APPEAL FROM APPELLATE DECREE NO. 330 OF 1995 ------ Against the judgment and decree dated 08.12.1995 passed by Shri H.B.P. Sinha, Ist Additional District Judge, Buxar in Title Suit No. 60 of 1986, arising out of the judgment and decree dated 02.08.1986passed by Sri Ramgati Sharma, Ist Munsif, Buxar in Eviction Suit No. 01 of 1985. ------ 1(a). Most. Kusum Bala Devi, wife of late Kedar Prasad 1(b). Rajesh Kumar 1(c). Pankaj Kumar 1(d). Rajeev Kumar 1(e). Avinash Kumar Nos. 1(b) to 1(e) sons of late Kedar Prasad 1(f). Rita Chaurasia 1(g). Nisha Kumari Both daughters of late Kedar Prasad All residents of village +P.O. Purana Bhojpur, P.S. Dumraon, District Buxar. 2. Rita Dev I, wife of late Rameshwar Prasad 3. Chunni Kumari, 4. Shweta Kumari 5. Jyoti Kumari 6. Suman Kumari Respondents no. 3 to 6 minors through their guardian and mother Rita Devi, w/o late Rameshwar Prasad. Nos. 2 to 6 residents of village Chougain, P.S. Murar, at present Purana Bhojpur, P.S. Dumraon, District Buxar …Plaintiffs-Respondents-Appellants. Versus 1. Sita Ram Yadav 2. Sheo Kumr Yadav Both sons of late Chandrika Yadav 3(a). Sheo Kumar Devi, wife of late Sri Ram Yadav 3(b). Sarbjit Singh 3(c). Daljit Singh Both sons of late Sri Ram Yadav All residents of village +P.O. Purana Bhojpur, P.S. Dumraon, District Buxar …. Defendants-Appellants-Respondents. ……… For the appellants : M/s Kamal Nayan Chaubey, Sr. Advocate, Ambuj Narayan Chaubey, Sidharth Harsh, Nikesh Kumar and Mrs. Ritu Priyadarshini, Advocates. For the Respondents : M/s Raghib Ahsan, Sr. Advocate and Om Prakash Upadhyay, Advocate. ------ 2 P R E S E N T HON’BLE MR. JUSTICE S. N. HUSSAIN ……….. S. N. Hussain, J. Heard learned counsel for the appellants and learned counsel for some of the respondents. 2. This second appeal has been filed by plaintiffs- respondents-appellants against the judgment and decree of the learned court of appeal below, by which the judgment and decree of the trial court was set aside and the suit and claim of the plaintiffs was rejected. 3. The matter arises out of Eviction Suit No. 01 of 1985, which was filed by the predecessor in interest of the appellants against the respondents with respect to the suit premises, namely, 3 kathas in plot no. 1407, khata no. 367 in village Bhojpur Kadim under Dumraon Police Station within the district of Bhojpur for the following reliefs :- (a) A decree of eviction of the defendants from Schedule-II properties of the plaint; for delivery of possession in favour of the plaintiffs and for arrears of rent detailed in Schedule- III of the plaint. (b) A decree of future rent till dispossession of the defendants. (c) Any other relief to which the plaintiffs are entitled to. 4. The plaintiffs had claimed the aforesaid reliefs on the basis of their claim that the entire plot no. 1407 (Schedule-II) appertaining to khata no. 367 measuring situated in village Bhojpour under Dumraon Police Station within the district Bhojpur originally belonged to Maharaja of Dumraon, who sold the same along with other properties in favour of M/s Dumraon Property Enterprises Private Limited, Dumraon by a registered 3 deed dated 15.10.1963 (Ext.4/A) and the plaintiffs were residing in the suit premises as tenants, which is apparent from the receipts (Ext. 2 series ). They further claimed that their father Sheo Pujan Ram had purchased 40 decimals of land (Schedule 1) of plot no. 1407, appertaining to khata no. 367 of village Bhojpur, P.S. Dumraon, District Bhojpur from M/s Dumraon Property Enterprises Private Limited, Dumraon vide registered deed dated 15.07.1975 (Ext. 4) and came in exclusive possession as absolute owner thereof. It was also claimed that after death of their father, the plaintiffs came in possession of the said property and on the insistence of the defendants gave 3 Kotharis as mentioned above (Schedule-II) on rent of Rs.40.00 per Kothari to the defendants on 01.02.1983 and, thereafter, the defendants started their business in the said premises and paid rent of the said premises in the months of February, March and April, 1983 but, thereafter, stopped payment of rent from May, 1983 on one pretext or the other and from May, 1983 till February, 1985 the arrears of rent came to Rs.2,520.00 (Schedule-III). They also claimed that the plaintiffs’ business of foodgrain started dwindling and they required the suit premises, which is situated at the crossing of a commercial area for starting other business for maintenance of their family and they requested the defendants to vacate the suit premises, but the defendants refused to do so even after Advocate’s notice dated 19.02.1985 sent to the defendants by post. Hence, the aforesaid suit was filed by the plaintiffs for eviction of the defendants on the ground of default in payment of rent by the defendants and bona fide personal requirement of the plaintiffs. 