IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.234 of 2005 Bhabhuti Das, Son of Sitaram Das, resident of village – Kalyanpur Khas, P.O. + P.S. Kotwa, District East Champaran …… Plaintiff … Appellant ….. Appellant Versus 1. Bindeshwari Sah, S/o Bhagar Sah 2. Thakuri Sah, S/o Bagar Sah 3. Sunil Prasad 4. Shambhu Prasad 5. Baliram All sons of Late Ganesh Mahto All of village Kalyanpur, Mauza Barharwa, P.S. Kotwa, District East Champrana 6. Kalawati Devi, d/o Late Ganesh Mahto, wife of Ramji Prasad of village Nirpur, P.S. Harsidhi, District East Champaran 7. Sunaina Devi, d/o Late Ganesh Mahto, wife of Harendra Prasad of village Baltharwa, P.S.Piprakothi, District East Champaran 8. Mira Kumari, d/o Late Ganesh Mahto of village Kalyanpur Mauza Barharwa, P.S. Kotwa, District East Champaran 9. Lal Muni Devi, Wife of Ramdhayan Mahto 10. Nand Kishore Mahto, s/o Late Ramdhayan Mahto 11. Sunita Devi, wife of Lal Babhu Mahto All of 9 to 11 are village of Barharwa, at present village Kalyanpur, P.S. Kotwa, District East Champrana 12. Ranju Kumari 13. Sanju Kumari Both daughter of Late Ram Dhayn Mahto, Both residents of village Kalyanpur, P.S. Kotwa, District East Champaran 14. Most. Samjharia Kuwer, w/o Late Tapeshwar Mahto 15. Udho Mahto 16. Mahabir Mahto Both of son of Late Tapeshwar Mahto Both residents of village Kalyanpur, P.S. Kotwa, District East Champaran 17. Savitiri Devi, wife of Vishwanath Mahto, d/o Late Tapeshwar Mahto of village Hardiya bag, P.S. Pipra, District East Champaran 18. Milva Devi wife of Surendra Mahto, d/o Late Tapeshwar Mahto of village Rulhi, P.S. Motihari, District East Champaran 19. Sukhdeo Mahto, s/o Bhikhar Mahto 20. Chandradeo Mahto, s/o Ramadhar Mahto 2 21. Ramchandra Sah s/o Sanjay Sah All of village Mauza Kalyanpur Khas, P.S. Kotwa, District East Champaran 22. Gudari Baitha 23. Juit Baitha Both of village Kalyanpur, P.S. Kotwa, District East Champaran ….. Defendants …. Defendants … Respondents ----------- For the appellant :Mr. Binod Kumar Singh, Advocate For the respondents : Mr. Vijay Shankar Shrivastava, Advocate ------- 8 06.07.2010 The plaintiff - appellant, being aggrieved and dissatisfied with the judgment and decree dated 17.6.2005 passed by the 6th Additional District Judge, East Champarant at Motihari in Title Appeal No. 30/55 of 1996/2002 affirming the judgment and decree dated 30.3.1996 and 11.4.1996, respectively passed by the Munsif, Sadar, Motihari in Title Suit No. 216 of 1988, has preferred this appeal. The original plaintiff appellant Bhagiya Devi (since deceased) along with this defendant appellant and his brother Thakur Das (since deceased) filed Title Suit No. 216 of 1988 for declaration of title, confirmation of possession and also for recovery of possession in case they were found dispossessed from the suit land. 3 As per the case of the plaintiff, the suit property, total area of 2 bighas 3 kathas 10 dhurs appertaining to plot nos. 184, 199, 500 and 504, khata no. 11 of Mauza Kalyanpur Khas, District East Champaran, was recorded in the name of the maternal uncle of original plaintiff (deceased plaintiff no. 1, Bhagiya Devi, viz., Gopal Das. The said Gopal Das died in the year 1942 leaving behind his widow Most Jiut Gosai and original plaintiff Bhagiya Devi. It is the case of the plaintiff that after some time Mostt. Jiut Gosai also died and then original plaintiff no. 1 (since deceased) came in possession of entire land of khata no. 11 and plaintiff nos. 2 and 3 being her sons are looking after all the affairs of cultivation of the suit land. However, in the month of January, 1981 the defendants in collusion with each other tried to dispossess the plaintiffs, which led to initiation of proceeding under Section 144 Cr.P.C. . The aforesaid proceeding was decided in favour of the defendants on account of a sale deed executed by the mother of the deceased plaintiff no. 1, namely Jiut Gosai in favour of one Banwari Das and Tikeshwar Ram. It has been 4 stated in the plaint that the aforesaid sale deed was executed by Mostt. Jiut Gosai without any necessity and is totally illegal and ‘fergi’ document without paying any consideration money and had never been acted upon. However, the transferees went on executing subsequent sale deeds in favour of several persons including the defendants. The claim of the plaintiffs was that the deceased plaintiff no. 1, Bhagiya Devi inherited the suit property and came into its possession. However, the action of the defendants as above and the order passed in the proceeding under Section 144 Cr.P.C. created a cloud upon the title of the plaintiffs, thus, the present title suit was filed. The trial court after considering the materials on record and evaluating the evidence led on behalf of the parties has observed that though it has been claimed by the plaintiffs that the suit land is coming in their possession, not a single document has been brought on record in support of their contention and it has come to the conclusion by recording a finding that the plaintiff was never having any title or possession over the suit land which in fact was already transferred 5 by the mother of the