Patna High Court – Orders
Rajendra Rai @ Rajendra Singh vs The State Of Bihar on 20 December, 2024
Author: Khatim Reza
Bench: Khatim Reza
IN THE HIGH COURT OF JUDICATURE AT PATNA
SECOND APPEAL No.554 of 2018
======================================================
1.1. Ranjit Singh @ Ranjit Kumar Singh, Son of Late Rajendra Rai @ Rajendra
Singh, resident of South of Jail, Charkhambha Gali, P.S. Arrah Town,
District-Bhojpur.
1.2. Sunita Devi, Wife of Late Ravi Ranjan Singh, daughter-in-law of Late
Rajendra Rai @ Rajendra Singh, resident of South of Jail, Charkhambha
Gali, P.S. Arrah Town, District-Bhojpur.
1.3. Rohit, Son of Late Ravi Ranjan Singh grandson of Late Rajendra Rai @
Rajendra Singh, resident of South of Jail, Charkhambha Gali, P.S. Arrah
Town, District-Bhojpur.
1.4. Kumar Rituraj, Son of late Ravi Ranjan Singh, Grandson of Late Rajendra
Rai @ Rajendra Singh, resident of South of Jail, Charkhambha Gali, P.S.
Arrah Town, District-Bhojpur.
1.5. Ragini Singh, Daughter of Late Rajendra Rai @ Rajendra singh, wife of
Anil Singh, resident of Ahirpurwa, P.s.-Arrah Town, District-Bhojpur.
1.6. Shilpa, Daughter of Late Ravi Ranjan Singh, Granddaughter of Late
Rajendra Rai @ Rajendra Singh and W/o Satya Prakash Roy, resident of
Village-Chhotki Singhi, P.S. Town Thana, District-Bhojpur.
... ... Appellant/s
Versus
1. The State Of Bihar through the Collector, Bhojpur at Arrah.
2. Mr. Afzal Amanullah, Son of Late Nehaludin Amanullah, Resident of
Village Machhua Toli, P.S. Ara Nagar, District- Bhojpur, Presently at House
No. 133, Patliputra Colony, P.S.- Patliputra, Town and District Patna
800013.
3. Mr. Aashmuddin Amanullah, Son of Late Nehaludin Amanullah, Resident of
Village Machhua Toli, P.S. Ara Nagar, District- Bhojpur, Presently at House
No. 133, Patliputra Colony, P.S.- Patliputra, Town and District Patna
800013.
4. Mr Jallaluddin Amanullah, Son of Late Nehaludin Amanullah, Resident of
Village Machhua Toli, P.S. Ara Nagar, District- Bhojpur, Presently at House
No. 133, Patliputra Colony, P.S.- Patliputra, Town and District Patna
800013.
5. Nadira S. Phatiullah, Daughter of Late Nehaluddin Amanullah, Resident of
Village Machhua Toli, P.S. Ara Nagar, District- Bhojpur, Presently at House
No. 133, Patliputra Colony, P.S.- Patliputra, Town and District Patna
800013.
6. Warika Asaraf, Daughter of Late Nehaluddin Amanullah, Resident of Village
Machhua Toli, P.S. Ara Nagar, District- Bhojpur, Presently at House No.
133, Patliputra Colony, P.S.- Patliputra, Town and District Patna 800013.
7. Jakira Naim, Daughter of Late Nehaluddin Amanullah, Resident of Village
Machhua Toli, P.S. Ara Nagar, District- Bhojpur, Presently at House No.
133, Patliputra Colony, P.S.- Patliputra, Town and District Patna 800013.
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8. Arifa Alam @ Arifa Rehan Amamullah, Daughter of Late Nehaluddin
Amanullah, Resident of Village Machhua Toli, P.S. Ara Nagar, District-
Bhojpur, Presently at House No. 133, Patliputra Colony, P.S.- Patliputra,
Town and District Patna 800013.
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Dharmesh Kumar Shrivastava,
Advocate
For the Respondent nos. 2 to 8 : Mr. Syed Firoz Raza, Advocate
Mr. Arun Kumar Prasad, Advocate
Mr. Jawed Gaffar Khan, Advocate
Mr. Azhar Hussain, Advocate
Mr. Darain Alam, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE KHATIM REZA
CAV ORDER
10 20-12-2024
Heard Mr. Dharmesh Kumar Shrivastava, learned
counsel appearing on behalf of the appellants and Mr. Syed Firoz
Raza, learned counsel appearing on behalf of respondent nos. 2
to 8 under Order XLI Rule 11 of the Code of Civil Procedure
(for brevity ‘the Code’).
