In view of this position, the validity or otherwise of the
auction sale pursuant to the decree can not be incidentally gone into.
No relief has been claimed regarding the auction sale or the delivery
of possession affected pursuant to the decree. The Hon’ble Supreme
Court in the case of Inderjit Singh Grewal Vs. State of Punjab &
Anr. 2012 (1) BLJ 42 SC has held that even if an order is void or
voidable, same requires to be set aside by competent Court. Even if
a decree is void, ab initio, declaration to that effect has to be
obtained from competent Court. Such declaration cannot be obtained
in collateral proceedings.
IN THE HIGH COURT OF JUDICATURE AT PATNA
First Appeal No.601 of 1986
Harak Nath Yadav & Ors .
V
Mosmat Meena Devi & Ors
CORAM: MR. JUSTICE MUNGESHWAR SAHOO
Dated: 04 th, October, 2016.
Citation: AIR 2017 Patna 44
The plaintiffs have filed this first appeal against the
judgment and decree dated 14.08.1986 passed by the learned 7
th
Additional Sub-ordinate Judge, Patna in T.S. No. 236 of 1982/Trial
No. 11 of 1984, whereby the learned court below dismissed the
plaintiffs-appellants’ suit.
2. The plaintiffs-appellants filed the aforesaid Title Suit
No. 236 of 1982 for declaration of title and confirmation of
possession over the Schedule-II and Schedule-III lands mentioned in
the plaint. The plaintiffs further prayed for declaration that they be
declared as settled raiyat in respect of the Schedule-III lands and for
permanent injunction.
3. The plaintiffs claimed the aforesaid reliefs alleging that
Hazari Yadav son of Mahadeo Yadav was recorded tenant, who is
the ancestor of the plaintiffs. The plaintiffs and their ancestor had
one forth share over the Schedule-II properties and, accordingly,
they are coming in possession of the properties. They were paying
rent to the ex-landlord and then State. Canal Parcha and Water Tax
receipts are in their name.
4. So far Schedule -III properties are concerned, according
to the plaintiffs, they are the Bataidars of the defendants since last
several 12 years and are cultivating the lands. Earlier, the ancestors
were cultivating the lands as Bataidar. Because of the cultivation for
several 12 years, the plaintiffs acquired occupancy right, as such,
they have amalgamated the Schedule-III lands with the other lands
of the plaintiffs. Ex-proprietor of Schedule-III lands was residing at
long distance, as such, there was no arrangement for cultivation so
he gave the Schedule-III lands to the plaintiffs to cultivate on Batai
system 50 years ago and since then the ancestor and then the
plaintiffs have been in cultivating possession of
Schedule-III properties.
5. According to the plaintiffs, they are in possession of
Schedule-II lands as settled raiyat of the same by operation of law
and the other co-sharers of the recorded tenants for 3/4 share, who
are also in cultivating possession of their shares. However, the
defendants got a sale deed on 08.10.1964, which is collusive,
inoperative, sham and without consideration. The sale deed was
executed by Mahanth Sri Madhusudan Das. The sale deed is fake
and is for nominal consideration. The executant of the sale deed was
annoyed with the plaintiffs so executed bogus sale deed to harass the
plaintiffs. The defendants, in a proceeding under Section 144
Cr.P.C., relied upon a forged and fabricated order of delivery of
possession in favour of Mahanth Goswami Bhairwa Nand Ramji,
which was in connection with Execution Case No. 2205 of 1934. In
fact, the plaintiffs have no knowledge about any suit or decree
passed against them as no delivery of possession was affected and
the document showing delivery of possession is forged and
fabricated.
6. On being noticed, the defendants filed contesting written
statement. Their main defence was that Mahanth of Rajipur and
Masaurha Math was the proprietor of the land and Hazari Gope,
ancestor of the plaintiffs, was one of their recorded tenant. Mahanth
had filed the suit for recovery of due rent against said Hajari Gope
which was decreed and Execution Case No. 2205 of 1934 was filed.
In the said execution case, the lands mentioned in Schedule-II were
auction sold. Mahanth purchased the Schedule -II lands in auction
and delivery of possession was affected on 31.08.1935. Since
thereafter the recorded tenant or the plaintiffs lost their all interest
and possession and Mhanth, proprietor, directly came in possession
of the Schedule-II lands. Ultimately after vesting of Zamindari,
Mahanth’s name was entered in Register-II and Mahanth became the
tenant under the State of Bihar. Likewise, Schedule-III property was
also in possession of Mahanth, who became raiyat after vesting and
he continued in exclusive possession of the same. On 08.10.1964,
Mahanth executed a registered sale deed in favour of defendant
No.1, who was Karta of the joint family whereby for Rs. 11,000/-
land measuring 4 acres 65 and 1/4 decimal of Schedule-II and III
was sold. Defendant No.1 then came in possession and his name had
been entered in Register-II. The Defendants continued in exclusive
possession and are cultivating the lands. The plaintiffs were never
the Bataidars of Schedule-III lands. The Mahanth of Schedule-III
lands never gave the lands in Batai to the plaintiffs. The plaintiffs
have been dispossessed completely in Execution Case No. 2205 of
1934.
7. On the basis of the aforesaid pleadings of the parties, the
learned court below framed following issues;
“1. Is the suit as framed maintainable?
2. Have the plaintiffs got any cause of action or
right to sue?
3. Is the suit barred by law of limitation?
4. Is the suit barred by principles of waiver,
acquiescence and estoppel ?
5. Has the suit property been grossly under valued
and the court fee paid sufficient ?
6. Have the plaintiffs title and possession over the
suit land as alleged in the plaint?
