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Judgment
This First Appeal has been filed by the defendants appellants
against the Judgment and decree dated 25.02.1978 passed by the learned
2nd Addl. Sub Judge, Siwan in Title (Partition) Suit No.183 of 1969 / 189
of 1973 / 6 of 1977 whereby the learned trial Court decreed the plaintiff
respondent''s suit for partition.
The plaintiffs respondents filed the aforesaid partition suit
claiming separation of one biggha 19 katha 18? dhur land purchased by
the plaintiff out of the suit property. The plaintiff claimed the aforesaid
relief alleging that Babu Binda Prasad was the owner of Tauzi No.1282 of
village-Pagurkothi to the extent of 6 ana 8 karat and the rest interest in the
Tauzi belonged to Babu Jamuna Prasad. Babu Binda Prasad settled 5
katha 12 dhur of Schedule I land by registered Patta dated 24.08.1922 to
Smt. Ram Dulari Devi who sold the said 5 katha 12 dhur land to the
plaintiff No.1 to 4 by regitered sale deed dated 21.06.1954 and plaintiff
came in possession. Jamuna Prasad was in possession of 3 Bigha 14
katha 5 dhur under Khata No.2 and 115 of village - Pagurkothi. He died
leaving his two widows, namely, Binda Basini Devi and Janki Devi.
Janki Devi sold her half share to the plaintiff No.1 to 4 by registered sale
deed dated 29.06.1968 which they purchased in the name of plaintiff
No.5. This land is described in Schedule II of the plaint. The other
widow, Binda Basini Devi sold her share measuring 1 biggha 14 katha 6
? dhur of Khata No.2 and 115 to the defendant. All the lands of khata
No.2 and 115 is described in Schedule III of the plaint. The parties are in
joint possession. When the plaintiff demanded partition, the defendant
refused, so the partition suit was filed.
The defendant No.1 alone contested the suit by filing contesting
written statement. The main defence is that the suit land is coming in
possession of the defendant as batiadar since 45-46 years and the
defendant have acquired title by adverse possession. Due to ignorance of
law, they thought that they have got right and title over half share on the
suit land as batiadar so they purchased the remaining half area of the suit
land by sale deed dated 01.06.1968 from Binda Basini Devi. This
defendant denied all other allegation regarding ownership of Babu Binda
Prasad, settlement made by him by registered patta in the year 1922 in
favour of Ram Dulari Devi and pleaded that in fact they never came in
possession rather the defendants continued in possession. The defendant
also denied execution of registered sale deed in favour of the plaintiff by
Ram Dulari Devi. According to the defendants, the sale deed is forged
and fabricated document and executed by a person who had no title. The
defendant also denied execution of sale deed by Janki Devi in favour of
the plaintiff. According to the defendant, the plaintiffs have no title and
that they never came in possession of the suit land.
On the basis of these pleadings, the learned trial Court framed
the following issues :-
(i) Is the suit as framed maintainable?
(ii) Have the plaintiffs got any cause of action for the suit?
(iii) Whether the Court fee paid is sufficient?
(iv) Is the suit barred by limitation?
(v) Have the defendants acquired title to the suit lands by adverse possession?
(vi) Is the story of Batai settlement of the suit lands in favour of the defendant''s ancestor correct?
(vii) Are the sale deed dated 21.06.1954 executed by Ram Dulai Devi in favour of plaintiffs 1 to 4 and the sale deed dated 29.06.68 executed by Janki Devi in the name of plaintiff 5 genuine and valid?
(viii) Are plaintiffs 1 to 4 entitled to a decree for partition? If so, to what extent?
(ix) To what relief, if any, are the plaintiffs entitled?
The learned trial Court considered the evidences of the parties
and then came to the conclusion that the plaintiff have acquired title to the
extent covered by the sale deeds ext.''1'' and ''1/A''. The batai settlement
claimed by the defendant is not correct and that the defendants have not
acquired title by adverse possession. Accordingly, the plaintiff''s suit was
decreed.
