APPAL FROM APPELLATE DECREE NO. 204 OF 1985 ……. Against t the judgment and decree dated 13.03.1985 passed in Title Appeal No. 01 of 1983 by Shri Bishundeo Dutta Jha, Ist Additional District Judge, Bettiah, affirming judgment and decree dated 22.09.1982 passed by Shri S. K. Shrivastava, Munsif, Bettiah in Title Suit No. 79 of 1981. -------- 1. Smt. Yasoda Devi, widow of late Jagarnath Prasad 2. Achhey Lal Prasad Gupta 3. Balmukund Prasad Gupta Sons of late Jagarnath Prasad 4. Chhote Lal Prasad Gupta All residents of Darauli, P.O. Darauli, P.S. Darauli, District Siwan, at present village Shikarpur, Tole Sheoganj, P.O. Narakatiaganj, P.S. Shikarpur, District West Champaran. …Plaintiffss-Appellants-Appellants versus 1. Ramanand Sah, son of late Jadu Sah, resident of village Belwa (wrongly mentioned in decree as resident of village Behra) Tola Sirisia, P.S. Sathi (Shikarpur) at present village Shikarpur District West Champaran. …Defendant-Respondent-Respondent 1st set. 2. Sheoji Prasad Gupta 3. Awadh Kishore Prasad Gupta Sons of late Jagarnath Prasad Both resident of village Darauli, P.O. Darauli, P.S. Darauli, District Siwan, at present village Shikarpur, Tole Sheoganj, P.O. Narakatiaganj, P.S. Shikarpur, District West Champaran. …Plaintiffs-appellants-Respondents 2nd set ----- For the appellants: Dr. Uma Shankar Prasad, Sr. Advocate and Sri Kamala Kant Tiwary, Advocate. For the respondents : None. ----- P R E S E N T HON'BLE MR. JUSTICE .S.N. HUSSAIN ------ S. N. Hussain, J. This second appeal has bee filed by plaintiffs-appellants- appellants challenging judgments and decree of both the courts below. 2. The matter arises out of Title Suit No. 79 of 1981 which was filed by plaintiffs-appellants with respect to plot no. 1441 (Part)( 4 dhurs) and plot no. 1442 (part)(4dhurs) of khata no.58 of village Shikarpur, Tola Sheoganj, 2 P.S. Shikarpur, Thana No.111, Tappa Gopala in the district of East Champaran, detailed in Schedule-I of the plaint for the following reliefs :- (i) Declaration of title of plaintiffs over suit property and confirmation of possession of the plaintiffs over the same as detailed in Schedule 1 of the plaint. (ii) A decree of permanent injunction against the defendant in favour of the plaintiffs. (iii) A decree of possession over the suit land and house in favour of the plaintiffs through process of court after evicting the defendant from the suit land. (iv) A decree for compensation in favour of the plaintiffs for the articles removed by the defendants as detailed in schedule-II of the plaint. (iv) A decree for cost of suit in favour of the plaintiffs. (vi) A decree of any other relief or reliefs to which the plaintiffs be deemed entitled . 3. . The said suit was contested by the sole defendant-respondent- respondent no.1 and on the basis of the pleadings of the parties, following issues were framed by the trial court :- (i) Whether the suit as framed is maintainable ? (ii) Whether the plaintiffs have got any cause of action for filing the suit ? (iii) Whether Sheo Shankar Shahi is necessary party for the suit and without impleading him the suit cannot proceed ? (iv) Whether the suit is barred by limitation ? (v) Whether the suit is barred on the principle of estoppel and waiver ? (vi) Whether the court fee paid by the plaintiffs is sufficient ? (vii) Whether the plaintiffs have acquired valid right and title over the suit premises from any person who had right and title over the suit property ? (viii) Whether the defendant was living in one room of the suit 3 premises with the permission of the plaintiffs and whether in the plaintiffs’ absence he encroached the entire suit premises and illegally constructed a house thereon ? (ix) Whether the defendant is liable to be evicted from the suit premises and whether the plaintiffs are entitled to its possession ? (x) Whether the plaintiffs are entitled to get a decree of permanent injunction against the defendant ? (xi) Whether the defendant had removed the plaintiffs’ movable articles from the suit premises and is liable to compensate the same ? (xii) Whether the plaintiffs are entitled to any other relief ? 4. After considering the pleadings of the parties and the evidence adduced by them, Munsif, Bettiah, vide his judgment and decree dated 22.09.1982, decreed the suit in part holding that the defendant was not an encroacher over Plot No.1442, rather he was there on the basis of the privileged person Parcha granted to him by the authorities concerned with respect to plot no. 1442, measuring 4 dhurs. 