Patna High Court
Oshihar Chaudhary vs Manshi Chaudhary on 8 May, 2025
IN THE HIGH COURT OF JUDICATURE AT PATNA
SECOND APPEAL No.98 of 1997
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1. Oshihar Chaudhary, Son of Late Rukhi Chaudhary Resident of Village
Baikunthpur, Pargana Sipah, P.S. Manjhagarh, District Giopalganj.
2. Jai Ram Chaudhary, Son of Late Rukhi Chaudhary Resident of Village
Baikunthpur, Pargana Sipah, P.S. Manjhagarh, District Goopalganj.
3. Mokhtar Chaudhary, Son of Late Rukhi Chaudhary, Resident of Village
Baikunthpur, Pargana Sipah, P.S. Manjhagarh, District Gopalganj.
4. Ram Chandra Chaudhary, Son of late Rukhi Chaudhary, Resident of Village
Baikunthpur, Pargana Sipah, P.S. Manjhagarh, District Gopalganj.
5. Most. Darpaniya, Wife of Rukhi Chaudhary, Resident of Village
Baikunthpur, Pargana Sipah, P.S. Manjhagarh, District Gopalganj.
6. Smt. Gautam Devi, Wife of Sigasan Chaudhary Resident of Village
Paithanpatti, P.S. Manjhagarh, Pargana Sipah, District Gopalganj, at present
resident of Village Baikunthpur, Pargana Sipah, P.S. Manjhagarh, District-
Gopalganj.
7. Smt. Sheo Kumari Devi, Wife of Shri Muniraka Yadav and D/o Late Rukhi
Chaudhary, Bhaisahi, P.S. Manjhagarh, District Gopalganj, at present village
Baikunthpur, P.S. Manjhagarh, Pargana Sipah, Sipah, District Gopalganj.
8. Smt. Phul Kumari Devi, Wife of Ram Nath Yadav, Village Kamalpur, P.S.
Barauli, District Gopalganj, at present village Baikunthpur, P.S. Manjhagarh,
Pergana Sipah, District Gopalganj.
9. Binda Devi, Wife of Rudal Chaudhary and D/o Late Rukhi Chaudhary,
Village Mustakabad, P.S. Goreya Kothi, District Siwan, at present residing at
Village Baikunthpur, P.S. Manjhagarh, District Gopalganj.
10. Smt. Sanjam Kumari, Wife of Lachhuman Yadav, Village Supouli, P.S.
Sidhwalia, District Gopalganj, at present Village Baikunthpur, P.S.
Manjhagarh, District Gopalganj.
11. Tulful Kumari, D/o Late Rukhi Chaudhary, Resident of Village Baikunthpur,
P.S. Manjhagarh, District Gopalganj.
... ... Appellant/s
Versus
1. Manshi Chaudhary, Son of Late Jadu Chaudhary, Resident of Village
Baikunthpur, Pargana Sipah, P.S. Manjhagarh, District Gopalganj.
2. Banka Chaudhary, Son of Manshi Chaudhary, Resident of Village
Baikunthpur, Pargana Sipah, P.S. Manjhagarh, District Gopalganj.
3.1. Most. Sabaria Devi, W/o late Banshi Chaudhary, Resident of Village
Baikunthpur, Pargana Sepha, P.S. Manjhagarh, District Gopalganj.
3.2. Most. Ratia Devi, W/o late Chatri Chaudhary, Son of late Banshi Chaudhary,
Resident of Village Baikunthpur, Pargana Sepha, P.S. Manjhagarh, District
Gopalganj.
Patna High Court SA No.98 of 1997 dt.08-05-2025
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3.3. Raju, Son of late Chatri Chaudhary, Son of Late Banshi Chaudhary, Resident
of Village Baikunthpur, Pargana Sepha, P.S. Manjhagarh, District Gopalganj.
3.4. Manju, D/o late Chatri Chaudhary, Son of Late Banshi Chaudhary, Resident
of Village Baikunthpur, Pargana Sepha, P.S. Manjhagarh, District Gopalganj.