The learned senior counsel, Mr. Rajendra Narain, appearing for
the appellant submitted that the learned trial Court approached the case in
wrong angle. In a suit for partition, the plaintiff is required to prove unity
of title and unity of possession but the said issue was not framed and the
Court below without recording finding on this point decreed the plaintiff''s
suit wrongly. The learned trial Court has wrongly held that the plaintiff
have acquired title by the registered sale deed without considering the fact
that the vendor of the plaintiff and the plaintiffs themselves never came in
possession of the property which they purchased, therefore, the finding is
vitiated. The defendant appellants were all along in possession of the suit
property as bataidar and even after so called transfer, the plaintiffs never
came in possession, therefore, there is no unity of title and possession
between the parties. The defendants appellants are in exclusive
possession over the suit property. So far half share is concerned, they
have purchased the same and so far the other half share is concerned, they
are in possession as batiadar of the original owner and because of long
possession, they have required occupancy riayat right as such the property
could not have been sold by the vendor in favour of the plaintiff but the
learned trial Court did not consider this aspect of the matter.
The learned senior counsel further submitted that in ext. ''B'',
there is clear recital that the defendants are the bataidar and ext.''A'' proves
that the defendants were and are in possession of the suit property but the
learned Court below ignored these evidences and wrongly held that the
story of Batiadar is incorrect. The learned counsel further submitted that
the learned trial Court only catalogued the evidences of the defendants
who have clearly deposed regarding bataidars but the trial Court without
considering their evidences meticulously discarded them and wrongly
held the story of bataidar as incorrect. According to the learned senior
counsel, the defendants continued in possession for more than many 12
years since their ancestor''s time as such they have also acquired title by
adverse possession. On these grounds, the learned senior counsel Mr.
Rajendrs Narain submitted that the appeal be allowed and the impugned
Judgment and Decree be set aside and plaintiff''s suit be dismissed.
On the other hand, the learned counsel, Mr. Gopal Pandey,
submitted that the sale deeds of the plaintiffs are of the year 1922 and
1968. The defendants never challenged the sale deeds. The presumption
of correctness is attached to the registered document and in the defence,
the defendants only said that the sale deed are forged and fabricated. No
counter claim was filed nor separate suit has been filed for setting aside
the sale deeds. Moreover, the Bataidari claim should have been made by
the defendant before the appropriate Forum under the Bihar Tenancy Act
and the Civil Court has no jurisdiction to grant such relief which is
available to the defendant under the Bihar Tenancy Act. Moreover, the
defendants themselves have purchased half share of the other widow of
Jamuna Prasad and thereby they admitted the title of the owner Jamuna
Prasad and his widow Binda Basini Devi in the year 1968 and the plaintiff
have purchased the other half share of the other widow Janki Devi. There
had been no partition between the two widows, therefore, the plaintiff and
the defendant being the purchasers of half share came in joint possession
of the land in suit. Now, when the defendants themselves admitted the
title of one widow, they cannot deny the title of other widow on the
ground of acquisition of occupancy raiyati right. On these grounds, the
learned counsel, Mr. Pandey submitted that the First Appeal be dismissed
with cost.
In view of the above submission of the learned counsels for the
parties, the only point arises for consideration in this First Appeal is :-
(i) Whether the plaintiffs are entitled to separate possession of their
purchased land by separating the same from the suit land as
claimed by them or whether the defendants have acquired title
by adverse possession or by occupancy raiyati right?
It is the case of the plaintiff that Babu Binda Prasad had interest
to the extent of 6 ana 8 karat in Tauzi No.1282. He settled 5 katha 12
dhur of Schedule I land by registered Patta dated 24.08.1922 in favour of
Ram Dulari Devi who in turn sold the same by registered sale deed dated
21.06.1954. This sale deed had been produced by the plaintiff which has
been marked as ext.''1''. This registered sale dated 21.06.1954 executed by
Ram Dulari Devi is not challenged by the defendants within the
prescribed period. It may be mentioned here that the lands have been
settled in favour of Ram Dulari Devi by registered Patta of the year 1922.
This Patta is also never challenged by the defendants. In such
circumstances, when registered documents have been produced by the
plaintiff in support of settlement in favour of Ram Dulari Devi and sale
deed in favour of the plaintiff which have never been challenged by the
defendants, the documents become final. There is presumption that the
registered document is valid till the contrary is proved and the onus is on
the person who asserts that the document is invalid or sham transaction.
Reference may be made in this point to the decision of this Court reported
in 2012 (2) PLJR 190 Seeta Sharan Prasad case. In the present case as
stated above, nobody claimed any declaration that the registered patta of
the year 1922 or the registered sale deed of the year 1954 are either forged
and fabricated or sham transaction. In the written statement, it is only
stated by way of defence that the documents are forged and fabricated.
