IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.172 of 2007 Rai Umesh Chandra Son of Late Rajendra Prasad Singh resident of Mohalla Amber P.S. Bihar, Town Biharsharif, Dist. Nalanda Plaintiff- Appellant- Appellant Versus 1. Most Kailash Kuer widow of Late Janardan Singh 2. Indu Devi wife of Udai Bhanu Singh @ Phoodi Singh 3. Champa Devi wife of Ram Sakal Singh 4. Bindoo Devi wife of Maheshar Singh 5. Pushpa Devi wife of Chandrika Singh 6. Akhileshwas Prasad Singh @ Babu Saheb 7. (a) Kanti Devi W/o Late Alakh Niranjan Singh (b)Asis Kumar Shankar @Vikram @ Munna (c) Satyam Shankar (d) Vikas Shankar @ Santu All sons of Late Alakh Niranjan Singh resident of Mohalla Amber P.S. Bihar, Town Biharsharif, Dist. Nalanda (e) Priti Singh (f) Navidita @ Neetu Both daughter of Late Alakh Niranjan Singh both resident of Purani Jail road opposite Soghara High School Mohalla Amber P.O. & P.S. Biharsharif, Dist. Nalanda 8. Ram Pratap Singh @ Mithu 9. Chunnu Singh Both sons of Akhileshwar Prasad Singh 10. Munna son of Alakh Niranjan Singh 11. Ram Narain Singh @ Bachhu Singh son of Shambhu Sharan Singh 12. Manoj Kumar Singh 13. Babloo both sons of Ram Narain Singh @ Bachhu Singh All resident of Mohalla Amber P.S. Bihar, Town Biharsharif, Dist. Nalanda Principal Defendants-Respondents-Respondents Ist set 14.Adhik Prasad Singh son of late Narsing Narain Singh resident of Mohalla Amber P.S. Bihar, Town Biharsharif, Dist. Nalanda 15. Vinod Ram Peon Khad Depot, Biharsharif working at office of Co-operative Society Biharsharif 16. Arvind Singh son of Rajendra Singh resident of Mohalla Amber P.S. Bihar, Town Biharsharif, Dist. Nalanda Performa Defendants-Respondents-Respondents 2nd set ----------------------- For the appellant: Mr S.S.Dwevedi, Sr.Advocate Mr Khatim Raza, Advocate For the respondent no.6: Mr Kamal Nayan Choubey, Sr.Advocate For respondents no.12 to 14 : Mr Syed Firoz Raza, Advocate ------------------- 09 14.05.2009 I.A.No.1453 of 2009 has been filed on - 2 - 03.03.2009 on behalf of the appellant for expunging the name of respondent no. 17- Kunti Devi who is said to have died on 20.10.2005 leaving behind two sons as her heirs and legal representatives who are already on record as the sole appellant and respondent no.18. In the said circumstance, let the name of respondent no.17 be expunged. 2. Heard learned counsel for the appellant and learned counsel for respondent no.6 who is contesting this appeal as well as learned counsel for respondents no.12 to 14, who are supporting the appellant. 3. This second appeal has been filed by the sole plaintiff- appellant-appellant challenging the judgments and decree of both the learned courts below, by which his claim was rejected. 4. The matter arises out of Title Suit no.30 of 1985 which was filed by the sole plaintiff-appellant for declaration of his right, title and interest in the suit land measuring four kathas and also for confirmation of possession and alternatively delivery of possession in case of dispossession and for other ancillary reliefs including injunction. 5. The said title suit was dismissed on contest by the learned Subordinate Judge I, Biharsharif, Nalanda vide his judgment and decree dated 09.04.2003. Against the aforesaid judgment and decree of the trial court, the plaintiff-appellant filed Title Appeal no.8 of 2003 which was also dismissed on contest by the learned District Judge Nalanda, vide his judgment and decree dated 07.06.2007. 6. From the arguments of learned counsel for the parties as well as the materials on record including the impugned - 3 - judgments and decree of the learned courts below, it transpires that the claim of the plaintiff was that the plaintiff as well as defendants no. 1 to 10 were agnates and descendants of Umrao Singh who was their ancestors and had two sons, namely, Fakira Singh and Damari Singh. The plaintiff as well as defendants no. 7 to 14 are the descendants of Fakira Singh whereas defendants no. 1 to 6 were the descendants of Damari Singh. It was also claimed that the suit land belonged to the ancestor of the parties who were raiyats of ex-intermediary and after partition the suit land came to the share of the plaintiff which was fully proved by materials on record and hence the plaintiff was fully entitled to the reliefs claimed by him. 7. The point raised by the learned senior counsel for the appellant was very ably supported by learned counsel for respondents no.12 to 14 but was contested by learned counsel for respondent no.6. 