LETTERS PATENT APPEAL No.660 OF 1997 --------------- Against the judgment and decree dated 09.04.1997 passed by a learned Single Judge in F.A. No.355 of 1975. *************** 1. Bhupal Singh son of late Rambadan Singh 2. Sheochandar Singh son of late Sheobadan Singh 3. Bhanu Pratap Singh 4. Bishwa Prakash Singh Both sons of Sheochander Singh, all are residents of village- Basudher, P.S. Itarhi, District- Bhojpur. ---Plaintiffs-Respondents Ist Party — Appellants. -Versus- 1. (Expunged vide court’s order dated 04.08.1999) 2. Ganesh Ahir 3. Mahesh Ahir 4. Baleshwar Ahir 5. Balbachan Ahir, All are sons of late Mangru Ahir, All are residents of village- Basudher, P.S. Itarhi, Pargana & District- Bhojpur. 6. Bhagia Devi wife of name not known and daughter of late Mangru Ahir, resident of village- Rasoolpur, P.S. Rajpur, District- Buxar. 7. Munia Devi wife of name not known, and daughter of late Mangru Ahir, resident of village- Pasahra, P.S. Itarhi, District (Bhojpur) Buxar. 8. Nankhi Devi wife of name not known and daughter of late Mangru Ahir, resident of village- Piprar, P.S. Rajpur, District- Buxar. 9. (Expunged) 9(i) Hari Mohan Yadav. (ii) Hari Shankar Yadav. (iii) Ramji Yadav. All sons of Late Raghunath Ahir, Resident of Village 2 and P.O. Basudhar, P.S. Itarhi, District-Buxar. (iv) Kalhai Devi, wife of Sri Satya Narain Yadav and daughter of Late Raghunath Yadav, Resident of Village and P.O. Badakagaon, P.S. Shikarpur, District-Buxar. (v) Rashmi Devi, wife of Sri Shyam Bihari Yadav and daughter of Late Raghunath Yadav, resident of Village-Nanan, P.O. and P.S. Dumraon, District-Buxar. (vi) Lalia Devi, wife of Nand Kumar Yadav and daughter of Late Raghunath Yadav, resident of Village-Mungaon, P.O. Kopawa, P.S. Dumraon, District-Buxar. 10. (Expunged). 10(i) Thakur Yadav, son of Naresh Ahir. (ii) Rajendra Yadav, son of Naresh Ahir. Both resident of Village and P.O. Basudhar, P.S. Itarhi, District-Buxar. (iii) Mukuriya Devi, wife of Bharosha Yadav and daughter of Late Naresh Ahir, resident of village and P.O. Bararhi, P.S. Jagdishpur, District-Bhojpur. (iv) Dasia Devi, wife of Chhawar Ahir, daughter of Late Naresh Ahir, resident of Village and P.O. Suraundha, P.S. Itarhi. (v) Kamli Devi, wife of Ram Kripal Yadav, daughter of Naresh Ahir, resident of Village-Lalmuni ka dera, P.O. Chaubey ki chhawani, P.S. Chausa, District-Buxar. (vi) Mukeshri Devi, wife of Laldhari Yadav, daughter of Late Naresh Ahir, resident of Village-Ahirauli, P.O., P.S. and District- Buxar. 11. Harimohan Ahir. 12. Hari Shankar Ahir. 13. Ramjee Ahir. All are sons of Raghunath Ahir. 14. Thakur Ahir. 15. Rajendra Ahir. Both sons of Naresh Ahir. All residents of Village-Basudhar, Pargana-Bhojpur, 3 District-Bhojpur ....Defendants 1st set-Appellants..Respondents. 16. Sambhu Ahir, Son of Sheojanam Ahir. 17. (Deleted). 17 (i) Most. Gangajali, widow of Late Nagina Ahir. (ii) Ramesh Kumar Yadav. (iii) Ramjee Yadav. (iv) Ganga Sagar Yadav. (v) Ram Pravesh Yadav. (vi) Binod Kumar Yadav. All residents of Village and P.O. Basudhar, P.S. Itarhi, District-Buxar. (vii) Meegia Devi, wife of Ravindra Yadav and daughter of Nagina Ahir, resident of Village and P.O. Kapurpatti Dahingara, P.S. and District-Buxar. 18. Mostt. Lachia Devi, widow of Galu Ahir (Deceased) 19. Bahadur Ahir. 20. Bacha Ahir. Both sons of Late Galu Ahir. 21. Lalita Devi. 22. Kalawati Devi. 23. Lilawati Devi. Daughters of late Galu Ahir 24. Bir Bahadur Ahir. 25. Ramjee Ahir. Both sons of Nagina Ahir. 26. (Expunged vide court’s order dated 20.07.2000) 27. (Expunged) 27 (a). Kamala Ahir. (b). Vishwamitra Ahir. (c). Baban Ahir. All sons of Late Jawahar Ahir. All residents of Village and P.O. Basudhar, P.S. Itarhi, District-Buxar. 4 28. (Expunged vide Court’s order dated 13.2.2009) 28(c). Smt. Asha Devi, wife of Muneshwar Ahir and daughter of Late Madho Ahir, Resident of Village-Khatiba, P.O. and P.S. Itarhi, District-Buxar. 