The registered documents have been produced, therefore, the presumption
of its validly is in favour of the plaintiff and by mere saying that the
documents are forged and fabricated that too after the expiry of period,
prescribed under Article 58 and 59 of the Limitation Act, these registered
documents cannot be held to be either forged or fabricated or sham
transaction.
So far the other sale deed of the plaintiff dated 29.06.1968 ext.
''1/A'' which is in the name of plaintiff No.5. The lands have been
purchased from Janki Devi by the plaintiff. This sale deed is also never
challenged by the defendant. No declaration is sought for by the
defendant with respect to the sale deed. Admitted fact is that the
defendants have purchased the remaining half share of the other widow,
i.e., Binda Basini Devi by registered sale deed of the year 1968. In other
words, the defendants admitted the title of one widow of Babu Jamuna
Prasad. The defendants never made any case that Janki Devi is not the
widow of Babu Jamuna Prasad. In other words, it becomes admitted fact
that Babu Jamuna Prasad died leaving behind two widows. From one
widow, the plaintiffs have purchased and from the other widow, the
defendants have purchased.
The total area of land comprised within Khata No.2 and 115 is 3
biggha 14 katha 5 dhur. Out of the said land, settlement was made for 5
katha 12 dhur in the year 1922 which the plaintiff purchased in the year
1954 by ext.''1''. Therefore, the remaining land was 3 biggha 8 katha 13
dhur. This remaining land was inherited by the two widows to the extent
of half and half which comes to 1 biggha 14 katha 6 ? dhur each. Janki
Devi sold 1 biggha 14 katha 6 ? dhur of Khata No.2 and 115 by
registered sale deed ext.''1/A'' to the plaintiff. In view of this registered
sale deed, now the plaintiffs acquired title and possession as they have
purchased from the rightful owner.
The plaintiffs have also produced ext. 2 which is certified copy
of registered patta dated 24.08.1922 executed by Binda Prasad in favour
of Ram Dulari Devi. So far these documents are concerned, the only
defence is Binda Prasad had no right to settle and that the documents are
forged and fabricated. Except these bald statements, there is nothing on
record in support of the case of the defendant. Ext. 3 series are rent
receipt produced by the plaintiff to show their possession. In ext.''1/A'', it
is recited that the vendor was in possession and possession has been
delivered to the purchasers. P.W.14 is the widow, Janki Devi, who is the
vendor. She has clearly supported that she sold the property and delivered
possession to the purchasers, i.e., the plaintiff. P.W.12 is the plaintiff
No.5 in whose name exhibit ''1/A'' stands.
Now, let us see the evidences of the defendants. Ext. ''A'' is a
rent receipt. This document had been produced to show that the
defendants are in possession of the property as batiadar. It may be
mentioned here that this ext. ''A'' is not consistent with the present case of
the defendant as in ext. ''A'', the area mentioned is 2 biggha 14 katha 14
dhur. Admittedly, Jamuna Prasad was in possession of 3 biggha 8 katha
13 dhur of both the khatas. When the defendants claimed that they were
in possession of entire land then how only one rent receipt showing 2
biggha 14 katha 14 dhur had been produced. What is about the remaining
land. There is no explanation at all. Therefore, on the basis of ext. ''A;'' it
cannot be concluded that the defendants were in possession of the entire
property of Jamuna Prasad measuring 3 biggha 8 katha 13 dhur. The
other documents ext. ''B is sale deed which has been executed by Binda
Basini Devi in favour of the defendant. This documents is admitted by
the plaintiff and by this document, the defendants purchased half of 5
katha 12 dhur settled in favour of Ram Dulari Devi also who sold to the
plaintiffs by registered sale deed in the year 1954 when the plaintiff have
already purchased the property by registered sale deed from the settlee to
registered Patta ext. ''2''. The half portion of this land could not have been
sold by Binda Basini Devi through ext. ''B'' in favour of the defendant.
The learned senior counsel, Mr. Rajendra Narain, gave much
emphasis in the recital of the sale deed ext.''B'' to the effect that the vendee
have been cultivating the lands sold as Bataidar, therefore, this is clear
proof of Bataidari right of the defendant. It is admitted fact that during
the trial, Binda Basini Devi was alive but she was never examined as
witnesses in support of the statement. Moreover, whatever admitted by
Binda Basini Devi is her statement will be admissible against her only and
not against Janki Devi and / or the vendees of Janki Devi, i.e., plaintiffs.
