FIRST APPEAL No. 197 OF 2007 Against the judgment and decree dated 30.06.2007 passed by Sri Vishwanath Prasad, Subordinate Judge I, Munger in Title Suit No.45 of 1992. BINOD KUMAR CHOUDHARY & ORS. ………. Plaintiffs-Appellants Versus THE STATE OF BIHAR & ANR. ……… Defendants-Respondents ******** For the Appellant : M/S Hari Krishna Kumar Ritesh Kumar Narain Singh, Advocates For the Respondent : Mr. Jashawir Singh Arora, S.C. 6 Mr. Ajay Kumar, A.C. to S.C. 6 Dated : 29th 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 The plaintiffs have filed this First Appeal against the judgment and decree dated 30.06.2007 passed by Sri Vishwanath Prasad, Sub Judge I, Munger in title suit no.45 of 1992 dismissing the plaintiff- appellant’s suit. (2) The plaintiffs-appellants filed the aforesaid title suit no.45 of 1992 praying for declaration that the plaintiffs are entitled to get necessary correction in the record of Munger Khas Mahal and get their names entered in respect of 32.21 acres of land in Mauja Kutlupur and also for declaration that Khas Mahal Department are bound to make the aforesaid correction in relevant records. The plaintiffs-appellants claimed Mungeshwar Sahoo, J. 2 the aforesaid relief alleging that Bhikhdhari Choudhary died leaving behind two sons namely Hirday Narayan Choudhary and Ayodhya Prasad Choudhary. Hirday Narayan Choudhary had two sons namely Radha Krishna Choudhary and Krishna Choudhary. Radha Krishna Choudhary is the plaintiff who was “Karta” and manager of joint family. Ayodhya Prasad Choudhary died leaving behind five sons namely Shivnandan Choudhary, Brahmdeo Choudhary, Ramdeo Choudhary, Satya Narayan Choudhary and Panchanand Choudhary. When Hirday Narayan Choudhary was alive, he acquired landed properties for the benefit of joint family within the zamindari of Munger Khas Mahal along with his co- villager, Yugal Prasad Choudhary. The said acquisition was made in the name of Shivnandan Choudhary and Yugal Prasad Choudhary. Both were representing their families and each family had 50% share. (3) The further case is that in the year 1934-35 in the Khas Mahal survey, the aforesaid acquired land was recorded in their names in Khata No.154. The lands of Mauja Kutlupur Kalan were recorded in their names in Khata No.151. The total land measures about 148.43 acres. In Khata No.154, 131.02 acres land was recorded whereas in Khata No.151, 17.41 acres land was recorded. The further case is that Yugal Prasad Choudhary and his three co-sharers had got 50% share in the aforesaid land which they separated in due course of time. The remaining 50% was also partitioned between the branches of Hirday Narayan Choudhary and Ayodhya Prasad Choudhary half and half by means of registered deed dated 30.10.1948. The Khas Mahal survey held in 1952-53 did not take notice of the aforesaid partition. Therefore, Radha Krishna Choudhary filed an objection i.e. Mistake Case No.19 and the Settlement Officer ordered on 26.09.1957 that the aforesaid plots in question be entered 3 separately in the names of Shivnandan Choudhary and his cousin, Radha Krishna Choudhary in Khatiyan and the remaining half portion should be entered separately in the name of Yugal Prasad Choudhary and his co- sharers. However, the Jamabandi of those lands were running in the name of Shivnandan Choudhary and Yugal Prasad Choudhary. In fact, Yugal Prasad Choudhary and his co-sharers had got 8 Anna share while Radha Krishna Choudhary and Shivnandan Choudhary had got 4 Anna interest each. In Mistake Case No.20, Settlement Officer ordered that entry be made accordingly. However, his order was not fully implemented with regard to lands of Kutlupur. The co-sharers have already divided the properties and they are coming in possession separately over the lands fallen in their share but the wrong entry in the Khas Mahal may create complication and therefore, the plaintiffs are requesting Khas Mahal Authorities to make necessary correction. The plaintiffs also sent notice under Section 80 C.P.C. but since the order of Settlement Officer was not fully complied with, the plaintiffs were compelled to institute the suit. (4) The respondents appeared and filed a contesting written statement. Besides taking various legal pleas, mainly it was contended that the suit is bad for non-joinder of necessary party. None of the heirs of recorded Raiyats have been made party in the suit. No notice under Section 80 C.P.C. was ever sent to