29. Sadho Ahir, Son of Late Bhuneshwar Ahir. 30. Kamala Ahir. 31. Bishwa mitra Ahir. 32. Bacha Ahir. All sons of Jawahar Ahir. 33. Kesho Ahir. 34. Balak Das Ahir. Both sons of Madho Ahir. 35. Sudama Ahir, Son of Sadho Ahir. 36. Muketeshwar Ahir, Son of Late Padarath Ahir. All are residents of Village-Basudhar, P.S. Itarhi, Pargana-Bhojpur,District-Bhojpur. ………. Defendants 2nd set...Appellants...Respondents. 37. (Expunged) 37 (a). (Expunged vide Court’s Order dated 17.9.2010) 37 (b). Kanhaiya Ahir. 37 (c). Sudama Ahir. both sons of Gauri Ahir, All residents of village- Basudhar, P.O. Basudhar, P.S. Itarhi, District- Buxar. 37(d).Monakia Devi wife of Sri Ganesh Ahir and daughter of late Gauri Ahir, resident of village- Ekdarawa, P.S. Buxar, District- Buxar. 37 (e) Rajkumaria Devi, wife of Sri Shayam Narain Ahir, and daughter of late Gauri Ahir, resident of village- Bijhaura, P.S. Itarhi, District Buxar. 38. Kanhaiya Ahir son of Gauri Ahir, resident of village Basudhar, P.S. Itarhi, Pargana Bhojpur, District Bhojpur. – Defendants 3rd Set.—Appellants—Respondents. 39. (Expunged) 5 39(a). Yashoda Kuer wife of late Hira Singh. 39(b). Kalini Devi daughter of late Hira Singh. 39(c). Pramod Singh 39(d).Jitendra Singh. 39(e). Sanjay Singh All sons of late Hira Singh, all resident of village- Jaipur, P.O. Baikunthpur, P.S. Itarhi, District-Buxar. --Defendants 5th Set.—Respondents 3rd Party -- Respondents 40. (Expunged) 41. (The name of respondent nos.40 and 41 expunged vide Court’s order dated23.6.2010) 42. Jiteshwar Prasad Singh 43. Bacha Singh 44. Gulab Singh 45 Bantu Singh. All are sons of Jagdish Prasad Singh(Deceased). All are residents of Village Basudher, P.S. Itarhi, District- Bhojpur. 46. Urmila Devi daughter of Jagidsh Prasad Singh(deceased)and wife of Dina Nath Singh, resident of village-Sato Awati, P.S.- Ramgarh, District-Bhojpur. 47. Sushila Devi daughter of Jagdish Prasad Singh(deceased)and wife of Arun Kumar, resident of village-Manpur, District- Gazipur. 48.Gudul Kumari 49. Binny Kumari. Both are daughters of Jagidsh Prasad Singh(deceased) All are residents of Village-Basudher, Pargana Bhojpur, P.S.Itarhi, District-Bhojpur -Defendants 6th set- Respondents 4th Party-- Respondents 3rd Party. 50.(The name of respondent no.50 has been expunged vide courts order dated 23.6.2010). 51. (Expunged) 6 51(A) Paras Hajam sonb of late Suraj Hajam, resident of village- Basudhar, P.S. Itarhi, District- Buxar. (B) Parvati Devi, Daughter of late Suraj Hajam and wife of Prahalad Hajam, resident of village- Targaon, P.O. Targon, P.S. Bhawarkone, District- Gazipur (U.P.) 52. Mohan Hajam 53. Bacha Hajam, Both are residents of village- Basudhar, P.S. Itarhi, Pargana Bhojpur, District- Bhojpur .-Defendants 4th Set-Respondents 2nd- party…Respondents 4th Party. 54. (Deleted) 55. Smt. Rikhi Devi daughter of Ram Badan Singh (deceased), and wife of Gauri Shankar Singh, resident of village & P.O. Awahi, District- Varansi (Banaras)..U.P. Plaintiffs-Respondents Ist Party- Respondents 5th Party. --Respondents. **************** For the Appellants: M/s Shashi Shekhar Dvivedi, Sr. Advocate with Pandit Jee Pandey and Navnit Tiwari, Advocates. For the Respondents:M/s Kamal Nayan Chaubey, Sr. Adv. With Anshay Bahadur Mathur and Subhash Chandra Yadav, Advocates. P R E S E N T THE HON'BLE MR. JUSTICE S.K.KATRIAR THE HON'BLE MR. JUSTICE BIRENDRA PRASAD VERMA ********** B.P.Verma,J: This intra Court appeal under Clause-10 of the Letters Patent of the High Court of Judicature at Patna is directed against the judgment and decree dated 09.04.1997, passed by a learned Single Judge of this Court in F.A. No. 355 of 1975, whereby while allowing the aforesaid first appeal, the judgment 7 and decree dated 09.07.1975, passed by the learned Sub- Ordinate Judge, Buxar, in Title Suit No.86 of 1967/40 of 1974, was set aside and suit of the plaintiffs-appellants has been dismissed. 