5. Against the aforesaid judgment and decree of the trial court, four of the six plaintiffs filed Title Appeal No. 01 of 1983, which was contested by the defendant-respondent and after considering the respective claims of the parties, following points were formulated by the court of appeal below :- (i) Whether the plaintiffs have got right, title and interest in plot no.1442 area four dhurs ? (ii) Whether the grant of privileged person parcha to the defendant is illegal and this court can look to the illegality or otherwise of the Parcha ? 6. After considering the pleadings and evidence adduced on behalf of the parties, the Additional District Judge-I, West Champaran dismissed the said title appeal on contest vide his judgment and decree dated 13.03.1985 and 4 affirmed the judgment and decree of the trial court rejecting the claim and suit of the plaintiffs, who are appellants and respondents 2nd set in this second appeal, with respect to Plot No.1442. 7. Against the aforesaid judgment and decree of the courts below, the instant second appeal was filed by plaintiffs-appellants, which was admitted on 02.04.1986 after framing the following substantial question of law :- “ Whether in view of the provisions of Section 3(b), read with the Proviso thereto of Bihar Privileged Persons Homestead Tenancy Act, 1947 ( hereinafter called `the Act’) and the claim of the defendant based on the settlement by the order of 1970 after the Act came in force, the courts below have committed error of law in holding that the plaintiffs’ suit is not maintainable and/or it shall apply to the facts of this case “ 8. Although appeal notices were sent to the respondents several times, but even after valid service of notice, they did not appear in the instant second appeal. However, learned counsel for the appellants argued their case on the facts of the case, which gave rise to the aforesaid substantial question of law. 9. Learned counsel for plaintiffs-appellants claimed that one Kalimur Rahman was the original owner of both the suit plots, namely, plot nos. 1441 and 1442 and he sold the same to one Shankar Shah in the year 1956 and much thereafter Shankar Shah sold the same to the plaintiffs in the year 1976. It was also submitted that defendant-respondent no.1 was a relative of the aforesaid Shankar Shah and he was in need of accommodation and hence the plaintiffs permitted him to live in one room of the purchased premises, but when the plaintiffs went to their village in the year 1977 in connection with marriage of daughter of plaintiff no.1 and returned after some time, they found that the entire suit premises was occupied by the defendant. It is further averred that after their return the plaintiffs requested the defendant to vacate the suit 5 premises, but instead of vacating, he started making construction over plot no.1442 after getting sanction from the Notified Area Committee, hence the plaintiffs had no remedy left but to file the aforesaid title suit for the reliefs noted above. 10. On the other hand, the defendant had claimed that he had constructed his house over 4 dhurs of plot no. 1442 about 40 years back and lived therein with his family, which continued even after the vesting of the estate in the State of Bihar under the Bihar Land Reforms Act, 1950, whereafter, Parcha was granted to the defendant by the authorities for 4 dhurs of plot no. 1442 under the Act. Jamabandi no. 1770 was created in the name of the defendant, whereafter he obtained permission of the Notified Area Committee and constructed his pucca house replacing the earlier phus house and has been paying holding tax of the same to the Notified Area Committee and he is also paying rent to the State of Bihar with respect thereto . So far other plot no. 1441 is concerned, the defendant claimed that it was a big plot belonging to Shankar Shah, who had seven houses over it and the tenants were occupying the said houses, whereas, the plaintiffs had no concern either with the houses or with plot no.1441 as the sale-deed obtained by the plaintiffs was sham transaction without any consideration. 