1972 Supreme(Pat) 164

PATNA HIGH COURT
B.D.Singh, J.
Ram Pukar Singh
Versus
Sita Ram Mahton
Appeal From Appellate Decree No. 55 of 1970 ;
Decided On : SEPTEMBER 11, 1972

In a second appeal, the High Court will not interfere with the findings of fact recorded by the lower appellate Court merely because the judgment of the lower appellate Court is not as elaborate as that of the trial Judge or because some of the reasons given by the trial Judge have not been expressly reversed by the lower appellate Court.

Headnote:

LAND TENURE - Resumption of Jagir Land - Admissibility of Evidence - Interpretation of Documents - Findings of Fact - Interference in Second Appeal.

Fact of the Case:

Plaintiffs filed a suit for declaration of title and recovery of possession with mesne profits with respect to 15 kathas 1 dhur of land comprised in revisional survey plot No. 196 khata No. 80 corresponding to cadastral survey plot No. 123 (whole) and plot No. 124 (part) bearing khata Nos. 43 and 44. situate in village Pakbaha in the district of Saran. The plaintiffs' case was that the land was bakasht land of the plaintiffs and their ancestors and it was so recorded in the cadastral survey. The ancestors of the plaintiffs gave the suit land in Jagir to Sheo Sharan Mahto, father of Jhagaroo Mahto alias Jhagru Prasad (defendant No. 61 and Ram Narayan Mahto (defendant No. 7) Ramrup Mahto, father of Sitaram Mahto (defendant No. 1). Lachhuman Mahto (defendant No. 2). and Ramlagan Mahto (defendant No. 3) in lieu of the service of Barahil only with right of enjoyment of the usufruct and subject to the right of the grantor to resume khas possession in case the grantee ceased to do service. About 26 years prior to the institution of the suit Sheo Sharan Mahto was found to have been misappropriating the rent collected by him in the capacity of being Barahil. Hence his service as well as the services of the other three persons, named above, were terminated, and the possession of the land was resumed by the grantor. Subsequently, the suit land bearing revisional survey plot No. 196 was amalgamated with the plaintiffs plot No. 195. After vesting of the Zamindari in the State of Bihar on the 1st January, 1956, the plaintiffs filed return to the authorities of the State of Bihar and showed the suit land as bakasht land of the plaintiffs. Taking advantage of the certificate entry the defendants began laying claim to the suit land, which led to the proceedings under Sections 144 and 145 of the Code of Criminal Procedure in which an order was passed against the plaintiffs. Subsequently, the plaintiffs were dispossessed from the suit land which necessitated to the filing of the present suit on the 2nd April. 1960.

Finding of the Court:

The lower appellate Court held that: (i) the suit land was service tenure as Jagirdars were required to function as Barahils and were not liable to pay rent; (ii) the plaintiffs failed to prove their case of resumption and possession and (iii) there was no question of limitation.

Issues: 1. Whether the suit as framed is maintainable? 2. Have the plaintiffs got any cause of action for the suit? 3. Is the suit time barred? 4. Is the suit properly valued? 5. Is the court-fee paid sufficient? 6. Have the plaintiffs got any subsisting title over the suit land? If so, are they entitled to recovery of possession? 7. To what relief or reliefs, if any, are the plaintiffs entitled to?

Ratio Decidendi: 1. The Barwarda (Ext. 10) was admissible in evidence, but it was of no consequence, because it related to the period prior to the publication of the revisional survey khatian (Ext. C), which was published on the 6th January, 1919, wherein the suit land is recorded in the name of the defendants. 2. The appellate Court had laid emphasis upon the question as to when the plaintiffs resumed possession of the suit land and whether plaintiffs retained possession after its resumption. Whether the defendants or their ancestors worked as Barahil or not and what were the functions of the Barahil were not material points for consideration by the lower appellate Court. 3. The statement of Jhagru (defendant No. 6) in Ext. 17 was admissible in evidence, but it had no evidentiary value. 4. The lower appellate Court has considered Ext. 7 and has come to its own finding. 5. The lower appellate Court after due consideration of the evidence on the point of amalgamation in paragraphs 22 and 23 of its judgment preferred the evidence and the report of D. W. 7. 6. The lower appellate Court has not considered the order passed in the proceedings under Sections 144 and 145 of the Code of Criminal Procedure as substantive evidence. 7. The lower appellate Court has given cogent reasons for not relying on the oral testimony of the witnesses adduced on behalf of the plaintiffs.

Final Decision: Appeal dismissed with costs and the judgment and the decree of the lower appellate Court are affirmed.