Bilat Singh and Others vs Hafiz Syed Sharfuddin Ahmad and Others

Tarkeshwar Nath, J.—There were, in all one to thirty defendants in the suit giving rise to this appeal; but this appeal has been filed by defendants other than defendants 5, 5(c), 5(d), 5(e), 13(a), 20, 23 (b) and 30. The defendants who have filed this appeal belong to the group of the. defendants-first-party. The suit, giving rise to this appeal, was instituted by the sole plaintiff (respondent No. 1), claiming himself to be the mutwalli of Soghra Waqf Estate. The plaintiff asked for declaration of title in respect of the disputed lands, and that the defendants-first party were not the settlees of any piece of land either from the said waqf estate or from the thikadar of that estate. The plaintiff wanted a temporary injunction against the defendants-first party and defendant No. 30 (defendant-second-party), restraining them from proceeding with the arbitration in accordance with the provisions of the Bihar Bakasht Disputes Settlement Act (13 of 1947). Another relief was added in the plaint to the effect that, on an adjudication of the plaintiff''s title to the disputed lands, which were the raiyati lands of the plaintiff under the provisions of the Bihar Land Reforms Act since after the vesting of the estate in the State of Bihar, the Court should pass a decree for confirmation of possession or, in the alternative, grant a decree for recovery of possession, in respect of the suit lands. The lands in question measure 71 bighas 3 kathas, and they appertain to survey plot No. 574 of khata No. 1 in village Pachbhinda, tauzi No. 7297, in the district of Darbhanga.

The case of the plaintiff, in short, was that he was the mutwalli of the Soghra Waqf Estate, and the lands in suit were the bakasht lands appertaining to the said waqf estate. The suit lands were throughout in possession of the said estate. At one time, village Pachdhinda, to which the said lands appertain, was leased out to one Nandlal Singh, and hence those lands came to be recorded as the bakasht lands of that lessee in the record-of-rights. The lease, however, expired, and then the lands in suit and other lands came in khas possession of the waqf estate, and the produce thereof (the thatching grass) used sometimes to be sold to thikadars under registered leases and sometimes orally. On certain occasions, hukumnamas were being issued in respect of those lands, but the income received from the settlement always used to be credited in the accounts of the waqf estate. The disputed lands were converted into culturable lands in the year 1950 on behalf of the waqf estate, and paddy, tobacco, chillies and mustard were grown in portion of the suit lands in 1951 on behalf of the estate. The defendants-first-party, however, happened to be the leaders of the Kisan and Socialist parties, and they conspired together to create trouble and interfere with the possession of the waqf estate in respect of the lands in suit, with the result that there were various criminal proceedings in the years 1948, 1949 and 1950, such as proceedings under Sections 379 and 147 of the Indian Penal Code. The defendants-first-party falsely made out that they had paid a sum of Rs. 3,155/- as salami to Muhammad Sulai-rnan, the gomashta of the waqf estate, and the said gormashta had settled the lands in suit in portions with some of the defendants, and those settlees had paid rent and obtained receipts from the waqf estate. Subsequently, there was a proceeding u/s 144 of the Criminal Procedure Code, but, later on, it was converted into a proceeding u/s 145 of the Criminal Procedure Code, and the lands in suit were attached by the learned Magistrate u/s 145(4) of the Criminal Procedure Code on the 14th December, 1951, with the result that the lands were still under attachment, and they were custodia legis. The defendants first-party filed a petition before the District Magistrate for referring the dispute to the Board in accordance with the provisions of the Bihar Bakasht Disputes Settlement Act, and the District Magistrate, by his order dated the 20th January, 1954, granted the prayer of the defendants-first-party, and referred the case to an Arbitration Board. The defendants-first-party nominated defendant No. 30 (defendant-second-party) as an arbitrator, but the plaintiff did not participate in that proceeding, and did not make any nomination of any arbitrator on his behalf. In these circumstances, in view of the false pretext of settlement from the waqf estate made out by the defendants-first-party, it became necessary for the plaintiff to institute the present suit on the 15th May, 1955, for the reliefs already indicated.

The case of the defendants-first party, on the other hand, was that the lands in dispute were not the bakasht lands of the waqf estate, and the said estate was not in khas possession of the lands in suit. They alleged that, during the subsistence of the lease in favour of Nandlal "Singh, the entire lands in dispute, along with other lands, were settled permanently in specific portions as described in schedule A of the written statement with the various defendants or their ancestors for agricultural purposes on acceptance of salami, and the said Nandlal Singh had granted rent receipts to the different settlees in 1322 Fasli. The ancestors of those defendants and the defendants came in possession of the specific arears as raiyats, and their permanent tenancy rights were fully recognised even by the; waqf estate after the expiry of the lease in favour of Nandlal Singh. The waqf estate did not convert the lands into culttirable lands either in the year 1950 or subsequently. The settlees brought the lands, under, cultivation with the exception of a small area of about 4 bighas in different parcels, and that small area was left as kharhaur for the grazing of the cattle belonging to those defendants. Those defendants, who happened to be the settlees, were the settled raiyats of village Pachdhinda, and, as such, they acquired occupancy rights in respect of the lands in suit. A sum of Rs. 3,155/- was paid to Muhammad Sulaiman, gurnashta of the plaintiff, on the 4th March, 1947, as salami for confirming the settlement of the entire lands, and one Pargash Singh, another employee of the waqf estate, had admitted in a compromise petition that the lands were settled with the various defendants, and they were in possession of those lands throughout. According to them also there was, at first, a proceeding u/s 144 of the Criminal Procedure Code, which was, later on, converted into a proceeding u/s 145 of the same Code, and, in order to avoid the protracted proceeding under that section, they had taken steps to get the dispute decided by the Arbitration Board; but the plaintiff, being apprehensive of his title and possession, rushed to the Civil Court by filing the present suit in order to harass the defendants; Schedule A of the written statement gives the names of some of the defendant''s who were the settlees and the areas which were settled with them and the boundaries and other details of those lands have been described in 37 items of that schedule.

