IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.392 of 2008 1. Suresh Kumar Gupta @ Suresh Gupta son of Late Hira Lal Gupta 2. Upendra Kumar Gupta @ Upendra Gupta son of Late Hira Lal Gupta Both residents of village-Kailachak, P.O. Kalyanpur, P.S. Bidupur, District-Vaishali, at present resident of village+P.O.+P.S.- Desari, District Vaishali. …..Defendant 1st set-Appellants-Appellants. V e r s u s 1. Rabindra Rai son of Haribansh Rai 2. Randhir Kumar @ Randhir Rai 3. Sudhir Kumar son of Rabindra Rai 4. Mukesh Kumar son of Rabindra Rai All residents of village-Lakhanpur, P.O. & PS. Desari, District- Vaishali. ….Plaintiffs-Respondents-Respondents. 5. Ranbir Kumar Arya son of Sarwan Kumar Jaiswal At present resident of village-Desari, P.O. & P.S. Desari, District- Vaishali. ….Defendant 2nd Set-Respondent-Respondent. ----------- 07/ 16.12.2008 Heard Mr. Sidhehwar Prasad Singh, Senior Advocate, assisted by Mr. Braj Bhushan Mishra, Advocate, on behalf of the defendants-appellants-appellants as well as Mr. Vijayendra Nath, Senior Advocate, assisted by Mr. Ashok Kumar, Advocate, on behalf of the plaintiffs-respondents-respondents. 2. Today an interlocutory application has been filed on behalf of the appellants for an order that this second appeal bearing S.A. No. 392 of 2008 be heard along with C.W.J.C. No. 520 of 1993, C.W.J.C. No. 11961 of 2001 and M.J.C. No. 2479 of 2003. 3. C.W.J.C. No. 520 of 1993 had been filed by defendant 2nd set-respondent against the order of the Joint Director of 2 Consolidation dated 03.07.1992 passed in Consolidation Revision Case No. 1540 of 1990. The said writ case has been admitted and thereafter is pending for final hearing. 4. C.W.J.C. No. 11961 of 2001 had been filed by the defendants-appellants challenging the order of the Commissioner Tirhut Division, Muzaffarpur dated 20.06.2001 passed in Case No. 124 H.C./1996-97 as well as against the order of the House Controller and the Collector passed in favour of the plaintiff’s vendor, who is a respondent in the said writ case and had fixed fair rent of the premises in question under the provisions of Bihar Building (Lease, Rent and Eviction) Control, Act, 1982. This writ petition has also been admitted and is pending for final hearing. 5. M.J.C. No. 2479 of 2003 was filed by the petitioner for initiating a proceeding of contempt against the petitioner of C.W.J.C. No. 520 of 1993 for violation of order passed therein dated 16.12.1993 by which the parties were directed to maintain status quo in relation to the properties in question as the petitioner of the writ case had in the meantime sold the suit property in favour of the plaintiffs-respondents by registered sale deed dated 18.12.1999. The said M.J.C. has been directed to be heard along with C.W.J.C. No. 520 of 1993. 6. Since the instant second appeal has been filed against the judgments and decree of the learned courts below, which have been decided on specific issues framed by those courts, this 3 second appeal has to be decided only on the basis of involvement or otherwise of any substantial question of law in the case. Hence in the said circumstances, there is no occasion for this court to hear the instant second appeal along with the aforesaid cases. Accordingly, the interlocutory application dated 15.12.2008 is hereby rejected. 7. This second appeal has been filed by defendant 1st set- appellants-appellants challenging the judgments and decree of both the learned courts below, which have been passed in favour of the plaintiffs, decreeing their suit and claim. 8. The matter arises out of Title Suit No. 161 of 2002, which was filed by the plaintiffs-respondents for declaration of their title and for recovery of possession of the suit land and also for arrears of rent from defendant 1st set. It was claimed by the plaintiffs that defendant 1st set were earlier tenants of plaintiff’s vendor but later they brought the consolidation authorities in their collusion and got their names recorded, whereafter they stopped payment of rent and hence the plaintiff’s vendor had to file case before the House Controller which he succeeded up to the Revisional Court and thereafter he sold the suit property to the plaintiffs by registered sale deed dated 18.12.1999 and hence the plaintiffs filed the aforesaid title suit on 28.03.2002 for the reliefs mentioned above. 9. On the other hand, the defendants claimed their own title over the R.S. Plot No. 4644 claiming that it was carved out 4 from C.S. Plot No. 2928 and their names had been duly recorded by the Consolidation Authorities and they were in possession of the suit premises since 78 years. It was claimed that the suit was barred by law of limitation, res-judicata, lis pendense, section 52 of the Transfer of Property Act and section 37 of the Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred to as the Act for the sake of brevity). 