11. The trial court very carefully considered the pleadings of the parties and their respective evidence, whereafter it decreed the suit in part allowing the claim of the plaintiffs over plot no. 1441, whereas, their claim over plot no. 1442 was rejected vide judgment and decree dated 22.09.1982. While passing the aforesaid judgment and decree the trial court found that the plaintiffs failed to prove their right, title and interest over plot no. 1442 by any valid 6 material, whereas, they have been successful in proving their right, title, interest and possession over plot no. 1441 on the basis of the evidence. It was also held that the defendant did not encroach upon plot no. 1442 nor did he illegally construct his house over the same, rather he was in possession of the same in his own right and had, accordingly, constructed his house over the same. It was also held that Sheo Shankar Shah was not a necessary party in the suit. 12. It transpires that although title suit was decreed with respect to plot no. 1441, but the defendant did not challenge that part of the decree before any higher court and hence the decree with respect to Plot No.1441 attained finality. 13. However, the plaintiffs filed the aforesaid title appeal against that part of the decree of the trial court, by which their suit with respect to plot no. 1442 was dismissed, but the court of appeal below dismissed the said title appeal vide its impugned judgment and decree dated 13.03.1985. The court of appeal below considered the respective claims of the parties and the evidence adduced by them in detail as would be apparent from paragraphs no. 3 to 6 of its judgment and found that neither there was any documentary evidence nor the witnesses of the plaintiffs were able to prove their possession over plot no. 1442, whereas, the evidence of the defendant including his witnesses convincingly proved the possession of the defendant over the said plot in his own right. 14. So far the alleged illegality of the privileged person Parcha in favour of the defendant is concerned, it was found by the court of appeal below that the said Parcha granted by the authority concerned in favour of the defendant was legal and the said court had no jurisdiction to look into the 7 validity of the said Parcha in view of Section 18 of the Act 15. In view of the aforesaid findings of the courts below, a Bench of this Court, while admitting the instant second appeal filed by some of the plaintiffs, formulated only one substantial question of law as to whether the courts below were justified in holding the suit as not maintainable in view of the defendant’s claim on the basis of settlement vide order of 1970 after the Act came into force specially in view of Section 3(b) and its Proviso. In the said circumstances, this second appeal is now limited to a very narrow compass, namely, the applicability of the provisions of the Act with respect to the defendant’s claim of settlement by the authorities vide privileged person Parcha. 16. So far the claim of the plaintiffs with respect to the suit land measuring 4 dhurs of plot no. 1442 is concerned, it is admitted that the said land was gairmazarua malik land. Out of the documentary evidence produced by the plaintiffs, Exts. 1 series were three receipts of the Notified Area Committee; whereas, Exts. 2 & 2/A were the two sale-deeds relied upon by the plaintiffs; Ext. 3 was the report of the Pleader Commissioner; whereas, Ext. 4 was the notice of the authorities; Ext. 5 was a Malguzari receipt; whereas, Ext. 6 was a khatian of 1918; Ext. 7 was a voter list; whereas Ext.8 was the certified copy of the settlement order. Out of the said documents, rent receipts were found only with respect to 4 dhurs of land and on its basis it has already been decided that the plaintiffs were entitled to a decree with respect to 4 dhurs of plot no. 1441, which remained unchallenged. 17. So far sale-deeds (Exts. 2 series) are concerned, there was no whisper in them that either Kalimur Rahman or Shankar Shah, the predecessor in interest of the plaintiffs, were either in possession of 8 dhurs of land, out of 8 which they alienated 4 dhurs of plot no. 1442 along with 4 dhurs of plot no.1441 and both the sale-deeds simply mentioned that the vendor had transferred only 4 dhurs of plot no. 1441. So far Exts. 3,4,5,7 & 8 are concerned, they cannot be proof of title and possession of the plaintiffs over the 4 dhurs of plot no. 1442. However, Ext. 6 was a khatian of 1918, which could not prove as to who was in possession of the same after 1918 till 1981, rather the said Ext.6, the old khatian, clearly shows that plot no. 1442 was gairmazarua land, which was also an admitted fact. Hence in absence of any material to the contrary it is quite rational to believe that at the time of vesting of the Zamindari, the said land vested in the State of Bihar and neither the predecessor in interest of the plaintiffs nor the plaintiffs themselves had any right, title or interest in plot no. 1442. 