The main issues in the suit were the folliwing;

Is the suit barred by law of limitation ?

Whether the plaintiff has got title to the disputed land and is he coming in possession over the same as bakasht ?

Whether the disputed lands were taken in settlement on permanent basis by the defendants and are they in possession of it as occupancy tenants according to schedule. A of the written statement ?

The Additional Subordinate Judge held that the plaintiff had title in respect of the lands in suit, and he had proved his possession within twelve years of the suit. He disbelieved the version of the defendants-first-party that the lands were settled with some of them and that they were in possession of those lands. He thus found that the suit was not barred by limitation, and it was maintainable. Accordingly, he decreed the suit with costs, declaring the title of the plaintiff and confirming his possession in respect of the lands in suit. Hence, the defendants, as indicated above, have filed this first-appeal.

5(a) Before going into merits of the. appeal, a question arises as to what is the effect of the abatement of the appeal as against the minor heirs of deceased respondent No. 6, viz. Mahabir Singh, who was defendant No. 13(a) In the suit. He did not file any written statement, and his name does not appear in the category of settlees as given in Schedule. A of the written statement. He did not file an appeal in this Court. The contesting defendants have claimed specific portion of lands separately, and, as such, the appeal has not become incompetent on account of that abatement.

Learned Counsel for the appellants urged the outset that the estate, meaning thereby the waqf estate, of which the plaintiff was the mutwalli, had vested in the State of Bihar in accordance with the provisions of the Bihar Land Reforms Act, and the plaintiff, admittedly, not being in possession at the date of the vesting, was not entitled to a decree, and the suit was not maintainable on this score. In substance, the contention was that, the estate having vested in the State of Bihar and the plaintiff, not being in khas possession of the lands in suit, although he happened to be a landlord at one time, he had no right to get a decree either for confirmation of possession or for recovery of possession. In support of it, learned Counsel referred to the provisions of Section 6, read with Section 2(k) of the Bihar Land Reforms Act (30 of 1950), and the decision of the Supreme Court in Suraj Ahir v. Prithinath Singh 1963 B.L.J.R. 1. It was held in that case that the plaintiff respondents were not in possession on the date of the vesting after the redemption of the mortgage, and, on the other hand, the defendants in that case happened to be in possession not as mortgagees on the date of the vesting, and, as such, the plaintiffs were not entitled to the benefits u/s 6 of the Bihar Land Reforms Act. Learned Counsel referred to another decision of the Supreme Court in Ram Ran Bijai Singh v. Behari Singh 1963 B.L.R 868. In that case also the plaintiffs were not in possession on the date of the vesting of the estate, and, in fact, the plaintiffs had asked for a decree for possession and mesne profits as against the defendants, treating them as trespassers. It was found that the possession of the contesting defendants in that case was in their own right and adverse to the plaintiffs, even on the case with which the plaintiff-appellants 2(k) of the Bihar Land Reforms Act were considered, and it was held that the plaintiffs were not entitled to mesne profits. It was further held that Section 6(1) (c) of the Bihar Land Reforms Act could not, in terms, apply, and the plaintiffs could not take any benefit from the provisions of the section. There can be no doubt-and it is well settled-that, if the plaintiff does not happen to be in possession on the date of the vesting of his or her estate in the State of Bihar in accordance with the provisions of the Bihar Land Reforms Act. he or she is not entitled to a decree for possession, but the facts of the present case have to be examined before applying the principles laid down by their Lordships in the cases referred to above. The plaintiff stated clearly in the plaint that the lands in suit were attached by the Magistrate under the provisions of Section 145(4) of the Criminal Procedure Code on the 14th December, 1951, and the said attachment was still subsisting, and the disputed lands were custodia legis. The averment in the plaint has not been contradicted or denied in the written statement, and, on the other hand, the written statement as well indicates clearly that, at first, there was a proceeding u/s 144 of the Criminal Procedure Code, which came to be converted into a proceeding u/s 145, and, in that proceeding, the defendants-first-party took steps to get the dispute settled by an Arbitration Board. The position thus is that there was an order of attachment on the 14th December, 1951, of the lands in suit, and these lands were in charge and control of the Magistrate throughout. The learned Advocate General appearing for the plaintiff-respondent, submitted on looking to the notification in the Bihar Gazette, that the Soghra Waqf Estate vested in the State of Bihar in accordance with the notification dated the 22nd of May, 1952, and published on the 25th of May, 1952. There can thus be no doubt that, at the time of the said notification under the provisions of the Bihar Land Reforms Act, the disputed lands were under attachment by the order of the Magistrate passed earlier on the 14th December, 1951. The purpose of the attachment was to prevent the breach of the peace so that the parties may not go on the lands in question, which might result in a dispute between them and other dire consequences. Learned Counsel for the appellants referred to a decision in Dibakar Talukdar v. The State AIR 1961 Gau 94 and contended that the attachment order did not prohibit-the parties of the present suit from going on the land in question. It appears from the facts of that case that a proceeding u/s 145 of the Criminal Procedure Code was drawn up, and the accused persons in that case were members of the second party. The Magistrate could not decide as to which party was in possession, and, by his order dated the 6th August, 1956, he directed that the parties might go to the Civil Court to have their rights declared. There was a further direction by the same order that the disputed land was to remain under attachment as provided u/s 146 of the Code of Criminal Procedure, and the proceeding u/s 145 was dropped. The prosecution alleged that the accused persons violated that order, and had entered into possession of the land by violating the order of attachment, and, on that complaint, a complaint case was registered. It was held that the main purpose of the attachment order was to prohibit any breach of the peace and not necessarily to restrict possession by either of the parties, unless there was a definite order to that effect. In that context, their Lordships observed that, there being no such order of prohibition against the accused persons from entering into possession of the land, even their alleged violation could not be taken to be an offence coming within the purview of Section 188 of the Indian Penal Code. Accordingly, the conviction and sentence passed against the accused persons were set aside. In the present case, we are not concerned with the question as to whether there was a violation of the attachment order. The relevant fact to be kept in view is that there was an attachment order, and the lands in question came under the control and custody of the Magistrate. A Division Bench of this Court considered as to what was the effect of the attachment, in Nandkishore Prasad Singh Vs. Radhakishun, and Chatterji, J. observed thus:

The attachment was made under the last proviso to Section 145 (4) which runs as follows:

Provided also that, if the Magistrate considers the case one of emergency, he may at any time attach the subject of dispute, pending his decision under this section.