10. The said suit was decreed on contest by learned Subordinate Judge-VII, Hajipur vide judgment and decree dated 08.05.2004 and the defendants were directed to pay the arrears of rent to the plaintiffs at the rate of Rs.150.00 per month from the date of plaintiffs’ purchase i.e. 18.12.1999 with interest till the date of payment. Defendant 1st set challenged the aforesaid judgment and decree of the learned trial court in Title Appeal No. 131 of 2004 (27/06), which was dismissed by the learned Additional District Judge-cum-Fast Track Court-IV, Vaishali vide his judgment and decree dated 26.09.2008. Both the judgments and decree of the learned courts below are under challenge in the instant second appeal. 11. Three points raised by the defendants in their pleadings, namely, limitation, lis-pendense and bar of section 37 of the Act were not specifically made issues by the trial court nor they were properly considered by the learned trial court and realizing the said facts the learned court of appeal below specifically framed those issues along with other issues for 5 deciding the title appeal. So far the question of limitation is concerned, the learned court of appeal below held that the plaintiffs had claimed title over the disputed property on the basis of sale deeds dated 18.12.1999 whereas the title suit was filed on 28.03.2002 i.e. much within a period of three years as provided under Article 58 of the Indian Limitation Act, hence there was no question of bar of limitation in the filing of the suit. So far the question of lis-pendense is concerned, the learned court of appeal below specifically held that the principle of lis-pendense is that the fate of transferor will decide the fate of the transferee i.e. if the transferor succeeds in the litigation the transferee will acquire good title but if the transferor loses the litigation the deed of transfer will become null and void and the transferee will have no title to the property so transferred and hence it has rightly been held that on the basis of the principle of lis-pendense the suit cannot be held to be bad. So far the bar under section 37 of the Act is concerned, the said section provides a bar for the court to entertain any suit to vary or set aside any decision or order given or passed under the said Act with respect to any other matter for which a proceeding could or ought to have been taken under that Act. Here, in the instant case no relief has been sought by the plaintiffs for varying or setting aside any such decision or order passed under the provisions of the said Act and hence the provision of section 37 of the said Act will not be applicable to the facts and circumstances of the instant suit and claim of the 6 plaintiffs. These points were decided by the learned court of appeal below after considering the plaint, the written statement, the sale deed in question and the specific provisions of law, as nothing else had to be seen with respect thereto. 12. With respect to the land in suit, namely, R.S. Plot No. 4644, both the learned courts below after considering the materials on record and the averments of the parties arrived at the concurrent finding that C.S. Plot no. 2928, which was being claimed by the defendants had merged in the road which was just below R.S. Plot No. 4644 as per the R.S. Map. It was also held that the plaintiffs had established by valid materials that R.S. Plot No. 4644 was carved out from C.S. Plot No. 2930 having an area of 04 katha which belonged to Bilayat Khan, the predecessor in interest of the plaintiffs. It was also found that the defendants had not specifically denied the fact that the C.S. Plot No. 2930 belonged to Bilayat Khan. In the said circumstances, the learned courts below had rightly come to the conclusion that the land in suit, namely, R.S. Plot No. 4644 was carved out from C.S. Plot No. 2930 which belonged to Bilayat Khan, the predecessor in interest of the plaintiffs. 13. So far the question of title is concerned, the learned courts below after considering the entire evidence on record specifically found that they conclusively proved title of the plaintiffs over the suit land, namely, R.S. Plot No. 4644. It was also held after considering the evidence of the defendants that 7 they were not helpful to prove the title of the contesting defendant 1st set over the suit property as they had failed to produce any document of title. Hence it was rightly held by the learned courts below that the oral evidence cannot override the documentary evidences with regard to title of the parties and specifically on the face of plaintiffs producing documents of their title and the defendants failing to do so. 14. So far the question of res-judicata is concerned, the learned courts below after considering the pleadings and evidence of the parties rightly came to the conclusion that the matter decided by the Joint Director of Consolidation, Muzaffarpur