7. Are the plaintiffs entitled to relief sought for?”
8. After hearing the parties and on consideration of the
evidences, documentary and oral, the learned trial court recorded
finding that the plaintiffs failed to prove that they are the Bataidars
of Schedule-III lands and that they are in continuing possession
thereof. The trial court also came to the conclusion that in auction
sale, Schedule-II property was purchased by Mahanth and since then
the plaintiffs’ ancestor lost the interest and possession. Accordingly,
the plaintiffs’ suit was dismissed.
9. Learned counsel, Mr. Binod Kumar Singh, appearing for
the appellants submitted that the court below mis-appreciated the
evidences produced by the plaintiffs in support of the fact that they
are in exclusive possession of the Schedule-II property. They are
dealing with the property even after vesting but the court below
wrongly discarded the documentary evidences. The learned counsel
further submitted that the documents produced by the defendants
showing delivery of possession were forged and fabricated
documents. The plaintiffs were never dispossessed from Schedule-II
property. The trial court, relying on the forged and fabricated
documents of delivery of possession, wrongly held that the
defendants came in possession. According to the learned counsel,
many witnesses have been examined who all deposed in favour of
the plaintiffs regarding their possession.
10. So far Schedule-III property is concerned, the learned
counsel submitted that plaintiffs’ ancestors were cultivating
Schedule-III lands as Bataidars of the proprietor but after
completion of cultivation for more than many 12 years, the
plaintiffs’ ancestors acquired occupancy raiyati right over ScheduleIII
property and since they were in possession of the property when
it vested in the State of Bihar, the plaintiffs became settled raiyat by
operation of law i.e Bihar Land Reforms Act, 1955. The learned
trial court did not consider this aspect of the matter.
11. According to the learned counsel, the learned court
below wrongly placed reliance on exhibits-H and I, which are forged
and created documents and wrongly discarded the exhibits-7 and
7(A), which are mortgaged deeds executed by the plaintiffs
regarding the suit property and out of that exhibit-7 is the
redemption note of the year 1957 which clearly approves the fact
that the plaintiffs were in possession of the property and were
dealing with the same.
12. Learned counsel further submitted that the court below
wrongly discarded exhibit-5, which is a notice issued by the
Advocate of Mahanth Goswami Kapil Deo Ramji. According to
learned counsel, in this notice, farther of the plaintiff No.2 was
asked to handover possession of Schedule-II lands, which also
clearly shows that the plaintiffs were in possession of Schedule-II
property. Learned counsel further submitted that, in fact, there was
no any rent suit nor any delivery of possession was affected. The
plaintiffs have no knowledge about the same.
13. With respect to exhibit-5-A, which is a notice sent by
Revenue Officer to the plaintiffs inviting objection, if any, on the
commutation of rent, the learned court below has wrongly discarded
this documentary evidence also. The learned counsel for the
appellants further submitted that the exhibits- H and I are not
reliable documents at all but wrongly the court below has relied on
it. According to the learned counsel, these documents could not have
been admitted to evidence but it has wrongly been admitted in
evidence. On these grounds, the learned counsel for the appellants
submitted that the impugned judgment and decree be set aside.
14. On the other hand, the learned counsel, Mr. J.K. Verma
appearing for the respondents, submitted that the present suit has
been filed for declaration of title and recovery of possession. No
relief has been claimed with regard to decree and auction sale in the
rent suit of the year 1934. Therefore, unless the decree and auction
sale is set aside, the plaintiffs are not entitled to any decree. The
learned counsel further submitted that since exhibits- H and I have
been marked without objection, the appellants cannot be permitted
to object the admissibility of the said documents. So far exhibit-5 is
concerned, which is a notice, according to learned counsel, it relates
to Schedule-II property only and not Schedule-III property. So far
schedule-III property is concerned, there is absolutely no evidence to
show that the plaintiffs’ ancestors were the Bataidars and, as such,
they continued for more than 12 years and have acquired occupancy
rights. Moreover, if, in fact, they had occupied occupancy right, this
relief would have been claimed by them under the Bihar Tenancy
Act. The burden to prove that the plaintiffs were the Bataidars of
Schedule-III lands was on the plaintiffs but in support of their claim,
not a single document has been produced. So for exhibits-H and I
are concerned, these documents are admitted by the plaintiffs in their
pleadings. They pleaded that these documents are forged and
fabricated but neither they produced the original nor they adduced
any evidence. The defendants produced the documents, which were
marked as exhibits without objection. Now, therefore, on mere
technical grounds, the said documents cannot be discarded.
Moreover, the documents are the certified copies obtained from the
Court and presumption is in favour of the defendants unless the
contrary is proved by the plaintiffs. In support of his contention,
learned counsel relied upon various decisions of the Supreme Court
on each point, which I shall consider one after other at the time of
consideration of these points. On these grounds, learned counsel for
the appellants submitted that the first appeal is liable to be dismissed
with costs.
15. In view of the above contentions of the parties, the
points, arise for consideration in this first appeal, are whether the
plaintiffs have been able to prove their case i.e. their title and
possession over the Schedule-II and Schedule-III land and whether
the impugned judgment and decree passed by the court below is
sustainable in the eye of law or not?
16. According to the plaintiffs’ case so far Schedule-II
properties are concerned, their ancestors were the recorded tenant
but in 144 Cr.P.C. proceeding, the defendants claimed Schedule-II
lands on the basis of forged and fabricated documents showing
delivery of possession in connection with Execution Case No. 2205
of 1934. There was no such case nor there was any auction sale nor
the plaintiffs have got knowledge about the delivery of possession.
The plaintiffs continued in possession of the property. This is the
case regarding Scheduled-II property.
17. On the other hand, according to the defendants, no
doubt, Schedule-II lands were the property of ancestor of the
plaintiffs, who was recorded tenant but the proprietor was one
Mahanth of Rajipur and Masauraha Math. To realize the arrears of
rent, said Mahant filed rent suit which was decreed and the decree
was put in execution and in the execution, the Mahanth purchased
the property and obtained delivery of possession in the year 1935.