the defendants. All the different plots have been entered in the names of different persons and they have not been made party. The entry of the names have been made according to law. 4 (5) On the basis of the above pleadings, the learned Court below framed the following issues: I. Is the suit as framed maintainable? II. Have the plaintiff got valid cause of action for the suit? III. Is the suit barred by Law of Limitation, Principle of Waiver, Estoppel and Acquiescence? IV. Whether the suit suffers from defect of non-joinder and mis-joinder of the parties? V. Whether the notice u/s 80 C.P.C. has been properly served or issued under Law? VI. Whether the land in question has been partitioned between the parties and sons of Ayodhya Prasad Choudhary? VII. Whether the plaintiffs are entitled to correction of Khatiyan of Kutlupur of Khata no.1547? VIII. Whether the plaintiffs are entitled for any relief as sought for? (6) After trial, the learned Court below came to the conclusion that the plaintiffs failed to prove partition between the plaintiffs and sons of Ayodhya Prasad Choudhary. The learned Court below also held that plaintiffs failed to prove service of notice under Section 80 C.P.C. The learned Court below also held that the suit is bad for non-joinder of necessary party. On the basis of the aforesaid findings, the learned Court below dismissed the plaintiff’s suit. (7) The learned counsel appearing on behalf of the appellants submitted that the plaintiffs have produced evidences of partition before the Settlement Officer and on being satisfied, the Settlement Officer ordered to record the names of the plaintiffs and also names of the co- sharers to the extent of 50% in the Khas Mahal record of right which is Exhibit-4 but it was never complied with and therefore, the plaintiffs were compelled to file the suit. The learned counsel further submitted that since the appellants are not claiming fresh partition therefore, the other 5 co-sharers are not necessary party. The learned counsel further submitted that the learned Court below has wrongly dismissed the suit holding that the plaintiffs failed to prove partition although Exhibit-4 and Exhibit-3 were produced and marked Exhibit in the case but the learned Court below did not rely on these documents. The learned counsel further submitted that notice under Section 80 C.P.C. was sent but the learned Court below has wrongly held that no notice was sent. On these grounds, the learned counsel submitted that the impugned judgment and decree are unsustainable in the eye of law. (8) On the other hand, the learned S.C. 6, Mr. Jashawir Singh Arora submitted that the suit filed by the plaintiff is misconceived and it has been filed with a view to get the order of Settlement Officer implemented as if, Civil Court is Executing Court of the order of Settlement Officer. The learned counsel submitted that according to the case of the plaintiffs, the lands have been recorded in the names of different persons in the Khas Mahal survey record of right but none of them have been made party in the suit. Whatever statement have been made in the plaint by the plaintiffs are correct or not could have been decided only in presence of those persons who are recorded in the record of right. Whatever statement regarding acquisition or partition of the suit property has been made in the plaint is not known to the respondents. Whether the lands were acquired jointly and whether there had been partition or no partition are the questions which is related with the co- sharers of the plaintiffs and they are the best person to admit or deny the allegation made in the plaint but the plaintiffs knowingly and intentionally did not add them as defendants in the suit. If any correction is made in the Khas Mahal record of right, it will affect right, title and possession of 6 the person recorded in the Khas Mahal record of right which cannot be done in absence of that person and, therefore, the learned Court below has rightly dismissed the plaintiff’s suit. On these grounds, the learned counsel submitted that the First Appeal is liable to be dismissed with cost. (9) In view of the above contentions of the parties, the point arises for consideration in this appeal is as to “whether plaintiffs are entitled for the reliefs, they claimed” and “whether the impugned judgment and decree are sustainable in the eye of law”? (10) From the plaint itself it is clear that the