2. The plaintiffs-appellants herein brought Title Suit No. 86 of 1967 in the court of learned Subordinate Judge- 2 , Ara on 23.11.1967, which was subsequently transferred to the court of learned Subordinate Judge, Buxar, and was re- numbered as Title Suit No. 40 of 1974. In the aforesaid title suit, the plaintiffs sought a declaration that 20.85 acres of lands situate at Mauza Basudhar, P.S. Itarhi, District- Buxar, originally in the district of Sahabad, appertaining to Tauzi no. 6118, detailed in Schedule-5 of the plaint, were their zirat lands and after vesting of the Zamindari in the State of Bihar, they acquired status of statutory occupancy raiyat. The plaintiffs further sought a declaration that the defendants have no title over the suit lands and the plaintiffs were illegally dispossessed by the defendants from the same and, therefore, they prayed for a decree for recovery of possession over the suit land, after ejecting defendant Ist set to 3rd set (hereinafter referred to as ―contesting defendants‖). Besides that, plaintiffs prayed for past and future mesne profits and an order of injunction, restraining the defendants from doing any overt act with respect to the suit land. 3. The suit was contested by the contesting defendants and a 8 joint written statement was filed on behalf of defendants no. 1 to 4, 6, 7, 11, 14 to 16, 22, 24 to 26 and 33 to 35 denying the claim of the plaintiffs and praying therein for dismissal of the suit with costs. Separate written statements were filed on behalf of minor defendants by their respective Guardians Ad Litem (G.A.L.) praying therein for dismissal of the suit. On contest the suit was decreed by a judgment and decree dated 9th July, 1975 by learned Subordinate Judge, Buxar, which has been reversed and set aside by a learned Single Judge of this Court in the first appeal filed by the contesting defendants. Hence, this L.P.A. at the instance of the plaintiffs. 4. In order to appreciate the points involved in the present appeal for its adjudication, it would be appropriate to portray the case of the parties as per their pleadings, which is discussed herein below. 5. The case of the plaintiffs- appellants herein, in short, is that the lands of tauzi no. 6118 of Mauza- Basudhar, was under the proprietorship of Parmeshwar Singh, Ram Lakhan Singh and Paramjota Kuari, the ancestors of the plaintiffs and defendants 6th set. Prior to vesting of Zamindari, they remained in possession over the same as proprietors and landlords, and after vesting of Zamindari in the State of Bihar, the suit land had remained as their Sir-zirat lands. Ancestors of the plaintiffs and defendants 6th set executed three usufructuary mortgage deeds (Rehan deeds), firstly on 12th June, 1893 in 9 favour of one Ratan Singh with respect to 19 bighas of land for Rs. 950/- only, secondly on 11th Jeth 1300 fasli (middle of the year 1893) in favour of one Shirtaj Hajam with respect to 10 bighas of land for Rs. 500/- and thirdly on 27th February, 1898 in favour of Ratan Hajam, Sirtaj Hajam and Anmol Hajam with respect to 14 bighas of land for Rs. 700/-. It is claimed that mortgage deed dated 12th June, 1893 was redeemed in the year 1929, whereas mortgage deed dated 11th Jeth 1300 Fasli (middle of the year 1893) and mortgage deed dated 27th February, 1898 were redeemed in the year 1940. After such redemption, the plaintiffs and defendants 6th set came back in possession over the lands covered by those usufructuary mortgage deeds and after vesting of Zamindari, they claim to have become statutory occupancy raiyats. However, it has been admitted in the plaint that during the cadestral survey proceeding lands of khata no. 341, 345, 346 and 348, which are part of Schedule-5 of the plaint, were recorded by mistake in the name of ancestors of contesting defendants, as they were their ploughmen. It is claimed that the defendants 4th set are the heirs of Shirtaj Hajam, Ratan Hajam and Anmol Hajam, whereas defendants 5th set is the heir of Ratan Singh. It has been admitted in the plaint that defendants 6th sets are the co-sharers and descendants of common ancestors of the plaintiffs. 