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MUNGESHWAR SAHOO, J.
(15.5.2012)
Second Appeal No. 585 of 2010
Against the judgment and decree dated 11.8.2010 passed by Additional District Judge, F.T.C. No. III, Saran at Chapra in Title Appeal No.2 of 2009 reversing the judgment and decree dated 12.12.2008 passed by Civil Judge (Jr. Division), Munsif IV, Saran at Chapra in Title Suit No. 60 of 2000.
Firoz Khan @ Firoz Akhtar : Appellants
Khan & Ors.
Vs.
Om Prakash Mahto & Ors. : Respondents
Benami Transaction Prohibition Act, 1988–Section 4–Benami Transaction–There is no dispute about the proposition of law that Benami Act will apply if the suit is filed subsequently even though, the transaction was prior to coming into force of Benami Act–However, in the present case, title of Umar Khan was declared in the earlier suit over the land purchased in the name of his daughter-in-law, Hasina Khatoon–Hasina Khatoon did not claim to be the real owner of the property–This plea of Benami was never pleaded in view of the fact that title has already been declared in favour of Umar Khan–In view of decree of the civil court, Umar Khan is the owner of the property–In this present suit, on the ground of Benami the findings of title and possession of Umar Khan in earlier suit cannot be set aside prticularly when it is not the case of the party. (Paras 15 & 16)
Code of Civil Procedure, 1908–Section 100–Second appeal–The Lower Appellate Court held that the order of D.C.L.R. is wrong and the Jamabandi was rightly opened in the name of the plaintiff–The mutation or revenue record does not create title or extinguish title and, therefore, the finding recorded by the court below on this mutation order will never affect the right, title and possession of the appellant. (Para 18)
2007 (4) PLJR 624; (2010)13 SCC 216 para 28; (2010)12 SCC 740; AIR 1996 SC 2823; (2008)17 SCC 491–Referred to.
2. The plaintiff-respondent filed Title Suit No.60 of 2000 praying for permanent injunction against the defendant nos.1 to 5 in respect of the suit property mentioned in detail in the plaint. For the purpose of this Second Appeal, the facts as claimed by the plaintiff may be stated briefly that the suit property belonged to the plaintiff. The said suit plot nos.383 and 384 of Khata No.112 was recorded in R.S. Khatiyan in the name of Sukhdeo Koiree. Sukhdeo Koiree had a son, Atmaram Koiree. The plaintiff, Gobardhan Koiree is the son of said Atmaram Koiree. Khata No.79, plot no.382 was recorded in R.S. Khatiyan in the name of Mitthu Mahto whose grandson is Ram Ishwar Mahto, plaintiff no.2. R.S. Plot No.381 of Khata No.104 was recorded in the name of Lakhichand Koiree and plaintiff no.3 is the grandson of Lakhichand Koiree. The plaintiffs inherited the property from their ancestors and are continuing in peaceful possession as owner thereof. They were paying rent to ex-landlord and thereafter to the State of Bihar. The plaintiff also claimed title on the basis of adverse possession. The defendants claiming to be the heirs of ex-landlord, Anwar Khan are trying to interfere with the possession of the plaintiff and, therefore, the plaintiff’s filed the suit.
3. The defendant nos.1 to 5, appellants filed contesting written statement mainly contending inter alia that the recorded tenants Sukhdeo Koiree, Mitthu Koiree and Lakhichand Koiree were the karinda of the ex-landlord, Ram Sahay Sahu, who wrongly got mentioned the names of his karinda in R.S. Khatiyan with respect to the suit land in collusion with survey officer although, they had no right, title, interest and possession over the land. According to the defendants, the suit land was recorded in cadastral survey khatiyan under Khata No.70 in the name of Mahanth Ram Ishwar Giri. On his death, his Chela Mahanth Ram Lakhan Giri came in possession over the property. Ram Lakhan Giri sold the disputed land in the name of Masomat Bibi Hasina, daughter-in-law of Umar Khan for Rs.1,000 and put her in possession. The landlord, Ram Sahay Sahu wrongly interfered in the purchased land and dispossessed from the suit property. Therefore, Umar Khan filed Title Suit No.186 of 1917 against Ram Sahay Sahu and others for declaration of title and recovery of possession. The said suit was decreed in 1919. The ex-landlord, Ram Sahay Sahu and others filed Title Suit No.2 of 1919 in the court of District Judge, Chapra which was dismissed after hearing the parties in 1920. Umar Khan filed Execution Case No.384 of 1920 and obtained delivery of possession of the suit property. The delivery of possession was confirmed on 24.06.1920. Since thereafter Umar Khan and his heirs have been coming in peaceful possession over the suit land on payment of rent to the ex-landlord and after vesting to the State of Bihar. The ex-landlord filed return in the name of Umar Khan when the zamindari vested in the State of Bihar. There were many 144 Cr.P.C. proceedings and mutation proceedings for opening Jamabandi filed by the parties. The plaintiff filed petition before C.O. for correction of Jamabandi being Jamabandi Case No.291 of 1999-2000 and wrongly obtained favourable order. The defendants filed Misc. Case No.22 of 2000 which was allowed and the Jamabandi No.33 was allowed to be continued in the name of the defendants. It may be mentioned here that the defendant no.6 intervened and filed a written statement and supported the plaintiff’s case.
4. After trial, the trial court dismissed the plaintiff’s suit holding that the defendant was put in
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