5. The defendants contested the claim of the plaintiffs claiming that plot no. 1407 was a portion of C.S. Plot no. 2721 measuring 4 2.11 acres, which was gairmazarua aam Bhind Pokhar and hence the ex- landlord, namely, Mahraja of Dumraon had no right to transfer the same after January, 1946 as per the provisions of section 4H of the Bihar Land Reforms Act nor any company named M/s Dumraon Property Enterprises Private Limited, Dumraon is in existence or had any right and title over the suit property. It was also claimed that after vesting of Zamindari, the said plot remained as gairmazarua aam land under the care and existence of Gram Suraksha-awam- and Vikas Samiti. The father of the defendants constructed a kutcha house over 3 decimals of land adjacent to west to the road and started running a shop, for which purpose they constructed three brick-rooms 15-20 years ago and are living in the same as well as running a tea shop in the front portion and had remained in possession for about 35 years and had acquired title over the same by adverse possession also. They further claimed that the plaintiffs did not acquire any right, title and possession from either the Maharaja of Dumraon or from M/s Dumraon Property Enterprises Private Limited, Dumraon nor had ever been in possession of the suit premises nor even there was any relationship of landlord and tenant between the parties as the defendants remained in possession of the suit premises in their own right and hence there was no question of any default in payment of rent by the defendants or any bona fide personal requirement of the plaintiffs. 6. On the basis of the aforesaid pleadings of the parties, the learned trial court at the instance of the parties to the suit framed the following issues for deciding the suit :- (i) Have the plaintiffs got valid cause of action for the suit ? (ii) Is the suit as framed maintainable ? 5 (iii) Is the suit hit by principle of estoppels, waiver and acquiescence ? (iv) Is the suit barred by law of limitation ? (v) Is the suit bad for defect of parties ? (vi) Is the suit hit by section 34 of the Specific Relief Act ? (vii) Is the court fee paid sufficient ? (viii) Whether the defendants are tenants of the plaintiffs ? (ix) Are the plaintiffs entitled to a decree for eviction and realisation of arrears of rent as claimed ? (x) To what other relief or reliefs, if any, are the plaintiffs entitled to ? 7. On the aforesaid issues evidence were led and arguments were made on behalf both the parties and after considering the same the learned Munsif-I, Buxar decreed the suit on contest and directed the defendants to give vacant possession of the suit premises to the plaintiffs within three months and to pay the arrears of rent and rent pendente lite as well as future rent at the rate of Rs.120.00 per month vide his judgment and decree dated 02.08.1986 after arriving at the following findings :- (i) The suit land was recorded as gairmazarua aam land in the old survey khatian, but the nature of the suit land has changed as it is now no more fit for public use. (ii) In the recent survey the suit plot is recorded in the name of ex- landlord, which has never been challenged and hence remained the land of Dumraon Maharaj after vesting, whose possession was also recorded in the old survey khatian. 6 (iii) The suit plot measures only 40 decimals, which is a portion of a gairmazarua aam old survey plot and the claim of construction over the same by Dumraon Maharaj is also established from the materials on record. (iv) From the evidence on record, specially the deposition of the Mukhiya of the village, it is quite apparent that the suit land was not used by the people of the village nor any customary right of the village was effected nor any fair etc. was held over the suit premises. (v) In case of applicability of section 4(H) of the Bihar Land Reforms Act (hereinafter referred to as `the Act’ for the sake of brevity ), the Collector under the Act is empowered to take steps for cancellation with respect to Kachahri land if the settlement is illegal buy no such step had ever been taken either by the Collector or by the State of Bihar, rather rent receipts were being granted to the ex-landlord. (vi)Under section 5 of the Act, the homestead land in possession of the landlord is deemed to have vested in him and in the said circumstances rent was fixed in the name of Maharaja Dumraon (ex-landlord) and receipts were granted to him, and even to the vendee