ENAMUL HAQUE Vs. PRADEEP JAIN

JUDGEMENT

(1.) Heard Mr. Nagendra Tiwari, the learned counsel appearing on behalf of the appellants and Mr. Yashwardhan along with Mr. Ritesh Singh, the learned counsels appearing on behalf of the respondents. The present Second Appeal has been preferred being dissatisfied with the judgment dtd. 27/3/1998 and decree dtd. 21/4/1998 passed by 5thAdditional District Judge, Giridih in Title Appeal No.130 of 1988 dismissing the appeal confirming the judgment dtd. 29/7/1988 and decree dtd. 9/8/1988 passed by 2ndAdditional Munsif, Giridih, in Title Suit No.106 of 51/ 1984 of 87. The title suit was instituted by the respondent/plaintiff for adjudicating that the suit land belong to the plaintiff permanent indefeasible Basto right and the said title is subsisting and the defendants have not a vestage of title to the suit lands and the sale deed dtd. 29/7/1983 executed in favour of the defendant nos.2 to 4 and Ram Chandra Rajwar by Bako Khan (defendant no.1) died during the pendency of the suit and his name has been expunged and the appellant nos.1 to 6 have been substituted in his place be delivered up and cancelled. Plaintiffs have further prayed that the possession of the plaintiffs over the suit lands be confirmed and in the event of dispossession during the pendency of the suit, khas possession be recovered to the plaintiffs and also prayed for temporary and permanent injunction. The cost of the suit was also demanded. The said suit was decreed by judgment dtd. 29/7/1988 by learned 2ndAdditional Munsif, Giridih in Title Suit No.106 of 85/ 51 of 87 and on contest that goes against the defendant nos.2 to 4 and 7, 10 and 11 and ex-parte against the rest and cancelled the sale deed executed by Bako Khan in favour of the defendant nos.2 to 4 and Ram Chandar Rajwar dtd. 29/7/1983 was also cancelled. Aggrieved with that, the defendant/ appellants filed Title Appeal No.130/ 88 which was dismissed by the judgment dtd. 27/3/1998 affirming the judgment of the learned trial court and then the appeal was dismissed. Aggrieved with that, the defendant /appellants have filed the present second appeal. The case of the plaintiff is that upto 1943-44 Bengal Coal Company was the land lord of village Koldiha and other villages within the district of Giridih and the company settled the land of plot no. 489 measuring an area of 1-22 acres and plot no.490 measuring an area of 0.04 decimals under khata no. 312 of village Koldiha P.S. Giridih within the limits of Giridih municipality by opening a Zamabandi by oral settlement dated 4th Shrawan 1331 BS with the plaintiffs at an annual rent of Rs.15.00 and the plaintiffs were put in possession of the same and settlement was in permanent Basto right. The settlement was further confirmed by acceptance of rent from the plaintiffs and they continued in possession of the same and continued to pay rent till the vesting of the zamindari and rent was realized through Thoka no. 423 and after the Bengal Coal Company was taken over by the State of Bihar, the plaintiffs were recognized as tenants by the State of Bihar and the plaintiffs name was entered in the Register-II under Thoka no.423 with a new bata no.485 of its own and after realization of rent from the plaintiffs, the first rent receipts was granted on 22/1/1955 and since then the plaintiffs are paying rent to the State of Bihar and paid rent upto date and the plaintiff were continued to be in possession of the same and when the lands in the boundary of the suit lands began to be sold they put boundary pillars all round the suit lands and continued in possession but the suit lands remained fallow, although right from the date of settlement upto middle of 1983 and is still so and the then defendant no. 1 and whose house and land were near the suit never raised any dispute and also never claimed any right over the suit lands adverse to that of the plaintiffs but when the lands of vicinity began to be sold, he became greedy and manufactured a forged and fabricated Hukumnama showing settlement of suit lands in his name on 3rd Chait 1333 Fasli and on the basis of the same manufactured false sale deed on 29/7/83 in respect of the suit lands in the name of his own son defendant no.2 and also in the name of defendant nos. 3 and 4 and Ram Chandra Rajwar noted for land grabbing. Further case of the plaintiffs is that they came to know of this fraudulent sale deed on 25/9/84 when defendant no. 1 to 4 and Ramchandra Rajwar wanted to demolish the pillars given by the plaintiffs and to put his pillars. It is also the case of the plaintiffs that police was informed and a proceeding u/s 144 CrPC was initiated. It is further stated that the plaintiff also came to know about an order of mutation in favour of defendant nos. 2 to 4 and Ramchandra Rajwar passed collusively on false and collussive report of Karamchari and circle Inspector and also in collusion of Anchal Peon and the plaintiffs applied for certified copy of the sale deeds and application for mutation with report and order dtd. 30/3/84 and of Zamabandi opened in the name of defendant nos. 2 to 4 and Ramchandra Rajwar and obtained the same on 10/10/84 and 14/11/84. It is also the case of the plaintiffs that the Bengal Coal Company was using Bangla Sambat and not Fasli and rate of rent is not ordinarily less than 12/- per acre and plaintiff also stated that Hukumnama, if any, is forged, fabricated and manufactured and same will appear from the fact that the name of defendant no. 1 in Zamabandi records of the State of Bihar and falsity will also appear from the amount of rent mentioning Re. 1/- only for such valuable rent. It is also the case of the plaintiff that sale deed executed by defendant no.1 in favour of defendant nos. 2 to 4 and Ramchandra Rajwar is false and without title and the same is illegal, invalid and without title and inoperative. It is also stated that is gather more muscle man, defendant no.2 executed two more sale deeds in the name of defendant no.10 and another in the name of defendant no.11 on 29/8/84 and they are only name lenders of their husbands in respect of small portion of suit lands and this sale deed is also false, inoperative and void ab-initio. Further case of the plaintiff is that since 4th Shrwan 1331 BS the plaintiffs apart from their valid right and title, have been coming in peaceful possession of the suit lands without interpretation to the knowledge of defendants and whole world and they have perfected their title by adverse possession as well and cause of action arose on 29/7/83 and also on 30/3/84 and on 29/8/84. The case of the defendants is that the defendants no 1 to 4,7,10,11 have filed their written statement, defendant no.1 died during the pendency of the suit and he has been substituted by his heirs appellant no.1 to 6.

