RAMJI MANJHI Vs. SHEO PUJAN MANJHI

JUDGEMENT

(1.) THIS appeal has been preferred against the concurrent findings of both the courts below in decreeing the plaintiffs - respondents suit rejecting the defence plea. The suit land comprises of 4 Katha 6 dhurs appertaining to Khesra No. 1217. It was a low lying area as per the records of rights. According to the plaintiffs, one Atma Singh got settlement of the lands from the ex -iandlord by a registered deed of settlement dated 10.2.1938 on Nazrana of Rs. 400/ - and then Atma Singh sold 4 Katha 6 dhurs of land to Ram Briksha Singh, Sitaram Singh and Rajaram Singh by a registered sale -deed dated 11.2.1947.The plaintiffs happen to be the heirs of those purchasers. Jagdish Singh and Bishwanath Singh filed Suit No. 37/1930 in the year 1961 -62 in the court of Additional Sub -Judge, Chapra, for partition of some lands against Sitaram Singh and, according to the plaintiffs, this Khesra No. 1217 was also the subject matter of the suit. That suit was decreed in favour of some of the defendants declaring their shares. On the western side of the suit plot Defendant No.2 had got his house encroaching illegally some parts of the suit land and Sitaram Singh and others filed a suit to vacate Defendant No.2 from the area of encroachment by filing. Title Suit No. 38/ 1953/43/1954 in the court of Munsif, Chapra, against the Defendant No.2, The said suit was compromised and the Defendant No.2 was given 12 dhoors of land and the rest remained with the plaintiffs. As because in the re -settlement the land was shown to the State of Bihar, then taking advantage of the situation the Defendant No. 2 had taken settlement of the land from the State of Bihar which, according to the plaintiffs, had cast cloud over their title and possession. Hence, the present suit has been filed for declaration of right, title and interest only. There is no consequential relief being claimed from the side of the plaintiffs in the suit.

(2.) THE trial court after considering the materials on record held that State of Bihar had got no right over the property and as such it cannot be made settlement to the Defendant No.2. There is also plea from the side of the defendants that their title had been perfected by adverse possession. If really the claim of adverse possession is there then the question of settlement does not arise at all. However, the defendants have right to take contrary plea even, but their conduct can be understood from such contrary plea being taken. The appellate court also on consideration of materials on record came to the independent finding that the plaintiffs could be able to establish their right, title and interest over the properties. Hence, the decree granted by the trial court has been affirmed but with the modification that the trial court had wrongly passed an order for recovery of possession which the Appellate court had transformed it to a declaration of confirmation of possession. Practically, such sort of declaration of confirmation of possession or for decree for Khas possession does not arise when no such relief has been claimed from the side of the plaintiffs. The only relief claimed is for right, title and interest.

(3.) IN that way, if not directly but indirectly when the defendants have admitted title of the plaintiffs then the question of adverse possession does not arise at all, moreover, from the oral evidence adduced by the parties both the courts below held that the defendants could not prove their plea of adverse possession. When the suit had been decided on factual aspects alone and no question of law is involved, I do not find any force in this appeal and the same is rejected under Order -41, Rule 11 C.P.C.