suit lands have been recorded in the names of different persons. According to the plaintiffs, there had been partition between the parties and, therefore, the lands should be recorded according to shares of the parties. The learned counsel for the appellants submitted that the application was filed before the Settlement Officer in Mistake Case No.19 and the Settlement Officer ordered that lands should be recorded half and half but the said order was not complied with in totality by the Khas Mahal Authorities. So far Exhibit-4 is concerned, it appears that it is an order passed by Settlement Officer. However, since the properties are recorded in the names of different persons which is evident from the Khatiyan, Exhibit-5 series produced on behalf of the appellants and the Khatiyan produced on behalf of the State of Bihar which have been marked as Exhibit-A series i.e. Exhibit-A to A/9, the recorded persons are required to be heard before passing any order but none of the aforesaid persons in whose names the lands are recorded have been added as party, defendant in the suit. Exhibit-3 is said to be the deed of partition. From perusal of Exhibit-3, it appears that many persons have been allotted share in the said 7 document but not a single person has been added as party in the suit. The validity or otherwise or the genuineness of the said document could have been decided in presence of the person who have been allotted share in the said property. From the impugned judgment, it appears that the learned Court below has found that no property has been allotted to the plaintiffs in Exhibit-3. In view of the above facts, it appears that plaintiff is asking the Civil Court to put the seal of the Court on the ex- parte version of the plaintiff. No person has been added as party in the suit who could have either admitted the claim of the plaintiff or denied the same. So far the defendants-respondents are concerned, their admission or denial regarding the claim of the plaintiffs will be immaterial. Exhibit-4 is not conclusive proof of partition and on the basis of Exhibit-4, it cannot be decided and held that the plaintiffs have got share or title or possession. This question of title, interest or possession can only be decided in presence of the other co-sharers who are necessary party in the suit. Unless this question is decided, no direction can be given to correct the name or enter the name of the plaintiffs in the Khas Mahal record of right. I, therefore, find that the learned Court below has rightly held that the suit is not maintainable in absence of the necessary party. Therefore, the finding of the learned Court below on this point is hereby confirmed. (11) So far notice under Section 80 C.P.C. is concerned also, it appears that the plaintiff has adduced evidences and the notice has also been proved as Exhibit-1. P.W.1 has stated that notice was sent through registered post. P.W.5 has proved the registration receipt. The learned Court below disbelieved the service of notice on the ground that there is discrepancy in the pleading in plaint and the notice under Section 80 8 C.P.C. and that the name of the Advocate who has signed the notice has not been mentioned in the plaint and the area of land mentioned in plaint and notice are different. It may be mentioned here that it is not the case of the defendants that notice was served on them but there are discrepancies or name of Advocate is not mentioned in plaint or area of land is different. Their case is that it was never served. From the evidences as discussed above, it is clear that notice was sent through registered post addressed to the defendant no.2. Since the notice was sent under registered post therefore, it will be deemed that it was served on the defendants. I, therefore, find that notice has been validly served on the defendants. However, only because of the fact that notice has been served under Section 80 C.P.C., the plaintiffs will not be entitled to the reliefs they have claimed in the plaint. (12) In view of my above findings that the plaintiffs’ suit is bad for non-joinder of necessary party, I find no reason to interfere with the impugned judgment and decree. (13) In view of my above discussion, I find no merit in this First Appeal and accordingly, this First Appeal is dismissed. The appellants shall bear the cost throughout. (Mungeshwar Sahoo, J.) Patna High Court, Patna The 29th March, 2011 Saurabh/N.A.F.R.