IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.358 of 2009 Krishna Mohan Singh & Ors Versus Mani Devi & Ors ---------------------------------- 5 17-8-2011 Heard the learned counsel appearing on behalf of the appellants. This appeal has been filed against the judgment and decree dated 30th May, 2009 in T. A. No. 19/1990 by the District Judge, Khagaria, reversing the judgment and decree dated 21-4-1990 passed in T.S.No. 12 of 1985 by the Subordinate Judge I, Khagaria. The plaintiffs filed the suit for declaration of title and confirmation of possession and in the alternative for recovery of possession over the suit land and have come out with a case that the suit land had earlier been subjected to rent suit which was followed by execution case after decree and culminated in auction sale, sale certificate and delivery of possession in favour of the predecessor of the plaintiffs. The defendants had claimed the suit land on the basis of settlement from the ex-landlord and had claimed to be in possession having valid right and title over the same. The defendants had resisted the claim of the plaintiffs on the ground that the proceedings of the rent suit and the execution case were ex-parte proceedings and were also 2 obtained by fraud and therefore the title and possession of the defendants had not been affected by them. The trial court after considering the pleadings of the parties and evidence on record had dismissed the suit after accepting the defence raised by the defendants. However, in appeal by the plaintiffs the appellate court has come to the finding that the plaintiffs’ predecessor had acquired valid title and possession over the suit land by virtue of purchase by him of the suit land in auction sale followed by sale certificate and delivery of possession over the suit land in his favour. Mr. Raj Kumar, the learned counsel appearing on behalf of the appellants, has strenuously argued that the appellate court has committed error of law in not accepting the defence raised by the defendants and has wrongly discarded the same. The learned counsel has submitted that after vesting of Zamindari rights the ex-landlord had no right to proceed with the rent suit and enforce the rent decree in execution proceeding as he had ceased to be a landlord in view of section 65 of the Bihar Tenancy Act and as such the decree passed in the rent suit as well as the auction sale, sale certificate and delivery of possession were all without jurisdiction. It has further been submitted that 3 the sale certificate, which is a document of title, mentions plot no. 5162 and there is no mention of plot no. 5161 and therefore the plaintiffs cannot validly base their title over Plot No. 5161 on the basis of sale certificate and delivery of possession effected in pursuance to the rent decree and the execution proceeding. A perusal of the judgment of the appellate court shows that the appellate court has considered the pleading of the parties and evidence led by them meticulously and extensively. Admittedly, the defendants had failed to take any step against the decree in the rent suit and had also not challenged the auction sale and delivery of possession pursuant to the said decree within the prescribed period of limitation and even in this suit also the defendants have resisted the claim of the plaintiffs only on the basis of the auction sale and sale certificate having been obtained by fraud but without specifying the details of fraud. The learned appellate court has rightly held that the necessary pleadings as required by law with regard to fraud is absent in the pleading. Further, the defendants have failed to disclose the date of vesting of Zamindari in their written statement and have also failed to state other foundational facts necessary to support their contention that after vesting 4 the landlord’s right to proceed with the rent suit or execution proceeding had ceased. Moreover, the appellate court below has rightly come to the conclusion that the bar of limitation would be against the defendants in upholding their contention regarding the illegality of rent decree and proceedings in execution thereafter in view of their earlier knowledge. The other contention of the learned counsel with regard to mention of Plot no. 5162 in the sale certificate instead of Plot no. 5161 has also been dealt with by the appellate court which has extensively considered, both oral and documentary evidence, in this regard and has come to the conclusion that, in fact, the predecessor of the plaintiffs had auction purchased and thereafter had been put in possession over the suit land which was part of Plot no.5161 belonging to the defendants. On the basis of these considerations the appellate court has rightly allowed and reversed the judgment and decree of the trial court. There does not appear to be any substantial question of law arising in this appeal for consideration. This appeal is, accordingly, dismissed. roy ( V. Nath, J.)