8. However, both the learned courts below after considering the matter in detail and also after appreciating the respective pleadings and evidence of the parties came to the specific conclusion that the plaintiff had failed to bring any document showing his title over the suit land and furthermore, none of the witness of the plaintiff except PW2 and PW3 supported his claim. It may be noted that out of the said two witnesses, PW3 was the plaintiff himself and PW2 was his brother- in-law. 9. Although the plaintiff-appellant had claimed that he was the raiyat of the ex-intermediary and continued in possession even after vesting of Zamindari, he could not produce any document to prove - 4 - his said claim except a few Zamindari receipts, Register II of 1968 and a few government receipts . Had the plaintiff been the raiyat of the ex- intermediary, the latter must have submitted Return in his name at the time of vesting of zamindari but neither any return has been produced nor any effort appears to have been made to bring the same on record nor any Jamabandi on the basis of such return had been produced by the plaintiff, nor even Register D could be produced to show that plaintiff’s ancestors were raiyats of ex-intermediaries. 10. Furthermore the plaintiff had clearly admitted that there was a partition between two branches of Umrao Singh much prior to the cadastral survey khatiyan of 1910 and the said partition was quite apparent from the said khatiyan but the suit land being unsurveyed land had not been shown in the said survey khatiyan and hence there was no material at all to show that the suit property was also raiyati land of the family and was ever partitioned between the two branches. In the said circumstance, the learned courts below rightly came to the conclusion that since the plaintiff was raising issue of title and possession, onus was squarely upon him to prove it by valid material but he miserably failed to prove his claim by any valid evidence either oral or documentary. 11. Furthermore, register II of 1968 and some government receipts can not conclusively prove even possession of the plaintiff much less his title over the suit land and hence those documents cannot legally be basis of his title in absence of any legal and valid document proving his title. On the other hand, contesting defendants - 5 - had produced exhibit D which was also proved by the plaintiff as exhibit 8/B which is a sale deed dated 31.10.1935 executed by the admitted landlord of the Tauzi in favour of the father of defendant no.1 with respect to the suit property. The defendants claimed that it was a deed of absolute sale in favour of father of defendant no.1 whereas the plaintiff claimed that only the interest of tenure holder had been transferred and not title over the said property and hence by the said document the father of defendant no.1 was given right only to collect rent and the said document did not confer any title upon the father of defendant no.1. This point is not relevant to be decided at present as the defendants had not come forward to claim their title over the suit land rather it was the plaintiff who had filed the suit claiming his title over the suit land and the said document (Exhibit 8/B and Exhibit D) does not at all show that there was any raiyat over the land which was subject matter of the deed nor the name of any person of the family of the plaintiff was mentioned as a raiyat 12. In the said circumstance, the said document is not of any help for the plaintiff whose claim has to stand on his own leg and he can not legally succeed due to any weakness in the claim of the defendants. So far as the alleged admission of the defendants in the proceedings under section 133 or section 145 of the Code of Criminal Procedure is concerned, it can not legally be a substitute of a document of title and merely on its basis the claim of the plaintiff can not be allowed specially when he has miserably failed to prove his right, title, interest and possession over the suit land by any cogent, reliable and - 6 - valid evidence. 13. In the aforesaid facts and circumstances, the learned courts below were quite justified in rejecting the claim of the plaintiff and 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. (S.N.Hussain,J) shahid