was not directly or substantially in issue in Title Suit No. 161 of 2002 as before the Consolidation Authorities the matter was only with respect to correction in the survey entry regarding which the matter is pending in this court in C.W.J.C. No. 520 of 1993 but in the instant case the questions involved are the relationship between the parties, the title over the suit land as well as adverse possession, etc. Hence, no question of res- judicata arises at all. 15. It may be mentioned that learned counsel for the defendants-appellants have claimed that the deeds in question executed by the vendor in favour of the plaintiffs were executed in violation of interim order of this court dated 16.12.1993 passed in C.W.J.C. No. 520 of 1993 by which status quo was directed to be maintained by the parties in relation to the properties in 8 question and hence the said deeds cannot confer any title upon the plaintiffs. It may be noted in this connection that the appellants themselves filed M.J.C. No. 353 of 2000 for initiating a proceeding of contempt against the vendor of the plaintiffs but after hearing the parties and after considering the materials a Division Bench of this court dismissed the said M.J.C. No. 353 of 2000 on the ground that since the scope of the said interim order stood tested before the Hon’ble Apex Court in Civil Appeal No. 1008 of 2006 disposed of vide order dated 06.02.2006, there was no occasion to proceed further in the said matter. In the said circumstances, it is quite apparent that the effect of order dated 16.12.1993 passed in C.W.J.C. No. 520 of 1993 was nullified by the above referred order of the Hon’ble Apex Court as well as the aforesaid order of the Division bench passed in the said M.J.C. 16. So far the question of possession is concerned, the learned court of appeal below has relied upon the well established principle that possession follows title meaning thereby that the person having good title over property will be presumed to be in possession over the same unless specifically disproved. The plaintiffs had specifically claimed that the defendants were the tenants of plaintiff’s vendor but after the preparation of consolidation records they stopped payment of rent to the vendor of the plaintiffs and hence they had become trespassers. Learned court of appeal below also found that defendant 1st set started residing in the disputed premises as 9 tenants of the vendor of the plaintiffs and for that reason the Hon’ble Apex Court in its order dated 06.02.2006 in Civil Appeal No. 1008 of 2006 had directed the defendants to pay the arrears of rent to the plaintiffs within a period of one month from that date and also continue to pay current rent till the disposal of the suit without prejudice to the claims involved. Furthermore House Control Case was filed by the vendor of the plaintiffs against the defendants before the House Controller for fixation of fair rent which the vendor of the plaintiffs had succeeded till the revisional authority and against that writ petition has been filed by the defendants which is still pending. In the said circumstances the learned courts below rightly found that the defendants cannot be held to be the owners of the suit premises as they had no title thereto and had started residing in the premises as tenants. 17. So far the plea of adverse possession taken by the defendants is concerned, the learned courts below specifically found that the assertions of the contesting defendants that they acquired title by virtue of adverse possession further proved the title of the vendor of the plaintiffs and of the plaintiffs after execution of the sale deeds in their favour (Exts. 7A to 7C). The learned courts below further held that to prove title by adverse possession the defendants had to plead and prove its classical requirements that they were coming in peaceful possession over the suit property for more than twelve years uninterruptedly, 10 continuously, peacefully in assertion of their own right and the denial of its true owner and they had to plead and prove the specific time from which adverse possession started running. It is apparent that the burden to prove all those requirements were squarely on defendants 1st set but they had neither pleaded those classical requirements of adverse possession nor they had adduced evidence to that effect as had been specifically found by the learned courts below. It was also found that none of their witnesses had given evidence proving the said requirements and hence it was rightly found that defendants 1st set had failed to prove that they had perfected their title over the disputed property by law of adverse possession. 18. In the aforesaid facts and circumstances, this court does not find any illegality in the impugned judgments and decree of the learned 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. harish/ ( S.N.Hussain, J.)