3.5. Nanhey Chaudhary, Son of late Banshi Chaudhary, Resident of Village
Baikunthpur, Pargana Sepha, P.S. Manjhagarh, District Gopalganj.
3.6. Umar Chaudhary, Son of Late Banshi Chaudhary, Resident of Village
Baikunthpur, Pargana Sepha, P.S. Manjhagarh, District Gopalganj.
3.7. Bal Chaudhary, Son of late Banshi Chaudhary, Resident of Village
Baikunthpur, Pargana Sepha, P.S. Manjhagarh, District Gopalganj.
3.8. Phulmati Devi, W/o Hira Chaudhary, Resident of Village Pathara, P.S.
Manjhagarh, Dist. Gopalganj.
3.9. Jiyuti Devi, W/o Ram Chaudhary, Resident of Village Batwaliya, P.S.
Barharia, Dist. Siwan.
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr.Gautam Bose. Sr. Advocate
Mr.Indraeel Sen Gupta, Advocate
For the Respondent/s : Mr.Amar Prakash, Advcate
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CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI
CAV JUDGMENT
Date : 08-05-2025
This Second Appeal is directed against the
judgment and decree dated 31st January, 1997 passed by the
learned 4th Additional District and Sessions Judge, Gopalganj
in Title Appeal No. 62 of 1982, affirming the judgment and
decree dated 26th February, 1982 passed by the learned 2 nd
Additional Munsif, Gopalganj in Title Suit No. 165 of 1978.
The appellants herein, being the defendants before the learned
trial court, have challenged the concurrent findings of fact by
the courts below whereby the plaintiffs' title over the suit
property was confirmed and the defence based on oral partition
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and purchase from Batami Devi was disbelieved.
2. This appeal came up for admission hearing
under Order 41 Rule 11 of the Code of Civil Procedure, 1908
on 18.02.1998 and the following Substantive Question of Law
is formulated:
1. Whether the Suit filed by the Plaintiff
maintainable?
3. The principal contention in this Second Appeal
revolves around the validity of a claimed oral exchange of
land, the evidentiary value of a sale deed executed by one
Batami Devi, and the legal effect of an order under Section
145 of the Code of Criminal Procedure, 1973, particularly
where the civil suit does not contain a specific prayer for
declaration of title. The appeal also raises the ancillary but
significant issue of whether possession alone, determined in a
summary proceeding, can affect adjudication in a title suit.
4. The suit property comprises of plots bearing
Nos. 684 (under Khata No. 106), 209 (under Khata No. 38),
and 210 (under Khata No. 104), situated in Mauza
Baikunthpur, within the jurisdiction of Manjahagarh P.S.,
District Gopalganj. The plaintiffs instituted Title Suit No. 165
of 1978 for declaration of their title over the suit plots and for
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confirmation of possession, on the basis of inheritance and
subsequent oral exchange.
5. The plaintiffs' case is that the land originally
stood recorded in the name of one Gular Sah in the Survey
Khatiyan. After his demise, the property devolved upon his
legal heirs. The plaintiffs and defendants are related as
descendants of the same lineage. It is their specific case that by
virtue of inheritance, they came into possession of the suit land
jointly with the defendants.
6. Subsequently, in the year 1974, an oral
exchange was effected between the parties whereby the
plaintiffs relinquished their claim in respect of Plot No. 684
and in exchange were put in possession of Plots No. 209 and
210. In furtherance of such oral exchange, a deed of exchange
dated 02.06.1974 (Exhibit 3 / Ext-3 Ka) was executed and
relied upon by the plaintiffs. It is claimed that ever since such
exchange, the plaintiffs have remained in possession of Plots
No. 209 and 210 peacefully and continuously.