It is not disputed that the effect of an attachment under this proviso is to bring the property under the control of the Magistrate. According to Stroud''s Judicial Dictionary " ''Attach'', is a taking or apprehending by command or writ". By attachment the land comes into the custody or control of the Magistrate. The parties have no longer any control or possession over the land. Otherwise the above, quoted proviso to Section 145(4) would be meaningless. That proviso authorised an attachment only in case of emergency, that is to say, in case where the apprehension of breach of the peace is so imminent that without an immediate attachment breach of the peace cannot be averted. Such object can only be gained by preventing both the parties from going upon the land, and this is the effect of the attachment. If after attachment the parties are still left free to go upon the land, the very object of the attachment will be defeated. If by the attachment the land comes under the control or custody of the Magistrate, he may take such steps as he thinks fit for its proper custody and management.

This decision clearly lays down that the property after attachment comes within the control and custody of the Magistrate, and it is he alone who could manage the property by whatever means he considers it expedient and proper.

The next question for consideration is as to if the lands in question in the present case were under attachment and the vesting of the waqf estate took place while the attachment was subsisting, can it be said that the plaintiff was not in possession of the lands in suit at the date of the vesting? It is well settled that an act of the court cannot prejudice the rights of a party, and no injury should be caused to a party if the court has passed an order for attachment of land or has stayed the delivery of possession or stayed the sale or stayed the restoration of possession. A point like this has already arisen, and it has been decided in Ganesh Choudhary v. Mangal Prasad Singh 1963 B.L.J.R. 906. The suit there was for recovery of a certain land. The defendants claimed to be in possession of the suit land even as trespassers. Both the trial court and the lower appellate court included against the contesting defendants, and, accordingly, defendant No. 2 preferred a second appeal in this Court, which was allowed on the 17th September, 1957; but an application for re-view of the judgment was filed, and that application was allowed on the 28th March, 1962. Thereafter, the second appeal had to be heard again, and it was referred to a Division Bench for hearing. Learned Counsel for the appellant (defendant No. 2) contended that the estate, in which the land in dispute was situate, had vested in the State of Bihar with effect from the 1st of January, 1955, under the Bihar Land Reforms Act, and, therefore, the plaintiff was not in possession of the suit land on that date, and, as such, he could not have the advantage of the provisions of Section 6 of the Bihar Land Reforms Act. In that case, the decree in favour of the plaintiff for possession was already put in execution before the second appeal was filed in this Court in 1952; but, by an order of interim stay, which was later made absolute on the 21st August, 1952, the delivery of possession of the suit land was stayed. The position thus was that it was by an order of this Court alone that the plaintiff was kept out of actual possession long before the vesting of the estate came, and it was not the plaintiff''s laches nor the physical resistance of the defendants that kept the plaintiff out of possession, in spite of the decree in his favour. The case of Suraj Ahir v. Prithinath Singh 1963 B.L.J.R. 1 was referred to by Mahapatra, J. and his Lordship observed that the mortgagor in that case, in spite of the redemption did not take possession of the property, and there was no order or act of any court on account of which the mortgagor there had remained out of possession. His Lordship observed as follows:

There is a fundamental concept that the highest duty of every court is to take care that the act of the court does no injury to any of the suitors. If the intervention of a court has kept a party out of reach of his fruits under a decree, he should not be made to suffer at a later stage, for the mere lapse of time, occupied by such intervention. It is well known that when a party is kept out of, actual possession by the appointment of a receiver, he is deemed to be in possession all through, if his right to possession is ultimately determined. Will ''khat possession'' as defined in the Bihar Land Reforms Act exclude such possession of a party through a Receiver on the date of vesting. To me, the answer is in the negative. It is the act of this Court which is now sought to be taken advantage of by the defendants (appellants) to cause an injury to the plaintiff on the ground that he was not in khas possession on the relevant date." Thereafter, his Lordship referred to certain observations in the case of Alexander Rodger, Charles Carnie v. The Comptoir D'' Escompte de paris L.R. 3 P.C 465, but it is not necessary to quote the passage from that decision. The contention raised on behalf of the appellant in that case that, on account of the vesting the plaintiff was not entitled to a decree was overruled. I was a party to that decision, and I agree with Mahapatra, J. but added a few words of my own, and observed interalia that it was the cardinal principle of law that the acts of court should not be allowed to injure the suitors and prejudice them in any manner, vide Jai Berhani v. Kedarnath Marwari 49 I.A. 351. The position thus is that the order of the Magistrate attaching the lands in suit cannot cause any injury or prejudice to the interest of either the plaintiff or the defendants-first party, and, if the plaintiff was in possession before the date of attachment, he must be held to have a subsisting title in respect of the lands in suit, and the vesting of the estate during the period of attachment will be of no consequence. I thus do not find any merit in the first contention raised by learned Counsel for the appellants that, on account of the vesting, the suit of plaintiff was not maintainable.

