Appeal from Original Decree No.885 OF 1972 Against the judgment and order, dated 18.5.1972 passed by Sub Judge Ist, Patna in T. S. No. 185 of 1966. … 1. The State of Bihar, 2. The Collector, Patna .. .. .. .. Appellants. Vs. 1. Suresh Prasad Sinha, 2. Ramesh Prasad Sinha, 3. Bajrangi Lal Sinha, all sons of Late Debi Lal. 4. Smt. Krishna Devi, 5. Smt. Shakuntala Devi, 6. Laxmi Devi, all daughters of Late Debi Lal. 7. Manoj, 8. Sanoj, sons of Smt. Putul Devi (daughter of Late Debi Lal), All residents of Mohalla Macharhatta, PS Khaje Kalan, Dist. Patna. 9. Patna Municipal Corporation, Patna. 10.Bachhia Devi, wife of Late Madho Pd. Golwara, 11.Devi Lal Golwara, 12.Gopal Prasad Golwara, both sons of Late Madho Pd. Golwara, 13.Ashok Kumar Golwara, 14.Jamuna Devi, 15.Laxmi Devi, both daughters of Late Madho Pd. Golwara, all residents of Mohalla Macharhatta, PS Khaje Kalan, Dist. Patna. 16.Ram Lakhan Missir, son of Ramkhelawan Missir, Mohalla Barkigali, Jhauganj, Patna City, District Patna .. .. .. Respondents. For the appellants : Mr. Anil Kumar Jha, G. A.II and Mr.U.P.Singh,J.C. to G.A.II. For respondent No.1: Mr. M.N. Parbat, Advocate. For respondent No.2: Mr. Chandrashekhar, Senior Advocate and Mr. B.B.K. Singh. For respondent No.5: Mr. V. Nath, Ashok Kumar, Mr. Radha Mohan Pandey, Mr.Satish Kumar and Mr. Md. Waliur Rahman, Advocates. P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN S.A.Khan,J. This appeal arises out of judgment and order, dated 18.5.1972 passed by the Ist Subordinate Judge, Patna in T. S. No. 185 of 1966. 2. The suit had been filed by one Devi Lall for declaring 2 the acquisition of the suit property as described in Schedule I of the plaint as illegal, null and void and not binding upon the plaintiff and also for a declaration that the defendants 1 to3 should be restrained from interfering with the plaintiffs‟ possession and ownership of the suit property. In the alternative the plaintiff prayed that there should be an adjudication with respect to the plaintiff‟s title and ownership over the properties with respect to plot nos. 1027 and 1030 and after adjudication the plaintiff should be paid the compensation with respect to the acquisition of land which is lying in deposit before the Sub Judge, Patna in Land Acquisition Nos. 11/1965 and 12/1965. 3. The case of the plaintiff is that municipal survey plot nos. 1025, 1027, 1030, 1255 and 1023 in circle no. 144, Ward No. 23, situate in village Mahori of Mohalla Khajekalan, Patna City was owned and possessed by one Gopal Lal Maharaj as his Milkiyat property. The name of Gopal Lal Maharaj was recorded in municipal survey khesra during survey operations. In the year 1934 Gopal Lal Maharaj settled the said land permanently with the plaintiff after receiving a sum of Rs.180/- as Salami and the plaintiff is in possession as absolute owner of the lands so settled. Gopal Lal Maharaj executed a deed of Patta Dawami with respect to the aforesaid property in the name of the plaintiff. 4. It is the specific case of the plaintiff that survey plot no. 1027 was a ditch and the plaintiff intended to construct a residential house on plot nos. 1025 and 1027 and filled up the western portion of the plot and submitted a plan before the Patna City Municipality for construction of a pucca house. The plan was duly sanctioned by the then Patna City Municipality on 16.6.1934 and the plaintiff constructed 3 residential house on plot no. 1025 and certain portion of plot no. 1027 and on the rest of plot no.1027 plaintiff planted several fruit bearing trees and also maintained a tank on part of it. It is the plaintiff‟s case that he also grew vegetables on the plots aforesaid. The plaintiff sold portion of survey plot no. 1255 to Sona Ram and he came in possession thereof. The entire plot mentioned aforesaid except the portion that was sold to Sona Ram was amalgamated into one block and bounded by a boundary wall. It is the case of the plaintiff that Gopal Lal Maharaj ceased to have any concern with the plots aforesaid and the plaintiff was in possession of the plots to the knowledge of all including the Patna City Municipality. According to the plaintiff, Gopal Lal Maharaj died on 20.12.1966. 5. With respect to the case and the proceedings under the Land Acquisition Act, the plaintiff‟s pleadings begin from paragraph no. 7 onward. In short the plaintiff‟s case is that he came to know about the land acquisition proceeding some time in October, 1964 when some persons, allegedly the employee of defendant no.1, Patna Municipal Corporation, came on the land of the plaintiff and tried to fix pillars after taking measurement. The plaintiff objected and the employees of the Corporation left without fixing the pillars. On 7.12.1964 vide memo no. 987C, the plaintiff was informed by the Executive Officer, Patna City Circle of the Corporation that plot nos. 1027, 1030 and 1255 were acquired by the Corporation. The plaintiff refuted the claim of the Corporation and sent a reply. The plaintiff also visited the office of the Executive Officer and objected to the entire proceedings. It has been alleged that the plaintiff is the supporter of opponent of Mr. Golwara and 4 as such Mr. Golwara went against him and opposed him on different occasions. The plaintiff has stated accordingly that the entire land acquisition proceedings are non est on the ground that notices were never served to the plaintiff who is in possession of the land which has been acquired and the entire proceeding are fraudulent and inoperative. 6. The plaintiffs‟ case is that defendant no. 4 Bithal Nathji Maharaj who claims to be the son of Gopal Lal Maharaj is, in fact, not the son of Gopal Lal. The claim of Bithal Nathji is with respect to plot no. 1255 and the matter is pending under section 30 before the Addl.Sub Judge, Ist Court,l Patna in Land Acquisition Case No. 12/1965. 7. According to the plaintiff, defendant no. 5 is claiming compensation on the basis of an inoperative and collusive document and it is stated by the plaintiff that defendant no. 5 has no right, title or interest in plot no. 1255. 8. On the basis of the claims aforesaid plaintiff claims the reliefs as mentioned above. 9. Three sets of written statements have been filed in the case. Defendant no.1 i.e. Patna Municipal Corporation, apart from the common objection, has stated in the written statement that the so called sanctioned plan does not have particulars with respect to the constructed portion and as such the Corporation cannot assert as to who was the assessee of the whole land. It is the case of the Corporation that the plaintiff‟s name is not recorded as owner in the Khatiyan nor defendant no. 1 has any knowledge regarding the ownership or the manner in which the lands have been put to use by the plaintiff. It has also been submitted on behalf of the Corporation that the plaintiff has full 5 knowledge of the land acquisition proceeding. It has been stated that once the land acquisition proceeding had come to an end, the Corporation does not have any right to entertain any objection filed by the plaintiff on any matter concerned with the acquisition and as a result of the land acquisition proceeding. The officers of the Corporation had gone to take possession of the land acquired on behalf of the Corporation. 10. Defendant no.1 has denied the allegations made on behalf of the plaintiff regarding the land acquisition proceeding and on the basis of his pleadings had prayed that the suit should be dismissed. 11. The case of the State, defendants 2 and 3 is that the suit is barred by limitation. Much emphasis in fact has been placed by the State on the point of limitation inasmuch it has been the attempt on behalf of the State to demonstrate before the court that the entire suit should be dismissed on this score alone. With respect to title of defendant, the State has stated that the plaintiff had to prove his title, as the State is not bound to prove title at the time of acquisition proceeding. The State‟s case was that the land was required for the Municipal Corporation for construction of building staff quarters and as such requisition was made for acquisition of plot nos. 1027, 1030 and 1255 in Ward No. 23 in the district of Patna. The land acquired measures .869 acres. Defendants 2 and 3 state that the requisition was issued under the Land Acquisition Act and the land was acquired by declaration no. 50, dated 20.11.1961. It is also averred that the Corporation took possession of the land on 5.11.1964. At paragraph 11 of the written statement the defendants 2 and 3 state that if the plaintiff had any grievance against 6 Bithal Nathji or Mahadeo Pd. Golwara, defendants 4 and 5, the plaintiff may file a separate suit but the plaintiff cannot get any declaration or relief in this suit. On the basis of these facts, the State had prayed that the suit may be dismissed. 