7. The defendants contended that the suit land had
already been partitioned amongst the heirs of Gular Sah and
that Batami Devi, the daughter of Gular Sah, sold her share,
including Plot No. 684, to the defendants by a registered sale
Patna High Court SA No.98 of 1997 dt.08-05-2025
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deed dated 11.08.1975 (Exhibit-B). They placed reliance on
this sale deed and claimed exclusive ownership and possession
of the land purchased hereunder. The defendants contended
that the property had been partitioned among heirs of Gular
Sah, yet no formal partition deed was presented. Additionally,
witness testimonies provided by the defendants contained
inconsistencies regarding the timing and nature of partition.
Some witnesses asserted that partition had taken place decades
earlier, while others failed to confirm key details regarding the
division of property. These contradictions undermine the
credibility of the defendants' partition claim and reinforce the
appellate court's conclusion that joint ownership remained
intact
8. Further, the defendants also relied upon an
order passed by the Sub-Divisional Officer, Gopalganj, under
Section 145 of the Code of Criminal Procedure in Case No.
M(747) of 1975. The said proceeding concluded in an order
dated 12.08.1978, whereby possession was declared in favour
of the defendants. However, proceedings under Section 145
are summary in nature, meant to prevent breaches of peace and
do not adjudicate ownership. The Supreme Court in Mohd.
Abid v. Ravi Naresh reported in 2022 SCC OnLine SC 2416
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emphasized that once a civil suit is pending, under section 145
of the Cr.P.C. proceeding must cease. Further, in Ram
Padarath Singh v. State of Bihar (CR. MISC. No.41314 of
2016, decided on 28.01.2025), it was held that criminal
proceedings cannot override title adjudications in civil courts.
The lower courts, applying these principles, correctly
disregarded the SDO's possession order, reaffirming that
rightful ownership must be determined through civil
adjudication. The plaintiffs, on the other hand, asserted that
such an order, passed in a summary proceeding, cannot
override the rightful title or possession determined by a
competent civil court.
9. During the trial, both parties led oral and
documentary evidence. The trial court, after appreciating the
materials on record, decreed the suit in favour of the plaintiffs.
The appellate court, upon reappraisal of evidence, affirmed the
findings of the trial court and dismissed the appeal filed by the
defendants. Aggrieved thereby, the present second appeal has
been preferred.
10. While both parties presented documentary
evidence supporting their respective claims, a crucial aspect
that requires discussion is the absence of formal mutation in
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revenue records. The plaintiffs relied on the exchange deed
dated 02.06.1974 (Exhibit-3 / Ext-3 Ka) to establish
ownership, while the defendants produced rent receipts from
1977-78 indicating possession. However, neither party
initiated mutation proceedings to officially register ownership
changes, leading to ambiguity in revenue records. The lower
courts rightly noted that, while possession is relevant, non-
mutation does not invalidate an otherwise valid transaction,
provided it is supported by legal documentation and long-
standing possession. The lower courts rightly noted that non-
mutation does not invalidate a transaction when supported by
possession and documentary evidence.
11. In the light of the concurrent findings of fact
by the courts below and the grounds urged in the present
second appeal, the following questions arise for consideration:
1. Whether a valid oral exchange of immovable
property, followed by delivery of possession and acted upon
by the parties, can confer title and be recognised in a
declaratory suit, even in the absence of a registered document?
2. Whether an order passed under Section 145 of
the Code of Criminal Procedure, 1973, which merely
determines possession and not ownership, can be relied upon
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to defeat the claim of title established in a civil proceeding?
3. Whether a civil suit, instituted for a declaration
of possession and confirmation of title, can be adjudicated and
decreed in the absence of an express prayer for declaration of
title, where title is otherwise in issue and evidence thereof is
led by the parties?
I have consciously not reformulate the above
questions as substantial question of law, but proposed to
decide them under broad substantial question of law relating to
maintainability, due to the prolonged pendency of this case and
to avoid unnecessary delay.
12. These questions are to be addressed in the
framework of the case, evidentiary materials, and concurrent
findings returned by the trial and first appellate courts.
