IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.186 of 2005 KAUSHALYA DEVI & ANR. Versus BRAHMADEO RAI & ORS. For the appellants : M/s Ganpati Trivedi, Dev Kumar Pandey and Baccha Pandey, Advocates. For respondent no.1 : M/s Mahesh Narayan Parbat and Sanjay Kr. Jha, Advocates. ----------- 05/ 02.09.2008 Heard learned counsel for the parties. This second appeal has been filed by defendants-appellants- appellants challenging the judgments and decree of both the learned courts below. The matter arises out Title Suit No.27 of 1990(152 of 1998), which was filed by plaintiff-respondent-respondent no.1 for permanent injunction restraining the defendants from interfering with the possession of the plaintiff and for other ancillary reliefs. The said suit was decreed by the learned second Additional Munsif, Chapra vide judgment and decree dated 25.02.1999, which was challenged by the defendants 1st parties in Title Appeal No.44 of 1999, which was dismissed by the learned Additional District Judge-cum-Fast Track Court No. IV, Saran vide his judgment and decree dated 30.04.2005. Against both the judgments and decree of the learned courts below, the instant second appeal has been filed. The admitted case of the parties is that one Raghunath Prasad and Kameshwar Prasad were earlier the raiyats of the suit land and the ex-intermediary was Bahuria Phulpati Kuer, who filed Rent Suit 2 No.1745 of 1943 against the said raiyats and the said rent suit was decreed whereafter Execution Case No.645 of 1946 was levied and in the auction sale the ex-landlord herself purchased the suit land and resumed possession thereof, as the delivery of possession is said to have affected on 02.12.1949. The case of the plaintiff was that after the said purchase, the ex- intermediary Bahuria Phulpati Kuer settled the land with the father of the plaintiff, which was followed by Hukumnama dated 14.12.1949(Ext.2) whereafter Zamindari receipts (Exts.1/L and 1/M) were issued to him. It was further claimed by the plaintiff- respondent that Jamabandi was wrongly created in the name of the said Raghunath Prasad and Kameshwar Prasad, although after the auction sale they had no right or title over the said property nor return submitted by Gagandeo Narayan Singh, was legal and proper and hence, Jamabandi was corrected by authority concerned and the suit land was recorded in the name of the father of plaintiff in Jamabandi Case No. 51 of 1960-1961 and since then Jamabandi was running in the name of the father of plaintiff and rent for the suit land was paid by the father of the plaintiff and after him the rent was being paid by the plaintiff whereafter the suit premises had also been partitioned. On the other hand, the claim of the defendants-appellants is that in the year 1950 the Zamindari of Bahuria Phulpati Kuer was taken over by Gagandeo Narayan Singh and he submitted return in the name of the said Raghunath Prasad and Kameshwar Prasad and on 3 the basis of the said return Jamabandi was created in the name of Raghunath Prasad and Kameshwar Prasad, who subsequently sold the suit land to the defendants-appellants on 03.04.1956. It is also their case that when Zamindari was taken over by Gagandeo Narayan Singh in the year 1950, Bahuria Phulpati Kuer had no right to issue receipts in favour of the father of the plaintiff as one of the receipts produced, namely, Ext.1/M is of 1952 whereas the other receipt Ext.1/L is of 1949. It was also claimed that once Jamabandi was created, the subsequent correction of the said Jamabandi was absolutely illegal and unauthorized and was not justified. After considering the averments of the parties and materials on record, it is quite apparent that the purchase of suit property in auction by the ex-landlord Bahuria Phulpati Kuer from the earlier raiyats, Raghunath Prasad and Kameshwar Prasad is not in dispute. Furthermore, the settlement and Hukumnama dated 14.12.1949 executed by Bahuria Phulpati Kuer in favour of the father of plaintiff is also fully proved. In the said circumstances, there was no occasion for Gagandeo Narayan Singh, who is said to have taken over the Zamindari much subsequently in the year 1950, to submit any return in the name of Raghunath Prasad and Kameshwar Prasad as they had neither remained the raiyat of the suit property after auction sale in the execution of the decree of the rent suit nor there is any material on record to show that any settlement was ever made in their favour by anyone subsequently. In the aforesaid facts and circumstances, the return being 4 absolutely frivolous, the Jamabandi created on its basis was also not legal and proper and was fit to be corrected. On the said grounds the learned courts below had rightly come to the conclusion that the said Raghunath Prasad and Kameshwar Prasad had no title or possession nor they had any right to execute a sale deed on 03.04.1956 in favour of the defendants-appellants, who acquired no right or title or possession on its basis. It may further be noted that Jamabandi was created thirty years before the filing of the suit in Jamabandi Case No. 51 of 1960-1961 whereafter the name of the plaintiff’s father was mutated and rent receipts were issued to him whereas there was no material to show that the defendants-appellants ever paid any rent to the State of Bihar or took any step in that regard. In the aforesaid facts and circumstances, the learned courts below had concurrently found that the plaintiff was in possession of the suit land and the defendants-appellants had no manner of any claim, right, title or possession over the suit land. In the aforesaid facts and circumstances, this court does not find any illegality in the 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. harish/ ( S.N.Hussain, J.)