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Tripathy Kiran Nath Sharma v/s State of Bihar through Collector

    Appeal from Appellate Decree 140 Of 1990

    Decided On, 05 October 2005

    At, High Court of Bihar

    By, THE HONOURABLE MR. JUSTICE SYED MD.MAHFOOZ ALAM

    For the Appearing Parties: Sukumar Sinha, Advocate.



Judgment Text

SYED MD.MAHFOOZ ALAM, J.

(1.) This second appeal has been preferred by the plaintiff-appellant against the judgment and decree dated 31.8.1989 passed by Sri S.S. Prasad, 10th Additional District Judge, Rohtas at Sasaram in Title Appeal No. 3/3 of 1985/1987 affirming the judgment and decree dated 15.12.1984 passed by Sri N.N. Singh, 4th Additional Subordinate Judge, Sasaram in Title Suit No. 121/45 of 1980/83 whereby the suit of the plaintiff- appellant and the appeal preferred by him were dismissed.

(2.) The brief facts of this case are as follows :

"The plaintiff-appellant filed Title Suit No. 121 of 1980 before the Subordinate Judge, Sasaram claiming right, title and interest in the suit land described in Schedules A and B of the plaint by virtue of the settlement through unregistered patta (Ext. 3 series) by ex-landlord in favour of Tripathi Jagdish Narain Sharma, father of the appellant. Further case is that Schedules A and B lands were recorded as Gairmazarua lands in the cadestral survey but after survey operation the ex-landlord brought those lands in their khas possession and came in cultivating possession of the lands. One Maheshwari Prasad Singh was the landlord of the lands appertaining to khata Nos. 53 and 67 described in Schedule A of the plaint. The father of the appellant, namely, Jagdish Narain Sharma took settlement of the said lands from the ex- landlord through an unregistered patta on payment of Rs. 500/- as Salami on the 1st July 1345 Fasli corresponding to 1st July, 1938. Since the date of settlement the plaintiff's father and later on, the p

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laintiff came in cultivating possession of the land. Further case is that the ex-landlord at the time of vesting of Zamindari submitted return with regard to the land described in Schedule A in the name of Tripathi Jagdish Narain Sharma, father of the plaintiff- appellant and as such after vesting of the zamindari the State of Bihar accepted the plaintiff and his father as tenants of the suit land and accordingly, the rent receipts of the suit lands were also issued by the State of Bihar in their names. Further case is that the father of the plaintiff, namely, Tripathi Jagdish Narain Sharma took settlement of 1 acre 59 decimals of land from ex-landlord Tapeshwari Nand Sahay on 22.7.1948. He also took settlement of 3 acres 17 decimals of land on 5.7.1948 from the ex-landlord Babu Jagdish Nand Sahay and Babu Jitendra Nand Sahay. On 13.7.1948 he took settlement of 4 acres 32 decimals of land from ex-landlord Babu Aditya Nand Sahay. All the settlements were made on the basis of sada patta executed in favour of the father of the plaintiffs. These lands have been described in Schedule B of the plaint. Further case is that after settlement, the plaintiff's father came in possession of the Schedule A and B lands. In the year 1975, a family partition took place and in that partition these lands of Schedules A and B were allotted to the share of the plaintiff and since then the plaintiff has been coming in khas possession of those lands. Futher case is that in revisional survey, the survey authority without examining the documents and other proof of land with regard to the title of the plaintiff over Schedules A and B lands recorded the suit lands in the name of the State of Bihar. The plaintiff's father filed a petition under Section 106 of the Bihar Tenancy Act before the survey authorities for correction of the entries of the Khatian in the revisional survey in respect of the disputed land but before the hearing is made on the petition, consolidation proceeding started and due to that, the survey authorities did not pass any order on his petition. The plaintiff filed an application before the Consolidation Officer, Chenari for correction of the khatian but before the hearing is made on the petition, village Karech has been declared in the Notified Area Committee and the survey operation of that village was stayed. It is further said that no consolidation proceeding in respect of the land of village Sumbha was going on but even then the State refused to grant rent receipts of the lands of Schedules A and B. It is further said that besides the settlement, the plaintiff also acquired title by way of adverse possession over the suit land as he has been coming in peaceful possession of the suit land without any interference since more than statutory period. It is further said that since the Karmchari of the State Government and other officers started giving threats to dispossess the plaintiff from the suit land on the basis of survey entry due to which cloud over the title of the plaintiff in respect of the suit land was cast, so, the plaintiff filed the suit."