13. Section 9 of the Transfer of Property Act,
1882, permits the transfer of property without writing in cases
where writing is not expressly required by law. However, for
transfers of immovable property Section 17 of the Indian
Registration Act, 1908, mandates a registered instrument for
transactions involving immovable property valued at ₹100 or
more. In the present case, the plaintiffs rely on an oral
exchange followed by possession and a subsequent
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unregistered deed dated 06.02.1975. The courts below found
that this exchange was acted upon, with the plaintiffs taking
possession of Plots No. 209 and 210. Given the specific
circumstances and the execution of a deed, the exchange can
be considered valid.
14. Under Section 118 of the Transfer of Property
Act, 1882, an exchange of immovable property generally
requires a registered instrument. However, courts have
recognized exceptions where an oral exchange, followed by
delivery of possession and mutual acknowledgment, can
confer valid title. In Paramjit Singh v. Ratti Ram, reported in
2004 SCCOnline P&H 250. Paragraph No. 9 is relevant and
quoted below:-
"9. I have considered the
submissions made by the learned counsel
for the parties and I am of the considered
view that there was sufficient evidence
before the trial court to come to the
conclusion that there was an oral
exchange of the suit land between the
plaintiff and the appellant. The fact that
there was an oral exchange of the land is
not disputed by the plaintiff throughout
the proceedings'. He has filed the suit after
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a period of 10 years, for the first time
raising the plea that since Ex. D1 was not a
registered document, the exchange itself
was invalid. I am of the opinion that the
suit filed by the plaintiff was wholly
misconceived. Document Ex. D1 clearly
shows that there was an oral exchange of
the land between the plaintiff and the
appellant. Possession of the land was
handed over to the appellant in the year
1963, Revenue record from 1963 onwards
continuously shows that the appellant has
been recorded to be in possession of the
land. Therefore, for all intents and
purposes, the oral agreement between the
parties had been fully acted upon, May be
out of abundant caution, the parties
decided to execute ex. d1 to put beyond
doubt the factum of oral exchange.
Therefore, the trial court was correct in
holding that the exchange which was
based on an oral agreement, did not
require compulsory registration. Execution
of Ex. D1 cannot be permitted to be used
to deprive the appellant of the ownership
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rights which accrued to the appellant on
the basis of oral exchange. In my opinion,
the lower Appellate Court has misdirected
itself by styling Ex. D1 as the instrument of
exchange. No new right or title was
conveyed by Ex. D1. It merely recognised
pre-existing legal rights of the parties,
which came into existence on the basis of
the oral agreement. It is well settled
proposition of law that any document even
a decree which merely recognises pre-
existing rights, does not require
registration. This view of mine finds
support from a Division Bench judgment
of this court in the case of Gurdev
Kaur v. Mehar Singh, [1989 P.L.J. 182] . In
the aforesaid Division Bench judgment, it
has been held as follows:"For the reasons
recorded above, by agreeing with the view
taken in the judgments cited above that a
compromise decree does not require
registration, provided the immovable
property is subject matter of the suit, we
hold that a compromise decree regarding
immovable property which is subject
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matter of the dispute in the suit, does not
require registration, even if title is created
in favour of the decree holder for the first
time under the decree, whether with
consideration or without consideration."
15. Section 145 of the Code of Criminal
Procedure, 1973, empowers an Executive Magistrate to
address disputes likely to cause a breach of peace concerning
land or water. However, proceedings under this section are
preventive in nature and do not adjudicate title or ownership.
16. The Supreme Court in Mohd. Abid and Others
Versus Ravi Naresh and Others (supra) observed:
"4. It is, however, an admitted
fact that the petitioners have already filed
a suit for injunction in which ex-parte ad-
interim injunction has been granted by the
Civil Court, Faizabad, Uttar Pradesh on
05.12.2020
. Once the Civil Court is seized
of the matter, it goes without saying that
the proceedings under Section 145/146 Cr.
P.C. cannot proceed and must come to an
end. The inter-se rights of the parties
regarding title or possession are eventually
to be determined by the Civil Court.”