2. Originally, the plaintiff namely, Rajendra Rai filed
this Second Appeal against the judgment and decree dated
26.09.2018 passed by Learned 3rd Additional District Judge,
Bhojpur at Arrah in Title Appeal No. 88 of 2014, whereby the
lower appellate court dismissed the appeal and affirmed the
judgment of the trial court dated 21.08.2014 passed by learned
Munsif, Arrah, in Title Suit No. 86 of 1991.
3. The sole plaintiff/appellant died during the
pendency of this Second Appeal and was substituted by his heirs
vide order dated 05.09.2022.
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4. Rajendra Rai, the father of the appellants filed the
aforesaid Title Suit to declare that the suit land belongs to the
plaintiff who perfected right over the same and the survey entry
with respect to the land is wrong and also by way of amendment
prayed for declaring that the order dated 24.07.2007 passed by
the District Superintendent of Survey, Bhojpur at Arrah in
Survey Appeal No. 165 of 1989 with respect to the suit land is
wrong and illegal as well as craved for cost of the suit.
5. The case of the plaintiff/appellant is that the land
mentioned in Schedule-A of the plaint was the Bakasht land of
the ex-intermediary, namely, Md. Yunus and the land of
Schedule-B of the plaint as Gairmajarua land recorded in
Cadestral survey of record of right. It is further case of the
plaintiff that the land of Schedule-A and Schedule-B of the plaint
was settled orally to Late Jurawan Rai, who was the father of the
plaintiff, for cultivation in the year 1351 Fasli (1944) and since
then, the plaintiff’s father Late Jurawan Rai had been coming in
actual physical possession of the said land till his death. It is
further pleaded that the ex-landlord Md. Yunus, who was the
landlord of Tauzi No. 291, issued rent receipt to Late Jurawan
Rai on payment of rent of the said land admitting him as raiyat
of the said land. The father of the plaintiff came in possession of
the land of Schedule-B of the plaint in the year 1351 Fasli as the
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land of Schedule-A was a part and parcel of the land.
6. It is further case of the plaintiff that after vesting of
Zamindari, the ex-landlord submitted Return to the Government
of Bihar mentioning the name of Late Jurawan Rai, the father of
the plaintiff, as the tenant of the land of Schedule-A and
Schedule-B and Register-II had also been prepared. Accordingly,
the father of the plaintiff had been paying the rent to the
Government of Bihar after vesting of the Zamindari. Since the
settlement of the suit land, the father of the plaintiff and after his
death, the plaintiff has been using the land for fisheries, growing
Singhara, fruits and vegetables etc. on the suit land and also
contended that the plaintiff has constructed three rooms and is
running a garage as well as deals with motor parts.
7. During the Revisional Survey, khata No. 317, plot
no. 714 part and plot no. 732 has been carved out from Cadestral
Survey khata no. 1539, plot no. 10703 and khata no. 1520, plot
no. 10704 respectively. It is further contended that the plaintiff
besides the other rights have acquired title by virtue of adverse
possession because the plaintiff and his father had been coming
in peaceful possession over the suit land for more than 30 years
openly and continuously without interference to the knowledge
of State of Bihar. It is further pleaded that in the Revisional
Survey, the suit land has been illegally recorded in the name of
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State of Bihar and order dated 24.07.2007 passed by the District
Superintendent of Survey and Settlement, Bhojpur in Survey
Appeal No. 165 of 1989 in favour of defendant nos. 2 to 7 is
wrong, illegal and inoperative. The cause of action arose in the
year 1351 Fasli (1944) when the ex-landlord Md. Yunus settled
the land with the father of the plaintiff and also on 14.06.1988,
the date on which the Assistant Settlement Officer, Arrah
rejected the Objection Petition No. 34 of 1988. The notice under
Section 80 of the Code has been served to the State of Bihar, the
Collector of the District, Bhojpur on 06.02.1991, hence the suit.