of the ex-landlord and, thereafter, to the transferee of the said vendee, but the same was never challenged by any body. (vii) Gram Vikas-ewam-Suraksha Samiti is neither a statutory body nor it has any right to settle or alienate any land, even of the Government, to any body nor even there is any chit of paper to 7 show any such settlement by the Samiti in favour of the defendants. (viii) The defendants have failed to establish any construction of room made by them over the suit land by any reliable and consistence evidence. No chit of paper has been produced by the defendants to show that the suit land belonged to them except papers regarding electric connection but those documents were also created after the institution of the suit. Moreover electric connection cannot be a proof of title as even tenants can get electric connection. (ix) Plaintiffs have produced reliable evidence to prove their title and possession over the suit premises. (x) The suit land and rooms are part and parcel of the purchased land of the plaintiffs and they are owners of the same. The defendants are tenants of the plaintiffs and are defaulters in payment of rent for more than two months, hence they are liable to be evicted from the suit premises and for realisation of arrears of rent. (xi) The incidental finding regarding title is given as the defendants had raised question of title and hence the suit will be governed by the Bihar Buildings ( Lease, Rent & Eviction ) Control Act, 1982 and sufficient court fee has been paid by the plaintiffs for the same. (xii) In view of the nature of the case, neither the suit has been filed in the representative capacity nor the suit is hit by section 34 of 8 the Specific Relief Act. There is no defect in the frame of the suit and the same is maintainable. The plaintiffs are entitled for the reliefs claimed by them. 8. Against the aforesaid judgment and decree of the trial court, the defendants filed Title Appeal No. 60 of 1986 and after considering the respective claims of the parties, the learned court of appeal below did not frame any specific issue for deciding the suit and in paragraph no.5 of the judgment it held that there was only one point of consideration in the appeal: “whether the impugned judgment and decree is fit to be confirmed”. 9. On the aforesaid issue, both the parties were heard and the learned court of appeal below allowed the appeal, set aside the judgment and decree of the trial court and rejected the claim and suit of the plaintiffs on contest vide its judgment and decree dated 08.12.1995 after arriving at the following findings :- (a) It cannot be said that no title was created to plaintiffs- respondents by virtue of sale-deed (Ext. 4). (b) The power under section 4(H) of the Bihar Land Reforms Act, 1950 has been vested with the Collector of the district and not to any other person or public in general and hence no objection can be raised by the defendants specially when the State of Bihar had already acknowledged the transfer by the ex-landlord, which is evident from the rent receipts. (c) Section 4 of the said Act as well as 1985 B.L.J. 435 (FB) relied upon by the defendants is not applicable to the instant 9 case. Admittedly on the date of final publication of revisional survey khatian, the Maharaja had no concern with the suit land and hence the R.S. khatian (Ext.5) in the name of the Maharaja is of no help to plaintiffs-respondents as it did not support their possession. The documents produced by the plaintiffs have nothing to do with the physical possession of the plaintiffs over the suit premises and the orders of the Assistant Consolidation Officer ( Exts. 7 series ) simply show that the name of the father of the plaintiffs was entered on the basis of sale-deed (Ext.4) and that of the plaintiffs on the basis of previous order after the death of their father. (d) Admittedly no Kiraynama existed between the plaintiffs and the defendants and there is no evidence on record to show that there is any relationship of land lord and tenant between the parties. (e) There is no evidence with regard to the title of the defendants acquired from the rightful owner by transfer. (f) From the evidence, it is clear that the defendants had produced evidence on the point of their possession since more than several 12 years, which is reliable. (g) Chaukidari receipts and electric bills are of no help to the defendants. (h) Though the plaintiffs have got valid title to the suit land, but 10 they have failed to establish the relationship of land lord and tenant between the parties. (i) Defendants have proved that they have been coming in possession of the suit premises since several 12 years and hence they have already acquired title by adverse possession. 