NAGINA DEVI Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS second appeal is directed against the judgment dated 11.1.88 passed by 1st Additional District Judge. Aurangabad, in title appeal no. 1/83/38/81 affirming the judgment dated 27.2.81. passed by Subordinate Judge, Aurangabad, in title suit no. 13/79. The plaintiffs of that suit are the appellants here.

(2.) THE plaintiffs had filed the aforesaid suit seeking declaration of their occupancy raiyati right over the suit lands as mentioned in the plaint. They had also sought cancellation of orders passed by the D.C.L.R. and the Additional Collector in Cancellation case no. 86/76 -77 and mutation appeal no. 235/77. The plaintiffs were claiming their suit lands on the basis of settlement by a sada hukumnama by the ex -landlord and they had asserted that they were paying rent to the ex - landlord and after vesting of the intermediary estate, they were recognised as tenants by the State and they were paying rent and obtaining rent receipts.

(3.) I find that the plaintiffs had examined so many witnesses in support of their possession as also the fact of settlement in favour of their ancestor. The court, however, disbelieved the evidence of settlement on the ground that P.Ws. among whom there was one ex -landlord, stated that there were other co -sharer -landlords holding the disputed lands and P.W. 3 had one anna share. There was partition among co sharer -landlord and there was a paper in this connection. But no paper was filed in order to support this fact of partition. So, the settlement in favour of the plaintiffs ancestor was disbelieved. Moreover, P.W. 3 had admitted that he and his co sharer - landlords were in possession of the suit lands till the year 1935. In such a circumstances, both the courts below held that if the land -lord himself was in possession of the suit lands till the year 1935, there was no question of settlement by the ex -landlord in favour of the plaintiff -appellants ' ancestor. The suit lands were admittedly gair majrua malik lands and the plaintiffs ' case was that it came to the cultivating possession of the ex -landlord who settled it to the plaintiffs ' ancestor. So, the trial court and the appellate court held that since the ex -landlord himself was not in possession, the question of settlement in favour of the plaintiffs ' ancestor was not believable. The trial court also disbelieved the fact of settlement on the ground that there were contradictions in the evidence of P.Ws. regarding the amount of nazrana paid to the ex -landlord. There was also discrepancy in the evidence of P.Ws. regarding the month of settlement whether Asharh or Ashwin. The courts below also considered the evidence of P.W. 8, the plaintiff himself, who said that on the date of settlement, the ex -landlords were in possession, but this statement of the plaintiff was contradicted by the evidence of P.W. 3 who said that the landlords were in possession till the year 1935 only. The courts below also took into consideration the circumstances that the suit lands were surrounded by jungles and there was no case of the plaintiff -appellants that there was any reclamation by the ex -landlords or by the settlees themselves. The fact of the entry of the plaintiffs ' ancestor in the demand register after abolition of intermediary estates was also not supported by any order in this connection. The Karamchari who was examined said that the appellants received receipts for the suit lands on the order of the Circle Officer, but the order of Circle Officer in this connection was not produced. Some D.Ws. were examined by the defendant -respondent (State of Bihar) who supported the fact that the suit lands were parti lands and admittedly they were gair majrua malik lands which vested in the State of Bihar. Thus, both the courts below came to the conclusion that the plaintiff -appellants had failed to prove that the suit lands were in cultivating possession of the ex -landlords when they were settled to the plaintiffs and, thus, the lands were saved from vesting in the State of Bihar. These findings of the courts below were findings of fact based on the evidence on the record. I do not think that these findings can be interfered with by this Court.