8. After knowledge of the filing of the suit, defendant
nos. 2 to 8 voluntarily appeared in the Court on 03.06.2008
through their counsel and filed their written statement.
9. The defendants raised objection with regard to the
suit being barred under the provision of Section 34 of the
Specific Relief Act and also bad for the documents, on which the
plaintiff has based his title and claim not filed along with the
plaint and even despite after the order of the court fixing the date
for filing of the documents. No documents have been filed along
with this plaint which is gross violation of the provision of law
as laid down under Order VII Rule 14 Sub Rule 1 & 3 of the
Code. No copy of the plaint was served upon these defendants.
The aforementioned irregularity and failure to comply the
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provision of law clearly go to show the malafide and
misconceived nature of the suit.
10. Further case of the defendants is that the plaintiff
has claimed settlement from the ex-intermediary, namely, Md.
Yunus on the basis of an alleged oral settlement and rent receipts
granted to plaintiff’s father, but no such receipts have been filed
by the plaintiff. It is further contended that the plaintiff has failed
to file the Return filed by the said ex-intermediary at the time of
vesting under Bihar Land Reforms Act, 1950 (for brevity
‘B.L.R. Act‘) to avoid the facts recorded therein which
contradicts his baseless claim. The plaintiff has avoided to file
his alleged documents for fear of those being contradicted and
falsified by the actual condition of the land itself being dealt
with by the ex-intermediary and his temporary lease from the
year 1944 as well as the order of court of law in this connection.
11. It is further case of the defendants that the ex-
intermediary, namely, Md. Yunus had filed an application for
fixation of rent under Section 6 of B.L.R. Act in the year 1956,
but no steps had been taken in this regard by the authorities
concerned and the ex-intermediary Md. Yunus died in the year
1968. Thereafter, his son, namely, N. Ammanullah, the father of
the defendants filed a fresh petition which was ultimately
disposed of in his favour by the learned Collector, Bhojpur,
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Arrah on 01.02.1993 vide Revenue Appeal No. 6 of 1992-93.
12. Further case of the defendants is that at the stage
of draft publication during Revisional Survey proceeding, the
land in the suit was mentioned as Gairmajarua Aam in the year
1985 against which objection was filed by the said N.
Ammanullah, defendants’ father. The plaintiff also filed an
objection. Both objections were rejected by Assistant Settlement
Officer, Arrah whereupon appeal was filed bearing Municipal
Survey Appeal No. 171 of 1988 and 165 of 1989 respectively
before Superintendent of Survey and Settlement, Bhojpur, Arrah.
Further case of the defendants is that the State initiated a
proceeding under Bihar Land Encroachment Act for removal of
alleged encroachment against a private person over a part of plot
no. 10703. Some part of plot no. 10703 is subject matter of the
instant suit. In the said proceeding, the Collector by a detailed
and reasoned order, had held Plot no. 10703 as well as Plot no.
10704 and 10705 to be in the possession of defendants’
predecessor-in-interest who also had title to it.
13. On appeal filed by the defendants and plaintiff
before Superintendent of Survey and Settlement, Bhojpur, Arrah,
the same was heard and finally decided in favour of the present
defendants upholding the khas character and possession of ex-
intermediary and ordered for correction of survey khatiyan by
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the Superintendent of Settlement, Bhojpur on 27.04.2007 and
rejected the claim of the plaintiff. The further case of the
defendants is that in the year 1965, a land acquisition proceeding
in respect of a portion of the suit land was started and
compensation was paid to Md. Yunus but no objection was
raised by the plaintiff or his father. It is further contended that
the Bakasht character of land was neither denied by the plaintiff
nor possession of the same by ex-intermediary was rebutted and
as such even from before 1946 and in support of the baseless
claim of the plaintiff, no documents have been filed along with
the plaint. The denial of khas character of land in the written
statement filed by the defendant no.1(State of Bihar) is also
rendered baseless after the decision of the Collector in Revenue
Appeal No. 6 of 1992-93 and order of Superintendent of Survey,
Arrah dated 24.07.2007 and as such, objection is no longer
tenable. Lastly, the defendants contended that the suit is fit to be
dismissed.