12. Defendant no. 4 has not filed any written statement and in fact has not appeared in this case. 13. The main contestant, apart from the State, is defendant no.5 i.e. Madho Prasad Golwara. Defendant no. 5 has set up a serious challenge with respect to title and possession of the plaintiff. According to him the plaintiff was not in possession of the said land and he has also stated that Gopal Lal Maharaj had in fact not settled any land with the plaintiff after receiving Salami of Rs. 180/- and had also not executed a Patta Dawami in favour of the plaintiff. This defendant has also stated that the plaintiff has not constructed any house on the western portion of plot no. 1027 and the plan sanction by the Municipality has been disputed by the State as the same does not indicate the plot number on which the house was sought to be constructed. In fact the entire pleadings with respect to title and possession of the plaintiff has been controverted by this defendant and it has been stated that there was no boundary wall on the amalgamated plots no. 1023, 1025, 1027, 1030 and 1255. Defendant no.5 claimed that he has right, title and possession over plot no. 1255 and the suit has been filed only to harass defendant no. 5 and put him to loss. 14. The trial court has framed several issues. With respect to issue no.3 i.e. whether the suit is bad for want of notice under section 508 of the Patna Municipal Corporation Act, the court has found that no 7 notice was required under section 508 of the said Act which in fact has not been challenged by any of the parties before this court. Similarly the issue whether there was a valid service of notice under section 80 of the Code of Civil Procedure, has been decided in favour of the plaintiff and the parties before this court have not seriously challenged this finding. Apart from the aforesaid issues, the main issue in this appeal is that (i) whether the plaintiff has any title over the lands under acquisition ? (ii) whether the suit for setting aside the entire land acquisition proceeding is maintainable ? (iii) whether the suit is barred by limitation ? 15. The trial court has held that the plaintiff has title and possession over the suit land. With respect to the Land Acquisition Proceeding, the trial court has held that there is a gross violation of the provisions of the Land Acquisition Act and as such has set aside the entire proceeding. 16. This is a State‟s appeal and the State has raised serious objection with respect to maintainability of the suit and the question of limitation. However, these issues cannot be decided without answering the question as to whether the plaintiff has title to the suit lands, therefore, this Court will proceed to examine the title of the plaintiffs and deal with contentions raised by the defendants thereafter. 17. In this context, I shall deal with the case of the plaintiff-respondent in this appeal. Mr. Parbat appearing on behalf of the plaintiff has argued that in fact defendant no. 5 has no right to challenge the title and possession of the plaintiff, as the defendant no. 5 has not set up any case to show his title or possession over the suit lands. It has also been submitted that Gopal Lal Maharaj who was the settler 8 and was recorded in the municipal survey khesra during the municipal survey operation as owner of the suit lands has not challenged the title or settlement of the plaintiff on any ground whatsoever. It may be relevant to mention here that the Trial Court has not found that defendant no. 5 had any title to the lands in dispute. The argument on behalf of the plaintif is that defendant nos. 4 and 6 who are allegedly the heirs of Gopal Lal Maharaj claim title and possession over plot nos. 1027 and 1030, have not appeared in the Court below or filed any written statement and as such these defendants have not been able to prove that they have title or possession over the suit lands. It has also been argued that defendant no. 5 has challenged the title of the plaintiff only on the ground that the patta in question was not registered and whole case is based on this argument. Nevertheless, this Court will have to examine the findings of the Trial Court with respect to declaration of title of the plaintiff. The plaintiff has also argued, rightly, that the question of adverse possession can only be challenged by the person to whom the title and possession is adverse i.e. the settler Gopal Lal Maharaj or his heirs. Thus, according to the plaintiff-respondent the arguments forwarded by the defendant no. 5 and the State with respect to the title of the plaintiff should be rejected out right. 