APPEAL FROM ORIGINAL DECREE No.634 OF 1993 Against the Judgment and decree dated 6.2.1993 passed By Sri Rameshwar Rai, Sub- Judge I, Bhagalpur, in Title Suit No.192 of 1987. STATE OF BIHAR THROUGH COLLECTOR,BHAGALPUR & ANR. ……………DEFENDANT-APPELLANTS. Versus GYANESHWAR SAH s/O LATE ISHWAR SAH & ANR. …………PLAINTIFFS-RESPONDENTS. For the appellants: Mr. Manish Dhari Singh, A.C. to G.P.16. For the respondents: Mr.Ganpati Trivedi & Mr.Dev Kumar Pandey, Advocates. P R E S E N T THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO Mungeshwar Sahoo,J. This appeal is directed against the Judgment and decree dated 6.2.1993 passed by Sri Rameshwar Rai, Sub-Judge 1, Bhagalpur,in Title Suit No.192 of 1987 whereby the learned court below decreed the suit of the plaintiffs- respondents. 2. The plaintiffs- respondents filed the aforesaid suit for declaration of title over the suit land described in detail in Schedules-A and B of the plaint. The plaintiffs also prayed for declaration that the award prepared in the name of the Collector, Bhagalpur, regarding Schedule-A property is wrong and the plaintiffs may be permitted to receive the payment of the awarded amount in Awards No.95 and 96 with interest pendentelite. They 2 also prayed for enhancement of compensation. They also prayed that their names may be entered in the survey record of rights. 3. The plaintiffs respondents claimed the aforesaid relief on the facts inter alia that the plaintiffs are the owner of the suit land. In the year 1918 one Fudo Saw S/o Bhairo Saw executed a registered Kabuliyat deeds No.1380 and 1381 as karta of joint family of two sons of Bhairo Sah. The said Kabuliyat deed was executed regarding 155 bighas 16 kathas and 6 dhoors in favour of ex-landlord Babu Hari Charan Ganguli. Thereafter Fudo Sah and Shyam Sah both came in joint possession over the said land. They were paying rent to the ex- landlord. Subsequently the grand sons of Bhairo Sah partitioned the suit property. In the said partition each co-sharer, Rameshwar Sah, Ishwar Sah, Matuki Sah and Dhana Sah got 39 bighas, 5 kathas and 6 dhoors in their share. Thereafter they were muted in the Serista of ex-landlord with respect to their separate share and zamabandi were opened separately. After vesting of zamabandi they paid rent to the State of Bihar. After the death of Ishwar Sah his son, namely, Ganeshwar Sah and Yogeshwar Sah partitioned the property of Ishwar Sah and came in possession of their respective share. Their new survey plot numbers are 2726 and 2739 of Khata no.1234. Likewise the grand son of Matuki sah also partitioned their property with regard to new survey plots no.2730 and 2756 of that khata. The further case of the plaintiffs is that no land remained as Gairmajarua land. Only some portion of the suit land has been wrongly recorded in the name of Bihar Sarkar and 3 illegal possession of the plaintiffs have been shown.The entry is wrong and inspite of that entry the plaintiffs are coming in possession over the same. Therefore, the suit has been filed for rectification of the record of right. 4. The further case is that the entire land of Schedule- A have been acquired for the purpose of N.T.P.C., Kahalgaon and the compensation is not being paid to the plaintiffs on the ground that the suit lands belong to the State of Bihar. In Award No.95 Rs.125833.53 has been prepared in the name of the Collector, Bhagalpur and in Award No.96 Rs.50,866.55 has been prepared in the name of the Collector, Bhagalpur. Rest area of 6.52 acres have also been acquired but no award has been prepared as yet. 5. The further case is that the plaintiffs filed objection in land acquisition case before the Land Acquisition Officer under sections 13 and 18 and prayed for referring the matter to Land Acquisition Judge but it was rejected. The Collector also rejected their Misc. case. Hence, the suit was filed after service of notice under section 80 C.P.C. 6. The State of Bihar appeared and filed written statement taking various legal pleas and mainly contended that the plaintiffs have got no title and interest in the suit land and it has been rightly recorded in the name of the defendants. At the time of survey proceeding the plaintiffs did not file any objection. The awards have been correctly prepared in the name of the Collector. Anchaladhikari has no jurisdiction to correct zamabandi. The 4 applications of the plaintiffs were rightly rejected by the Land Acquisition Officer. 7. On these pleadings the learned court below framed as many as ten issues. The learned court below found that the plaintiffs are the raiyat of the suit property and are entitled to a decree for declaration that they have got indefeasible title and possession over the suit land and survey record of rights with respect to the suit land recorded in the name of the State of Bihar are illegal, invalid and against the law and, therefore, decreed the plaintiffs suit. 8. The learned counsel for the appellants submitted that the learned court below has wrongly decreed the plaintiffs’ suit. According to the learned counsel admtittedly the lands in suit have been recorded in the name of the State of Bihar and no objection was raised at the time of survey operation. Therefore, there will be presumption that the State of Bihar is the owner and the plaintiffs have been recorded in illegal possession.Their possession will be only illegal. The learned counsel further submitted that unless they prove title by adverse possession the suit cannot be decreed. The learned counsel further submitted that notice under section 80 C.P.C. was never served and, therefore, the suit was itself not maintainable. On these grounds the learned counsel submitted that the impugned Judgment and decree are liable to be set aside. 