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17. Similarly, the Patna High Court in Ram
Padarath Singh & Ors. v. The State of Bihar & Anr. (supra).
Paragraph Nos. 25 and 35 are relevant and quoted below:-
“25. From the perusal of Sections
145 to 148 Cr.PC, it clearly transpires that the
statutory provisions therein are meant to
maintain public order and peace by
empowering the Executive Magistrate to take
preventive measures in case of apprehension of
breach of public peace on account of dispute
as to actual possession of the land or water.
When the Executive Magistrate is satisfied
from the report of Police Officer or any other
information that such dispute is likely to cause
a breach of peace, he can initiate proceeding
under Section 145(1) Cr.PC, stating the
ground of such satisfaction and take steps to
hear the parties concerned in regard to the
actual possession of the subject of the dispute.
However, during such hearing, the Magistrate
is not required to examine title or right of any
party to possess the subject of the dispute, but
only to find out which of the party was in
actual possession at the time of the report or
the information. However, if it appears to the
Executive Magistrate that any of the party has
been forcefully and wrongfully dispossessed
within two months next before the date on
which the report or information was received
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his order under Sub-Section (1), he may treat
the party so dispossessed, as if that party had
been in possession and he is empowered to
restore the possession to the party so forcefully
and wrongfully dispossessed and pass order
forbidding of disturbance of such possession,
until eviction therefrom in due course of law.
35. It is also pertinent to point out
that if a Civil Suit regarding title and
possession is pending in regard to the property
in question in a Civil Court, a parallel
proceeding under Section 145 Cr.PC is not
permissible. It would be sheer wastage of
public time and money. The Civil Court is also
competent to adjudicate the dispute regarding
actual possession of the property between the
parties and pass interim order during
pendency of the Civil Suit. Hence, no purpose
would be served by permitting parallel
criminal proceeding under Section 145 Cr.PC
by Executive Magistrate. It goes without
saying that outcome of proceeding under
Section 145 Cr.PC is subject to outcome of
Civil Suit and the order of Civil Court is
binding upon the criminal Courts. Hence,
there is no justification for continuation of
parallel proceeding under Section 145 Cr.PC,
if Civil Suit is already pending in Civil Court
in regard to the landed property in question. In
Patna High Court SA No.98 of 1997 dt.08-05-2025
15/20this regard, one may also refer to the following
judicial precedents:
(i) Kunjbihari Vs. Balram and
Anr. (2006) 11 SCC 66
(ii) Gyandeo Sharma Vs. State of
Bihar 2006 (2) PLJR 181
(iii) Ras Bihari Rai & Ors. Vs.
The State of Bihar (2006 SCC Online Pat
263)
(iv) Nand Kishore Prasad Sah
Vs. State of Bihar, 2005 (2) PLJR 506
(v) Mahar Jahan vs. State of
Delhi (2004) 13 SCC 421
(vi) Mahant Ram Saran Das Vs.
Harish Mohan (2001) 10 SCC 758
(vii) Amresh Tiwari Vs. Lalta
Prasad Dubey (2000) 4 SCC 440
(viii) Atahaul Haque & Ors. Vs.
Md. Allauddin (2000) 3 PLJR 90
(ix) Chandra Shekhar Singh &
Ors. Vs. State of Bihar & Anr., (2000 SCC
Online Pat 1095)
(x) Prakash Chand Sachdeva
Vs. State & Anr. (1994) 1 SCC 471
(xi) Ram Sumer Puri Mahant
Vs. State of U.P. (1985) 1 SCC 427″
The requirement of an express prayer for
declaration of title in a civil suit depends on the nature of the
dispute. Where the plaintiff’s title is clear and undisputed, and
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the suit is for possession or injunction, an explicit declaration
may not be necessary.
