IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.82 of 2005 ------ 1. Shyam Sunder Ram. 2. Tulsi Ram. Both sons of Late Gobardhan Ram. Both residents of Wazirganj, (Bharaiyti) P.S.Wazirganj, District-Gaya. --- Defendants 1 & 2- Appellants-Appellants. Versus 1. Prakash Ram son of late Nand Keshwar Ram @ Nand Kishore Ram. 2. Anand Mohan Prasad son of late Maksudan Ram. Both residents of Wazirganj Bazar, P.S.Wazirganj, District-Gaya. 3. Ram Swaroop Singh son of late Ambo Singh @ Amo Singh, resident of village Kari Sowa, P.S. Wazirganj, District-Gaya. --- Plaintiffs-Respondents- Respondent Ist Party. 4. The State of Bihar through the Collector, Gaya. --- Defendant no.3- Respondent- Respondent 2nd party. ------ For the appellants : M/s Pramod Kumar Sinha, Rakesh Kumar Sinha, Madhukar Narayan Sinha & Arvind Kumar Sharma, Advocates. For the respondents : None. ------- 09. 21.01.2009 Heard learned counsel for the appellants. 2. This second appeal has been filed by defendants no. 1 and 2- appellants-appellants challenging the judgments and decree of the learned courts below. 3. The matter arises out of Title Suit No.38 of 1989 (45/1997) filed by the plaintiffs-respondents-respondents Ist Party for declaration of their right and title over the suit land, confirmation of their possession and alternatively recovery of possession of the suit land and also for rent and interest etc. The said suit was decreed on contest with cost by learned Subordinate Judge, II, Gaya vide his judgment and decree dated 25.07.1997. - 2 - 4. Against the aforesaid judgment and decree of the trial court, defendants no.1 and 2 filed Title Appeal No.66 of 1997 (01/1998) which was dismissed by the learned Additional District Judge, V, Gaya vide his judgment and decree dated 13.12.2004. The said judgments and decree of the learned courts below have been challenged in the instant second appeal. 5. After hearing the arguments of learned counsel for the appellants and from the materials on record, it appears that the main contention of the appellants was based on sale deed of 1925 as well as mortgage deeds of 1934 and 1946. The learned courts below specifically found that the mortgage deeds in question do not contain any statement with regard to any alleged oral sale of 1925. Furthermore, there is no evidence on record brought by the said defendants that Lekh Raj, who was the owner of the property, had authorized Natho Ram to alienate the aforesaid property on his behalf and hence Natho Ram had no title to alienate his entire suit property. 6. It was also concurrently found by the courts below that the witnesses of the defendants also utterly and miserably failed to corroborate the claim of defendants no.1 and 2 with respect to delivery of possession of the property in favour of the predecessor of the defendants at the time when the said alleged un-registered sale deed was executed in the year 1925. Hence, it was held by them that for want of delivery of possession at the time of execution of the alleged unregistered sale deed as per the provision of Section 54 of the Transfer of Property Act, the said sale deed was illegal, invalid and - 3 - ineffective and was not binding upon the plaintiffs. 7. On the other hand, the claim of the plaintiffs was based on registered deeds and after perusal of the pleadings and evidence of the parties, both the learned courts below came to the conclusion that the plaintiffs had acquired right and title over the suit property and they were absolute owners of the property in question and were earlier in possession of the suit property which was fully proved by the registered documents as well as evidence. In the said circumstances, it was found that unregistered sale deed dated 30.07.1925 allegedly executed by Natho Ram in favour of Ganpat Ram and Darshani Ram was illegal, forged, fabricated, antedated and not binding upon the plaintiffs. 8. It was also found by the learned courts below that Meena Devi and Gayatri Devi had derived right, title, interest and possession over the suit property in question by virtue of the registered sale deeds dated 19.09.1977 executed by Gauri Shankar Prasad in their favour, whereafter the plaintiffs acquired right, title, interest and possession over the suit property in question by virtue of registered sale deed dated 01.09.1988 executed by the aforesaid two ladies. 9. So far the question of possession is concerned, it was concurrently found that the defendants-appellants were not in possession of the suit property, including the shop in question as owner thereof, and the plaintiffs also could not prove that the said defendants were in possession of the suit premises as tenants. In the said circumstances, the learned courts below relying on decisions of the - 4 - High Courts, including this High Court in case of Ramashanker Versus Bidhey Khan and another, reported in AIR 1976 (Allahabad) 155 and in case of Mahabir Ram Versus Smt. Sita Devi, reported in AIR 1977 Patna 161 as well as in case of Kasturi Devi Versus Sripal Singh, reported in AIR 1954 Patna 128 and considering the materials on record came to a definite finding that the said defendants were not tenants of the plaintiffs, rather they were licencees and hence the court can legally pass an order for recovery of possession of the suit premises from them. 10. The learned courts below after perusing the materials on record came to the further conclusion that defendants-appellants were in possession of the shop in question as licensees of the plaintiffs and their vendor with the consent and permission of the said persons and accordingly their possession cannot be held to be hostile to the right and title of the actual owner, namely the plaintiffs and their vendor, and hence the defendants-appellants had not perfected any right even by way of adverse possession. This view of the learned courts below is based on the settled principles of law as well as the materials on record. 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 under Order XLI rule 11 of the Code of Civil Procedure. Sunil (S. N. Hussain, J.)