14. Upon completion of pleadings and upon
consideration of rival contention of the parties, the trial court
framed issues and decided the suit on the basis of evidence and
materials on record. Learned trial court arrived at the findings
and dismissed the suit on contest without cost by its judgment
and decree dated 21.08.2014 holding that the suit land was
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Bakasht land of ex-intermediary Md. Yunus. The claim of
plaintiff through oral settlement has not been proved by the
plaintiff. The Plaintiff has not filed Return in the suit to show
that Late Jurawan Rai was declared as Raiyat. The rent receipt
produced by the plaintiff is without order of authority and the
signature and seal of the office and officer on the said receipt is
lacking which has not been supported either by oral evidence or
any revenue clerk/officer. The plaintiff has not proved his case
before the Settlement Officer as well as Superintendent of
Survey and Settlement with regard to his possession. Both the
objection petition and appeal filed by the plaintiff were
dismissed by survey authority. The learned trial court observed
that on the basis of Pleader Commissioner’s report, the plaintiff
is in possession of the suit land but only the possession does not
create ownership. It is well laid down principle that on coming
of valid title holder the possessor has to leave the possession.
Hence, the plaintiff has failed to prove his case and issue nos. 4,
5 & 6 have been decided against the plaintiff.
15. On the other hand, the defendants have succeeded
in disapproving the case of the plaintiff on the basis of oral
evidence as well as documentary evidence such as Exhibit- A/1
which is compromise decree of Rent Suit No. 61 of 1947 and
Temporary Registered Lease dated 24.11.1945 (Exhibit-B/1) in
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favour of Abdul Shakur and Abdul Hamid. The said rent suit was
filed for realisation of rent which was disposed of by a
compromise decree dated 15.09.1947 with regard to the suit
land. The ancestor of the defendants also filed Title Suit No. 185
of 1950 against Dharikshan Ahir and Bajaj Ahir wherein the
Pleader Commissioner was appointed who submitted his report
on 10.12.1950 and inspected the Plot no. 10703, Plot no. 10704
and Plot no. 10705 and submitted his report before the
concerned court. In the aforesaid suit, compromise decree was
passed in favour of the ex-intermediary. Defendants also filed
Exhibit-C which is detail of the land which shows that Mauza
Hamidpur Tauzi No. 291 Khewat no. 4 belongs to ex-
intermediary. Column 8, specially mentioned the khas
possession of the land of the intermediary including Plot no.
10704, Plot no. 10705 and Plot no. 10703. On that basis, the
learned trial court has held that on the basis of Exhibit-C, it is
apparent that on 29.01.1956, the ex-intermediary, who is
admittedly ancestor of the defendants, was in possession of the
suit land. Moreover, in the land acquisition proceedings for part
of the suit land acquired for widening of Arrah Bypass road
through Case No. 33/v of 1964-65 by order dated 20.03.1966
(Exhibit-D), the ancestor of the defendants was paid
compensation with regard to the part of the suit land. The rent
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was also fixed pursuant to Return filed by the ex-intermediary,
ancestor of the defendants by order dated 01.02.1993 passed in
Revenue Appeal No. 6 of 1992-93 (Exhibit-D/4). The defendants
also filed Exhibit-D/2 which is order of Superintendent of
Survey, Bhojpur, Arrah dated 27.04.2007, whereby Plot nos.
10703, 10704 and 10705 were held to be in favour of the
defendants on the basis of Return filed as khas possession and
fixation of rent in favour of the defendants. Exhibit-D/3 is order
dated 01.12.2008 to 28.02.2009 passed in Miscellaneous Case
No. 1 of 2008-09 by Anchaladhikari, Arrah wherein it has been
clearly stated that the name of Jurawan Rai, the father of the
original plaintiff was nowhere mentioned in any Jamabandi.
Defendant 2nd set also filed survey khatiyan (Exhibit-G) of old
khata no. 1539 and old khata no. 1520 (Exhibit-G/2). It appears
from those document that in old khata no 1539, the name of the
ancestor of the defendants was mentioned. Old Khata no. 1539
was mentioned as Gairmajarua Malik and khata no. 1520
mentioned as Bakasht Malik Maulvi Md. Yunus and others. New
Khata No. 624 and 714 in Municipal Survey Khatiyan (not
final), the name of the defendants have been mentioned which
has been carved out from old survey Khata No. 1539 and 1520.
