IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.262 of 2007 1. Jagdeo Parit son of late Naubat Parit 2. Deo Pujan Parit 3. Rampujan Parit both sons of late Mahendra Parit 4. Panmati Devi D/o late Mahendra Parit All resident of Village Madhwapur PO Harsar via Duraunda P.S. Pachrukhi Dist. Siwan Plaintiffs- Appellants- Appellants Versus 1. Indar Pandit s/o late Dhora Pandit 2. Jawahar Sah s/o Gharbharan Sah 3. Krishna Pandit s/o Ganesh Pandit 4. Saraswati Devi d/o Ganesh Pandit 5. Jagia Devi w/o Ganesh Pandit 6. Bankey Lal s/o late Brahmadeo Bhagat Defendants – Respondents-Respondents Ist Party 7. Daroga Choudhary 8. Hare Ram Choudhry 9. Shambhu Choudhry 10. Prabhunath Choudhary All sons of late Sadhu Choudhary 11. Uma Devi 12. Asha Devi 13. Sona Devi 14. Dahanmati Devi All daughters of late Sadhu Choudhary resident of Village Madhwapur PO Harsar via Duraunda P.S. Pachrukhi Dist. Siwan 15. Kapildeo Choudhary s/o late Sheo Bachan Choudhary 16. Mandodari Devi 17. Chanmatia Devi 18. Lalmati Devi All daughters of late Sheo Bachan Choudhary resident of Village Madhwapur PO Harsar via Duraunda P.S. Pachrukhi Dist. Siwan 19. Baban Choudhary s/o late Ganga Bisun Choudhary resident of Village Madhwapur PO Harsar via Duraunda P.S. Pachrukhi Dist. Siwan 20. Sheonandan Choudhary s/o Tilakdhar Choudhary Mukhiya Mandrapali Gram Panchayat resident of Village Madhwapur PO Harsar via Duraunda P.S. Pachrukhi Dist. Siwan Defendants – Respondents-Respondents 2nd Party --------------- For the appellants: Mr Binod Kumar Singh, Advocate ------------------- 11/ 15.03.2010 I.A.No.1713 of 2010 has been filed on 19.02.2010 on behalf of the appellants for substituting the heir of appellant no.1 Jagdeo Parit who is said to have died on 06.01.2010 leaving behind a son Baleshwar - 2 - Parit @ Baleshwar Pandit as his sole heir and legal representative. The said interlocutory application is well within the statutory period of limitation and is also accompanied by a duly executed vakalatnama on behalf of the proposed heir. Accordingly, the said interlocutory application is allowed. Let the aforesaid heir of appellant no.1 be substituted in his place. 2. Heard learned counsel for the appellants. 3. This second appeal has been filed by the transposed plaintiffs- appellants-appellants challenging the judgments and decree of both the learned courts below. 4. The matter has a very interesting history as originally Title Suit no.315 of 1979 was filed by the six original plaintiffs who are respondents-respondents Ist set in the instant second appeal against six original defendants whose heirs are respondents 2nd set in the instant appeal for declaration that the entire plot no. 260 measuring 5 kathas 8 dhurs was a public Rasta and the said defendants were interfering with the same. However, subsequently the aforesaid original plaintiffs and original defendants entered into a compromise but before the said compromise could be recorded by the trial court the instant appellants intervened and were impleaded as defendant nos. 7 and 8 and subsequently vide order dated 04.02.1983 the said newly added defendant nos. 7 and 8 ( appellants to the instant second appeal) were transposed to the category of the plaintiffs and original plaintiffs were transposed to the category of the defendants. After the said transposition the newly added plaintiffs discarded the plaint of the original plaintiffs and raised their claim as per their written statement claiming declaration of title over 4 kathas of plot no.260. It further transpires - 3 - that thereafter the original plaintiffs who were transposed as defendants did not contest the suit and only the original defendant Sadhu Chaudhary contested the claim of the newly transposed plaintiffs. 5. The said suit and claim of the transposed plaintiffs was rejected by the learned Munsif V, Siwan vide his judgment and decree dated 22.12.1989 dismissing the Title Suit No.315 of 1979 on contest. Against the aforesaid judgment and decree of the learned trial court, the transposed plaintiffs -appellants filed Title Appeal no.3 of 1990 which was also dismissed by the learned Additional District Judge-cum- Fast Track Court no. III, Siwan, vide his judgment and decree dated 03.09.2007. 