IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.155 of 2004 SUKHDEO SAH @ SUKHDEO SAHU Versus RAJ KUMAR PASWAN ----------- 9 02.09.2008 An Interlocutory application has been filed by the appellant on 1.7.2008 for adding the State of Bihar through Collector, Madhubani as party-respondent no.2 in the instant second appeal. Vide order dated 1.7.2008 notices were directed to be issued in the said application where after learned counsel for the State has also appeared but has not filed any reply to the said application. Accordingly the aforesaid application is allowed and State of Bihar through Collector, Madhubani is added as party-respondent no.2 in the instant second appeal. 2. Another interlocutory application bearing I.A. no. 236 of 2006 has been filed by the appellant under the provision of Order XLI rule 27 read with Order XLII rule 1 of the Code of Civil Procedure for admitting as additional evidence two documents, namely, certified copy of Chirkut filed by the appellant with the report of the Collector, Darbhanga dated 21.4.2005 and certified copy of another chirkut filed by the appellant with the report of Collector, Madhubani dated 25.10.2005 which are made Annexures 1 and 2 to the interlocutory application. No counter affidavit or reply has been filed by any of the respondents to the said interlocutory application. Accordingly, the said application is also allowed. Let the said two documents be accepted as additional evidence. 3. Heard learned counsel for the appellant, learned - 2 - counsel for the sole original respondent and learned counsel for newly added respondent State of Bihar through Collector, Madhubani. The second appeal has been filed by the sole plaintiff-appellant-appellant, challenging both the judgments and decree of the learned courts below. 4. This matter arises out of Title Suit no.134 of 1987 which was filed by the appellant for declaration of his title and confirmation of his possession with respect to the suit land appertaining to khata no. 1195 plot no. 1137 having an area 2 kathas situated in Mouza Laheriganj in the town and district of Madhubani and for other ancillary reliefs. 5. The said suit was dismissed by the learned Subordinate Judge I, Madhubani by judgment and decree dated 8.7.1994 which was challenged by the plaintiff in Title Appeal no.37 of 1994 which was also dismissed by the learned Addl. District Judge-cum- Fast Track Court IV, Madhubani, by judgment and decree dated 7.4.2004. Against the said judgments and decree of the learned courts below the instant second appeal has been filed by the sole plaintiff against the sole defendant-respondent where after now the State of Bihar through Collector, Madhubani has also been impleaded as party-respondent no.2. 6. The claim of the plaintiff-appellant is that the said land was settled by Ex-intermediary namely Raj Darbhanga with the plaintiff followed by Nazrana with Challan dated 10.6.1950 (exhibit 9), whereafter Jamabandi no. 106 (exhibit 10) was opened in his name on 1.4.1951. It was also claimed by the plaintiff-appellant that thereafter - 3 - mutation case no.49 of 1985-86 was filed by the plaintiff which was allowed by the Anchal Adhikari by order dated 17.8.1985 (exhibit 4). It was further averred by the plaintiff that subsequently the said mutation was cancelled illegally by the authorities by order dated 11.11.1986 (exhibit 4/a) on the petition filed by the defendant bearing Case no. 135 of 1986-87 and hence the aforesaid suit was filed by the plaintiff. 7. Learned counsel for the plaintiff-appellant has also claimed that much stress has been placed by the learned courts below upon non-filing of the return by the Ex-intermediary at the time of vesting of Zamindari in the State of Bihar under the provision of Bihar Land Reforms Act but additional evidence clearly showed that the papers with regard to the return submitted by Ex-intermediary were not available with the authorities. It is also claimed that neither evidence on record adduced by the plaintiff -appellant in the learned trial court has been considered nor specific provision of law including case laws has been appreciated by the learned courts below. 8. From the impugned judgments and decree of the learned courts below it is quite apparent that they have not disputed the principle laid down by the Hon’ble Court in various decisions including the cases reported in 1978 BBCJ 323 and 2003( 2) BLJR 1232, but they have specifically found that the said principle was not available to the facts and circumstances of the case because neither any effort had been made by the plaintiff to call for the record from the Collector nor any reliance could be placed upon the alleged settlement when no receipt could be produced by the plaintiff regarding disputed plot granted by - 4 - Raj Darbhanga. 9. No doubt now the plaintiff-appellant has produced report of the Collector, Madhubani and Darbhanga before this court at the second appellate stage but these efforts should have been made by the plaintiff-appellant at the time when the suit was filed by the plaintiff. Hence the learned courts below were quite justified in arriving at an adverse inference against the plaintiff. Further more even the reports of the Collector, Madhubani and Darbhanga do not support the claim of the plaintiff that the Ex-intermediary submitted any return in favour of the plaintiff. So far exhibit 9 which is Nazrana by challan dated 10.6.1950 and exhibit 10 which is copy of Jamabandi no. 106 dated 1.4.1951 are concerned, the learned courts below came to the conclusion that there were no material to show that they were ever acted upon as it was only about 35 years later in the year 1985-86 that Mutation case was filed by the plaintiff for getting his name mutated for payment of government rent etc. 10. On the other hand the claim of the defendant is that they were earlier settlees of the Ex-intermediary since more than 40 years before filing of the suit i.e.from 1930 and they were never ousted and hence there was no question of any return being submitted by the Ex-intermediary in the name of any other person. In the said circumstances the learned courts below rightly came to the conclusion that the plaintiff –appellant had failed to prove his title over the suit land and as such he was not entitled for deceleration of title and confirmation of possession over the suit land. - 5 - 11. The defendant has specifically claimed and proved by evidence including exhibits C and D series that the order for mutation of his name on the basis of the report of the authority concerned was passed as far as back as in the year 1971 where after the Anchal Adhikari passed order dated 17.8.1985(exhibit 4) in favour of the plaintiff without any notice or information to the defendant due to which the defendant filed Case no. 135 of 1986-87 and the authority after considering the facts and circumstances of the case passed order dated 11.11.1986 (exhibit 4/a), allowing the case and setting aside the earlier order dated 17.8.1985. Furthermore Jamabandi no. 298 was also opened in the name of the defendant-respondent and hence it is quite apparent that the said order was passed by the authority concerned legally and correctly. 12. In the aforesaid facts and circumstances of the case, 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. shahid (S.N.Hussain,J)