, if any are the plaintiffs entitled ?” 9. After trial the learned court below held that the plaintiffs have failed to prove that the suit plots have been purchased by Sir Kameshwar Singh by means of the sale deeds Ext. 15 and also failed to prove that the suit plots remained in Khas cultivating possession of Sir Kameshwar Singh prior to and on the date of the vesting of Raj Darbhanga in the State of Bihar in the year 1951. The learned court below also found that Section 35 of the Bihar Lands Reforms Act, 1950 bars the present suit. The learned court below also found that since the plaintiffs made an application to the State Government for the settlement of the suit land and also for fixation of fair rent, the plaintiffs cannot now be allowed to say that the suit land had not vested in the State of Bihar. On these findings the learned court below dismissed the plaintiffs’ suit. 10. The learned Senior counsel Mr. Shashi Shekhar Dwivedi appearing on behalf of the appellants submitted that there is no dispute about the identity of this suit land. There is also no dispute regarding the purchase of the suit property by the Raj Darbhanga through Ext. 15 but the learned court below has given a finding that the plaintiffs have failed to prove that the suit property has been purchased by Ext.15. The learned counsel submitted that when there -7- was no dispute about the case of the plaintiffs that they purchased the suit property through Ext.15, there was no occasion for the court below to decide the question, as it is well settled principles of law that admitted fact needs no proof. The learned counsel further submitted that the learned court below has approached the case in wrong angle and has given a finding that when the suit property were acquired by the Darbhanga Improvement Trust under Section 41 in land acquisition case in the year 1937 the property could not have been sold by the trust in the year 1936 through Ext.15. According to the learned counsel there is no evidence on record to show that the suit property was acquired by the Darbhanga Improvement Trust under Section 41 of the Darbhanga Improvement Trust Act in land acquisition case No.1 of 1936-37. Except the pleading in the written statement no evidence has been adduced by the defendants- appellants. Ext. B has been produced to prove that the properties were acquired in land acquisition case No.1 of 1936-37 under Section 41 of the Darbhanga Improvement Trust Act but those properties are not the suit property and moreover, when the property had already been sold through Ext.15 by Darbhanga Improvement Trust in 1936 the land acquisition proceedings could not have been initiated subsequently, for acquiring the same land again. The case of the defendants itself is that the lands were acquired in land acquisition case and the proceeding was completed in the year 1937 therefore, the case of the defendants-appellants was inconsistent with the finding of the court below. The learned court below misconstrued and misread Ext. B, the proceeding of the land acquisition case. By this land acquisition case 3.379 acres of lands were acquired that too in the year 1937. The learned counsel further submitted that from the said Ext. B, the record of land acquisition case No.1 of 1936-37, it is clear -8- that no cultivated land was acquired rather Bazzar, Homestead and waste lands were only acquired and the compensation was paid. The total area acquired is 3.379 acres. The learned counsel further submitted that without considering this aspect of the matter the learned court below came to the conclusion that the suit property was not purchased by Raj Darbhanga when it was not even denied by the defendants. According to the learned counsel the only dispute raised by the defendants appellants is that the suit property was acquired under the land acquisition proceeding in the year 1937 whereas according to the plaintiffs’ case the suit land was acquired under Section 40 by the Darbhanga Improvement Trust which is clear from registered sale deed dated 1.11.1936 Ext.15. 11. The learned counsel further submitted that the learned court below discarded/disbelieved the oral and documentary evidences adduced on behalf of the plaintiffs in support of plaintiffs’ possession prior to vesting and Khas possession on the date of vesting and continuing in possession after vesting, on the ground that the plaintiffs failed to establish that the suit property has been purchased by Ext.15 which is wrong. The learned counsel further submitted that the plaintiffs filed application for fixation of fair rent as provided under Section 6 of the Bihar Lands Reforms Act and the State Government proceeded to settle the land with the plaintiffs’ assuming that the land has been vested and, therefore, the plaintiffs have no option but to file the suit for declaration of title. According to the learned counsel the Darbhanga