18. In Anathula Sudhakar v. P. Buchi Reddy,
reported in (2008) 4 SCC 594, the Hon’ble Supreme Court
held
“14. We may, however, clarify
that a prayer for declaration will be necessary
only if the denial of title by the defendant or
challenge to the plaintiff’s title raises a cloud
on the title of the plaintiff to the property. A
cloud is said to raise over a person’s title,
when some apparent defect in his title to a
property, or when some prima facie right of a
third party over it, is made out or shown. An
action for declaration, is the remedy to
remove the cloud on the title to the property.
On the other hand, where the plaintiff has
clear title supported by documents, if a
trespasser without any claim to title or an
interloper without any apparent title, merely
denies the plaintiff’s title, it does not amount
to raising a cloud over the title of the plaintiff
and it will not be necessary for the plaintiff to
sue for declaration and a suit for injunction
may be sufficient. Where the plaintiff,
believing that the defendant is only a
trespasser or a wrongful claimant without
title, files a mere suit for injunction, and in
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such a suit, the defendant discloses in his
defence the details of the right or title claimed
by him, which raise a serious dispute or cloud
over the plaintiff’s title, then there is a need
for the plaintiff, to amend the plaint and
convert the suit into one for declaration.
Alternatively, he may withdraw the suit for
bare injunction, with permission of the court
to file a comprehensive suit for declaration
and injunction. He may file the suit for
declaration with consequential relief, even
after the suit for injunction is dismissed,
where the suit raised only the issue of
possession and not any issue of title.”
19. While an express prayer for declaration of title
strengthens a suit, its absence does not preclude the court from
adjudicating title if the issue is central to the dispute and
evidence has been led. In this case, both parties presented
evidence on title, and the courts below made findings
accordingly. Thus, the lack of an explicit prayer does not
invalidate the suit or the judgments rendered.
20. The suit primarily seeks confirmation of
possession. The lower courts found sufficient evidence to
establish plaintiffs’ title. While an explicit prayer for
declaration of title strengthens a claim, its absence does not
bar adjudication where evidence clearly supports ownership.
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The Supreme Court in Anathula Sudhakar v. P. Buchi Reddy
(supra) clarified that title determination is inherent in suits
involving possession, especially where the defendant raises
serious objections. Here, both parties presented title-related
evidence, and the courts below made findings on ownership
accordingly. Thus, the lack of a distinct declaratory prayer
does not affect the validity of the suit or its adjudication.
21. Upon careful consideration of the pleadings,
evidence on record, and findings of both the trial and appellate
courts, this Court is of the opinion that the judgments rendered
by the courts below suffer from no legal infirmity requiring
interference in second appeal.
22. The claim of oral exchange made by the
plaintiffs finds support not only from the testimonies but also
through subsequent conduct and possession, as reflected in the
execution of the exchange deed dated 02.06.1974. The oral
exchange, though not evidenced by a registered instrument at
the initial stage, was followed by possession and later
documentation, thereby satisfying the requirement of transfer
under law in the facts and circumstances of this case.
23. As regards the order passed under Section 145
of the Code of Criminal Procedure, the settled position in law
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is that such orders are confined to determining possession for
the purpose of maintaining public peace and cannot, under any
circumstance, be treated as conclusive determination of title.
The courts below were justified in disregarding the findings of
the said proceedings in assessing civil rights.
24. The objection as to the absence of a specific
prayer for declaration of title in the suit is also without
substance. It is evident that both parties contested the case on
the basis of title and led evidence accordingly. The trial court
rightly adjudicated the question of ownership and possession,
and such adjudication was affirmed in first appeal after
independent appraisal of evidence. A suit for possession based
on title necessarily involves determination of the ownership,
and a formal declaration is not a sine qua non where the relief
for recovery is granted on the basis of established ownership.
25. Accordingly, this Court finds no substantial
question of law arising in the present appeal. The second
appeal is devoid of merit and is liable to be dismissed.
26. In such circumstances, this Court is of the
considered view that the contentions raised on behalf of the
appellants cannot be countenanced. As such, the second appeal
is devoid of merits. Hence, it is dismissed.
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27. However, there shall be no order as to cost.
(Bibek Chaudhuri, J)
uttam/-
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