6. The aforesaid judgments and decree of the learned courts below have been challenged by the transposed plaintiffs-appellants in the instant appeal on the ground that the learned courts below considered admission of only contesting defendant no.1 who supported the claim of the plaintiffs and that the real controversy as to whether the plaintiffs were entitled to entire plot no.260 or over only 4 kathas or it was a Rasta had not been decided by the learned courts below and that no new written statement can be allowed in accordance with law from the same defendants. 7. Although the suit was filed by the original plaintiffs who were transposed as defendants for declaration that the entire plot no. 260 was a Rasta but the moment the said original plaintiffs were transposed as defendants and the intervenors were transposed as plaintiffs who discarded the relief sought by the original plaintiffs and introduced new relief, the issue regarding the suit plot being Rasta had ended and only the relief to be considered in the suit was as to whether the transposed plaintiffs had right, - 4 - title, interest and possession over 4 kathas of plot no. 260 as claimed by them. 8. In the said circumstance, the suit was merely a declaratory suit and in such suit onus is entirely upon the transposed plaintiffs to prove their title with respect to their right, title, interest and possession over 4 kathas of plot no. 260. In support of their contentions the plaintiffs-appellants had claimed that their ancestor Dasrath Kumhar along with others was recorded in the old Khatiyan in the Kaifiyat column as being in possession of plot no.260. It was also claimed that on 20 Baisakh 1346 FASLI the settlement of 4 kathas of plot no. 260 was made in their favour by the Karinda of the Ex- landlord, but in support of the said claim the plaintiffs could not produce any document of title or possession such as Hukumnama , Zamindari receipts, Return submitted by the Ex-intermediatory at the time of vesting Zamindari in the State of Bihar under the Bihar Land Reforms Act, Jamabandi, mutation or government rent receipts. In the said circumstances, the plaintiffs could not substantiate their claim of title and possession over the said 4 kathas of plot no. 260 by any valid material and hence the learned courts below were quite justified in rejecting their claim. 9. So far the question of admission of defendant no.1 with regard to title of the transposed plaintiffs-appellants is concerned, it is quite apparent from the record that the said defendant-respondent no.1 was claiming l kahta 7 dhurs out of plot no.260 which totally measured 5 kathas 8 dhurs of land on the basis of Hukumnama dated 16.10.1940 by the said ex- intermediatory but he could not also produce any other document to substantiate their claim. It is important to note that none of the said parties tried to show as to in whose name plot no. 260 was standing specially when - 5 - it was earlier recorded as Gairmajarua land. In the said circumstances, it is quite apparent that out of total area of 5 kahtas 8 dhurs of plot no. 260, the transposed plaintiffs are claiming 4 kathas whereas contesting defendant is claiming l katha 7 dhurs and by the mutual admission with respect to the claim of other sides they are trying to take the entire plot without proving their right, title and interest in the same. In the said circumstance, there was no occasion for placing any reliance upon admission of the contesting defendant specially when the suit was only for declaration of title. 10. So far the question of new written statement is concerned, it is quite apparent that the earlier claim of the original plaintiffs was completely different and after transposition of the original plaintiffs as defendants and transposition of defendant no.7 and 8 as plaintiffs the scenario has completely changed as the claim of the transposed plaintiffs had changed and in that view of the matter a fresh written statement had to be filed. Furthermore, the statement made in the written statement would have no real impact upon the claim of the newly transposed plaintiffs as the suit being declaratory in nature, onus was squarely upon them to prove their title in which they miserably failed. 11. In the aforesaid facts and circumstances, 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. shahid (S.N.Hussain, J) - 6 -