Improvement Trust purchased the suit property from different Raiyats and came in possession and thereafter the suit properties were sold to Maharajadhiraja, Darbhanga on 1.11.1936 through registered sale deed Ext.15 and since then Maharajadhiraja came in possession and constructed boundary wall in the year 1941 -9- and continued in possession and, therefore, he was in Khas possession on the date of vesting. In such circumstances, under the provisions of Section 6 of Bihar Land Reforms Act it will be deemed to have been settled with the ex-intermediary and on this provision the application for settlement was filed praying for fixation of fair rent but the learned court below misconstrued the same and held that because the plaintiffs filed the application for settlement he is precluded from saying that the suit land has not vested. The learned counsel further submitted that the learned court below has wrongly held that suit is barred under Section 35 of the B.L.R. Act. On these grounds, the learned counsel for the appellants submitted that the impugned judgment and decree are liable to be set aside and the plaintiffs’ suit be decreed. 12. On the other hand, Mr. Chakradhari Saran Singh, the learned Senior counsel, AAG-6 submitted that there is no illegality in the impugned judgment and decree. The learned court below has rightly held that the sale deed Ext.15 do not relate to suit property because in the sale deed there is no description of all the plots mentioned in the plaint. The learned counsel further submitted that the lands were acquired under Section 41 by the Darbhanga Improvement Trust through land acquisition case No.1 of 1936-37 and, therefore, prior to its acquisition the suit land could not have been sold by the trust through Ext.15 and, therefore, the learned court below is right in saying that the plaintiffs failed to establish that the suit property were purchased through Ext.15. The learned counsel further submitted that since the plaintiffs filed the application for settlement before the State authorities therefore, he cannot be allowed to say now that the property has not been vested in the State of Bihar. According to the learned counsel the plaintiffs cannot be allowed to -10- blow hot and cold and/or aprobate and reprobate at the same time and he is estopped by his conduct as he claimed settlement thereby admitting title of State of Bihar. The learned counsel further submitted that the learned court below has given good reason for discarding this fact and, therefore, it cannot be interfered with in this first appeal. On these grounds, the learned counsel submitted that this first appeal is liable to be dismissed with costs. 13. In view of the above rival contentions of the parties the following points arises for consideration in this appeal : Point No.1 – Whether the plaintiffs-appellants have been able to prove their subsisting title and possession over the suit property or whether the property vested in the State of Bihar ? Point No.2 – Whether the suit is barred under Section 35 of the Bihar Law Reforms Act, 1950 and whether the impugned judgment and decree are sustainable in the eye of law ? 14. Point No.1- The plaintiffs at paragraph 3 of the plaint has clearly mentioned that late Maharajadhiraja owned and possessed a piece of land consisting of various plots i.e. municipal khesra fully described at the foot of the plaint. At the foot of the plaint the details of the plots number and area have been mentioned. The plot numbers are in four digits and there are about 40 plots total measuring 1 bigha i.e. equal to 87 decimal. At paragraph 4 it is also mentioned that the suit land is situated to the south-east of a tank known as Harahi tank. At paragraph 5 it is mentioned that all the plots are amalgamated into one block. At paragraph 6 it is mentioned that originally the plots were owned by different persons and at paragraph 7 it is clearly mentioned -11- that the lands were acquired by Darbhanga Improvement Trust in the year 1936 constituted under the Darbhanga Improvement Trust Act, 1934 and came in possession thereof which were sold to said late Maharajadhiraja for consideration of Rs.2000/- under a registered sale deed dated 1.11.1936 and the said late Maharajadhiraja came and remained in possession. 