16. On the contrary, the plaintiff did not file any
material evidence to show that the State has accepted him as
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raiyat. So far issue nos. 1, 2 & 7 are concerned, the plaintiff had
no valid cause of action and reason to file the present suit and
further the suit of the plaintiff is not sustainable and he is not
entitled to get any relief sought in the plaint. Accordingly, issue
nos. 1, 2 & 7 were decided against the plaintiff. Issue no. 3 was
disposed as not pressed by the party and accordingly, dismissed
the suit.
17. Aggrieved by the impugned judgment and decree
passed in Title Suit No. 86 of 1991 on 21.08.2014, the
plaintiff/appellant filed Title Appeal No. 88 of 2014. The
defendant 2nd Set also filed cross objection in Title Appeal No.
88 of 2014 against issue no. 4 partly in favour of the plaintiff and
partly against the cross objector.
18. After hearing the parties, the learned lower
appellate court formulated points for consideration in the Title
Appeal and dismissed the same and allowed the Cross Objection
filed by the defendant 2nd Set.
19. Against the aforesaid judgment and decree of the
learned court of appeal below, the instant Second Appeal has
been filed by the plaintiff/appellant/appellant.
20. Learned counsel for the appellants has submitted
that the learned courts below have not properly considered the
evidence of the parties and, therefore, the findings are vitiated. It
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is submitted that both the courts below failed to appreciate that a
raiyat can be conferred the status of raiyat by oral settlement by
ex-landlord of Gairmajarua or Gairmajarua Malik land or that
any kind of land which is in his khas possession. Learned
counsel for the appellants has further submitted that oral
settlement made prior to the cut of date i.e. 01.01.1946 followed
by grant of rent receipt would create a legally valid raiyati right
in favour of the settlee of the said land. The name of the father of
the original plaintiff was recorded in the revenue record of the
State of Bihar after vesting of Zamindari (Estate) despite that
defendant 2nd Set did not take any steps for fixation of rent as per
the provision of B.L.R. Act for long 30-35 years after vesting of
estate by the heirs of ex-landlord to claim the land which was
already settled with a raiyat. The oral settlement in favour of
original plaintiff’s father has not been challenged by the
defendant 2nd set. The courts below failed to appreciate that the
oral settlement followed by grant of rent receipts in favour of
raiyat is proof to establish that there was a relationship of
landlord and tenant between the parties. The documentary
evidence adduced on behalf of the plaintiff has been wrongly
misinterpreted. Learned counsel vehemently submitted that after
settlement, motor garage was constructed. There were tenants
also living in the rooms constructed by the plaintiff which proves
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his possession over the suit land. It is submitted that most of the
proceedings have been decided in favour of the ex-landlord
being quasi-judicial authority. The learned courts below wrongly
relied upon the findings of those authorities which has vitiated
the said judgment and decree. Rent receipts issued in the name
of Jurawan Rai has not been considered properly. It is further
submitted that the written statement of the defendants 2 nd set has
been filed by the power of attorney holder, namely, Manoj Singh
who appeared as witness for the defendant 2 nd set in
contravention of legal provision and the settled law. The
evidence of power of attorney holder, who deposed as D.W.-1
and entire pleadings as incorporated in the written statement of
the defendant 2nd set was not properly considered by the courts
below. The power of attorney cannot depose in place of the
principal.
21. Reliance has been placed in the case of Janki
Vashdeo Bhojwani and Anr. Vs. IndusInd Bank Ltd. And Ors.
reported in (2005) 2 SCC 217 wherein the Hon’ble Apex Court
has held that:-
“Power of attorney holder of a party can
appear only as a witness in his personal
capacity and whatever knowledge he has
about the case, he can state on oath but he
cannot appear as a witness on behalf of the
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22. Reliance has also been placed in the case of Hero
Vinoth (minor) v. Seshammal reported in 2006 (5) SCC 545.
Further reliance has been placed in the case of State of
Rajasthan and others vs. Shiv Dayal and Another reported in
2019 (8) SCC 637, wherein the Hon’ble Apex Court has held
that :-
” ‘Concurrent finding of fact’ is usually
binding on the High Court while hearing the
Second Appeal under Section 100 of the
Code of Civil Procedure, 1908 (hereinafter
referred to as “the Code”). However, this
rule of law is subject to certain well-known
exceptions mentioned infra.”
