IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.376 of 2004 NATHUNI SINGH @ NATHUNI PRASAD Versus NANDAN PRASAD SINGH & ORS ----------- 4/ 18-07-2008 Heard learned counsel for the appellant. This second appeal arises out of Title Suit No. 79 of 1978 (71 of 1993) which was filed by the plaintiffs/ respondents for declaration of their title and recovery of possession with respect to the suit land along with other ancillary reliefs. The suit was decreed by the learned IVthe Munsif , Chapra by judgment and decree dated 1.8.1994 which was challenged by the defendants in Title Appeal No.95 of 1994 (8 of 1997) which was dismissed by the learned IXth Additional District Judge, Saran at Chapra by judgment and decree dated 30.08.2004. The said judgments and decree are challenged by the defendants/ appellants in the instant Second Appeal. The claim of the plaintiffs is based upon alleged mortgage deed of 1950 executed by the ancestors of the plaintiffs in favour of the father of the defendants, whereas the claim of the defendants is based on alleged settlement by State in favour of the defendants in the year 1962. In proof of their contentions the plaintiffs had produced mortgage deed ( Ext. 2 ) supported by a deed of disclaimer ( Ext. 1), Register-II ( Ext. 3), order of Circle Officer ( Ext. 4), Khewats ( Exts. 5 and 6) and certified copy of khatians ( Exts. 7 series) apart from the witnesses. On the other hand, although the defendants had based their claim on the settlement made by the State in their favour in the year 1962 but no document with respect to any 2 settlement has been produced and they are basing their claim only on some rent receipts ( Ext. A Series). The learned court below after considering the entire materials on record came to specific findings that the defendants cannot derive any right and title merely by getting Jamabandi opened in their names or paying some rent to the State of Bihar, specially when they had found on scrutinizing Register-II and the rent receipts, which were filed by the defendants , that on account of cuttings and overwriting these papers did not inspire confidence. It was also held that the plaintiffs on the other hand have succeeded in proving the genuineness and validity of the mortgage deed and the status of the defendants to be that of mortgagee in the capacity of which they continued in possession of the suit land but the defendants on the other hand were not able to displace their said status by any cogent and convincing, oral and documentary evidence. It was also found by the learned lower appellate court that on vesting raiyati right was created in the plaintiffs, but the defendants being mortgagee did not take his recourse under section 14 of the Act to recover the mortgage money from the mortgagor within stipulated time and continued to hold the mortgaged land. It was also found that even assuming that the defendants paid rent to the State of Bihar for the mortgaged land, the same cannot confer any title on them rather their payment of rent to the State of Bihar would be deemed to be on behalf of the plaintiff who was a settled raiyat in view of the provisions of section 6 of the Act. It was also held by the learned courts below that the father of the defendants accepting the title of the 3 plaintiffs over the suit land has got the mortgage deed executed in his favour and, therefore, it is not open for these defendants to challenge the plaintiffs’ title over the suit land. Hence, it was held that unless the defendants prove their adverse possession over the suit property they cannot claim the suit land by virtue of their own right on the principle that once a mortgagee is always a mortgagee and he cannot acquire a better status . It was further held that the defendants failed to prove that they acquired the suit land from the State of Bihar by virtue of any settlement. Hence the plaintiffs were entitled for recovery of possession. 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. B.Tiwary/ ( S. N. Hussain, J )