6. It is also the claim of the plaintiffs that even after vesting of 10 Zamindari in the State of Bihar, the suit land remained as Sir- zirat of plaintiffs and defendants 6th set. They acquired the status of statutory occupancy raiyats. Though the contesting defendants were never in possession over the suit land, but they started creating problems since 1958 on the basis of wrong entry in the cadestral survey records in the name of their ancestors. The contesting defendants filed rent commutation case before B.D.O., Itarhi, which was decided in their favour. Appeal filed against that order was also dismissed. A case was filed on behalf of the plaintiffs before the Additional Collector, Ara, but that was still pending. Whereafter, a proceeding under Section 144 Cr.P.C. was initiated with respect to suit land, which was converted into a proceeding under Section 145 Cr.P.C., but that was finally decided against the plaintiffs on 31st July, 1965 and being emboldened by that order, the plaintiffs were dispossessed by the contesting defendants on 01.08.1965. 7. The contesting defendants, in their joint written statement referred to above, challenged the maintainability of the suit of the plaintiffs on various grounds. However, they also admitted that the plaintiffs and defendants 6th sets are descendents of their common ancestors and their ancestors were the proprietor of Tauzi no.6118. According to them, the suit land was settled in favour of their ancestors by the ancestors of the plaintiffs and defendants 6th sets and accordingly, forefathers 11 of the contesting defendants were coming in continuous possession over suit land since long. The claim of possession of the plaintiffs and defendants 6th set was categorically denied. According to the defendants, during the cadestral survey proceeding the suit lands were found in actual, physical and cultivating possession of the forefathers of the contesting defendants, therefore, they were recorded as occupancy raiyats/bhaulidars in the cadestral survey khatiyan with respect to the suit lands. It is specifically claimed that neither the forefather of the plaintiffs nor the alleged mortgagees were ever found in possession over the suit land. It is also specifically pleaded that ancestors of the contesting defendants were never ploughmen of the ancestors of the plaintiffs. Jagdamba Singh (defendant no.39), admittedly a co-sharer of the plaintiffs even according to the genealogical table given by the plaintiffs at schedule-I of the plaint and admittedly having half share in the suit land, executed deed of ekrarnama admitting the title and possession of the contesting defendants over the suit land. On the basis of these pleadings, besides others, prayer was made for dismissing the suit of the plaintiffs-appellants. 8. In support of their respective cases, the oral as well as documentary evidence were adduced by the plaintiffs as also contesting defendants. 21 witnesses were examined by the plaintiffs, whereas 35 witnesses were examines by the 12 contesting defendants. Documents marked as Exts.1 to 13 were produced by the plaintiffs, whereas documents marked as Exts.A to M/1 were produced by the contesting defendants. 9. Mr. Shashi Shekhar Dwivedi, learned senior counsel, appearing on behalf of the appellants, in his elaborate submissions, has assailed the validity and correctness of the judgment and decree passed by a learned Single Judge of this Court in the First Appeal preferred by the contesting defendants-respondents herein reversing the judgment and decree passed by the learned trial court. He has assailed the judgment of a learned Single Judge primarily on these two grounds: (A). The judgment of the learned Single Judge is not in accordance with law and suffers from non consideration of evidence. (B). The documents of unimpeachable characters have not been properly considered and have been wrongly ignored. He has placed reliance upon the following judgments: (i). AIR 1974 SC 2048 ( Smt. Asha Devi Vs. Dukhi Sao and another, (para-2). (ii).