9. On the other hand, learned counsel for the plaintiffs respondents submitted that there is no illegality in the 5 impugned Judgment and, therefore, it cannot be interfered with in this appeal. The learned counsel further submitted that except the survey entry there is no evidence in favour of the State of Bihar whereas the plaintiffs have adduced overwhelming evidence oral as well as documentary in support of their case. The learned court below after considering the evidence has found the case in favour of the plaintiffs respondents. 10. In view of the above rival contentions of the parties the only point arises for consideration is as to whether the plaintiffs have been able to prove their title and possession over the suit property and whether the survey entry in the name of the State of Bihar is wrong and whether the impugned Judgment and decree are sustainable in the eye of law. F I N D I N G S. 11. According to the plaintiffs the suit property is the ancestral property obtained by Fudo Sah through registered kabuliyat in the year 1918. Through the said kabuliyat 155 bighas, 16 kathas and 6 dhoors were acquired. The Kabuliyat was executed in favour of ex-landlord Babu Hari Charan Ganguli. Since then the ancesters of the plaintiffs and thereafter the plaintiffs after partition are coming in peaceful possession. Only some part of the properties acquired/ settled by the ex-landlord has been recorded wrongly in the name of the State of Bihar. In support of their case the plaintiffs have examined witnesses. 12. P.W.1, Prasadi Das, is a formal witness in nature. 6 He has proved Ext.1 and Ext.1/A, the rent receipt. 13. P.W.2, Manoj Kumar, has fully supported the plaintiffs’ case as made out in the plaint. 14. P.W.3, Maheshwari Prasad Singh is the formal in nature. He has stated that he has obtained the certified copy of the registered kabuliyat. 15. P.W.4, Ram Rup Ram, is a formal witness and has proved the two registered kabuliyat which have been marked as Ext.2 and Ext.2/A which were of the year 1918 dated 4th July, 1918. 16. P.W.5, Banshidhar Singh, is one of the plaintiffs. In his evidence he has fully supported the case made by the plaintiffs in the plaint. His evidence is to the effect that the ancesters Fudo sah, son of Bhairo Sah had executed the registered kabuliyat in 1918 in favour of the ex-landlord,Babu Hari Charan Ganguli. Fudo Sah and Shyam Sah came in joint possession of the kabuliyat land measuring 155 bigha, 16 katha and 6 dhoor. Fudo Sah was paying rent to the ex-landlord being the karta of the family. Subsequently the lands were partitioned amongst four sons of Shyam Sah and Fudo Sah. They were mutatede in the Serista of the ex-landlord and were paying rent against the grant of rent receipt. After vesting of zamindari the ex-landlord submitted returns in the name of the four sons and, therefore, they were mutated in the serista of State of Bihar. On the payment of rent, rent receipts were issued . He also stated that in the recent revisional survey some of the kabuliyat lands have been wrongly and illegally recorded in the 7 name of the State of Bihar. 17. P.W.6 Bhola Prasad Gupta has also supported the plaintiffs case in his evidence. 18. The rent receipts and the registered kabuliyat deeds were proved in the court below. From perusal of the evidences discussed above it appears that the witnesses have supported the plaintiff’s case of acquisition by registered kabuliyat in 1918 and they have also supported the possession of the plaintiffs since then. According to the evidence also at the time of vesting of Zamindari the ex-landlord filed return in the name of four brothers, i.e., two sons of Fudo Sah and two sons of Shyam Sah and on the basis of that their names were mutated in the Sherista of the State of Bihar. Therefore, there is specific evidence adduced by the plaintiffs that they were in khas possession adduced by the plaintiffs that they were in khas possession even on the day of vesting. On the contrary no evidence at all either oral or documentary has been adduced by the appellant, the State of Bihar to contradict the case of the plaintiffs. 19. It is settled principles of law that entry of the record of rights neither creates title nor extinguishes title. The claim of the plaintiff is bases on the entry in the revisional survey record of rights. Since there is no evidence in rebuttal to the plaintiffs’ case that they acquired the land in 1918 through registered kabuliyat and since then they are in possession and also they are in khas possession on the date of vesting, it cannot be said that the State of 8 Bihar is the owner of the property. 20. It is well settled principles of law that lease of agricultural land can be created even oral and a lease could be affected by an instruments signed by the lessee only and registered and accepted by the lesser. In a decision reported in A.I.R. (33) 1946 Patna 22 (Lok Nath Singh vrs. Chattan Barhai) a Division Bench of this Court has held that a registered Kabuliyat signed by the lessee and accepted by the lesser is sufficient to constitute a lease within the meaning of Section 107 of T.P.Act. In said decisionh it has also been held that in case of agricultural lease T.P.Act has no application. The lease being an agricultural lease is covered by the Bihar Tenancy Act. 21. In view of my above discussion I find that the plaintiffs are the real owner of the suit property and entry in the record of rights Ext.5 in the name of the State of Bihar is wrong. The finding of the learned court below on these points are hereby confirmed. So far notice under section 80 C.P.C. is concerned it has been proved and marked as Ext.3. There is no contrary evidence adduced by the appellant. Therefore I find that notice under section 80 C.P.C. was served. 22. In view of the above findings I find no illegality in the impugned Judgment and decree passed by the learned court below. 23. In the result, I find no merit in this appeal and, according, this first appeal is dismissed. 9 24. In the facts and circumstances of the case, there shall be no order as to costs. The Patna High Court, The 7th May,2010 AnilKr.Sinha,Secrretary/A.F.R. ( Mungeshwar Sahoo, J. )