(2.) The case of the defendant nos. 1 to 4,7,10,11 as per written statement is that the suit is vexatious and is not maintainable and suffers from vagueness and the suit is also barred by law of limitation, adverse possession, estoppel and acquiescence. It is also the case of the aforesaid defendants that the Bengal Coal Company remained Zamindar till enforcement of Bihar Land Reforms Act. The further case of the defendants is that Bako Khan settled raiyat of village Koldiba brought suit land under his cultivation and then the Bengal Coal Company recognised Bako Khan as the occupancy raiyat of those lands and accepted rent from him and in token of that granted rent receipts and allotted Thoka no. 612 to Bako Khan for the suit land after vesting of zamindari to the State of Bihar and verification opened ledger for the suit plots in the name of Bako Khan and Bako Khan came in possession twelve years ago adversely and continuously and the transferors can't be dislodged or displaced from the suit lands. The aforesaid defendants have also stated that neither the zamabandi was opened in the name of plaintiff or plaintiffs have come in possession or exercised any act of possession over the suit plots and Thoka number of the suit plots is 612 and the plaintiff has falsely stated about the Thoka no.423. It is also stated that none of the registers of the state Government can show that the plaintiffs have been recognised as tenants for plot no. 489 and 490 and plaintiffs have manufactured rent receipt and the same cannot clothe themselves with title relating to the plot no.489 and 490 which all along coming possession of Bako Khan and the same is running in the name of Bako Khan and Tenant ledger of State of Bihar. It is also stated in written statement that the boundary pillars have not been put up by the plaintiffs but the same has been put up by Bako Khan within the knowledge of the whole world. It is also case of the defendants that the plaintiffs managed to file false report and the police recommended for prevention action against the defendants. The report of the police also believes the false assertion of the plaintiffs that the defendants were demolishing the pillars mischievously. It has also been stated that the report of Karmachari and Circle Inspector based on realities and after the Istehar mutation has rightly and legally been allowed in the name of transferors. The further case of the defendants is that the Zamindari system of locality always adhered to by the company and so fasli was mentioned and it was never the rate as falsely given by the plaintiffs and ordinarily Thana rate was prevalent in the locality. The sale deeds executed by defendant no.1 in favour of defendant nos. 2 to 4 and Ramchandra Rajwar is valid, genuine and for consideration and the defendants no. 2 has transferred the same land to defendant nos.10 and 11 for legal necessities and it is wrong to say that the defendant nos.10 and 4 are only name lenders and there defendants are in possession of their lands on the basis of the sale deed and those sale deeds are legal and genuine and conferred valid right, title and possession to the transferors defendants. Further case of the defendants is that defendant no.1 Bako Khan exercised his legal title and uninterrupted possession over the suit land and also given 0.02 acre of land of plot no.489 to Ranjit Lal Rajgarhia to be used as Rasta, to enter upon his land in plot no.483 hence, the defendants are getting rent receipts with respect of 1.24 acres i.e. 1.20 acre of plot no. 489 and 0.04 acre of plot no.490 of khata no.312. Earlier the plots were outside municipal area and now it is within Municipal area and holding no.441 ward no.III has been allotted in the name of transferors of defendant no.1 which also shows long standing right, title and possession of Bako Khan and thereafter to his transferors. It is also the case of the defendants that the market value of suit land is Rs.5,000.00 and the plaintiff had not paid the proper court fee and the plaintiff has no cause of action for the suit. On the aforesaid pleadings the aforesaid defendants prayed for dismissal of the suit.

(3.) By order dtd. 15/12/1998 this appeal was admitted on the following substantial question of law: