IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.134 of 2008 ----------- 1. Sudama Devi, widow of late Raghuni Yadav 2. Hare Ram Yadav, son of late Raghuni Yadav 3. Ram Ashish Yadsav @ Ram Asis Yasdav, son of late Raghuni Yadav All residents of village Basudeopur, Tole Arnama, P.S Laukaha District Madhubani. 4. Amirika Devi, wife of Sri Ram Bilash Yadav, resident of All residents of village Basudeopur, Tole Arnama, P.S Laukaha District Madhubani, presently residing at village Piprahi, P.S Laukahi, District Madhhbani. 5. Ramu Devi, wife of Sri Bauku Yadav, resident of village Basudeopur, Tole Arnama,P.S Laukaha District Madhubani. 6. Dulari Devi, wife of Sri Shiv Kumar Yadav, All residents of village Basudeopur, Tole Arnama, P.S Laukaha District Madhubani, Presently residing att village Jatahi, P.S. Laukaha, District Madhubani. (Substituted legal heirs and representatives of deceased original defendant 1st party-appellants in the courts below ) ……… Appellants versus 1. Jeewachh Sahu, son of late Luchai Sahu 2. Prayag Sahu, son of late Luchai Sahu, Both residents of All residents of village Basudeopur, Tole Arnama, P.O. Andharwan, P.S Laukaha District Madhubani. ( Plaintiffs-respondents 1st set in the courts below ) ….Respondents 1st set. 3. Devendra Kumar Yadav, son of late Ram Babu Yadav 4. Bimlendra Narayan Yadav, son of late Rajeshwar Prasad Yadav Both residents of village Bairiyahi, P.S. Lauhakhi, District Madhubani. (Defendants 2nd party-respondents 2nd party in the courts below) ………. Respondents. ------- For the appellants : M/s Birendra Prasad Verma, Sr. Advocate, Yogendra Kumar, Dr. M. K. Gautam, Manish Kumar and R. N. Roy, Advocates. For the respondents : None. ------------ 04/ 01.02.2010 Heard learned counsel for the appellants. 2. This second appeal has been filed by the substituted 2 heirs of defendant no.1-appellants-appellants challenging the judgments and decree of both the learned courts below. 3. The matter arises out of Title Suit No. 32 of 1995, which was filed by the plaintiffs-respondents-respondents first set for declaring the order and Bataidari Parcha dated 28.08.1991, issued by the authorities in Bataidari Case No.391 of 1975-76 as null and void. The said suit was decreed on contest by the learned Munsif, Jhanjharpur vide his judgment and decree dated 06.09.2004. 4. Against the aforesaid judgment and decree of the trial court, the substituted heirs of defendant no.1 filed Title Appeal No. 20 of 2004, which was dismissed by the learned Additional District Judge-cum-Fast Track Court No.1, Madhubani vide his judgment and decree dated 12.02.2008. Against the aforesaid judgments and decree of the learned courts below, the instant second appeal has been filed. 5. Learned counsel for the appellants vehemently and very exhaustively challenges the said judgments and decree of the learned courts below on two points. The first point is that the learned courts below wrongly assumed the death of Sevi Yadav in the year 1975 in presence of the death certificate (Ext. `C’ ) issued by the authorities concerned showing his death on 03.03.1982, which, according to section 17(2) of the Registration of Births and Deaths Act, 1969 ( hereinafter referred to as `the Act’ for the sake of brevity) was admissible in evidence for the purpose of proving the death of a person and for correction or cancellation of which no step 3 was taken by any one under section 15 of the Act. The second point raised by learned counsel for the appellants is that the Parcha under the Bihar Tenancy Act dated 28.08.1991 (Ext. `B’) in favour of Raghuni Yadav, the predecessor of the appellants, was with respect of 3 bighas, 15 kathas 14 dhurs of land, but the plaintiffs were claiming only 18 kathas 14 ½ dhurs out of the said land on the basis of their purchase from Sevi Yadav, whose heirs (including defendants no.2 and 3) did not even challenge the said Parcha nor ever claimed the said land, hence there was no occasion for the learned courts below to nullify the entire Bataidari Parcha (Est. `B’). 6. In this connection learned counsel for the appellants stated that late Sevi Yadav, who was, admittedly, the original owner, left behind two sons, namely, Rajeshwar Yadav and Ram Babu Yadav, out of whom Rajeshwar left behind two sons, namely, Bimlendra Narayan Yadav and Arvind Kumar Yadav ( not impleaded), whereas, Ram Babu Yadav also left behind two sons, namely, Devendra Kumar Yadav (defendant no.2) and Shivender Kumar Yadav (not impleaded). It was also claimed that the aforesaid Sevi Yadav was exclusive owner of the entire land in question measuring 3 bighas, 14 kathas 15 dhurs along with other lands and against whom Bataidari Case No.391 of 1975-76 was initiated by Raghuni Yadav, original defendant no.1 (predecessor of the appellants) claiming to be his Bataidar and the said case was allowed and Bataidari Parcha dated 28.08.1991 (Exr. `B’) with respect to the aforesaid 3 bighas, 14 kathas 15 dhurs of land was 4 issued in the name of original defendant no.1 by the authorities concerned. 7. It was also claimed by learned counsel for the appellants that the suit was filed by the plaintiffs on 23.8.1995 claiming that the aforesaid order in the Bataidari case and the aforesaid Parcha were null and void as the said order was passed against a dead person, namely, Sevi Yadav, who died as far back as in the year 1975, but the said claim of the plaintiffs was falsified by Ext. `C’, which was the death certificate issued by the authorities concerned showing that the said Sevi Yadav had died on 03.03.1982 i.e. after issuanace of the said Parcha, which should not have been discarded by the learned court below as according to section 17(2) of the Act, it was admissible in evidence for the purpose of proving the death of Sevi Yadav, for correction of which no step was taken by even his heirs. He also claimed that under the provisions of sections 76 and 79 of the Evidence Act, the presumption of genuineness was clearly in favour of the said document. 8. He also claimed that Ext. 1/E was the sale-deed executed on 04.05.1978 by one Ramendra Prasad Yadav, claiming to be son of late Sevi Yadav and Ext. 1/F was the sale-deed executed on 03.02.1980 by one Most. Bauki Devi in favour of Devendra Yadav, said to be son of late Sevi Yadav, showing the said Sevi Yadav as dead but the said Sevi Yadav had no son by the name of Ramendra Prasad Yadav, who must have been son of another Sevi Yadav and in that circumstance no reliance should 5 have been placed by the courts on the said documents. 9. Learned counsel for the appellants has also stated that the Parcha dated 28.08.1991 ( Ext.`B’), which was issued by the authorities concerned in favour of original defendant no.1 for 3 bighas, 14 kathas 15 dhurs of land as would be apparent from paragraph no.11 of the trial court judgment, but the plaintiffs were claiming only 18 kathas 4 ½ dhurs of the said land on the basis of purchase by registered sale-deed dated 15.05.1979 and hence the entire Parcha should not have been held to be illegal as with regard to the remaining lands none of the heirs of Sevi Yadav had ever raised any objection before any court or authority concerned. In this connection, learned counsel for the appellants relied upon a Division Bench decision of this Court in case of Lakhan Paswan & Ors. Vs. Shiwnandan Prasad & Ors., reported in 2001(1) P.L.J.R. 174. 10. So far the first question raised by learned counsel for the appellants with respect to Ext.`C’ is concerned, no doubt under the provision of section 17(2) of the Act, the death certificate (Ext. `C’) issued by the authorities concerned was admissible in evidence but it does not mean that it was conclusive proof of death and was binding upon the courts irrespective of other evidence on record, howsoever reliable they may be. The learned courts below have carefully considered and decided the said matter on the basis of specific evidence adduced by the parties. Ext. 1/E by Ramendra Prasad Yadav, stated to be son of late Sevi Yadav and Ext.1/F by late Bauki Devi having been executed in the year 1978 and 1980 6 respectively, showing Sevi Yadav as dead, but defendant no.1 failed to show that another Sevi Yadav had existed and the said Ramendra Prasad Yadav was his son. However, in any view of the matter, Ext.3/A shows that a gun bearing no. 7470 was produced by Sevi Yadav in the month of October, 1957, whereas, Ext.3 shows that the said gun was deposited by Devendra Kumar Yadav (defendant no.2), who was, admittedly, the grandson of Sevi Yadav before the Police authority on 01.11.1975 after the death of Sevi Yadav, who was said to have died on 01.10.1975. The said documentary evidence completely demolishes the claim of defendant no.1 on the basis of Ext. `C’, whereas, Exts. 3 series were fully supported by other evidence of the plaintiffs. In the said circumstances, the learned courts below were completely justified in not relying upon Ext `C’ produced by defendant no.1 and relying upon more convincing evidence produced by the plaintiffs. 11. So far the other question with regard to Bataidari Parcha dated 28.08.1991 (Ext. `B’ ) is concerned, it is with regard to 3 bighas, 14 kathas 15 dhurs of land of Sevi Yadav, whereas, the plaintiffs’ sale-deed dated 15.05.1979 from the heirs of the Sevi Yadav is with respect to only 18 kathas 14 ½ dhurs and there was no occasion for setting aside the said Parcha only partly. Hence in the aforesaid facts and circumstances, the learned courts below were quite justified in holding that the said Parcha having been issued against a dead person was absolutely null and void. 12. So far the provision of section 48F(4) of the Bihar 7 Tenancy Act, 1885 is concerned, it is provided therein that an order duly made under section 48E or on an appeal under this section shall be final and shall not to be called upon in question in a civil court, whereas, sub-section (5) thereof provides that if a suit is initiated challenging an order made under section 48E or an appeal under this section, the Civil Court shall have no power, during the pendency of the suit, to stay the enforcement of such order. In addition to it, learned counsel for the appellants relied upon the decision of Division Bench of this court in case of Lakhan Paswan (supra) and on the basis of the aforesaid provision of law and case laws he claimed that the suit was barred by the said provision of the Act and was not maintainable. The law is well-settled in this regard, which is quite apparent from the aforesaid decision of the Division Bench itself that if an order is not passed after following the procedure prescribed under the Act or it has been passed without following the fundamental principle of judicial procedure or is without jurisdiction then the order is not duly made and the suit is maintainable and the bar created under section 48E (4) of the said Act is not attracted. Thus, only the suit challenging the order passed under section 48E of the Act or section 48 F of the Act on merits will not be maintainable. 13. Here in the instant matter, claims of the alleged Bataidar vis-à-vis the owner were not being decided on merits, rather the only question in issue in the suit and appeal was as to whether order was passed by the authorities concerned after 8 following the procedure prescribed under the Act and the fundamental principle of judicial procedure. However, when it was clearly proved that the order in question passed by the authority concerned was without following the fundamental principle of judicial procedure, it was quite apparent that the said order was not duly made and the suit was maintainable. 14. 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. MPS/ ( S. N. Hussain, J. )