APPEAL FROM APPELLATE DECREE NO. 281 OF 2005 ( Against the judgment and decree dated 10.08.2005 passed in Title Appeal No. 08 of 2001 by Additional District Judge-cum-Fast Track Court-1 Madhepura reversing the judgment and decree dated 27.01.2001 passed in Title Suit No. 19 of 1995 by 4th Additional Munsif, Madhepura) 1. RAM PRASAD MAHTO. 2. ANANT MAHTO. 3. JAGANNATH MAHTO. 4. BASUDEO MAHTO. 5. GULAB MAHTO. 6. HIRALAL MAHTO @ HIRA MAHTO. 7. SHYAM SUNDAR MAHTO ALL SONS OF SRI RUDAL MAHTO. 8. MANOJ MAHATO, MINOR SON OF SRI RAM PRASAD MAHTO THROUGH HIS FATHER AND NATURAL GUARDIAN, RAM PRASAD MAHTO. 9. ANIL MAHTO, MONOR SON OF SRI ANANT PRASAD MAHTO THROUGH HIS FATHER AND NATURAL GUARDIAN, ANANT MAHTO. 10. PINTOO MAHTO. 11. LALTU MAHTO, MINOR SONS OF JAGANNATH MAHTO, THROUGH THEIR FATHER AND NATURAL GUARDIAN JAGANNATH MAHTO. 12. CHANDRA KUMAR. 13. BIJAY MAHTO, MINOR SONS OF GULAB MAHTO THROUGH THEIR FATHER AND NATURAL GUARDIAN, GULAB MAHTO. 14. BABLOO MAHTO, MINOR SON OF HIRA MAHTO THJROUGH THE FATHER AND NATURAL GUARDIAN HIRA MAHTO ALL RESIDENTS OF VILLAGE-AURAHI, P.O. AURAHI, P.S. GAMAHARIA, DISTRICT- MADHEPURA. ……….PLAINTIFFS-RESPONDENTS-APPELLANTS. VERSUS 1. BHOLI MAHTO, SON OF LATE BACHAN MAHTO. 2. MOST. LUKHI DEVI, WIFE OF LATE JANAK MAHTO. 3. KAUSHALYA DEVI, WIFE OF UMESH MAHTO, DAUGHTER OF LATE JANAK MAHTO. 4. MANAK MAHTO, SON OF LATE RASHIK MAHTO. 5. ANMOL MAHTO. 6. MURUT MAHTO, MINOR SONS OF LATE JANAK MAHTO THROUGH THEIR MOTHER AND NATURAL GUARDIAN MOST. LUKHIA DEVI, WIFE OF LATE JANAK MAHTO. 7. KAILU MAHTO. 8. ASHOK MAHTO, MINOR SONS OF MANAK MAHTO THROUGH THEIR FATHER AND NATURAL GUARDIAN MANAK MAHTO, ALL RESIDENTS OF AURAHI, P.O. AURAHI, P.S. GAMAHRIA, DISTRICT-MADHEPURA. …….DEFENDANTS-APPELLANTS-RESPONDENTS. 2 For the Appellants: Mr. V. Nath, Advocate, with M/S Ashok Kumar, Md. Waliur Rahman and Ajay, Advocates. For the Respondents: Mr. Madhav Roy, Advocate, with M/S Bijay Kumar Singh and Jitendra Prasad Singh, Advocates. P R E S E N T HON'BLE MR. JUSTICE S.N. HUSSAIN --------------- S. N. Hussain, J. This second appeal has been filed by the plaintiffs- respondents-appellants challenging judgment and decree dated 10.08.2005 by which the Additional District Judge, Fast Track Court No. - I, Madhepura allowed Title Appeal No. 08 of 2001 filed by defendants- appellants-respondents and reversed judgment and decree dated 27.01.2001 by which 4th Additional Munsif, Madhepura decreed Title Suit No. 19 of 1995 filed by the appellants. 2. The aforesaid Title Suit No. 19 of 1995 was filed by the plaintiffs-respondents-appellants for declaration of their title over the suit land detailed in schedule-K of the plaint and also for declaring that the entries in the revisional survey khatiyan with respect to the suit land in the name of defendants was wrong and for other ancillary reliefs. 3. The claim of the plaintiffs was that one Lala Mahto had two sons, namely, Khantar Mahto (predecessor of plaintiffs) and Bechan Mahto ( predecessor of defendants) and after the death of Lala Mahto his aforesaid two sons separated whereafter Khantar Mahto took settlement of the suit land from the ex-landlord in the year 1923. The plaintiffs further claimed that since then Khantar Mahto and after his death his heirs, namely, the plaintiffs continued in possession of the suit land as its 3 Raiyat but during the revisional survey proceeding the land was wrongly recorded in the name of defendants as the heirs of Bechan Mahto and on the basis of the said entries in the revisional survey khayatan the defendants were threatening to dispossess the plaintiffs from the suit land. 4. The claim of the defendants was that the said settlement of 1923 in favour of Khantar Mahto was only for seven years and Khantar Mahto also defaulted in payment of rent and hence after expiry of seven years the landlord took possession of the suit land and settled it with the defendants in the year 1941 vide a registered Kabuliyat and put them in possession thereof and the defendants also regularly paid rent and after vesting of Zamindari in the State of Bihar under the Bihar Land Reforms Act separate Jamabandi was created and on its basis revisional survey khatiyan was prepared in the name of defendants with respect to the suit land as the defendants had throughout been in possession of the suit land as exclusive owners thereof, without any objection from any quarter. 5. Considering the pleadings of the parties the trial court formulated the following issues for adjudication of the said title suit:- (i) Is the suit as framed maintainable? (ii) Whether the plaintiffs have valid cause of action to file the instant suit? (iii) Whether the plaintiffs have right, title and possession over the suit land? (iv) Whether the suit is barred by law of limitation? (v) Whether the revisional survey entry in Khatiyan regarding suit land in the names of defendants is wrong? (vi) To what other relief or reliefs the plaintiffs are entitled? 4 6. Thereafter evidences were led and parties were heard and finally the learned trial court decreed the suit on contest with cost vide judgment and decree dated 27.01.2001, after arriving at the following findings:- (a) Admittedly defendants are heirs of Bachan Mahto and plaintiffs are heirs of Khantar Mahto who were full brothers. (b) Defendants filed Partition Suit No. 32 of 1998 in the court of Sub-Judge Madhepura against the plaintiffs of the present suit for partition of land in which this suit land was not mentioned, hence, non-mentioning of suit land in the said partition suit clearly goes to prove that the claim of defendants of the instant suit is baseless and futile. (c) In certified copy of Kabuliyat (Ext.E) there is cutting over suit plot, whereas the other certified copy of Kabuliyat (Ext. 4/A) clearly shows that C.S.P. No. 3622 was taken in settlement but that is not the suit plot and in both the aforesaid Exts. the instant suit land is written in the eastern boundary of C.S.P. No. 3622 which shows that suit plot no. 3612 belonged to Khantar Mahto, the ancestor of plaintiffs. (d) Suit land was settled to Khantar Mahto, the ancestor of plaintiffs and the settlee was in possession of the suit land and after his death the plaintiffs came in possession of the same and Jamabandi for the suit land runs in the name of plaintiff no. 1 who has been paying rent for the suit land. (e) Plaintiffs have got subsisting title and possession over the suit land. (f) Revisional Khatiyan Exts. 5 and 5/A with respect to suit land in the name of defendants is wrong and incorrect. (g) There is no defect in framing of suit and the plaintiffs have good cause of action for the suit. (h) The suit is not barred by law of limitation. (i) Plaintiffs are entitled to a decree as claimed for. 7. Against the aforesaid judgment and decree of the trial court passed in Title Suit No. 19 of 1995, the defendants filed Title 5 Appeal No. 08 of 2001 and after considering the respective pleadings of the parties the lower appellate court framed the following points for deciding the appeal:- (i) Whether the learned lower court has rightly come to the conclusion by decreeing the suit. (ii) Whether the learned lower court has committed any error and exceeded his jurisdiction and this appellate court has any ground to interfere in the judgment and decree passed by the learned lower court under the appellate jurisdiction. (iii) Whether the appellants (defendants) are entitled to get the relief as claimed in the memo of appeal and the judgment and decree of the trial court is fit to be set aside. 8. The lower appellate court considered the pleadings and evidences of the parties and by its judgment and decree dated 10.08.2005 allowed the Title Appeal, set aside the judgment and decree of the trial court dated 27.01.2001 and rejected the claim of the plaintiffs on contest with cost after arriving at the following findings:- (a) The plaintiffs have sought reliefs only for declaration of their right, title and interest over the suit land and for declaration that the entries of revisional survey khatian were incorrect but they have not sought any relief for confirmation of possession or recovery of possession. (b) It is an admitted fact that Khantar Mahto (predecessor of the plaintiffs) took settlement of the suit land from the ex-landlord for seven years only but there is nothing on record to show as to whether they continued in possession after seven years. (c) Plaintiffs have also not claimed the suit land by acquisition of title by adverse possession nor any single line has been mentioned by them in their claim regarding adverse possession. (d) Plaintiffs case has to stand on its own leg and they cannot be permitted to take advantage of the weakness in defendants’ case. (e) The trial court is silent as to how the plaintiffs got title of the suit land after the end of seven years settlement made in favour of Khantar Mahto by the ex- landlord in 6 the year 1923 when no adverse possession had been claimed nor any such issue was raised. (f) The plaintiffs themselves never claimed that they became permanent tenant of the ex-landlord after expiry of the seven years period of settlement nor they have sought confirmation of possession over the suit land. (g) From perusal of registered Kabuliyat of the defendants of 1941 (Ext. E) it is apparent that there is a cutting over plot no. 3612 but over the said cutting there is a short signature of the officer which shows the correctness of the said document. (h) From the original volume called for by the court and the deposition of the person who brought the said volume (D.W.11), it is quite apparent that the number of the plot given therein was 3612. (i) On the other hand in the Khatiyan produced by the plaintiff (Ext. 4) there is clear cutting, hence, the conclusion of the trial court is based on wrong assumption. (j) Certified copy of plaint of T.S. no. 32 of 1998 (Ext. E) clearly shows that the land involved in the instant suit was not mentioned therein and hence non-mentioning of the suit land in the said partition suit clearly goes to prove that it was not a joint family property and on its basis the claim of the defendants cannot be said to be baseless and futile. (k) From perusal of the entire evidence on record it is found that the entries in Khatiyan is not incorrect. (l) Trial court wrongly came to the conclusion that the plaintiffs had valid right title and interest over the suit land after the lapse of seven years as mentioned in the Kabuliyat Ext. 4. (m)Ext.-E shows that settlement was in favour of defendants, Ext.-C series shows that ex-landlord submitted return in the name of Bechan Mahto, Ext.-G series shows that defendants paid rent to the ex- landlord and State of Bihar, and Ext.-B, Patwan receipt shows the possession of defendants. (n) The evidence of the parties proves title and possession of the defendants, whereas the plaintiffs have failed to prove their title over the suit land and possession after 7 expiry of seven years as per plaintiffs Kabuliyat of 1923 (Ext.-4). 9. Against the aforesaid judgment and decree of the lower appellate court the plaintiffs filed the instant second appeal and at the time of hearing under Order 41, Rule 11 of the Code of Civil Procedure on 27.08.2008 this Court framed the following substantial questions of law for deciding this second appeal:- (i) Whether in absence of any pleading or evidence for explaining why the suit land was left out in the earlier Partition Suit No. 32 of 1998, the learned court of appeal below was justified in assuming that it was ancestral land of defendants ? (ii) Whether possession of a person over a land has to be held good against the whole world except the real owner and as such a person cannot legally take the plea of adverse possession in resisting the claim by a person other than landlord ? 10. Learned counsel for the appellants argued that Ext.6 is a copy of the plaint of partition suit no. 32 of 1998 filed by heirs of Bechan Mahto and in paragraphs 5 and 10 thereof it was stated that after the death of Lala Mahto, his two sons separated but at that time also the property remained joint and they only established temporary and rough ‘Aar’ but there was no partition of land by metes and bounds, although, in business they had no concern with each other and hence the land involved in the said partition suit remained joint due to which partition was sought in the said suit. 11. He claimed that the heirs of Khantar Mahto (plaintiffs of the suit) were added as defendant second party in the said suit. Learned counsel for the appellants further claimed that the lower appellate court relied upon the claim of the defendants that there were 8 many amendments in the plaint of the aforesaid partition suit, which was not proved by any material, but even then he allowed the claim of the defendants-appellants. 