18. So far Schedule-III property is concerned, according to
the plaintiffs, the ancestors of the plaintiffs were Bataidars of the
property for more than 12 years and they acquired occupancy right
over the same prior to the vesting. After vesting, they became tenant
of the State of Bihar and were paying rent. On the contrary,
according to the defendants, the plaintiffs’ ancestors were never the
Bataidars nor ever they came in possession.
19. In support of their respective cases, both the parties have
adduced their evidences, oral and documentary. Now, let us consider
the evidences one by one;
20. P.W.-4 one of the plaintiffs has stated the same thing as
pleaded in the plaint. Therefore, it is not necessary to repeat his
deposition. P.Ws.-5, 7 to 9 have supported the possession of the
plaintiffs in general term i.e. according to them, the plaintiffs are in
possession of the suit properties and Mahanth was never in
possession. However, in cross-examination, they failed to give any
detail regarding the suit property. P.W.-5 is not even able to disclose
the area of the lands or boundary of lands. Likewise, P.W.-7
although claimed that the plaintiffs cultivate on Bataidari, he is
unable to give details as to what was the amount of crops. It may be
mentioned here that he claimed that division of crops took place in
his presence. These are the material witnesses in support of the
plaintiffs’ case.
21. The plaintiffs have filed exhibits-7 and 7-A, the
mortgaged deeds. These documents have been produced to show
that the suit lands were mortgaged by them and subsequently, they
redeemed. Exhibit-7 is dated 15.06.1928. Therefore, this document
is not relevant as the auction took place in the year 1935 and
delivery of possession was affected in favour of Mahanth. P.W.-9
has endorsed in the mortgaged deed on 13.07.1957. Much emphasis
is given on this endorsement and it is submitted that this clearly
shows that the plaintiffs were dealing with the property and they
even redeemed the property and came in possession. So far this is
concerned, it may be mentioned here that the defendants are not
party to this redemption note. It was not made in presence of the
defendants. It can very well be said that this mortgaged deed and the
endorsement, thereon, exhibit-3 are self serving documents. On the
basis of these documents, one cannot presume that, in fact, the
plaintiffs continued in possession in spite of delivery of possession
affected in the execution case in the year 1935.
22. At the time of hearing of the first appeal, much
emphasis was given on Exhibit-8, which is certified copy of the
deposition of one of the defendant. In this deposition, Siddhanath
Prasad has stated that he has got no concern with Mahanth Ji nor he
had any concern with his land. It was argued that this document
clearly shows that the defendants admitted that the defendant had
nothing to do with Mahanth or his land. In my opinion, so far this
document and the submission of the learned counsel for the
appellants is concerned, it is neither here nor there. It neither proves
the possession of the plaintiffs nor it proves the fact that the
defendants have got no right over the property in question.
Moreover, when the defendant was examined as witness, this portion
of his evidence, in Exhibit-8, was not confronted to the witness.
Now, therefore, this part of the deposition, in Exhibit-8, cannot be
read as an admission against the defendants in view of the decision
of the Supreme Court reported in AIR 1977 SC 1712.
23. So far the notice, exhibit-5 is concerned, it is a notice
issued by Mahanth Goswami Kapildeo Ramji to Chandradip Gope,
who is the plaintiffs’ father. It appears that by this notice, the father
of the plaintiffs was directed to hand over possession of the
Schedule-II lands. This notice shows that Mahanth got the notice
issued for handing over the possession as he was the owner of the
property. It is not the case of the plaintiffs that in spite of this notice
in the year 1950, they continued in possession. The court below held
that it may be that the property might have been mortgaged by
Mahanth and even if it is believed that the plaintiffs were in
possession, their possession was only possession of lessee under the
Mahanth.
24. Exhibit-5-A is another notice issued by Revenue Officer
inviting objection in commutation of rent. Except this notice,
nothing has been brought on record to show as to when, any order
was passed commuting the rent. Exhibit-1 series are the payment of
rent. Likewise, exhibit-2 series are Water Tax Reciepts and likewise
exhibit-4 series are also Water Tax Reciepts and exhibit-6 is the
Parcha.
25. So far the evidences produced by the defendants are
concerned, exhibit-H is the delivery of possession of Schedule-II
land, which was effected in favour of Mahanth Goswami Madhwa
Mani Ramji and auction certificate is exhibit-I. The learned counsel
for the appellants assailed both the documents on the ground that
these documents could not have been admitted in evidence as the
documents are not the certified copies. According to learned counsel
for the appellants, the relevant order sheets have not been filed in
connection with the said exhibits-H and exhibit-I and since the said
documents are copy of the certified copy, those are not reliable. So
far this objection of the plaintiffs-appellants is concerned, it may be
mentioned here that on 21.07.1986, exhibits-H and I were marked as
exhibits without objection of the plaintiffs. Moreover, in paragraph-
8 of the plaint, the plaintiffs clearly pleaded that the defendants were
producing fabricated order of delivery of possession in favour of
Mahanth Goswami Bhairwa Nand Ramji in Execution Case No.
2205 of 1934. In view of these pleadings, the defendants admitted
the existence of the exhibit-H. Since the plaintiffs are claiming that
the documents are forged and fabricated, the burden is on them to
prove how it is forged. Their case is that they have no knowledge
about the rent suit or the auction sale or the delivery of possession.
Accordingly, it becomes clear now that except this pleading, nothing
has been brought on record to show as to how the documents are
forged. Further, no relief has been claimed by the plaintiffs with
respect to these documents, which are issued by the Court.
Moreover, exhibit-H is a certified copy issued by the Court
concerned. Therefore, it is a public document. It clearly establishes
auction sale.