This question, referred to in the earlier paragraphs, can be considered from another point of view. While the proceeding u/s 145 is pending, a relief for recovery of possession or for confirmation of possession should not be asked for, and this has been held by the Supreme Court in Deokuer and Another Vs. Sheoprasad Singh and Others, . The observation in that case was that, in a suit for declaration of title to a property filed when it stood attached u/s 145 of the Code of Criminal Procedure, it was not necessary to ask for the further relief of delivery of possession. The observation were like this:

The fact, if it is so, that in the case of such an attachment, the Magistrate holds possession on behalf of the party whom he ultimately finds to have been in possession is, in our opinion, irrelevant. On the question, however, whether the Magistrate actually does so or not, it is unnecessary to express any opinion in the present case.

The authorities, clearly show that where the defendant is not in possession and not in a position to deliver possession to the plaintiff, it is not necessary for the plaintiff in a suit for a declaration of title to property to claim possession.... Now it is obvious that, in the present case, the respondents were not in possession after the attachment and were not in a position to deliver possesion to the appellants. The Magistrate was in possession, for whomsoever, it does not matter, and he was not of course a party to the suit.

Their Lordships overruled the decisions of this Court in that case as well as in the earlier case of Dukhan Ram and Others Vs. Ram Nanda Singh and Others, , and held that the suit brought for a mere declaration that the defendants-first party had acquired no right or title to a property under certain deeds and that the deeds were inoperative and void was maintainable, and it was not hit by the provisions of Section 42 of the Specific Relief Act as the property was under attachment. The facts of the present case are very much similar, and, in the present case also, the order of attachment having been passed as early as in December, 1951, there can be no question of a claim for either confirmation of possession or recovery of possession. In this view of the matter as well, it is immaterial that the plaintiff was not in possession on the date of the vesting as the lands were custodia legis.

The next question for consideration is as to whether the lands in question are in khas possession of the plaintiff, as alleged by him, or whether some of the defendants-first party had taken settlement of those lands from the thikadar, Nandlal Singh, and they were in possession of those lands before the date of attachment. Both sides have adduced oral and documentary evidence on these points, and, in a well-considered judgment, the learned Additional Subordinate Judge came; to the conclusion that the case of settlement was absolutely untrue, and the plaintiff had established his subsisting title in respect of the lands in suit. While considering the question of title and possession, it would be convenient first to refer to the relevant documents filed on behalf of the plaintiff. The nature of the lands in suit was recorded as bhit in the khatian (Exhibit G). The first document is exhibit 6(a), which is a certified copy of a registered kabuliyat executed by Rupan Singh and Harkhu Singh on the 8th February, 1902, in favour of the Soghra Waqf Estate for the years 1309 to 1311 Fasli. The learned Additional Subordinate Judge has referred to this kabuliyat and the other documents, which I shall presently indicate, in paragraph 13 of his judgment. I should make it clear at this place that all the documents referred to by the court below have not been included in the paper book, and the parties had agreed that printing of all those documents would not be necessary, and it would be open to them to refer to the original documents at the hearing, if necessary. Learned Counsel for the appellants, however, has not contended that the learned Additional Subordinate Judge made any error of record while referring to these documents in paragraph 13 of his judgment; but I will indicate the point, after referring to those documents, which was raised by learned Counsel for the appellants in this Court.

The (next document referred to was the kabuliyat dated the 12th July, 1913 (exhibit 6/b) executed by Nandlal Singh and Rambaran Singh in favour of Soghra Estate for the years 1321 to 1327 Fasli. There is a certified copy of the registered kabuliyat dated the 21st December, 1922 (exhibit 6) (included in the paper-book) executed by Harikishun, Tasawar Hussain and Shivanandan Lai in favour of Soghra Estate for the years 1331 to 1333 Fasli, and this document describes the suit lands as kharhaur and zirat of the malik. There is a memorandum of settlement dated the 9th July, 1937 (exhibit 5/a), taken by Janak Singh, Ramdeo Singh, Rambahadur Singh (defendant No. 29) and Munshi Singh (defendant No. 12) for the year 1937, describing the suit lands as kharhaur. In this document, defendants Nos. 12 and 29 had signed themselves. This document has been proved by Ram Prasidh Singh (P. W.14), and he deposed that his uncle Janak Singh and Ramdeo Singh, Rambahadur Singh and Munshi Singh took thika of the kharhaur from the then mutwalli of the waqf estate in respect of 70 bighas out of the suit lands. It is important to notice that this document was executed by Munshi Singh (D.W. 28) himself, but he has not denied it in his evidence. The hukumnam (exhibit 5/b.) dated the 9th July, 1937 was connected with the document (exhibit 5/a) dated the 9th July, 1937, and exhibit 5/b indicates that Janak Singh, Ramdeo Singh, Rambahadur Singh and Munshi Singh had four annas share each in respect of the lands of which they took the settlement. There is another memorandum of settlement (exhibit 5) dated the 6th February, 1946, executed by Janak Singh in favour of the Soghra Estate regarding 73 bighas and odd lands at an annual rent of Rs. 2,800/- for the year 1354 Fasli This document indicates that the settlee had taken settlement of the khar of those lands which used to be cultivated on behalf of the mutwalli. The document (exhibit 6) was proved by Firangi Singh (P.W. 18), son of Harekishun Singh, and his evidence is that his father took settlement once along with some other persons by means of a registered kabuliyat. Jharkhandi Singh (P.W. 13) is the son of Janak Singh. He proved the document (Exhibit 5). It appears from his evidence that his father, Janak Singh, was dead, but his father had taken settlement of the lands in question, and there was khar in 73 bighas and odd.