18. So far question of possession is concerned, the plaintiffs’ witnesses including plaintiff no. 6 admitted possession of the defendant and construction of house by him in their depositions. The defendant had produced Ext. `H’, which is the order-sheet dated 13.02.1970 showing grant of Parcha in his favour in Case No.33 of 1969-70 with respect to land of plot no. 1442, whereas, Ext. `C’ is the Tenants Ledger Register-II showing settlement of land in his favour and construction of house by him. These documents also found support from the deposition of P.W. 5. In addition thereto, Exts. `B’ series are the rent receipts granted to the defendant and Ext. È’ is the permission dated 25.08.1981 accorded to the defendant by the Notified Area Committee for construction of his house. None of the plaintiffs’ witnesses were able to demolish the case of the defendant regarding his possession over 4 dhurs of plot no. 1442, rather some of the plaintiffs’ witnesses including P.W.6 proved that 9 the defendant was in possession of the suit land. In the aforesaid facts and circumstances, the claim of the plaintiffs with respect to 4 dhurs of plot no. 1442 appears to be baseless and frivolous and the courts below were quite justified in holding that the plaintiffs had no right, title, interest and possession over of 4 dhurs of plot no. 1442. 19. In view of the aforesaid discussions and findings, the question with regard to the maintainability of the suit under the provisions of the Bihar Privileged Person Homestead Tenancy Act becomes merely academic. However, in any view of the matter, so far grant of Parcha to the defendant holding him to be a privileged person is concerned, Section 2(i) of the Act specially provides that privileged person means a person, who is not a proprietor, tenure holder, under-tenure-holder, or a mahajan and who, besides his homestead, holds no other land or holds any such land not exceeding one acre; but does not include any person who has come into possession of the homestead land in contravention of the provisions of Section 20 of the Santhal Parganas Tenancy (Supplementary Provisions) Act, 1949 or Section 46 of the Chotanagpur Tenancy Act, 1908 or Section 49-C of the Bihar Tenancy Act, 1885. In the instant case, it is an admitted claim of the parties that the defendant was not a proprietor/tenure holder or under-tenure-holder, or a mahajan and he had no other land except the land in question. Furthermore, none of the provisions of the aforesaid three statutes are applicable in the instant case. In the said circumstances, the defendant being in possession of the aforesaid land of plot no. 1442 clearly came under the definition of privileged person and hence Parcha was duly issued in his name by the authorities concerned. 20. So far Section 3(b)(i) of the Act is concerned, it provides 10 that the said Act shall not apply to any land situated within an area, which has been, or may hereafter be, constituted a municipality or notified area under the provisions of the Bihar and Orissa Municipal Act, 1922, or a Union Committee constituted under Section 38 of the Bihar and Orissa Local Self-Government Act of 1885, provided that if any area in which a privilege person or a privileged tenant has acquired any right in his home-stead under this Act, is subsequently converted into an area mentioned in sub-section (1) of clause (b), the privileged person or the privileged tenant, as the case may be, shall not be divested or deprived of his right in the homestead. 21. From the facts and circumstances and the materials on record, it is quite apparent that Ext. `H’ is the order-sheet dated 13.02.1970 showing that the plot in question at that time was situated within the Anchal and the Parcha in favour of the defendant with respect to the aforesaid land of plot no.1442 was granted on the order of the Anchal Adhikari in Case No.33/1969- 70 and sent to the Deputy Collector, Land Reforms, which clearly shows that when the aforesaid Parcha was granted, the land in question was not within the area constituting a municipality or notified area and much subsequently it was converted into a notified area and only thereafter the Notified Area