(3.) The case of the defendant-respondent (State of Bihar) was that the suit as framed is not maintainable. The plaintiff has got no cause of action and right for the suit. The suit is barred by law of limitation as well as under the provisions of the Bihar Tenancy Act. The suit is not properly valued. The notice under Section 80 of the Code of Civil Procedure was not validly served upon the defendant. Further case of the defendant-respondent is that the ex-landlords were never in khas possession and in cultivating possession of the suit land at the time of vesting of Zamindari in the State of Bihar and the story as pronounded by the plaintiff-appellant, is not only wrong, concocted but also cock and bull story. The Sada Pattas and rent receipts filed by the plaintiff are antedated, forged and manufactured documents. Those rent receipts were created after bringing the ex-landlord in his collusion. The fact is that in the revisional survey, the suit land has been recorded in the name of the State of Bihar although the plaintiff has been shown in illegal possession of the land in remarks column.

(4.) On the basis of the pleadings of both the parties, as many as eight issues were framed by the learned trial court which are as follows :

(i) Is the suit as framed maintainable? (ii) Has the plaintiff got any cause of action and right for the suit ? (iii) Is the suit barred by law of limitation ? (iv) Has the plaintiff given notice under Section 80, CPC to the defendant and is the notice valid, genuine and according to the provision of law ? (v) Is the defendant's case that the suit has abated according to the provision of Section 4(c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 correct ? (vi) Is the story of settlement of Schedule A and B land in favour of the plaintiff by ex-landlord genuine ? (vii) Has the plaintiff got title and possession over the suit land ? (viii) Is the plaintiff entitled to get any relief, if so to what relief ?

(5.) From perusal of the judgment of the trial Court it appears that the learned trial Court after making full discussion on issue Nos. (iv)(.v)(.vi) and (vii) dismissed the suit of the plaintiff. It further transpires that the learned trial Court decided issue Nos. (iv)(v), (vi) and (vii) against the plaintiff and on that basis, he dismissed the suit of the plaintiff.

(6.) From perusal of the judgment of the first appellate Court it appears that the first appellate court did not make separate discussion on each and every issue but it appears that the appellate Court did not differ with the trial Court on any finding which goes to show that the appellate Court affirmed all the findings of the trial Court on issues Nos. (iv), (v), (vi) and (vii) and thereafter the appellate Court dismissed the appeal.

(7.) Against the judgment of the appellant Court, this second appeal has been preferred and the following substantial questions of law were framed for deciding the appeal. (i) Whether the courts below were right in holding that the settlement of the agricultural land of the value of more than Rs. 500/- cannot be done except through a registered deed of lease (Hukumnama) ? (ii) Whether the learned Courts below were right in holding that the rent receipts are neither to prove the title nor possession with respect to the suit land?

(8.) During the hearing of this appeal the learned Senior Advocate Sri Sukumar Sinha, appeared before this court for arguing on behalf of the appellant but none appeared on behalf of the respondent (State of Bihar).

(9.) On point No. (i) the argument of Mr. Sukumar Sinha, Senior Advocate, was that the learned appellate Court has wrongly held that on the basis of the unregistered patta the plaintiff cannot claim title over the suit land. He referred para - 9 of the judgment of the appellate Court in which following observations have been made : It has been submitted on behalf of the State that the appellant has claimed suit land by virtue of Sada Patta, but the law provides that it must be by registered patta, because the value of the suit land has been given therein of Rs. 500/- and therefore, it must be registered and on this score also the appellant's case stands nowhere.

(10.) The learned Advocate citing the decision of the Full Bench given in the case of Mostt. Ugni and Anr. v. Chowa Mahto and Ors. reported in AIR 1968 Patna 302 submitted that as per the said decision, the above finding of the learned appellate Court is illegal. He referred para -10 of the said decision which is as follows :

"It is true that a valid agricultural lease may be created by a registered instrument as pointed out in Jangal Singh v. Mukund Kumar AIR 1948 Pat. 446, and, if such a registered document is created, delivery of possession is not necessary to prove the title of the lessee. If, however, the lease is not registered, and is, therefore, inadmissible as evidence of title, it will always be open to the tenant concerned to show that he obtained raiyati interest on the strength of actual possession and acceptance of rent by the landlord. There is also no legal bar to a person claiming raiyati interest on two alternative pleas. He may claim such a right on the basis of a written document of lease. If, however, such claim fails on the ground that the document, being compulsorily registrable, was not registered, nevertheless his alternative claim based on actual possession, coupled with acceptance of rent by the landlord, may succeed. In that case, the unregistered lease will be admissible for the collateral purpose of proving the nature of possession. "

