IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.291 of 2004 LAL MUNI DUSADH, S/O LATE ETAWARU DUSADH, RESIDENT OF VILLAGE & P.S. SANDESH, DISTRICT-BHOJPUR ..............DEFENDANT-APPELLANT-APPELLANT Versus 1. MOTI DUSADH, S/O JIUT DUSADH, RESIDENT OF VILLAGE & P.S. SANDESH, DISTRICT-BHOJPUR ........................ PLAINTIFF-RESPONDENT-RESPONDENT 2. MAHESH DUSADH, S/O JHAPAS DUSADH 3. GANESH DUSADH, S/O JHAPAS DUSADH 4. BIRENDRA DUSADH, S/O GANGA DUSADH 5. SURENDRA DUSADH, S/O GANGA DUSADH 6. DANATIA DUSADH, S/O GANGA DUSADH 7. RANBIR DUSADH, S/O GANGA DUSADH 8. MOSTT. BARAHIA WIDOW OF GANGA DUSADH ALL 2 TO 8 ARE RESIDENTS OF VILLAGE & P.S. SANDESH, DISTRICT- BHOJPUR ................... DEFENDANTS-RESPONDENTS-RESPONDENTS ----------- For the appellant: - Mr. O.P. Upadhyay, Advocate Mr. Arun Kumar Pandey No. 1, Advocate ------------------- 06/ 24-02-2009 Heard learned counsel for the appellant. 2. This second appeal has been filed by the defendant- appellant-appellant challenging the judgments and decree of the learned courts below. 3. The matter arises out of Title suit no. 15 of 1988 which was filed by the sole plaintiff-respondent-respondent no. 1 for partition of his land and the share in the suit property. The plaintiff claimed that the suit property was joint family property of Jiut Dusadh, who had three sons Moti Dusadh (plaintiff-respondent), Etwar Dusadh (father of defendant-appellant) and Jhapsi Dusadh (predecessor of defendants-respondents) and the said joint Hindu - 2 - family was governed by the Mitakshra School of Hindu law. 4. The said suit was decreed on contest without cost and a preliminary decree for partition with respect to the share in Schedule-A property was drawn by the learned Munsif-2, Ara vide his judgment and decree dated 27.3.1990. Against the aforesaid judgment and preliminary decree of the trial court defendant no. 1 filed Title appeal no. 31 of 1990 which was dismissed on contest with cost by the learned Additional District Judge-cum- Fast Track Court 2, Bhojpur vide his judgment and decree dated 21.07.2004. The said judgments and decree of the learned courts below are under challenge in the instant second appeal. 5. It is admitted fact that Jiut Dusadh was the father of the plaintiff and grand father of the defendants but the dispute was as to whether the suit property was given by the ex-landlord as service tenancy in favour of the father of defendant-appellant or it was given as raiyati tenancy to the joint family of the children of Jiut Dusadh. 6. The learned courts below rightly held that after coming into force the Bihar Land Reforms Act and after vesting of the Zamindari in the State of Bihar under the said Act the nature of service tenancy had seized to exist and the only status of tenancy recognized was raiyati tenancy settled by the ex-landlord. The learned courts below also found that the certified copy of cadestral survey khatian clearly proved that Bhadai Dusadh was a recorded tenant and it was also admitted that he died issueless but the - 3 - property remained in possession of the family. It was also proved by evidence that the nature of tenancy was not service tenancy rather from the very beginning there was raiyati tenancy on the basis of settlement and accordingly in revisional survey khatian, the land was recorded in the names of Lal Muni Dusadh (defendant no. 1) having one share, Jhapsi Dusadh and Moti Dusadh having two shares and the rent was fixed accordingly and the status of the tenancy was recorded as Kaimi tenancy. 7. The learned courts below found that there was every presumption of correctness of the said entry as it was supported by the strong evidence whereas the defendant failed to produce any reliable evidence in that regard. It was also found that there was no justification as to why the said revisional survey entry was not challenged either before the survey authority or in any court of law and even in this suit the defendant did not file any cross suit to challenge the said entry in the revisional survey of 1971. So far the claim of defendant no. 1 with regard to chaukidari is concerned, he could not even tell the year of death of his father Etwar Dusadh but it was admitted that he was minor at that time whereas the plaintiff has proved that Etwar Dusadh died in the year 1958 and hence the story of succeeding Choukidar and service tenancy by defendant no. 1 was rightly found to be baseless. On the other hand, the plaintiff had clearly proved that the status of tenancy was not service tenancy rather it was raiyati tenancy and hence there was unity of title and possession between the parties with respect to the suit land - 4 - and there was never any exclusive title or possession of defendant no. 1 over the suit land. 8. 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 41 Rule 11 CPC. S.Sb/- (S.N. Hussain, J.)