26. In view of this position, the validity or otherwise of the
auction sale pursuant to the decree can not be incidentally gone into.
No relief has been claimed regarding the auction sale or the delivery
of possession affected pursuant to the decree. The Hon’ble Supreme
Court in the case of Inderjit Singh Grewal Vs. State of Punjab &
Anr. 2012 (1) BLJ 42 SC has held that even if an order is void or
voidable, same requires to be set aside by competent Court. Even if
a decree is void, ab initio, declaration to that effect has to be
obtained from competent Court. Such declaration cannot be obtained
in collateral proceedings.
27. As stated above, these documents have been marked
exhibits without any objection. The Hon’ble Supreme Court in the
case of P.C. Purusothama Reddiar Vs. S. Perumal, reported in AIR
1972 (2) SC 608 has held that it is not open to a party to object to the
admissibility of documents, which are marked as exhibit without any
objection from such party.
28. The Hon’ble Supreme Court in the case of Union of
India Vs. Vasavi Coop. Housing Society Ltd. reported in 2014(2)
SCC 269 has held that in a suit for declaration of title, the burden of
proof is always on the plaintiff to make out and establish a clear case
for granting such declaration and the weaknesses, if any, of the case
set up by the defendants would not be a ground to grant any relief to
the plaintiff. The legal position, therefore, is clear that the plaintiff in
a suit for declaration of title and possession would succeed only on
the strength of its own title and that could be done only by adducing
sufficient evidence to discharge the onus on it, irrespective of the
question whether the defendants have proved their case or not. Even
if, the title set up by the defendants is found against them, in the
absence of establishment of plaintiff’s title, the plaintiff must be
non- suited.
29. In the present case, in our hand, the plaintiffs came with
a specific pleading to the effect that the documents produced by the
defendants claiming their title are forged documents. The defendants
claimed that they purchased the Schedule-II lands in auction sale
and the documents showing delivery of possession and rent
certificate issued by the Courts were produced. The plaintiffs
admitted the existence of these documents but the plaintiffs’ case is
that these documents are forged documents. Except these pleadings,
nothing has been brought on record in support of their pleading. No
relief has been claimed regarding the decree or the auction sale or
any relief for setting aside the auction sale or any with respect to
exhibit-H and exhibit-I. From the trend of the argument advanced
before the trial court and before this Court, it appears that the
plaintiffs tried their best to demolish the case of the defendants on
the grounds mentioned above that the documents are forged and
fabricated. In view of the settled proposition of law by the Supreme
Court, quoted above, it is for the plaintiffs to prove their case. The
certified copy has been produced which shows that delivery of
possession was affected regarding Schedule-II property in favour of
the vendor of the defendants and this delivery of possession is of the
year 1935. Since there is no declaration sought for regarding the
decree or the auction sale, the same became final and now after such
a long period, incidentally, in the present suit, the validity or
otherwise of the decree or the auction sale cannot be gone into,
particularly, when no relief has been claimed.
30. So far Schedule-III property is concerned, there is
absolutely no evidence at all produced by the plaintiffs in support of
the case that they were Bataidars and they have acquired occupancy
raiyati right prior to vesting of Zamindari and after vesting they
became raiyat of the State of Bihar. The defendants specifically
denied that the plaintiffs or plaintiffs’ ancestor have came in
possession as Bataidars. The burden was on the plaintiffs to prove
the fact that in fact they were in possession as Bataidars. The
documents produced by the plaintiffs relate to Schedule- II property
i.e exhibit-5, 5A,7-A etc. Moreover the nature of interest with regard
to Schedule-III lands is claimed under the Bihar Tenancy Act. If
they have acquired any right under the Bihar Tenancy Act, the
adjudication should have been made before the authority under the
Bihar Tenancy Act. This Court in the case of Awadhesh Chaudhary
Vs. Suryabansh Upadhyay reported in 1999 (2) PLJR 173 has held
that a person acquires occupancy right by legal eviction by efflux of
time on expiry of the prescribed period. However, the inquiry to the
acquisition of occupancy right in terms of Section 48(c) can be made
only under Section 48(d). Since such a right is not available under
general law, the forum created under the tenancy Act is alone
competent to declare the status of a person as an occupancy under
raiyat or raiyat with in the meaning of Section 48(c) and 48(d). It
cannot be decided in a suit.
31. The Hon’ble Supreme Court in the case of Shiv Kumar
Chadha Etc. vs. Municipal Corporation Of Delhi & Ors.. reported
in 1993 (3) SCC 161 has held that where a particular act creates a
right and also provides a forum for enforcement of such right, the
jurisdiction of the Civil Court is ousted.
32. Moreover, as discussed above, except the oral
statements and the rent receipts that in fact, the plaintiffs are in
possession of the Schedule-III lands and are paying rent, nothing has
been brought on record to substantiate their case.
33. In view of the above discussion, I find that the
plaintiffs-appellants failed to prove their title, possession over the
suit properties describe in Schedule- II and III. Finding of the
learned trial court on this point is, therefore, hereby, confirmed.
34. The Hon’ble Supreme Court in the case of Salem
Advocate Bar ... vs. Union Of India reported in 2005 (6) SCC 344
and again in 2011 (8) SCC 249 has held that cost should be awarded
under Section 35 in favour of successful party considering the
provision under Section 35 Sub-Section 2 C.P.C. When no cost is
awarded then reason must be assigned. In the present case,
considering the above facts and circumstances of the case, I find that
the plaintiffs approached the Court with unclean hand and dragged
the respondents up to this Court. Therefore, the appellants are liable
to pay cost.
35. In the result, this first appeal is dismissed with cost of
Rs. 10,000/- to be paid by the appellants to the respondents within
two months from the date of this judgment. If no cost is paid within
the aforesaid period, the defendants-respondents may realize the
same through the process of the Court.