The contention of learned Counsel for the appellants with regard to these documents was that they were not admissible in evidence as they were executed by third parties, and the statements made therein were of absolutely no value so far as the defendants-first party were concerned. Section 13(b) of the Evidence Act provides that, where the question is as to the existence of any right or custom, the following facts are relevant (viz) particular instances in which the right of custom was claimed, recognised or exercised, or in which its exercise was disputed, asserted or departed from. Clause (a) speaks of any transaction by which the right or custom in question was created, claimed, modified.... The question for our consideration here is as to whether the lands in question were the bakasht of the waqf estate or they had been settled with the defendants-first party. These kabuliyats, referred to by the learned Additional Subordinate Judge, indicate that the lands in question were taken settlement of by different persons from time to time, and they recognised the right of the proprietor of the waqf estate to settle those lands with them. In this view of the matter, the documents are admissible in evidence; but as to what weight should be attached to the statements contained therein is absolutely a different matter and it depends upon the facts and circumstances of each case. It is true that some of the defendants-first-party were not parties to thesis :deeds; but it should be mentioned once again that Munshi Singh (defendant no.12) and Rambdhadur Singh (defendant No. 29) were parties to the document (exhibit 5/a). These documents lend sufficient corroboration to the oral evidence adduced by the plaintiff for proving his title and possession in respect of the lands in suit.

Ram Asray Singh (P.W. 12) deposed that once his grandfather, Achhe Singh, took the thika, and, at another time, his uncle, Janak Singh, took thika from the plaintiff. On the date of his deposition, however, the lands were under attachment, according to his evidence. It appears even from his cross examination that, at the time of attachment, paddy crops stood in 25 or 30 bighas, tobacco in 2 or 3 kathas, mirchai in 10 kathas and sarso in 10 kathas, and the remaining lands were simply spaded. Jharkhandi Singh, (P.W. 1.3) was the son of Janak Singh who happened to be the settlee. It was taken from him in cross examination that the suit lands were parti since 1950, and, as such, learned Counsel for the appellants contended that the plaintiff was not in possession; but this statement by itself will not disentitle the plaintiff in respect of his title and possession, inasmuch as the witness gave a rough estimate of the time. Ram Prasidh Singh (P.W. 14) deposed that his uncle, Janak Singh, and a few others had taken thika of the kharhaur from the mutwalli of the waqf estate in the year 1937. Firangi Singh (P.W. 18) deposed that his father took settlement once along with Taskar (?) Hussain and Shivanandan Lal by means of a registered kabuliyat in his presence of the kharhaur lands for a period of three years. Saghiruddin (P.W. 19) also deposed that his father, Muhammad Rafique, and Harekishun got possession as settlees and remained in possession till the termination of the thika period. The settlernent with them was made by an unregistered amaldastak for an annual jama of Rs. 2,500/-. He further stated that receipts used to be granted in respect of payment of rent, and those receipts have been marked exhibits 7 to 7/n. The position thus is that P. W.''s 12, 13, 14, 18 and 19 belong to the family of persons who had, at one time or the other, taken settlement of the lands in question. The plaintiff has even examined the labourers who worked on the lands in question, and they are Etwari Mushar (P.W. 6), Makhan Sahni (P.W. 7), Narayan Mushar (P.W. 8) and Muhammad Amir (P.W. 17). P.W. 17 had worked as a halwaha for the plaintiff for the last 15 to 20 years and P.W. 8 worked as a labourer. The other two witnesses had cut khar on a portion of the lands in suit. Ram Parit Singh (P.W. 15) and Ram Briksha Singh (P.W. 16) hold lands in the vicinity of the lands in suit, and their evidence is that the khar was removed, and according to P.W. 15 the lands were cultivated about 10 or 11 years ago (that is, in 1950), and there was no settlement with the defendants-first-party. Swarath Sahni (P.W. 5) deposed that the lands were formerly kharhaur, and thatching grass was grown on them. According to him, the plaintiff was in possession of the lands, and, for the last nine years, the lands were under cultivation of the plaintiff. He also spoke of the attachment which was in force even in the year 1960, when he came to depose in court. Mohan Singh (P.W. 9) deposed that the khar used to be given in thika on behalf of the plaintiff, and sometimes the plaintiff sold it himself. The plaintiff removed the khar, and then paddy was grown on his behalf. He had lands in village Pachbhinda, and he was quite competent to speak about the possession of the plaintiff. A pleader was appointed commissioner in the earlier proceeding u/s 144 of the Criminal Procedure Code. His report has been marked Exhibit 2, and he has been examined as P.W. 3. He held local inspection of the disputed plot No. 574, and inspected the raised aris and the lines of demarcation as pointed out by the second party. (Bilat Singh and Ors.), Muhammad Sulaiman, the employee of the waqf estate, happened to be the first party and he pointed out before the commissioner that survey plot No. 574, having a very much large area, was in one block, but, as the plot was a big one, aris were raised at places for storing water for the purposes of cultivation of paddy. This kind of putting aris can be easily appreciated so that it could be possible to grow paddy in those lands. P.W. 3 stated even in cross examination that he found several ridges in the suit plot, and these formed several sub-plots, and some ridges were raised higher than others. The existence of ridges, however, in some of the plots will not lead to the inference that there was subdivision of the plot itself, lending in any way support to the case of the defendants-first-party about the settlement with them. Muhammad Sulaiman, aged about 85 years, against whom a lot has been urged by learned Counsel for the appellants, was examined on commission, and he denied to have made any settlement with the defendants-first-party. He served in the waqf estate for about fifty years as tahsildar, and he was in charge of village Pachbhinda as well. According to him, the estate had about 75 bighas of Kharhaur besides other lands, and the estate was in possession of the kharhaur. His evidence is that the defendants never paid him Rs. 3,155/- towards salami of the kharhaur, and he never settled the lands with any of the defendants. His evidence indicates that the landlord had bullocks, ploughs and servants, and the kharhaur sometimes used to be in sir possession and sometimes settled with others. The sale proceeds were deposited in the treasury of the estate. Chandradip Sahai (P.W. 20) was another employee of the waqf estate, and his evidence, on the whole, indicates that the kharhaur in village Pachbhinda was in possession of the waqf estate. There was no doubt Thika in favour of Nandlal Singh before the survey operations, but, subsequently, the estate took khas possession, and there was no settlement with the contesting defendents on payment of any sum as nazarana.