10. Against the aforesaid judgment and decree of the learned court of appeal below, the plaintiffs filed the instant second appeal, which was admitted vide order dated 08.09.1997 after formulating the following substantial question of law :- (i) “ Whether the appellate court, while reversing the judgment of the trial court, has taken note of the reasonings given by the trial court specially the reasonings about the documents, which have been relied upon by the appellate court, which were not considered by the trial court on the ground that those documents were created during the pendency of the suit?’’ 11. At the time of hearing of the second appeal, learned counsel for the appellants had also raised the following questions claiming them to be substantial questions of law :- (ii) “Whether without there being an issue framed in the suit relating to adverse possession the learned court of appeal below could allow the appeal and set aside the judgment and decree of the trial court on the ground that the defendants have acquired title by adverse possession ?” (iii) “Whether in the absence of any cogent evidence of adverse possession or any such evidence constituting adverse possession against the plaintiffs, the appeal could have been allowed by the learned lower appellate court ?” (iv) “Whether in view of the admitted position that the claim of permissive possession is confined to Bhojpur Gram Suraksha- ewam-Vikas Samiti only there could be any claim of adverse possession against the plaintiffs-appellants ?” (v) “Whether in the facts of the instant case, the relationship of 11 landlord and tenant as has been found out by the trial court could be set aside by the learned court of appeal below without considering the relevant evidence on record ?” 12. On the basis of the aforesaid questions raised on behalf of the appellants (plaintiffs), their learned counsel challenged the judgment and decree of the court of appeal below. He further stated that the defendants, while denying the claim of the plaintiffs, had stated that during old survey proceeding the suit land was recorded as gairmazarua aam bhind pokhar, hence no one had any authority to transfer the same, but in the same breath the defendants had claimed that the suit premises was given to them by Gram Suraksha-ewam- Vikas Samiti 15-20 years back, whereafter, they constructed rooms for residence and business therein. It was also stated that neither there was any evidence adduced by the parties or issues framed by the courts below regarding Gram Suraksha-ewam-Vikas Samiti or regarding adverse possession of the defendants, but inspite of that the lower appellate court gave specific findings with respect thereto. It was also averred by learned counsel for the appellants that most of the findings of the trial court were affirmed by the court of appeal below, but only in one paragraph i.e. paragraph no.19, the lower appellate court decided the entire matter against the plaintiffs holding that neither the plaintiffs proved their possession over the suit premises till 01.02.1983, on which date it was let out to defendants- appellants nor did they prove relationship of landlord and tenant between the plaintiffs and the defendants, whereas, on the other hand, the defendants proved transfer in their favour by Gram Suraksha-ewam-Vikas Samiti and their possession since more than 12 years, as a result of which they acquired title by adverse possession. 12 13. Learned counsel for the appellants (plaintiffs) also averred that adverse possession means holding possession under a claim of title in consistent to the title of other side. But here the claim of title of the defendants is from Gram Suraksha-ewam- Vikas Samiti, which clearly can have no right, title or interest in the suit property . He further stated that the plaintiffs’ title being denied by the defendants, adverse possession cannot be claimed by them, nor their claim of adverse possession can be upheld in absence of any claim or finding with regard to the date of dispossession and possession becoming adverse. It was also claimed that long possession can never legally be deemed to be adverse possession and furthermore neither any pleading nor any evidence having been adduced on the question of adverse possession nor any such issue having been framed by the courts below, the finding of the court of appeal below with respect thereto was perverse. 