Print Page
auction sale pursuant to the decree can not be incidentally gone into.
No relief has been claimed regarding the auction sale or the delivery
of possession affected pursuant to the decree. The Hon’ble Supreme
Court in the case of Inderjit Singh Grewal Vs. State of Punjab &
Anr. 2012 (1) BLJ 42 SC has held that even if an order is void or
voidable, same requires to be set aside by competent Court. Even if
a decree is void, ab initio, declaration to that effect has to be
obtained from competent Court. Such declaration cannot be obtained
in collateral proceedings.
IN THE HIGH COURT OF JUDICATURE AT PATNA
First Appeal No.601 of 1986
Harak Nath Yadav & Ors .
V
Mosmat Meena Devi & Ors
CORAM: MR. JUSTICE MUNGESHWAR SAHOO
Dated: 04 th, October, 2016.
Citation: AIR 2017 Patna 44
The plaintiffs have filed this first appeal against the
judgment and decree dated 14.08.1986 passed by the learned 7
th
Additional Sub-ordinate Judge, Patna in T.S. No. 236 of 1982/Trial
No. 11 of 1984, whereby the learned court below dismissed the
plaintiffs-appellants’ suit.
2. The plaintiffs-appellants filed the aforesaid Title Suit
No. 236 of 1982 for declaration of title and confirmation of
possession over the Schedule-II and Schedule-III lands mentioned in
the plaint. The plaintiffs further prayed for declaration that they be
declared as settled raiyat in respect of the Schedule-III lands and for
permanent injunction.
3. The plaintiffs claimed the aforesaid reliefs alleging that
Hazari Yadav son of Mahadeo Yadav was recorded tenant, who is
the ancestor of the plaintiffs. The plaintiffs and their ancestor had
one forth share over the Schedule-II properties and, accordingly,
they are coming in possession of the properties. They were paying
rent to the ex-landlord and then State. Canal Parcha and Water Tax
receipts are in their name.
4. So far Schedule -III properties are concerned, according
to the plaintiffs, they are the Bataidars of the defendants since last
several 12 years and are cultivating the lands. Earlier, the ancestors
were cultivating the lands as Bataidar. Because of the cultivation for
several 12 years, the plaintiffs acquired occupancy right, as such,
they have amalgamated the Schedule-III lands with the other lands
of the plaintiffs. Ex-proprietor of Schedule-III lands was residing at
long distance, as such, there was no arrangement for cultivation so
he gave the Schedule-III lands to the plaintiffs to cultivate on Batai
system 50 years ago and since then the ancestor and then the
plaintiffs have been in cultivating possession of
Schedule-III properties.
5. According to the plaintiffs, they are in possession of
Schedule-II lands as settled raiyat of the same by operation of law
and the other co-sharers of the recorded tenants for 3/4 share, who
are also in cultivating possession of their shares. However, the
defendants got a sale deed on 08.10.1964, which is collusive,
inoperative, sham and without consideration. The sale deed was
executed by Mahanth Sri Madhusudan Das. The sale deed is fake
and is for nominal consideration. The executant of the sale deed was
annoyed with the plaintiffs so executed bogus sale deed to harass the
plaintiffs. The defendants, in a proceeding under Section 144
Cr.P.C., relied upon a forged and fabricated order of delivery of
possession in favour of Mahanth Goswami Bhairwa Nand Ramji,
which was in connection with Execution Case No. 2205 of 1934. In
fact, the plaintiffs have no knowledge about any suit or decree
passed against them as no delivery of possession was affected and
the document showing delivery of possession is forged and
fabricated.
6. On being noticed, the defendants filed contesting written
statement. Their main defence was that Mahanth of Rajipur and
Masaurha Math was the proprietor of the land and Hazari Gope,
ancestor of the plaintiffs, was one of their recorded tenant. Mahanth
had filed the suit for recovery of due rent against said Hajari Gope
which was decreed and Execution Case No. 2205 of 1934 was filed.
In the said execution case, the lands mentioned in Schedule-II were
auction sold. Mahanth purchased the Schedule -II lands in auction
and delivery of possession was affected on 31.08.1935. Since
thereafter the recorded tenant or the plaintiffs lost their all interest
and possession and Mhanth, proprietor, directly came in possession
of the Schedule-II lands. Ultimately after vesting of Zamindari,
Mahanth’s name was entered in Register-II and Mahanth became the
tenant under the State of Bihar. Likewise, Schedule-III property was
also in possession of Mahanth, who became raiyat after vesting and
he continued in exclusive possession of the same. On 08.10.1964,
Mahanth executed a registered sale deed in favour of defendant
No.1, who was Karta of the joint family whereby for Rs. 11,000/-
land measuring 4 acres 65 and 1/4 decimal of Schedule-II and III
was sold. Defendant No.1 then came in possession and his name had
been entered in Register-II. The Defendants continued in exclusive
possession and are cultivating the lands. The plaintiffs were never
the Bataidars of Schedule-III lands. The Mahanth of Schedule-III
lands never gave the lands in Batai to the plaintiffs. The plaintiffs
have been dispossessed completely in Execution Case No. 2205 of
1934.
7. On the basis of the aforesaid pleadings of the parties, the
learned court below framed following issues;
“1. Is the suit as framed maintainable?
2. Have the plaintiffs got any cause of action or
right to sue?
3. Is the suit barred by law of limitation?
4. Is the suit barred by principles of waiver,
acquiescence and estoppel ?
5. Has the suit property been grossly under valued
and the court fee paid sufficient ?
6. Have the plaintiffs title and possession over the
suit land as alleged in the plaint?