(2005)7 SCC 190(Ishwar Dutt Vs. Land Acquisition Collector and another, (para-33). (iii). (2007) 6 SCC 737 (Ramchandra Sakharam Mahajan v. Damodar Trimbak Tanksale (Dead) and others( paragraph-14). (iv) (2008) 4 SCC 182 (Thimmaiah Vs. Shabira and 13 others). (Paragraph-11) (v). (2008) 10 SCC 497 (Jagdish Singh v. Madhuri Devi). (paragraph 17 and 28) 10. Mr. Kamal Nayan Chaubey, learned senior counsel, appearing on behalf of the contesting defendants-respondents herein, in his elaborate submissions, has fully supported the impugned judgment and decree passed by the learned Single Judge in the First Appeal and prayed for dismissal of the present appeal, consequently, dismissal of the suit of the plaintiffs-appellants herein, primarily on the following grounds: (A). Cadestral Survey Record objectively prepared by the revenue authorities and Cadestral Survey Khatiyan having been finally published as far back as in the year 1911 recognizing rights of the ancestors of the contesting defendants as occupancy raiyats/bhaulidars have not been challenged by the plaintiffs-appellants herein and the proceedings under the Bihar Tenancy Act, 1885 (hereinafter referred to as ―the B.T. Act‖ in short] would be presumed to be correct under the mandate of Section 103-B (3) of the B.T. Act. (B). Sheet- anchor of the plaintiffs with respect to the suit land is 3 mortgage deeds (Ext.6 series) and their subsequent redemption is based on the assumption that same were belonging to Tauzi No.6118, but, in fact, mortgage deeds (Ext.6 series) were executed by the 14 ancestors of the plaintiffs with respect to lands of Tauzi No.6119 and, therefore, the very basis of the claim of the plaintiffs is misconceived. (C). Total area of the suit land bearing Tauzi No.6118 is 20.85 acres = 33 bighas and 8 kathas , whereas in 3 mortgaged deeds (Ext.6 series) about 43 bighas of lands are involved , which falsifies the whole claim of the plaintiffs with respect to suit land. (D). Jagdama Singh, defendant no.39, admittedly the co- sharer of the plaintiffs, having half share in the lands of Tauzi no.6118, by executing 3 deeds of Ekrarnama (Ext.C, C/1 and C/2) has admitted the right, title and possession of the contesting defendants over the suit lands and this falsifies the claim of the plaintiffs with respect to the suit land. (E). The judgment and decree of the trial court having been set aside by a learned Single Judge, on the cogent grounds, the present L.P.A. is fit to be dismissed in the light of the ratio laid down by a Division Bench of this Court in the case of Barhu Ram and others Vrs. Butai Ram and another, reported in 1999 (2) BLJ 818, (para-15). 11. Before proceeding to decide the case on merits, it would be appropriate to consider the scope of L.P.A., arising out of a First Appeal. Against a Full Bench Judgment of our own High Court, in the case of Asha Devi v. Dukhi Sao and others, 15 reported in AIR 1965 Patna, 472. the matter was taken to the Apex Court. In the aforesaid Full Bench Judgment, two Judges took a view that finding of facts recorded by the learned Single Judge are binding on them and they cannot go into those question of facts in Letters Patent Appeal. However, one of the Judges, constituting that Full Bench, gave a dissenting judgment. In that background the Hon’ble Apex Court in the case of Smt. Asha Devi Vrs. Dukhi Sao (supra) laid down the law regarding the scope of L.P.A. in paragraph-2 of the judgment and relevant portion, of which is reproduced herein below: ― 2. ……….Clause 10 of the Letters Patent of the Patna High Court is analogous to clause-15 of other Chartered High Courts namely Calcutta, Madras, Bombay or clause-10 of the Allahabad High Court. There is no dispute that an appeal lies to a Division Bench of the High Court from the judgment of a Single Judge of that Court in appeal from a judgment and a decree of a court subject to the superintendence of the High Court. The only question is whether the power of a Division Bench hearing a Letters Patent appeal under clause 10 of the Letters Patent of Patna High Court or its analogous provisions in the Letters Patent of other High Courts is limited only to a question of law under Section 100 of the Code of Civil Procedure or has it the same power which the Single Judge has as a first Appellate Court in respect of both questions of