Learned Counsel for the appellants had made a comment that the judgment of the learned Additional Subordinate Judge was not in accordance with law, inasmuch as he had not considered the evidence of the plaintiff''s witnesses, and, therefore, it became necessary for me to refer, in some detail, to the statements of those witnesses.

Another comment of learned Counsel for the appellants was that the evidence of P. W.''s 12, 15 and 19 did not fit in with the report of the commissioner who was appointed in the present suit for indicating the features of the lands. The present commissioner, however, visited the lands on the 1st November, 1958, and onwards about four years after the institution of the suit, and one of his answers to the points contained in the writ was that survey plot No. 574 was subdivided on the spot in 39 sub plots as mentioned in his report. This report, however, was of a period when the lands were under attachment, and it is not known as to how the Magistrate was managing the lands in question, with whom he had settled, if at all, and in what manner the settlee thought it convenient to culivate the lands in question and carry on the agricultural operations. The report of the pleader commissioner, who was appointed in the earlier proceeding u/s 144 of the Criminal Procedure Code was relevant on this point, and I have already referred to it. Turning to the evidence of P.W. 12, it appears that he stated in cross examination that the suit land had no sub plots at present, and it had no sub plots at any time. It should be remembered that there is only one plot, No. 574, and it has an area of 71 bighas 3 kathas, and, in this view of the matter, the witness was perfectly right in saying that there was no sub plot. P.W. 15 as well said that the present feature of the land was the same as 1819 years ago, i.e., the land was in one plot only. P.W. 19 also stated that the suit land was in one plot. I am, therefore, of the opinion that there is no inconsistency in the statements of these three witnesses in order to discredit their evidence.

Apart from the documents referred to above, the learned Additional Subordinate Judge has referred to various other documents appertaining to the waqf estate for holding that there was no settlement with the defendants-first party, and the plaintiff had throughout been receiving the income of the lands in question. It will be proper to certain observations of the court below.:

Moreover, they have filed various documents to show their income from the suit land, Exhibit 9 series are entries in the cash book. Exhibit 9(6) is entry No. 15 relating to the year 1331 Fasli (1923-24). This shows that Rs. 45/- was the income from Kharhaur land in village Pachbhinda that year. Similarly, Ext. 9 shows that Rs. 664/- was the income from Kharhaur land in 1332 Fasli. The entries in cash books are written in Urdu. The plaintiff has filed Hindi translation of all the entries (Exts. 9 to 9(o).) It would make the judgment bulky if all the details are noted here. It would be better to put the Hindi translation also on the record so that it may be referred to, if necessary. Sufficient to say here that from these entries it appears that from the year 1331 Fasli (1923) to 1355 Fasli (1949) the plaintiff has been realising income from the Kharhaur of the suit land from different persons who were their thekadars of amlas. Exhibits 10 to 10(q) are challans in the file books for several. years. Exhibits 11 series are challan counterfoil books, Exhibits 12 series are jamabandis of village Pachbhinda for the years 1310 to 1352. Exhibits 13 series are seahas of village Pachbhinda for the years 1320 to 1356. Exhibits 14 series are counter-foil receipt books of village Pachbhinda for the years 1311 to 1359 with some gaps. Exhibits 15 series are Agriculture Expense Account Taker of village Pachbhinda for several years....With regard to these documents, it has been contended on behalf of the defendants that they are not kept in the regular course of business. But there is no tangible proof of that. The documents are voluminous and it seems difficult to imagine that so many documents will be forged for this case from about 40 years ago....There is, therefore, nothing tangible to hold that the documents filed on behalf of the plaintiff are forged or fabricated. The documents have been filed for two purposes. The first purpose is to show that the suit land has been in possession of the plaintiff, and the plaintiff has been utilising the fruits of the same. The second purpose is to show that, if the defendants were the tenants and if they had paid rent, the plaintiff''s counterfoil of receipts, seahas and jamabandi registers, etc. must have borne it out. But they do not do so. So the only inference is that the defendants were never settlees of the plaintiff in respect of the suit land.

These documents (exhibits 9 to 16 series) have not been included in the paper book, and learned Counsel for the appellants has not suggested that the learned Additional Subordinate Judge committed any error in drawing inferences from these documents unfavourable to the defendants first party and favourable to the plaintiff. Learned Counsel has not placed any of these documents before us for our taking a view contrary to the one taken by the Court below. Learned Counsel for the appellants has further urged that only a portion of the lands had been made culturable but the other portion was still kharhaur. While considering the question of possession of the plaintiff, it may be that a portion of the lands was kharhaur and a portion of the lands was culturable; but the entire holding has to be taken as a complete unit, as observed in Radha Krishna Tnakurji v. Raghunandan Siriha 16 P.L.T. 163. The position thus is that, on a revise of the oral and documentary evidence adduced on behalf of the plaintiff, it must be held that the plaintiff has proved his title and was in possession of the lands in suit till the date of attachment.