23. According to learned counsel for the appellants,
the oral settlement of the suit land followed by rent receipts has
wrongly been discarded by both the courts below. The Pleader
Commissioner appointed during the pendency of the suit has
found the possession of the original plaintiff/appellant. The
courts below have wrongly relied upon the documents adduced
by the defendant 2nd set which were passed by quasi-judicial
authorities. Learned lower appellate court wrongly decided the
findings with regard to the possession of the suit land in favour
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of defendant 2nd set.
24. Per contra, learned counsel for the defendant 2 nd
set/respondents has submitted that it is admitted fact that the
ancestor of the defendant 2nd set was the ex-intermediary and at
the time of vesting of Zamindari, filed Return (Exhibit-C)
showing land including the land in suit as Bakasht land. It was
accepted by the State of Bihar and accordingly, rent fixation case
was filed under B.L.R. Act and rent was fixed in favour of the
ancestor of the defendant 2nd set. Moreover, in Survey Appeal
No.171 of 1988, the order was passed in favour of defendant 2 nd
set by the Superintendent of Survey and Settlement upholding
the khas character and possession of the ex-intermediary and
ordered for correction of the survey record by the Superintendent
of Settlement. The rent receipts are also to be issued in favour of
defendant 2nd set and earlier in favour of predecessor-in-interest.
The decree of Rent Suit No. 61 of 1947 (Exhibit- A/2-A/3) and
registered temporary lease deed (Exhibit-B and Exhibit- B/1)
also proves the possession of the defendant 2 nd set. The Pleader
Commissioner report dated 10.12.1950 filed in Case No. 185 of
1950 by Maulvi Md. Yunus and others Vs. Dharikshan Ahir and
others shows that the land in suit was in possession of ancestor
of defendant 2nd set which falsify the case of the oral settlement
in the year 1944 i.e. 1351 Fasli. Not only the above documents,
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but also a land acquisition proceeding was started in which
ancestor of the defendant 2nd set had been paid compensation
with regard to the acquired land which was part of the suit land.
It is further submitted that a proceeding under Public Land
Encroachment Act was initiated by the State against private
party for removal of an alleged encroachment over a part of Plot
nos. 10703 and 10704. On appeal by private party in which
predecessor-in-interest of defendant 2 nd set intervened,
Encroachment Appeal No. 7 of 1986-87 was allowed in favour
of intervenor predecessor-in-interest of defendant 2 nd set. The
learned Collector held that the land in question is not a public
land but it was Bakasht Malik land on the basis of Return filed
by the ancestor of the defendant 2 nd set under Section 5, 6, 7 of
the B.L.R. Act. The order of the Collector was challenged in
C.W.J.C. No. 7820 of 1994 which was disposed of on
09.02.1995 and subsequently Civil Review being Civil Review
No. 53 of 1995 was filed which was disposed of on 05.11.1996
wherein this Court did not interfere with the order and further
directed that possession as per the Collector’s order shall be
maintained so long as any decision is taken by the civil court.
25. Learned counsel for the defendant 2 nd
set/respondents further argued on the point of Cross Objection
that the trial court wrongly came to the conclusion regarding
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issue no. 4 partly with regard to the possession only on the basis
of Pleader Commissioner’s report appointed in the suit. It is
further contended that Exhibit-5 to 6 reveals that the said Pleader
Commissioner had held local inspection on 13.04.1993 and the
defendant 2nd set were impleaded as party in the said suit for the
first time on 31.08.2007 by the plaintiff vide lower court order
dated 24.07.2007. The said Pleader Commissioner was examined
on behalf of the appellants as P.W.-13 and in his cross-
examination, he stated that the defendant 2 nd set was noticed by
him and notice with regard to the inspection of the spot was
given to their counsel in the court. This statement and
appearance of the defendant 2nd set itself falsify the Pleader
Commissioner report. The lower court wrongly presumed on the
basis of Pleader Commissioner’s report that the plaintiff is in
possession whereas the defendant 2nd set were not even party to
the suit at the material time of said local inspection by the
Pleader Commissioner. Exhibit-D/1 is order of the learned
Collector who had observed in its order dated 01.08.1994 that
defendant 2nd set were found in possession of land in question by
the local revenue officer in the year 1992.