Committee granted permission to the defendant to construct his house on 25.08.1981 (Ext. È’). In the said circumstances, the defendant being a privileged person cannot be divested or deprived of his right in the homestead, as per the above mentioned provision of law. 22. In the aforesaid facts and circumstances and in view of the aforesaid Ext. È’, which was granted by the Collector under the Act and had attained finality in view of section 18 of the Act, no suit shall lie in any civil 11 court to vary or set aside any such order except on the ground of fraud or want of jurisdiction. In the instant case, admittedly, no ground of fraud has been pleaded nor want of jurisdiction has been alleged by the plaintiffs, but inspite of that they sought relief of dispossession of the defendant from the house, which clearly meant challenging the order of the appropriate authority granting parcha, on the basis of which the defendant had constructed the house. In the aforesaid facts and circumstances, provision of section 18 of the Act had clearly come into play and the court of appeal below rightly held that the privileged person Parcha granted to the defendant was not illegal and the court was also not empowered in view of the said provision of the Act to reject the validity of the said Parcha. 23. In support of their claim learned counsel for the appellants placed reliance upon a single bench decision of this Court in case of Bishwanath Singh vs. State of Bihar & ors, reported in A.I.R. 1981 Patna 145, but in the said case the plaintiff had miserably failed to show that the defendant was either a trespasser or a squatter, whereas, the defendant had been able to prove that although the suit land had no construction earlier but he held the land for residential purposes, for which permission was also granted to him. Hence, the aforesaid case law is not applicable to the facts and circumstances of this case. Learned counsel for the appellants further placed reliance upon another single bench decision of this Court in case of Maya Rani Chatterjee & Ors. vs. State of Bihar & Ors., reported in 1993(1) P.L.J.R. 612, but that order was passed in a writ case, in which the order granting Parcha by the revenue authorities was challenged. However, it was not held in that decision as to whether the suit would lie against a Parcha issued under the Act or against the permission granted for construction of a house. Hence, the said case law is also 12 not applicable to the facts of the instant appeal. Learned counsel for the appellants further placed reliance upon a decision of the Apex Court in case of Annasaheb Bapusaheb Patil & ors. vs. Balwant alias Balasaheb Babusaheb Patil, reported in A.I.R. 1995 S.C. 895, but the said case is with respect to regrant of Watan land to Watandar after resumption on behalf of joint family with impartible estate as well as the dissolution of joint estates and adverse possession in a suit for partition of Hindu joint family property. Hence, the aforesaid case law is not at all applicable to the facts and circumstances of this case. Lastly learned counsel for the appellants placed reliance upon a single bench decision of this Court in case of Ram Swaroop Tanti vs. Sadanand alias Sadho, reported in 2001(3) P.L.J.R. 159, which was a case wherein neither Parcha was produced before the court nor it was proved by any documentary evidence or oral evidence that the Parcha was ever issued, nor any proper enquiry regarding possession of the suit house was held. But here the matter is completely different as the defendant had produced documents and fully proved the issuance of the privileged person Parcha in his name and construction of his house thereon and continuous possession, which was supported even by the plaintiffs’ witnesses apart from the continuous documents produced by the defendant. In the said circumstances, the aforesaid case law is also not applicable to the facts of the instant case. 24. Considering the matter in its entirety, this Court finds that there is no illegality in the impugned judgments and decree of the courts below and plaintiffs- appellants have miserably failed to substantiate the aforesaid question raised by them by any material or provisions of law or case law whatsoever. Accordingly, this second appeal is dismissed, but in the facts and 13 circumstances of the case there will be no order as to costs. Patna High Court May 21 , 2010 AFR MPS/ ( S. N. Hussain, J. )