Moreover, a person acquires occupancy right by legal fiction by
efflux of time on expiry of the prescribed period. This Court in the case
Suryawans Upadhdyaa Vs. Awdesh Chaoudfahr, 1999 (2) PLJR 173
has held that ''the inquiry about the acquisition of occupancy right in term
of Section 48 C of the Bihar Tenancy Act can be made only under Section
48 D. Since such a right is not available under general law of the land, the
Forum created under the Act is alone competent to declare the status of a
person as an occupancy under Raiyat or Raiyat within the meaning of
Section 48 C and 48 D. It cannot be decided in a suit.''
In view of this decision, the right claimed by the defendant is
that they have acquired occupancy right cannot be enquired into by the
Civil Court. The defendants could have approached the appropriate
Forum under Bihar Tenancy Act.
In view of this settled proposition of law, I have no option but
to say that the defendants have failed to prove occupancy raiyati right and
moreover this right cannot be investigated in this suit, particularly when
they have not prayed for declaration of their either title or occupancy
raiyati right.
The learned senior counsel, Mr. Rajendra Narain for the
appellant gave much emphasis on the point of acquisition of title by
adverse possession. So far this question is concerned, all the witnesses
examined by the defendant D.W.1 to 4, 6 and 9 to 12 have only stated
about bataidari right, i.e., occupancy right. The learned senior counsel
submitted that the trial Court has not scrutinized the evidence of these
witnesses meticulously. So far this submission is concerned, it may be
mentioned here that since question of acquisition of occupancy right is a
matter that can only be gone into by the authority under Bihar Tenancy
Act as has been held by this Court in the aforesaid decision the evidences
of these witnesses are not relevant for deciding the controversy between
the party. Now, even if it is held that the defendants were in possession
but then merely because they were in possession, it cannot be said that
they acquired title by adverse possession. It is settled law that the
possession how so long it may be, it will not ripen to title unless the
ingredients constituting adverse possessions is proved by the person
asserting it i.e., corpus possidendy and animus possidendy. To prove
animus possidendy, there must be intention not only to possess the land
but also there must be intention to dispossess the real owner. In the
present case, since it is claimed by the defendant that they are in
possession which proves only corpus possidendy and there is no animus
possidendy, therefore, there is no question of acquisition of title by
adverse possession arises. Reference may be made to the decision of the
Hon''ble Supreme Court in the case of P. T. Munichikkanna Reddy Vs.
Revamma 2007 (6) SCC 59. Reference may also be made to the decision
of Hon''ble Supreme Court in the case of Karnataka Board of Wakf Vs.
Govt. of India and Ors 2004 (3) P.L.J.R. 245 SC.
I, therefore, find that the defendants have failed to prove
acquisition of title by adverse possession. The learned senior counsel for
the appellant submitted that issue regarding unity of title and possession
has not been framed. So far this argument is concerned, it may be
mentioned here that both the parties entered into trial knowing the case of
each other and adduced evidences in support of their respective cases. It
cannot be said that the defendants appellants were prejudiced in any way
nor it can be said that the judgment and decree is vitiated for non-framing
of this issue. Reference may be made on this point to the decision of the
Hon''ble Supreme Court reported in AIR 1963 SC 884 and 2013(1) PLJR
48 S.C. para-67 Clause VII.
On the other hand the plaintiffs have examined witnesses P.W.1
to 5, 7 to 9 who all have stated joint possession of the parties. In view of
this evidence that both the parties are purchasers from co-owner and there
have been no partition, the parties are co-tenants, therefore, also non-
framing of issue is not fatal to the case and on this point, the judgment
cannot be said to be vitiated. It is not the case of the defendant that there
had been partition between the two widows or the plaintiffs and
defendants.
In view of my above discussion, I find that the plaintiffs have
acquired title over the land which they have purchased by the registered
sale deeds as such they are entitled to claim separation of their purchased
lands from the suit land. The defendants failed to prove acquisition of
occupancy raiyati right or title by adverse possession. The findings of the
trial Court on this point is, therefore, confirmed. The points formulated is
answered against the appellant and in favour of the plaintiff respondent.
In the result, I find no merit in this First Appeal.
Accordingly, this First Appeal is dismissed with cost of Rs.10,000/- to
be paid by the appellant to the respondent within two months failing
which the plaintiff-respondent shall be at liberty to realize the cost
through the process of the Court.