12. Learned counsel for the appellant produced a copy of judgment dated 29.06.2009 by which Subordinate Judge-Ist, Madhepura decreed partition suit no. 32 of 1998 in part on contest against defendant second party and ex-parte against defendant first party and plaintiffs of that partition suit were found to be entitled to one fourth share in the total area of suit land and different set off defendants of that suit were found to be entitled to their respective shares. He further argued that the properties involved in this second appeal was not included in the said partition suit, hence, it showed that the property of this second appeal was not the property of respondents family. 13. Learned counsel for the appellant also averred that the lower appellate court had wrongly put great emphasis on adverse possession and failed to appreciate that adverse possession can be claimed only against the owner of the suit property and it cannot be claimed against defendants who were not the owners of the suit property and in those circumstances the plaintiffs had rightly not claimed adverse possession in the instant suit. 14. Learned counsel for the appellants submitted that Ext.-4/A and Ext.-E were same document by which the defendants were claiming settlement from the ex-landlord in the year 1941 in favour of Bechan Mahto and in that document there were cutting and interpolation which rendered it absolutely unreliable and on the basis of such document serious question of title cannot be legally decided. Hence accordingly to 9 him the judgment and decree of the lower appellate court is illegal and perverse. 15. On the other hand, learned counsel for the respondents argued that admittedly the earlier settlement of 1923 in favour of Khantar Mahto was by way of Kabuliyat for seven years only and hence after seven years the suit land reverted to ex-landlord who settled it with defendants (heirs of Bechan Mahto) in 1941 by registered Kabuliat of 1941 and as such they were recorded in revisional survey Khatiyan which had a presumptive value of correctness also. It was further stated that there was no pleading of the plaintiff in the plaint nor there was any document or receipt showing continuation of possession of plaintiffs after completion of seven years. 16. Learned counsel for the respondents submitted that the suit land having been settled with the defendants by registered Kabuliyat of 1941 and their possession thereafter having been clearly proved by Zamindari receipts, submission of return by ex-landlord, cess valuation, Jamabandi, Government rent receipt, Patwan receipt etc. fully proved the title and possession of defendants which was never objected by the plaintiffs or his predecessor in interest. Learned counsel for the respondent also argued that the plaintiffs did not file any objection even in the revisional survey proceeding and the instant suit was filed much after the passage of three years from the date of final publication of revisional survey records. Hence, at this stage the plaintiffs have no valid cause of action for filing the suit. 17. Learned counsel for the respondents further claimed that the trial court rejected the claim of defendants only on the basis of 10 Ext.-6, which was a plaint of Partition Suit No. 32 of 1998 filed by the heirs of Bechan Mahto and it was not in dispute that there were several amendments in the plaint of the aforesaid partition suit but the said amendments were never brought on record and furthermore, the said partition suit having been disposed of vide judgment dated 29.06.2009. It clearly showed that it was not with respect to the property involved in the instant suit merely because the instant suit property was never a joint ancestral property, rather it was the exclusive acquired property of the defendants and hence it was rightly kept out of the aforesaid partition suit. Hence, he asserted that the claim of the appellants was absolutely frivolous and was fit to be rejected. 