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IN THE HIGH COURT OF JUDICATURE AT PATNA
KHATIM REZA, J.
Second Appeal No. 554 of 2018
(20.12.2024)
Ranjit Singh @ Ranjit Kumar Singh & Ors. ... Appellants
vs.
State of Bihar & Ors. ... Respondents
Civil Procedure Code, 1908 – Order XLI, Rule 11 – Title declaratory suit – Burden is on plaintiff to establish his title to suit property in order to be entitled to decree of declaration of title – There is concurrent finding of facts by both Courts below that original plaintiff/appellant has failed to prove title on the basis of oral settlement as pleaded, and plaintiff/appellant has not succeeded in proving that said finding in that respect is perverse – Plaintiff has not been able to prove his claim of title on the basis of oral settlement – Pleader Commissioner will not be in a position to determine question as to who is in possession of property as it is to be decided on the basis of evidence adduced and it is not his function to report possession of a party – Impugned judgments and decree of courts below are covered by findings of fact – Appeal dismissed. (Paras 26, 27, 28, 30 and 31)
Adverse Inference – Question of drawing 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 facts required to be proved – Principle of drawing adverse inference cannot be put in a strait jacket formula and it depends upon facts and circumstances of each case – 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 part of the party which is within his personal and exclusive knowledge – If necessary facts in order to prove defence are already on record, and has been proved by other evidences on the record, or by documentary evidences including public documents on record, Court is not bound to draw adverse inference for failure of defendants to enter witness box. (Para 27)
ORDER
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.
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 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 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
The settlement order, revenue records, and lack of evidence supporting adverse possession claims were crucial in establishing the plaintiffs' continuous possession and defeating the defendants' claim....
Adverse Possession – When a possession is sought on the ground of Sada-deed of Dar Raiyat, law of adverse possession is not available.
Adverse Possession – Necessary ingredients to constitute adverse possession must be proved in order to perfect title over land.
The record of rights (Khatian) is presumptive evidence of ownership, establishing Rayati rights until disproved, leading to recovery of possession.
The main legal point established in the judgment is the requirement to plead and prove essential facts to establish adverse possession, including continuity, publicity, and hostility to the true owne....
The court upheld the admissibility of historical tenancy documents under Section 90 of the Evidence Act, confirming the plaintiffs' rights over the land despite challenges regarding document validity....
A plaintiff not in possession must seek recovery of possession to maintain a suit for injunction; failure renders the suit non-maintainable.
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