fact and of law. The limitations on the power of the Court imposed by Ss.100 and 101 of the Code of Civil Procedure cannot be made applicable to an Appellate 16 Court hearing a Letters Patent appeal from the judgment of a Single Judge of that High Court in a first appeal from the judgment and decree of the court subordinate to the High Court for the simple reason that a Single Judge of the High Court is not a court subordinate to the High Court. This Court in Ladli Prasad V. Karnal Distillery Co. Ltd., (1964 (1) SCR 270 = (AIR 1963 SC 1279) had occasion to observe that a Single Judge deciding a first appeal may be a court immediately below the court hearing a Letters Patent appeal, but it is not a court subordinate to the High Court…………‖ 12. A Constitution Bench of the Five-Judges of the Hon’ble Apex Court in Alapati Kasi Viswanatham Vrs. A. Sivarama Krishnayya, C.A. No.232 of 1961 disposed of on 11.1.1963, unfortunately an unreported judgment, had also directly dealt with this question. Fortunately, the aforesaid judgment of the Constitution Bench was noticed in the case of Asha Devi Vs. Dukhi Sao (supra) and some part of it was reported therein, out of which following portions would be relevant in the present context and is reproduced herein below: ―………. A Letters Patent appeal from the judgment of a learned Single Judge in a first appeal to the High Court is not exactly equivalent to a second appeal under Section 100 of the Code of Civil Procedure, and therefore it cannot be held that a Letters Patent appeal of this kind can only lie on a question of law and not otherwise. The matter would have been different if the Letters Patent appeal was from a decision of a learned Single Judge in a second appeal to the High Court. In these circumstances it will be open to the High Court to 17 review even findings of fact in a Letters Patent appeal from a first appeal heard by a learned Single Judge, though generally speaking the Letters Patent Bench would be slow to disturb concurrent findings of fact of the two courts below. But there is no doubt that in an appropriate case a Letters Patent Bench hearing an appeal from a learned Single Judge of the High Court in a first appeal heard by him is entitled to review even findings of fact. The contention of the appellant therefore that the Letters Patent Bench was not in law entitled to reverse the concurrent findings of fact must be negatived.‖ 13. A Division Bench of our own High Court in the case of Barhu Ram and others Vs. Butai Ram and another (supra) has also dealt with the scope of L.P.A. in paragraph-15 of the judgment and relevant partition of which is reproduced herein below: ―15. ………While it is true that the special jurisdiction of this Court under Letters Patent does not inhibit the court from going into questions of fact as well as questions of law, it is equally well settled that findings of fact may be set aside by this Court only if there are good reasons to do so. The appellants must be able to demonstrate before this Court that the findings of fact are either perverse or palpably unreasonable and therefore unsustainable. If the trial court and the appellate court have correctly appreciated the evidence on record and recorded findings which can be said to be reasonable, there will be no justification for setting aside such findings of fact………‖ 14. In view of the law laid down by the Apex Court as also by our own High Court, it is apparent that it would be open to the 18 High Court while exercising the powers under Letters Patent Jurisdiction, to review even finding of facts recorded by a learned Single Judge in the First Appeal, but if findings of facts are based on reasonable ground, then generally speaking the Letters Patent Bench would be slow to disturb such finding of facts. However, it is always open to a Letters Patent Bench to review question of law and question of facts involved in the appeal and have not been decided on a sound reasonings, or the conclusion arrived in the first appeal was either perverse or not sustainable in the eye of