18. From the arguments on behalf of the parties as well as the evidence produced by them and the findings of both the courts below it appears to be admitted that originally the suit land was settled and for seven years by ex-landlord in favour of Khantar Mahto (predecessor of the plaintiffs) vide Kabuliyat of 1923. The pleadings of the plaintiffs and the evidences both oral and documentary produced by them are absolutely silent as to what happened after expiry of seven years of the said settlement. There is nothing to show that Khantar Mahto or his successor in interest paid any rent to the ex-landlord or were recorded in any register or any return was submitted by the ex-landlord in their favour at the time of vesting of the Zamindari into the State of Bihar under the Bihar Land Reforms Act. The plaintiffs have not even claimed any relief regarding possession including confirmation of possession or recovery of possession in the plaint of their suit. 19. On the other hand, there is specific pleading of the 11 defendants that after expiry of seven years from the settlement of 1923, the ex-landlord resumed possession of the suit land and executed a registered deed of Kabuliyat in the year 1941 making permanent settlement in favour of the defendants with respect to the suit land. In support of the said claim of title and possession following the said registered deed of Kabuliyat the defendants had produced Zamindari receipts granted by the ex-landlord, Cess valuation at the time of vesting of Zamindari on the basis of returns submitted by the ex-landlord in favour of the defendants, Government rent receipts, Patwan receipts and Khatiyan which clearly shows that the defendants remained in possession of the suit land throughout as exclusive owner thereof on the basis of registered Kabuliyat of 1941. 20. In this context learned court of appeal below was quite justified in holding that the plaintiffs by not claiming any relief regarding possession including confirmation of possession nor making out any claim of adverse possession, specially, when the ex-landlord no more remained owner after the registered deed of Kabuliyat executed by him in favour of the defendants in the year 1941, on the basis of which the defendants had acquired valid right and title over the suit property and also became real owner thereof. In the said circumstances, the plaintiffs were clearly not entitled to the reliefs claimed by him. 21. So far the alleged cutting and interpolation in the Kabuliyat of 1941(Ext-E) is concerned the learned court of appeal below had very carefully looked into the document and had found that there was a cutting over plot no. 3612 but it was clearly a correction made in the said document which was proved by the short signature of the officer 12 concerned. This was also proved by the original volume produced before the court and even the person from the department who brought the said record clearly deposed that it was 3612 as per the original volume also. In the said circumstances the said plea of the appellants has no legs to stand and is absolutely frivolous. 22. So far the appellants claim regarding Partition Suit No. 32 of 1998 is concerned, it is quite apparent that the said suit was filed by the defendants of the instant suit with respect to other properties which according to them remained joint as is apparent from the plaint of the said suit and the judgment passed therein by the trial court. Furthermore, the defendants had claimed from the very beginning that the instant suit land was acquired exclusively by the defendants and it had no concern with the family at large or the plaintiffs and hence they rightly did not include the said property in the partition suit. Furthermore, if the plaintiffs of the instant suit who were defendants in the partition suit, had any grievance with respect thereto they could have taken that plea in the partition suit but not having raised such plea in the said partition suit, they cannot raise this plea in the instant second appeal. Furthermore, since the property of the instant suit was not subject matter of the partition suit which has already been decreed in part there is no occasion for this Court to interfere in such matter nor does it affect the claim of the defendants in any manner whatsoever. 23. In the aforesaid circumstances, it is quite apparent that the appellants have failed to substantiate the questions of law raised by them. Further more this Court does not find any illegality in the impugned judgment and decree of the lower appellate court which, are 13 quite legal, valid and proper. 24. Accordingly, this second appeal is dismissed, but in the facts of this case there would be no order as to cost. Patna High Court Date 21.06.2011 N.A.F.R./Devendra ( S.N. Hussain, J.)