26. Learned counsel for the defendant 2 nd
Set/respondents has submitted that the original plaintiff/appellant
in the present case has based his title on oral settlement which
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remained unproved. There is concurrent findings of fact by both
the courts below that the plaintiff has failed to prove his title on
the basis of oral settlement as pleaded. In so far as the
submission of the appellants that the defendant 2 nd set have
failed to enter the witness box rather their power of attorney
holder has entered the witness box and was examined as witness
and as such, adverse inference could be drawn against the
defendants is concerned, the Court is not always bound to raise
adverse inference against the party unless it is satisfied that there
is willful withholding of some relevant facts on the part of party
which is within his personal and exclusive knowledge. If the
necessary facts in order to prove the defence are already on
record and has been proved by other evidences on the record or
by documentary evidences including public documents on
record, the court is not bound to draw adverse inference for
failure of the defendants to enter the witness box. In the present
case, the factual defence required to prove are well proved from
other oral and documentary evidence particularly, the public
documents including Zamindari Return (Exhibit-C), Rent
Fixation Order (Exhibit-D/4) in favour of ancestor of defendants,
Order of Superintendent of Survey and Settlement (Exhibit-D/2),
the Order of Land Acquisition case in favour of ancestor of the
defendant 2nd set (Exhibit-D), Compensation Award passed in
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Land Acquisition Case in favour of Ancestor of Defendant 2 nd set
(Exhibit-E), Cadestral Survey Khatiyan (Exhibit-G), Municipal
Survey Khatiyan (Exhibit-G/1), Judgment and decree of Rent
Suit No. 61 of 1947 (Exhibit-A/2 and Exhibit-A/3), Registered
Temporary Lease dated 24.11.1945 and 09.04.1945 (Exhibit-B/1
and Exhibit-B/2) etc. and there is no material fact in defence
which was exclusively within the personal knowledge of the
contesting defendants so as to compel to draw the adverse
inference against them for their failure to enter witness box. The
appellant being the plaintiff has brought the suit for declaration
that the suit land belongs to the plaintiff and he has perfected
right of the same and the survey entry with respect to the suit
land is wrong and also for declaring that order passed by the
Superintendent of Survey in Survey Appeal No. 165 of 1989 in
respect of the suit land is wrong and illegal. However, the
plaintiff could succeed only on the strength of his title so
pleaded, and not on the weakness of the case of the defendants,
if any. The plaintiff has based his title on oral settlement which
has not been proved.
27. After hearing the submissions made on behalf of
the parties and upon perusal of impugned judgment of the
learned courts below, it transpires that it is admitted fact that the
ancestor of defendant 2nd set/respondents was the ex-
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intermediary of the suit land. The original plaintiff/appellant has
filed suit for declaration that the suit land belongs to the plaintiff
and he has perfected right over the suit land and also for
declaration that entry in Municipal Survey Khatiyan is wrong as
well as order passed by the Superintendent of Survey in Survey
Appeal No. 165 of 1989 in respect of the suit land is wrong and
illegal. The burden is on the plaintiff to establish his title to the
suit property in order to be entitled to a decree of declaration of
title. Reliance may be made on the decision reported in (2019) 6
SCC 82 (para 44) (Jagdish Prasad Patel v. Shivnath), 2024 (1)
BLJ SC 37 (Para 24) (P. Kishore Kumar vs. Vittal K. Patkar),
(2004) 7 SCC 708 (Sayed Muhammed Mashur Kunhi Koya
Thangal v. Badagara Jumayath Palli Dharas Committee &
Ors.), (2015) 8 SCC 672 (para 33) in the case of State of M.P. v.