18. The case of the plaintiff as explained earlier is that he had taken permanent oral settlement from Gopal Lal Maharaj in 1934 after receiving a sum of Rs. 181/- as Salami and thereafter the plaintiff came in possession of the land. It is also stated that for the purpose of remembrance, Gopal Lal Maharaj executed a deed of patta diwani. It is the specific case of the plaintiff that plot no. 1027 consisted of a ditch 9 and the plaintiff filled the ditch and constructed a house on plot no. 1025 and plot no. 1027 after getting the map approved by the municipality. The remaining plots which were settled to the plaintiff i.e. 1023, 1030 and 1255 were amalgamated and are being used for cultivating and growing vegetables. From the pleadings aforesaid it appears that it is quite clear that the lands in question are agricultural lands. It has also been asserted that the plaintiff paid rent to the ex-landlord and thereafter also pays rent to the municipal corporation and as such it is argued that the plaintiff is in possession and has title over the lands in question. On the basis of the aforesaid facts it is also asserted that the entire land acquisition proceedings are non est on the ground that no notice was ever served on the plaintiff under Sections 4, 5, 6 and 9 of the Land Acquisition Act. 19. This court will examine the witnesses to show that the plaintiff was in possession of the lands. P.W. 2 is the witness with respect to possession. It appears that P.W. 3 is the Advocate Commissioner who was appointed because there was a dispute between one Sona Rai and the plaintiff. The Advocate Commissioner‟s report indicates that the plaintiff was in possession of plot nos. 1027, 1030, 1255, 1023 and 1035. P.W. 8 supports the plaintiff‟s case with respect to possession on the disputed plots and there is nothing in the cross- examination which would cause this Court to disbelieve statement made in Court. P.W. 10 is the plaintiff himself. He has been examined at some length. However, his evidence is consistent with respect to both the possession and title of the lands in dispute. The plaintiff has been cross-examined not only on the question of his title and possession but 10 also with respect to the proceedings under the Land Acquisition Act, particularly with respect to an argument made by on behalf of the State that Devi Prasad and Devi Lal are one and the same person. Regarding the nature of the land he stated that he has a tank on plot no. 1027 and that he has several fruit trees on the rest of the plots of land. In fact the evidence led by P.W. 10 supports the case made out in the plaint. 20. The plaintiff has also brought on record the municipal map ext. 5 which has been jointly passed in the name of Banvari Lal and Devi Prasad to show his possession over the plot in question. Ext. 6 series are the rent receipts granted by the ex-landlord for plot nos. 1023, 1025, 1027, 1030 and 1255. Ext. 7 is the sale deed with respect to plot no. 1024 (not suit properties) which shows that Devi Lal and Banvari Lal are boundaries of plot no. 1024. This document dated 18.7.1942 has been brought on record to show that the plaintiffs were in possession since 1942 itself. Ext. 13 series are the municipal receipts granted by the Corporation from 1966. The Municipal khesra, survey khesra has been brought on record to show that Gopal Lal Maharaj was earlier recorded in the municipal khesra and the plaintiff has thereafter been recorded in the said municipal khesra. 21. Lastly it would be relevant to refer to ext. 2 which is the patta diwani. It has been described as „Bandobasti Raiyati Bemiyadi‟ and the lands have been described as „Talab va Bagh‟. These exhibits aforesaid undoubtedly indicates that the lands that were settled were agricultural lands. From the oral evidence it is clear that the nature of the lands at the time of settlement were agricultural and the plaintiff continues to use major part of the lands settled in his favour for 11 agricultural purposes in as much as the plaintiff has a tank and orchard on the lands. Therefore, the contentions of the appellants and defendant no.5 in this appeal that the lands in dispute that were settled in favour of plaintiff respondent were meant for residential purpose has to be rejected by this court. 22. Having established that the lands in question were used for agricultural purposes, the learned counsel for the plaintiff refers to several judgments, namely, Lok Nath Singh Vs. Chhotan Bahri reported in 1946, Patna 22, a full bench judgment in the case of Mt. Ugni & Anr. Vs. Chowa Mahto & Ors. reported in A.I.R. 1968, Patna 302 and the case of Sardamoni Debi Vs. State of Bihar & Ors. reported in A.I.R. 1979, Patna 106. 