original plaintiff no. 1 in the year 1947 itself and possession was handed over to the transferee. However, even after more than 40 years, when the suit was filed in 1988, neither any relief had been sought against the aforesaid transfer nor the transferee therefrom has been impleaded as defendant. It has further been recorded by the trial court that the defendant had disclosed the year of death of mother of the original deceased plaintiff no. 1, namely, Jiut Gosai as 1959 and though the plaintiffs have not denied it but they had not given any date. However, the P.W. 1 has stated regarding the date of death being 30 – 32 years back from 1991 which roughly comes about 1960-62. Thus, it was clear that Jiut Gosai died after 1956, i.e., after coming of Hindu Succession Act, 1956 when she became absolute owner but the two sale deeds were neither challenged by her nor by her heirs or legal representatives or any reversioner or any body. Even in the present suit also no relief had been sought against the concerned sale deeds, though the plaintiff has categorically come up with the case that proceeding under Section 144 Cr.P.C. was decided against them 6 only on the basis of those two documents. Thus, the suit was dismissed with cost on contest. The plaintiffs challenged the judgment and decree of the trial court by preferring Title Appeal No. 30/55 of 1996/2002. The appellate court also held that the plaintiffs appellants could not proved their title and possession over the suit land and there was no question of inheritance of the suit land by the original deceased plaintiff no. 1 inasmuch as the same had already been alienated by her mother by executing two sale deeds as has been mentioned above in the year 1947 itself. The appellate court has also discussed that in the aforesaid sale deeds, recitals are that they are being executed for liquidating the debt and as such legal necessity stands expressed therein itself. However, that document was voidable at the instance of the Jiut Gosai or any reversioner or any legal representative but the same having not been done for more than 40 years and even in the present suit the same has not been challenged. The appellate court had made independent appraisal of all the materials on records and had come to the conclusion that the plaintiff could not prove title and 7 possession rather the evidence of P.W. 6 Thakur Prasad (plaintiff no. 2 since deceased) created further doubt regarding their possession as he has admitted in paragraph no. 6 of the cross-examination that the defendants are in possession of the suit land since last 10 years. Upon consideration of materials on record the appellate court did not find any merit in appeal and, thus, dismissed the same. This led to filing of the present appeal before this Court. I have heard Mr. Binod Kumar Singh, learned counsel for the appellant and Mr. Vijay Shankar Shrivastava, learned counsel for the respondents. Learned counsel appearing on behalf of the appellant submitted that both the courts below had erred in rejecting the claim of the plaintiff. In fact, the deceased plaintiff no. 1 inherited the property from her mother and the alleged two sale deeds executed in the year 1947 were without any legal necessity. It has further been submitted that the plaintiff in his written statement had admitted that the aforesaid Jiut Gosai remained in possession even after an execution of 8 sale deed as a licensee, i.e., in permissive possession. It is also submitted that in the absence of any evidence in support of the alleged permissive possession, it would have to be held that she was in possession as a title holder. I do not find any force in the submission raised on behalf of the plaintiff appellant. The documents i.e. Exts. A/5 and A/6 having been executed in 1947 in favour of Banwari Das and Tikeshwar Ram are staring at the face of the appellant. It is the case of the plaintiff appellant that on the basis of these documents the defendants had tried to dispossess the plaintiff leading to a proceeding under Section 144 Cr.P.C., which was decided against the plaintiff only on the basis of aforesaid documents. However, the document executed in the year 1947 remained unchallenged for more than 40 years and even in the year 1988 when the suit was filed, no relief had been sought with regard to the aforesaid document. In the aforesaid documents, i.e, exts. A/5 and A/6, as noticed by the both courts, it has been stated that the same was being executed to liquidate the debt. 9 However, the executor of the document, namely, Jiut Gosai having died after coming of the Hindu Succession Act, 1956, could have challenged the same but neither she nor her heirs or any reversioner or anybody had challenged the same. In fact, the documents had remained unchallenged till date. Thus, this contention of the learned counsel also cannot hold good. Thus, in the opinion of this Court the decisions of the courts below are concluded by concurrent findings of fact and no substantial question arises out of the same. As a result, this appeal is devoid of any merit and is, accordingly, dismissed. Spd/- ( Dr. Ravi Ranjan, J.)