Another question, according to the contention raised by learned Counsel for the appellants, would be as to whether there was settlement of land with some of the defendants first party. Their case further is that the lands were settled in portions with some of the defendants by Nandlal Singh, while he happened to be the lessee of the estate, and that they were granted several receipts after the settlement, but it is somewhat surprising that no receipt either towards the payment of salami or towards the payment of rent has been produced by them, and the excuse is that all the receipts were lost while they were left in charge of a clerk of a Mukhtar, when the case between them on one hand and the gumashta of the waqf estate was pending in the Criminal court. Their case further is that they paid a sum of Rs.3,155/- as salami to the plaintiff through Muhammad Sulaiman, the gumashta of the plaintiff, on the 4th of March, 1947, and got a stamped receipt from him. This sum was alleged to have been paid by Alunshi Singh on behalf of all the settlees. They have not indicated as to what amount was contributed by each of the settlees towards the payment of this huge amount; but, according to the written statement, the lands settled appertained to 37 separate blocks. Learned Counsel has referred to the evidence of some of the defendants'' witnesses to support their case; but, before referring to their evidence, it will be proper to refer to two or three documents relied upon by them. He referred to the petition of Bilat Singh dated the 24 April, 1952, filed in the court of the Sub-divisional Magistrate, Samastipur. The statement in that petition was that, on the 23rd April, 1951, Bilat Singh and others had to stand trial before the local Munsif Magistrate in one of the series of cases and they had brought all the connected relevant papers concerning a series of cases between the parties for consultation and preparation of written statement in Section 145 proceeding fixed for the 25th April, 1952, which were kept in custody of his lawyer''s clerk on his seat in Court verandah, and that it was detected later on after some time that the important documents, rent receipts, were found missing to the utter surprise of the petitioner and others. On the basis of this statement, learned Counsel contended that the rent receipts in respect of the lands in question were taken away by some one, and, as, such, they could not produce those receipts in the present suit. Exhibit D is a list of documents which were produced by the second party in the case pending in the court of the Subdivisional Magistrate, Samastipur, between Muhammad Sulaiman on one hand and Bilat Singh and others on the other. This list refers to various documents, and, in item No. 4, various documents are mentioned, including ''receipts''. This list contains the initial of the Sub-divisional Magistrate dated the 13th December 1951. There is nothing to indicate that the ''receipt''s'', referred to in item No. 4, were the rent receipts in respect of the lands in question, and, in any event, if the relevant rent receipts: were filed in Court, there is nothing to show that those rent receipts were returned to the party concerned so as to be made over to the lawyer''s clerk subsequently. Whenever a document is returned, a note is made that, one document of the other has been made over, and the lawyer, taking back that documents, puts his initials on the list of documents, showing that he had received back a particular document. Such an endorsement is not on this test (exhibit D). It is true that Bilat Singh and others came with a version about the loss of the rent receipts; but that version cannot be accepted for the lack of other materials, and it is difficult to believe that all the receipts, if at all granted to all the settlees, were lost and taken away by some one.

Learned Counsel has then referred to a compromise petition (exhibit C) dated the 28th December, 1948, between Pargash Singh, an employee of the Waqf estate as, complainant, and Bilat Singh and others, accused, on the other. The contention was that this compromise indicated that the lands in suit were settled by the waqf estate with Bilat Singh and others, and a sum of Rs. 3,155/- had been paid to the said estate through its Gumashta. Pargash Singh filed a petition of complaint on the 3rd of January, 1949 (exhibit 4), against Bilat Singh and others, alleging that the latter were insisting that his cousin sister should sell certain lands, and, in order to put pressure on him (Pargash Singh), his left thumb impression was taken by Bilat Singh and others on a blank sheet of paper and thereafter, on the 29th December, 1948, a deed of sale (exhibit 8/b) was registered by Musammat Inderbati Devi and others. On this complaint petition against Bilat Singh and others, the matter was sent to the Police for enquiry, and thereafter there was another comprotma between Pargash Singh on one hand and Bilat Singh and others on the other, and that compromise petition dated the 10th January, 1949, has been marked exhibit 3. This recites that the disputed lands have been declared by consent of the parties as bakasht lands of the landlord, and hence the complainant, Pargashi Singh, did not want to proceed with the complaint petition, which had been sent to the Sub-Inspector of Police for enquiry, and the complaint should be dismissed. The position thus is that whatever the effect of the compromise (exhibit C) was, it was completely nullified by the subsequent, petition of compromise (exhibit 3) dated the 10th January, 1949. Pargash Singh was lying ill; but his brother, Kapur Singh, has been examined as P.W. 21, and he has stated the facts leading to the execution of the sale deed (exhibit 8/b) and the filing of the complaint petition by his brother, Pargash.

I would now refer to the oral evidence of the defendants'': witnesses who have spoken about the payment of Rs. 3,155/- as salami to Muhammad Sulaiman. The witnesses coming in this group, according to the learned Counsel for the appellants, are D. W.''s 8, 9, 22, 23, 24 and 28. Jugeshwar Singh (D.W. 8) deposed that the defendants paid. Rs. 3,155/- to Muhammad Sulaiman in his presence thirteen years ago, and this amount: was given for taking a kebala for 76 bighas of land. This witness, however, was not a settlee and he was passing through village Pachbhinda by chance, when he happened to notice this transaction. He never saw any receipt as, according to him, no one took any receipt or Purja before him, and the kebala was not executed subsequently. He did not know if the defendants made any attempt to get the moneyback or to get the kebala executed. He was a teacher in Ragunathpur since a year; but, before that, he was in another village Lagumia from 1954 to 1959. He was in village Banbira at the time of payment of Rs. 3,155/- from the 1st February, 1947, to the 15th March, 1954. He thus happened to be a chance witness, and was only going through village Pachbhinda, even according to his own evidence. It is difficult to believe his testimony that, while going to the school for attending his duties, he would stop in the way, absolutelv uncalled for, to be a witness of this transaction.

Siro Mahto (D.W. 9) also stated that the defendants paid Rs. 3,155/- to Muhammad Sulaiman about 12 or 13 years ago; but he could not say as to on what account this sum was paid. He was not able to remember events which took place even 5 or 7 vears ago, and it is difficult to hold that he would remember that the time of his deposition in 1960 about the payment alleged to have been made in 1947.