23. As far back as in 1946 the Patna High Court in Lok Nath Singh‟s case has held that once lease is created with respect to agricultural land by execution of a kabuliat it will not be affected by Transfer of Property Act. This view was reiterated in the case of Shardamoni Devi. The question that had fallen for consideration was whether the tank settled to the lessee would be considered a agricultural lease. This court answered in the affirmative and held that on the evidence, the defendants of that case had been unable to prove that the land was being utilized for non agricultural purposes. However, the leading judgment on this issue and which is followed till today is the law laid down in the case of Mt. Ugni (supra). This case has taken into consideration the judgment relied upon by the defendant no. 5 reported in A.I.R. 1960 Patna 344 in the case of Basta Colla Colliery Co. Ltd. vs. Bandhu Beldar & Another. It appears that some of the observations of 12 the decisions have been doubted by the Supreme Court in Atyam Veerraju vs. P. Venkanna, reported in AIR 1966 SC 629. The five bench judges have all agreed to the proposition that a valid agricultural lease may be created by an unregistered document as pointed in the case of Jangal Singh vs. Mukund Kumar, reported in AIR 1948, Patna 446 and if such unregistered document is executed, delivery of possession is not necessary to prove the title of the lessee. If however, the lease is not registered and is, therefore, in admissible as evidence of title, it will always be open to the tenant to show that he had obtained raiyati interest on the strength of actual possession and acceptance of rent by the landlord. Therefore, it cannot be argued that the claim of the plaintiffs will fall on the ground that the lease was not registered. In fact the settlement was made orally and it was only by way of precaution that a patta was executed to commensurate the existence of the oral lease. 24. Counsel appearing on behalf of respondent no. 5 and the State have raised the question that oral settlement of the lands by the ex-landlord Gopal Lal Maharaj and the subsequent Patta Diwani executed by the landlord is hit by Section 105, 106 and 107 of the Transfer of Property Act. According to the submissions made on behalf of the defendant no. 4, the patta is an unregistered document and is not admissible. It is further contended that the document cannot be used even for collateral purposes. Relying on averments at paragraphs 3 and 4, it is said that the lands in question have been used for residential purposes and the nature of the land is to be ascertained by the manner in which the lands are utilized. According to the defendant no. 5 the statement made at paragraph 3 of the plaint is “that at survey plot 1027 13 was a ditch and the plaintiff with the intention to construct a residential house on plot nos. 1025 and 1027 filled the western portion of the said plot 1027.” It has also been stated that he submitted a plan to the Patna City Municipality for construction of pucca house. It is also stated by the plaintiff that the plot nos. 1023, 1027, 1030, 1025 and 1255 have all been amalgamated into one plot and surrounded by a boundary. Having made the aforesaid statement, according to defendant no. 4, the plaintiff cannot claim that the lands are agricultural in nature and as such the “Patta” is hit by Section 49 of the Registrtion Act. For the purpose of substantiating the submissions aforesaid Mr. Nath relied a decision in the case of Basta Colla Colliery Co. (supra). 25. Two suits were filed by Basta Colla for ejectment of the principal defendant from certain lands situated in village Basta Colla. The plaintiffs case is that Ganpat and Bandhu verbally took lease of lands in dispute for residential purpose (emphasis supplied) in the year 1920, and that subsequent execution of Kabuliyats by them did not legally create any permanent lease in their favour. Their names were wrongly mutated as raiyats Kaimi tenants. The defendants were in fact month to month tenants. 26. The points urged in that suit were (i) that a kabuliat executed by lessee cannot legally create a valid tenancy even though pattas were not executed by the owner, (ii) that a person who enters into possession of land under the valid lease, is a trespasser and his possession being wrongful from the moment of entry, limitation begins to run against the landlord from that moment. This judgment deals with the question when a lease is created for a