(11.) From perusal of the decision cited above, I have come to the conclusion that the said decision helps the findings of the appellate Court instead of the submission of the learned Advocate. In the said decision it has been held that if the lease is not registered, it is inadmissible as evidence of title. However it is admissible for collateral purpose for proving the nature of possession and not title. From the perusal of the judgment of appellate Court it appears that by saying that the appellant has claimed suit lands by virtue of Sada Patta, but the law provides that it must be by registered Patta, because the value of the suit land has been given therein of Rs. 500/- and therefore it must be registered, the intention of the Court was that only through a registered instrument/document a valid title can be created in favour of lessee if the value of the property is more than Rs. 100/- but if the patta is unregistered then it cannot be the proof of title in favour of the plaintiff as the same is in-admissible in law. I am of the view that the view taken by the learned Court below is correct and in accordance with law. I further hold that unregistered patta is in-admissible in evidence and such unregistered patta cannot create title in favour of any party. It is only admissible for collateral purpose for proving the nature of possession. Moreover, it appears that the trial Court by making discussion on the Sada Patta has held that those Sadda Pattas are not genuine documents and the appellate Court has not reversed this finding and, therefore, I am of the opinion that when the Sada Pattas are held to be not genuine documents, no question of passing of title through such document arises. In such view of the matter, I am of the opinion that there is no merit in the argument of the learned Advocate of the appellant that the learned trial Court as well as the appellate Court have wrongly decided that the settlement of the agricultural land of the value of more than Rs. 500/- cannot be done except through a registered deed of lease. Accordingly, this point is decided against the appellant.

(12.) On point No. (ii), the learned Advocate of the appellant has further argued that the plaintiff has produced several rent receipts in proof of his title and possession but inspite of that, the learned trial Court as well as the appellate court did not decide title of the suit land in favour of the appellant. I am afraid, whether this argument of the learned Advocate of the appellant is in accordance with law. The answer is in the negative as I am of the view that the rent receipts never create title in favour of any person. Moreover, from the Judgment of the trial Court it appears that the trial Court has held that the rent receipts produced on behalf of the plaintiff are not genuine documents and this finding of the trial Court has not been reversed in appeal. It is settled principle of law that in second appeal the High Court on reappreciation of the evidence cannot set aside the findings of the fact recorded by the first appellate court unless the High Court comes to the conclusion that the findings recorded by the first appellate Court were perverse and based on no evidence. In support of my view, I place reliance upon the decision of the Supreme Court in Manicka Poosali (D) and Ors. v. Anjalai Ammal and Anr. reported in 2005 (2) BBCJ (IV)(SC) 420. Para 17 of the said decision runs as follows : This judgment was followed by this Court in Civil Appeal No. 2292 of 1999 [Govindaraju v. Mariamman ] decided on 4th February 2005. In Govindaraju's case (supra) it has been held that the High Court while exercising its power under Section 100 of the Code of Civil Procedure on reappreciation of the evidence cannot set aside the findings of the fact recorded by the first appellate Court unless the High Court comes to the conclusion that the findings recorded by the first appellate Court were perverse i.e. based on misreading of evidence or based on no evidence.

(13.) In the case of Ramsakhi Dew v. Chhatra Dew reported in 2005 (3) BBCJ (IV) 65, following observations have been made at para 9 of the said judgement by the Supreme Court : It is to be reiterated that under Section 100, CPC jurisdiction of the High Court to entertain a second appeal is confined only to such appeals which involve a substantial question of law and it does not confer any jurisdiction on the High Court to interfere with pure question of fact while exercising its jurisdiction under Section 100, CPC.

(14.) Thus, from the decisions cited above; it is clear that this Court in second appeal on reappreciation of the evidence cannot set aside the findings of the fact recorded by the first appellate Court unless the High Court comes to the conclusion that the findings recorded by the first appellate Court were perverse. In this case I find that the judgments of the trial Court as well as of the appellate Court are well discussed and the reasons given in the judgments in support of the findings appear to be acceptable and, therefore, it cannot be held that the findings of the appellate Court are perverse. In such view of the matter, under Section 100 of the Code of Civil Procedure, this Court is not empowered to set aside the findings of the appellate Court which are based on materials available on record and on better appreciation of the evidence. Under the circumstances mentioned above, I do not find any reason to interfere with the view of the appellate Court that the rent receipts are neither to prove title nor possession with respect to the suit land.

(15.) In the result, I do not find any merit in this second appeal and as such, the same is hereby dismissed but without cost
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