15. In reply to the said statement of the plaints at paragraphs 3 to 7, in the written statement the defendants-respondents at paragraphs 6 and 7 clearly stated that the allegations of the plaintiffs contained in paragraphs 1 to 7 of the plaint are not denied. Now therefore, it stands admitted fact that the suit properties were originally part of different municipal plots which were acquired by the Darbhanga Improvement Trust in the year 1936. Subsequently, it was amalgamated to one block and the said properties were sold for Rs.2000/- through registered sale deed dated 1.11.1936. Therefore, there is no dispute regarding the identity of the land. 16. In this respect paragraph 8 of the written statement is important one. It is stated at paragraph 8 of the written statement that it is never a fact that after purchase from Darbhanga Improvement Trust the Raj Darbhanga made all lands in one block and brought them into one level and gave fence on three sides. Therefore, purchase by Raj Darbhanga is also admitted. In this paragraph the dispute is raised by the respondents to the effect that the land was not made in one block and in one level. It is the case of the defendants that the land in suit is a sloping land and has always been in one level and has always been waste land. No fencing was given. Again it may be reiterated here that at paragraph 4 of the plaint the situation of the suit land has been described. It is mentioned that the suit land is situated to the south east of a tank known as Harahi tank west of -12- Darbhanga Railway Station. From perusal of the evidences adduced on behalf of the respondents it appears that all the witnesses DW 1 to DW 8 all have stated that they know the suit land which is situated to the south east of Harahi tank which is west of Darbhanga Railway Station therefore, in the written statement the defendants-respondents did not raise dispute regarding identity of the suit land and purchase made by the then Maharajadhiraja of Darbhnaga. In the evidence also no dispute was raised. There is no pleading or evidence to the effect that the suit property was never purchased by Maharajadhiraja, Darbhanga on 1.11.1936 through registered sale deed Ext. 15. There is no oral or documentary evidence also. 17. From perusal of the impugned judgment at paragraph 9 it appears that the learned court below suo motu after perusing the sale deed came to the conclusion that the suit land mentioned in plaint is situated in Mauja Haweli Darbhanga Mohalla Harahi but in Ext. 15 there is no mention of plot number or Khata number and the lands in Ext.15 is of Mohalla Lalbagh Auliyaganj, Darbhanga and, therefore, found that by Ext.15 the suit land was not purchased. The learned counsel for the appellants submitted that neither in the pleading nor in the evidence such case was made out by the defendants. This point was never argued before the court below by the respondents. Had this dispute been raised in the pleading or evidence the plaintiffs could have explained the discrepancy. According to the learned counsel since the facts were admitted and the identity of the land was not disputed the plaintiffs had no occasion to give any explanation. On the contrary, the learned counsel for the respondent submitted that from the documents itself it is clear that the suit land is situated in different Mohalla and the land mentioned in Ext.15 situate in different Mohalla and, therefore, the learned court below has rightly found the same. So -13- far the submission of the learned counsel for the respondents is concerned I find no force because when there was no dispute between the parties regarding the fact of purchase of the suit property through Ext.15 and also there was no dispute regarding the identity of the suit land the learned counsel below suo motu could not have raised the dispute. Admittedly, the Mohalla etc. has been described in 1936 in Ext.15 and the suit has been filed in 1967. Therefore, there might have change in the name of Mohalla but then it was never disputed by the defendants. Had there been dispute raised the plaintiffs would have explained this fact. Since no dispute was raised and the allegation made in the plaint were admitted, the fact of purchase of suit land through Ext.15 stands admitted by the defendants. Therefore, the observations made by the learned court below and finding recorded at paragraph 9 are without any basis and uncalled for. 18. The learned counsel for the respondents submitted that the suit lands were acquired through Ext.B under Section 41 in the Land Acquisition Case No. 1/1936-37. So far this case of the respondents is concerned also except the statement made in the pleading there is no evidence that suit properties were acquired through Ext. B. All the plot numbers mentioned in Ext. B are of two digits. 3.379 acres including Bazzar, Homestead land, waste land have been acquired by Ext. B. It appears that the declaration for acquisition of the land in Case No. 1/1936-37 was made on 12.12.1936. It further appears that the possession was delivered on 4.4.1937. Now if the defendants- respondents case is disbelieved that the suit property was acquired by case no. 1/1936-37 under the Land Acquisition Act for the Darbhanga Improvement Trust then the Darbhanga Improvement Trust came in possession of the suit property on 4.4.1937. In such view of the matter how the improvement trust could have sold the said property -14- on 1.11.1936 to Maharajadhiraja, Darbhanga. The other aspect of the