Ushadevi. The plaintiff in the present case has based his title on
oral settlement which remained unproved. There is concurrent
finding of facts by both the courts below that the original
plaintiff/appellant has failed to prove the title on the basis of oral
settlement as pleaded, and the plaintiff/appellant has not
succeeded in proving that the said finding in that respect is
perverse. Thus, it is held that the plaintiff has not been able to
prove his claim of title on the basis of oral settlement. The
appellants argued that the defendant 2nd set/respondents have
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failed to adduce evidences in the suit and his power of attorney
holder has entered in witness box and was examined as witness,
and as such, adverse inference should be drawn against the
defendants concerned, needs to be pointed out that the principle
behind drawing of adverse inference is largely based upon the
‘best evidence theory’ which postulates that a court can draw
adverse inference against a party who withholds the best
evidence in his possession. But this principle of drawing adverse
inference cannot be put in a straight jacket formula and it
depends upon the facts and circumstances of each case. The
court is not always bound to raise adverse inference against a
party unless it is satisfied that there is willful withholding of
some relevant facts on the part of the party which is within his
personal and exclusive knowledge. If the necessary facts in order
to prove the defence are already on record, and has been proved
by other evidences on the record, or by documentary evidences
including public documents on record, the court is not bound to
draw adverse inference for failure of defendants to enter the
witness box. Reliance is placed for the above proposition of law
on the decision reported in 2012 (2) PLJR 859 para 11
(Rajendra Poddar & Anr. v. Smt. Shakuntala Devi & Anr.) . In
the present case, the factual defence required to be proved are
well proved from other oral and documentary evidences
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particularly the public documents including Zamindari Return
(Exhibit-C), Rent Fixation Order (Exhibit-D/4) in favour of
ancestor of defendants, order of Superintendent of Survey and
Settlement (Exhibit-D/2), the order of Land Acquisition case in
favour of ancestor of the defendant 2 nd set (Exhibit-D),
Compensation Award passed in Land Acquisition Case in favour
of ancestor of Defendant 2nd set (Exhibit-E), Cadestral Survey
Khatiyan (Exhibit-G), Municipal Survey Khatiyan (Exhibit-
G/1), Judgment and decree of Rent Suit No. 61 of 1957 (Exhibit-
A/2 and Exhibit-A/3), Registered Temporary Lease dated
24.11.1945 and 09.04.1945 (Exhibit-B/1 and Exhibit-B/2) etc.
and there is no material fact in defence which was exclusively
within the personal knowledge of the contesting defendants so as
to compel the court to draw adverse inference against them for
their failure to enter witness box. The question of drawing an
adverse inference against a party for his failure to appear in court
as witness could arise only when there is no other evidence on
record to prove the facts required to be proved. Reliance for the
above proposition can be placed on the decision of the Hon’ble
Apex Court in the decision reported in AIR 1981 SC 2235
(Pandurang Jivaji Apte v. Ramchandra Gangadhar Ashtekar
(dead) by Lrs. And others) .
28. In so far as the finding of possession observed by
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the learned trial court partly in favour of the original
plaintiff/appellant based only on the report of Pleader
Commissioner is concerned, the learned trial court erred in
holding so far as the Pleader Commissioner who visited the spot
on one stray occasion, at the material time of the said local
inspection, defendant 2nd set were not even party to the suit, can
only report physical feature and his report cannot be looked into
for finding possession in favour of a particular party in view of
the decision reported in 2000(1) PLJR 231 (Jayanti Kuer &
Ors. v. Laxmichand Upadhyay & Ors.) which held that a
Pleader Commissioner will not be in a position to determine the
question as to who is in possession of the property as it is to be
decided on the basis of evidence adduced and it is not his
function to report the possession of a party. Moreover, the
Pleader Commissioner had held local inspection on 13.04.1993
and the defendant 2nd set were impleaded as party in the present
suit for the first time on 31.08.2007 vide order dated 24.07.2007.
However, the plaintiff could succeed only on the strength of his
title as pleaded and not on the weakness of case of defendants, if
any. The burden is on the plaintiff to establish his title to the suit
property which he miserably failed to establish claim of title on
the basis of oral settlement. Both the courts below have
concurrently held that the plaintiff has failed to prove his title on
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the basis of oral settlement.
29. The learned appellate court rightly allowed the
Cross Objection of the defendant 2nd set/respondents on the point
of possession of the plaintiff on the basis of material evidence
available on record.
30. Considering the aforesaid facts and circumstances
of the case as well as materials on record, it is quite apparent that
the impugned judgments and decree of the courts below are
covered by the findings of fact and no question of law, much less
substantial questions of law, arises for consideration in the
instant Second Appeal.
31. Accordingly, this appeal is dismissed at the stage
of hearing under Order XLI Rule 11 of the Code of Civil
Procedure.
(Khatim Reza, J)
premchand/-
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