14. Lastly learned counsel for the appellants (plaintiffs) stated that the court of appeal below while reversing the judgment and decree of the trial court with respect to the question of relationship of landlord and tenant between the parties as well as the question of adverse possession completely ignored Ext. 5, Ext.7 series, Ext. 2 series and Ext. 4 (recital of sale-deed in 1975 in favour of the plaintiffs) as well as P.Ws. 2, 3, 4, 5, 6 and 14, which were exclusively on the point of plaintiffs’ possession and relationship of landlord and tenant between the parties, on the basis of which the learned trial court had decreed the suit. It was averred that in any view of the matter since both the learned courts below had found the plaintiffs’ title over the suit premises, the provision of Order VII Rule 7 of the Code of Civil Procedure 13 should have been made applicable by the court of appeal below. 15. On the other hand, learned counsel for the respondents (defendants) vehemently opposed the contention of learned counsel for the appellants and stated that the court of appeal below had considered all the pleadings and evidence of the parties. It was also stated that the findings of both the courts below regarding title of the plaintiffs are wrong and illegal as the suit land was a gairmazarua aam bhind pokhar as shown in the cadestral survey khatian (Ext. E). Hence, in effect, learned counsel for the respondents challenges a part of the impugned judgment and decree of the court of appeal below without filing any appeal against the same and without filing any cross objection/appeal in the instant second appeal. 16. It is also claimed by learned counsel for the respondents (defendants) that the revisional survey khatian (Ext. 5 ) was published under section 103A of the Bihar Tenancy Act, 1985 and no final publication under section 103 B of the Act was made, hence it had no presumption of correctness and furthermore the said Ext. 5 has been rightly rejected by the court of appeal below on another ground that since the Maharaja of Dumraon had already sold the land to M/s Dumraon Property Enterprises Private Limited, Dumraon vide sale-deed dated 10.10.1963 (Ext. 4A), the entry in the said khatian prepared thereafter was wrong. He further averred that the ex-intermediary, namely, the Maharaja of Dumraon did not make any transfer till the vesting of the Zamindari in the State of Bihar under the Bihar Land Reforms Act, 1950, but he transferred the land in question to M/s Dumraon Property Enterprises Private Limited, Dumraon on 10.10.1963 when the land had already vested in the State of Bihar in the year 1956, hence 14 the said transfer cannot be said to be legal and valid and the court of appeal below rightly rejected the rent receipts (Ext. 2 series) of the plaintiffs. It was also averred that the orders of the consolidation authorities (Ext. 7 series) were not legal and proper as they had no jurisdiction to decide the issues as per section 10(3) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 and hence the lower appellate court was quite justified in ignoring the same. It was also averred that the court of appeal below has considered all the relevant evidence on record and ignored only the formal and irrelevant evidence. 17. Learned counsel for the respondents also argued that the main issue in such matters is the relationship of landlord and tenant between the parties and the said main issue has been decided by the lower appellate court by considering the relevant pleadings and evidence of the parties in detail and in accordance with law and hence the said finding being finding of fact of the final court of fact, this Court cannot interfere with it under the provision of section 100 of the Code of Civil Procedure. 18. After considering the arguments of both the parties and after perusing the materials on record, including the judgments and decree of the courts below, this Court finds that both the parties do not dispute the fact that the suit land originally belonged to the Maharaja of Dumraon. 19. However, the dispute arises regarding the facts subsequent to vesting of the Zamindari in the State of Bihar under the Bihar Land Reforms Act, 1950 as the claim of the plaintiffs (appellants) was that although the said suit land was recorded in the cadestral survey khatian (Ext. E) as gairmazarua aam bhind pokhar, but the nature of the land subsequently 15 changed to home-stead and remained in khas possession of the said ex- landlord, who remained in possession thereof even after vesting of the Zamindari in the year 1956 under the Bihar Land Reforms Act, 1950, whereafter his name was duly recorded and receipts were issued to him and even the revisional survey khatian was prepared in his name and hence transfers made by him in favour of his transferee were legal