7. Are the plaintiffs entitled to relief sought for?”
8. After hearing the parties and on consideration of the
evidences, documentary and oral, the learned trial court recorded
finding that the plaintiffs failed to prove that they are the Bataidars
of Schedule-III lands and that they are in continuing possession
thereof. The trial court also came to the conclusion that in auction
sale, Schedule-II property was purchased by Mahanth and since then
the plaintiffs’ ancestor lost the interest and possession. Accordingly,
the plaintiffs’ suit was dismissed.
9. Learned counsel, Mr. Binod Kumar Singh, appearing for
the appellants submitted that the court below mis-appreciated the
evidences produced by the plaintiffs in support of the fact that they
are in exclusive possession of the Schedule-II property. They are
dealing with the property even after vesting but the court below
wrongly discarded the documentary evidences. The learned counsel
further submitted that the documents produced by the defendants
showing delivery of possession were forged and fabricated
documents. The plaintiffs were never dispossessed from Schedule-II
property. The trial court, relying on the forged and fabricated
documents of delivery of possession, wrongly held that the
defendants came in possession. According to the learned counsel,
many witnesses have been examined who all deposed in favour of
the plaintiffs regarding their possession.
10. So far Schedule-III property is concerned, the learned
counsel submitted that plaintiffs’ ancestors were cultivating
Schedule-III lands as Bataidars of the proprietor but after
completion of cultivation for more than many 12 years, the
plaintiffs’ ancestors acquired occupancy raiyati right over ScheduleIII
property and since they were in possession of the property when
it vested in the State of Bihar, the plaintiffs became settled raiyat by
operation of law i.e Bihar Land Reforms Act, 1955. The learned
trial court did not consider this aspect of the matter.
11. According to the learned counsel, the learned court
below wrongly placed reliance on exhibits-H and I, which are forged
and created documents and wrongly discarded the exhibits-7 and
7(A), which are mortgaged deeds executed by the plaintiffs
regarding the suit property and out of that exhibit-7 is the
redemption note of the year 1957 which clearly approves the fact
that the plaintiffs were in possession of the property and were
dealing with the same.
12. Learned counsel further submitted that the court below
wrongly discarded exhibit-5, which is a notice issued by the
Advocate of Mahanth Goswami Kapil Deo Ramji. According to
learned counsel, in this notice, farther of the plaintiff No.2 was
asked to handover possession of Schedule-II lands, which also
clearly shows that the plaintiffs were in possession of Schedule-II
property. Learned counsel further submitted that, in fact, there was
no any rent suit nor any delivery of possession was affected. The
plaintiffs have no knowledge about the same.
13. With respect to exhibit-5-A, which is a notice sent by
Revenue Officer to the plaintiffs inviting objection, if any, on the
commutation of rent, the learned court below has wrongly discarded
this documentary evidence also. The learned counsel for the
appellants further submitted that the exhibits- H and I are not
reliable documents at all but wrongly the court below has relied on
it. According to the learned counsel, these documents could not have
been admitted to evidence but it has wrongly been admitted in
evidence. On these grounds, the learned counsel for the appellants
submitted that the impugned judgment and decree be set aside.
14. On the other hand, the learned counsel, Mr. J.K. Verma
appearing for the respondents, submitted that the present suit has
been filed for declaration of title and recovery of possession. No
relief has been claimed with regard to decree and auction sale in the
rent suit of the year 1934. Therefore, unless the decree and auction
sale is set aside, the plaintiffs are not entitled to any decree. The
learned counsel further submitted that since exhibits- H and I have
been marked without objection, the appellants cannot be permitted
to object the admissibility of the said documents. So far exhibit-5 is
concerned, which is a notice, according to learned counsel, it relates
to Schedule-II property only and not Schedule-III property. So far
schedule-III property is concerned, there is absolutely no evidence to
show that the plaintiffs’ ancestors were the Bataidars and, as such,
they continued for more than 12 years and have acquired occupancy
rights. Moreover, if, in fact, they had occupied occupancy right, this
relief would have been claimed by them under the Bihar Tenancy
Act. The burden to prove that the plaintiffs were the Bataidars of
Schedule-III lands was on the plaintiffs but in support of their claim,
not a single document has been produced. So for exhibits-H and I
are concerned, these documents are admitted by the plaintiffs in their
pleadings. They pleaded that these documents are forged and
fabricated but neither they produced the original nor they adduced
any evidence. The defendants produced the documents, which were
marked as exhibits without objection. Now, therefore, on mere
technical grounds, the said documents cannot be discarded.
Moreover, the documents are the certified copies obtained from the
Court and presumption is in favour of the defendants unless the
contrary is proved by the plaintiffs. In support of his contention,
learned counsel relied upon various decisions of the Supreme Court
on each point, which I shall consider one after other at the time of
consideration of these points. On these grounds, learned counsel for
the appellants submitted that the first appeal is liable to be dismissed
with costs.
15. In view of the above contentions of the parties, the
points, arise for consideration in this first appeal, are whether the
plaintiffs have been able to prove their case i.e. their title and
possession over the Schedule-II and Schedule-III land and whether
the impugned judgment and decree passed by the court below is
sustainable in the eye of law or not?
16. According to the plaintiffs’ case so far Schedule-II
properties are concerned, their ancestors were the recorded tenant
but in 144 Cr.P.C. proceeding, the defendants claimed Schedule-II
lands on the basis of forged and fabricated documents showing
delivery of possession in connection with Execution Case No. 2205
of 1934. There was no such case nor there was any auction sale nor
the plaintiffs have got knowledge about the delivery of possession.
The plaintiffs continued in possession of the property. This is the
case regarding Scheduled-II property.
17. On the other hand, according to the defendants, no
doubt, Schedule-II lands were the property of ancestor of the
plaintiffs, who was recorded tenant but the proprietor was one
Mahanth of Rajipur and Masauraha Math. To realize the arrears of
rent, said Mahant filed rent suit which was decreed and the decree
was put in execution and in the execution, the Mahanth purchased
the property and obtained delivery of possession in the year 1935.
18. So far Schedule-III property is concerned, according to
the plaintiffs, the ancestors of the plaintiffs were Bataidars of the
property for more than 12 years and they acquired occupancy right
over the same prior to the vesting. After vesting, they became tenant
of the State of Bihar and were paying rent. On the contrary,
according to the defendants, the plaintiffs’ ancestors were never the
Bataidars nor ever they came in possession.
19. In support of their respective cases, both the parties have
adduced their evidences, oral and documentary. Now, let us consider
the evidences one by one;
20. P.W.-4 one of the plaintiffs has stated the same thing as
pleaded in the plaint. Therefore, it is not necessary to repeat his
deposition. P.Ws.-5, 7 to 9 have supported the possession of the
plaintiffs in general term i.e. according to them, the plaintiffs are in
possession of the suit properties and Mahanth was never in
possession. However, in cross-examination, they failed to give any
detail regarding the suit property. P.W.-5 is not even able to disclose
the area of the lands or boundary of lands. Likewise, P.W.-7
although claimed that the plaintiffs cultivate on Bataidari, he is
unable to give details as to what was the amount of crops. It may be
mentioned here that he claimed that division of crops took place in
his presence. These are the material witnesses in support of the
plaintiffs’ case.
21. The plaintiffs have filed exhibits-7 and 7-A, the
mortgaged deeds. These documents have been produced to show
that the suit lands were mortgaged by them and subsequently, they
redeemed. Exhibit-7 is dated 15.06.1928. Therefore, this document
is not relevant as the auction took place in the year 1935 and
delivery of possession was affected in favour of Mahanth. P.W.-9
has endorsed in the mortgaged deed on 13.07.1957. Much emphasis
is given on this endorsement and it is submitted that this clearly
shows that the plaintiffs were dealing with the property and they
even redeemed the property and came in possession. So far this is
concerned, it may be mentioned here that the defendants are not
party to this redemption note. It was not made in presence of the
defendants. It can very well be said that this mortgaged deed and the
endorsement, thereon, exhibit-3 are self serving documents. On the
basis of these documents, one cannot presume that, in fact, the
plaintiffs continued in possession in spite of delivery of possession
affected in the execution case in the year 1935.
22. At the time of hearing of the first appeal, much
emphasis was given on Exhibit-8, which is certified copy of the
deposition of one of the defendant. In this deposition, Siddhanath
Prasad has stated that he has got no concern with Mahanth Ji nor he
had any concern with his land. It was argued that this document
clearly shows that the defendants admitted that the defendant had
nothing to do with Mahanth or his land. In my opinion, so far this
document and the submission of the learned counsel for the
appellants is concerned, it is neither here nor there. It neither proves
the possession of the plaintiffs nor it proves the fact that the
defendants have got no right over the property in question.
Moreover, when the defendant was examined as witness, this portion
of his evidence, in Exhibit-8, was not confronted to the witness.
Now, therefore, this part of the deposition, in Exhibit-8, cannot be
read as an admission against the defendants in view of the decision
of the Supreme Court reported in AIR 1977 SC 1712.
23. So far the notice, exhibit-5 is concerned, it is a notice
issued by Mahanth Goswami Kapildeo Ramji to Chandradip Gope,
who is the plaintiffs’ father. It appears that by this notice, the father
of the plaintiffs was directed to hand over possession of the
Schedule-II lands. This notice shows that Mahanth got the notice
issued for handing over the possession as he was the owner of the
property. It is not the case of the plaintiffs that in spite of this notice
in the year 1950, they continued in possession. The court below held
that it may be that the property might have been mortgaged by
Mahanth and even if it is believed that the plaintiffs were in
possession, their possession was only possession of lessee under the
Mahanth.
24. Exhibit-5-A is another notice issued by Revenue Officer
inviting objection in commutation of rent. Except this notice,
nothing has been brought on record to show as to when, any order
was passed commuting the rent. Exhibit-1 series are the payment of
rent. Likewise, exhibit-2 series are Water Tax Reciepts and likewise
exhibit-4 series are also Water Tax Reciepts and exhibit-6 is the
Parcha.
25. So far the evidences produced by the defendants are
concerned, exhibit-H is the delivery of possession of Schedule-II
land, which was effected in favour of Mahanth Goswami Madhwa
Mani Ramji and auction certificate is exhibit-I. The learned counsel
for the appellants assailed both the documents on the ground that
these documents could not have been admitted in evidence as the
documents are not the certified copies. According to learned counsel
for the appellants, the relevant order sheets have not been filed in
connection with the said exhibits-H and exhibit-I and since the said
documents are copy of the certified copy, those are not reliable. So
far this objection of the plaintiffs-appellants is concerned, it may be
mentioned here that on 21.07.1986, exhibits-H and I were marked as
exhibits without objection of the plaintiffs. Moreover, in paragraph-
8 of the plaint, the plaintiffs clearly pleaded that the defendants were
producing fabricated order of delivery of possession in favour of
Mahanth Goswami Bhairwa Nand Ramji in Execution Case No.
2205 of 1934. In view of these pleadings, the defendants admitted
the existence of the exhibit-H. Since the plaintiffs are claiming that
the documents are forged and fabricated, the burden is on them to
prove how it is forged. Their case is that they have no knowledge
about the rent suit or the auction sale or the delivery of possession.
Accordingly, it becomes clear now that except this pleading, nothing
has been brought on record to show as to how the documents are
forged. Further, no relief has been claimed by the plaintiffs with
respect to these documents, which are issued by the Court.
Moreover, exhibit-H is a certified copy issued by the Court
concerned. Therefore, it is a public document. It clearly establishes
auction sale.
26. In view of this position, the validity or otherwise of the
auction sale pursuant to the decree can not be incidentally gone into.
No relief has been claimed regarding the auction sale or the delivery
of possession affected pursuant to the decree. The Hon’ble Supreme
Court in the case of Inderjit Singh Grewal Vs. State of Punjab &
Anr. 2012 (1) BLJ 42 SC has held that even if an order is void or
voidable, same requires to be set aside by competent Court. Even if
a decree is void, ab initio, declaration to that effect has to be
obtained from competent Court. Such declaration cannot be obtained
in collateral proceedings.
27. As stated above, these documents have been marked
exhibits without any objection. The Hon’ble Supreme Court in the
case of P.C. Purusothama Reddiar Vs. S. Perumal, reported in AIR
1972 (2) SC 608 has held that it is not open to a party to object to the
admissibility of documents, which are marked as exhibit without any
objection from such party.
28. The Hon’ble Supreme Court in the case of Union of
India Vs. Vasavi Coop. Housing Society Ltd. reported in 2014(2)
SCC 269 has held that in a suit for declaration of title, the burden of
proof is always on the plaintiff to make out and establish a clear case
for granting such declaration and the weaknesses, if any, of the case
set up by the defendants would not be a ground to grant any relief to
the plaintiff. The legal position, therefore, is clear that the plaintiff in
a suit for declaration of title and possession would succeed only on
the strength of its own title and that could be done only by adducing
sufficient evidence to discharge the onus on it, irrespective of the
question whether the defendants have proved their case or not. Even
if, the title set up by the defendants is found against them, in the
absence of establishment of plaintiff’s title, the plaintiff must be
non- suited.
29. In the present case, in our hand, the plaintiffs came with
a specific pleading to the effect that the documents produced by the
defendants claiming their title are forged documents. The defendants
claimed that they purchased the Schedule-II lands in auction sale
and the documents showing delivery of possession and rent
certificate issued by the Courts were produced. The plaintiffs
admitted the existence of these documents but the plaintiffs’ case is
that these documents are forged documents. Except these pleadings,
nothing has been brought on record in support of their pleading. No
relief has been claimed regarding the decree or the auction sale or
any relief for setting aside the auction sale or any with respect to
exhibit-H and exhibit-I. From the trend of the argument advanced
before the trial court and before this Court, it appears that the
plaintiffs tried their best to demolish the case of the defendants on
the grounds mentioned above that the documents are forged and
fabricated. In view of the settled proposition of law by the Supreme
Court, quoted above, it is for the plaintiffs to prove their case. The
certified copy has been produced which shows that delivery of
possession was affected regarding Schedule-II property in favour of
the vendor of the defendants and this delivery of possession is of the
year 1935. Since there is no declaration sought for regarding the
decree or the auction sale, the same became final and now after such
a long period, incidentally, in the present suit, the validity or
otherwise of the decree or the auction sale cannot be gone into,
particularly, when no relief has been claimed.
30. So far Schedule-III property is concerned, there is
absolutely no evidence at all produced by the plaintiffs in support of
the case that they were Bataidars and they have acquired occupancy
raiyati right prior to vesting of Zamindari and after vesting they
became raiyat of the State of Bihar. The defendants specifically
denied that the plaintiffs or plaintiffs’ ancestor have came in
possession as Bataidars. The burden was on the plaintiffs to prove
the fact that in fact they were in possession as Bataidars. The
documents produced by the plaintiffs relate to Schedule- II property
i.e exhibit-5, 5A,7-A etc. Moreover the nature of interest with regard
to Schedule-III lands is claimed under the Bihar Tenancy Act. If
they have acquired any right under the Bihar Tenancy Act, the
adjudication should have been made before the authority under the
Bihar Tenancy Act. This Court in the case of Awadhesh Chaudhary
Vs. Suryabansh Upadhyay reported in 1999 (2) PLJR 173 has held
that a person acquires occupancy right by legal eviction by efflux of
time on expiry of the prescribed period. However, the inquiry to the
acquisition of occupancy right in terms of Section 48(c) can be made
only under Section 48(d). Since such a right is not available under
general law, the forum created under the tenancy Act is alone
competent to declare the status of a person as an occupancy under
raiyat or raiyat with in the meaning of Section 48(c) and 48(d). It
cannot be decided in a suit.
31. The Hon’ble Supreme Court in the case of Shiv Kumar
Chadha Etc. vs. Municipal Corporation Of Delhi & Ors.. reported
in 1993 (3) SCC 161 has held that where a particular act creates a
right and also provides a forum for enforcement of such right, the
jurisdiction of the Civil Court is ousted.
32. Moreover, as discussed above, except the oral
statements and the rent receipts that in fact, the plaintiffs are in
possession of the Schedule-III lands and are paying rent, nothing has
been brought on record to substantiate their case.
33. In view of the above discussion, I find that the
plaintiffs-appellants failed to prove their title, possession over the
suit properties describe in Schedule- II and III. Finding of the
learned trial court on this point is, therefore, hereby, confirmed.
34. The Hon’ble Supreme Court in the case of Salem
Advocate Bar ... vs. Union Of India reported in 2005 (6) SCC 344
and again in 2011 (8) SCC 249 has held that cost should be awarded
under Section 35 in favour of successful party considering the
provision under Section 35 Sub-Section 2 C.P.C. When no cost is
awarded then reason must be assigned. In the present case,
considering the above facts and circumstances of the case, I find that
the plaintiffs approached the Court with unclean hand and dragged
the respondents up to this Court. Therefore, the appellants are liable
to pay cost.
35. In the result, this first appeal is dismissed with cost of
Rs. 10,000/- to be paid by the appellants to the respondents within
two months from the date of this judgment. If no cost is paid within
the aforesaid period, the defendants-respondents may realize the
same through the process of the Court.
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