Moghal Singh (D.W. 22) was defendant No. 14 in this suit, and his evidence is that he and others gave Rs. 3,155/- to Muhammad Sulaiman through Munshi Singh, and Sulaiman gave a receipt on one anna stamped paper. It appears from his cross-examination that the receipt for the said amount mentioned the names of all the defendants and the total area 71 Bighas and odd. It is difficult to believe that, if each settlee paid his quota, all of them would be satisfied by the granting of one receipt for the total sum of Rs. 3,155/-. It further appears from his cross-examination that he and others demanded pucca receipts after taking (paying) rent, and Sulaiman had promised to give receipts after 4 or 5 days; but Sulaiman put it off, and wanted some bribe before granting the rent receipts. In spite of this attitude of Muhammad Sulaiman, if true, this witness and others did not take any step to recover Rs. 3,155/- which was alleged to have been paid by them. The moment receipts were not granted to these settlees by Muhammad Sulaiman, they ought to have taken some step by approaching the other superior officers of the estate or the Mutwalli himself or they ought to have filed some complaint against Muhammad Sulaiman for cheating them and dishonestly misappropriating the sum of Rs. 3,000 and odd; but no such step was taken by any of them. This itself makes the story of payment of that huge sum absolutely improbable.

Isloke Singh (D.W. 23) also deposed about the payment of Rs. 3,155/- to Muhammad Sulaiman through Munshi Singh. He was defendant No. 22 in this suit. He was not able to say the name of the person who paid the highest or the lowest amount, and he could not say what amount was paid by which person. He alleged that he might be able to find out his receipt, which was misplaced; but, in fact, he also has not produced his receipt.

Bilat Singh (D.W. 24) was defendant No. 1 in this suit. He alsd is a witness with regard to the payment of this Salami to Mohammad Sulaiman. His evidend is that the receipt was filed in the case u/s 144, and then it was withdrawn by Ram Udgar Babu, clerk of Siasaran Babu. He made it over to Siasaran Babu who, however, again made it over to his clerk, and then some one stole the entire file, while the clerk was keeping it in the Court premises. He has admitted that this fact of loss of the receipt was not mentioned by filing any petition) in the proceeding u/s 145, The clerk would have been the best and most competent person to say about the loss of the receipt; but, for reasons best known to the defendants-first-party, he has not been examined.

Munshi Singh (D.W. 28) was defendant No. 12 in the present action. His evidence is that he gaid Rs. 3,155/- on the 4th March, 1947, to Sulaiman after realising the quota from the other defendants, and Sulaiman gave him a Purja for this amount after affixing one anna stamp. He made out that rents were paid and receipts were granted; but they were stolen from the custody of the clerk of the Mukhtar. It appears from his cross-examination that land (8 bighas and odd) was in four blocks, and he gave the area of each block; but, from item No. 2 of schedule A of the written statement, it appears that he had 4 bighas 1 katha 4i dhurs of land, and again item No. 12 of that Schedule indicated that he, along with two others, had got 9 bighas 1 Katha 17 dhurs of land, and item No. 23 indicated that he, along with three others, had got 4 bighas 1 katha 17 dhurs of land, and item No. 8 indicated that he, along with Ram Narain Singh, had got 18 Kathas 18 1/4 dhurs of land. The learned Additional Subordinate, Judge made a comment that the description of the land given by D.W. 28 in the written statement did not tally with that given by him in his deposition. There has been no adverse comment with regard to this view of the Court below by learned Counsel for the appellants. Similarly, the Court made a comment about Pradip Singh (D. W, 26), who was defendant No. 17, that he stated in his evidence that the other defendants had no concern with the land; but, later on, he said that, in his land, Ram Prit, Ramasis, Janardan Prasad, Brinda and Ravindra had share, and they also were in possession, and they were his nephews.

On the question of possession, learned Counsel for the appellants referred to the evidence of D. W.''s 6, 7, 11 and 12. The house of Janardan (D.W. 6), however, was half a mile away from the lands in suit. He had purchased Zinora of the suit lands from the defendants, and there are 35 or 36 Kolas in the suit lands since his hosh; but this does not fit in with the report of the pleader commissioner who was appointed in the proceeding u/s 144. Badri Sah (D.W. 7) said that the land was being cultivated by Munshi Singh, Moghal Singh, and some of the other defendants; but he admitted that he had no concern with the affairs of Bilat Singh, Pradip Singh, Rambahadur, etc. This witness had no land in village Pachbhi.nda. Ramjas Singh (D.W. 11) alleged to have lands near the land in suit, and his evidence in cross-examination was that the smallest block was of 1 bigha and the biggest of 4 bighas; but this was not consistent with the description of the lands given in Schedule A of the written statement. Sarjug Rai (D.W. 12) also alleged to have seen the lands in suit and the possession, of the defendants, but he did not know even the names of all the defendants, and he could recognise only four of them. Apart from this evidence, learned Counsel for the appellants did not refer specifically to the evidence of the other witnesses of the defendants-first-party. On a consideration of the evidence of the defendants'' witnesses, the trial Court came to the conclusion that, from the oral evidence of the defendants'' witnesses, it appeared that the defendants'' case as made out in their evidence was not consistent with the case of settlement as given in the written statement. This conclusion has not been commented upon by learned Counsel for the appellants, and it is thus not necessary to refer to the evidence of the other witnesses examined on behalf of the defendants-first-party whose evidence even the learned Counsel has not referred to in the course of the argument before us.

On a review of the oral and documentary evidence adduced on behalf of the defendants-first-party, I am in agreement with the conclusion of the trial Court that the lands were not settled with any of the defendants, and their version about the settlement and possession is absolutely untrue and unbelievable.

Learned Counsel for the appellants, Mr. Yadunath Saran Singh, while replying to the argument of the respondents, contended that the proceeding u/s 145 and the attachment u/s 145(4) of the Criminal Procedure Code was sometime in 1952, and, in any event, subsequent to the vesting of the waqf estate in the State of Bihar in accordance with the provisions of the Bihar Land Reforms Act. In this connection, he referred to the evidence of the Pleader commissioner (P.W. 3) who stated in cross examination that he had visited the suit lands in June 1952. Learned Counsel pointed out that the report (exhibit 2) also was dated the 20th June, 1952. It may be that P.W. 3 was appointed pleader commissioner in the proceeding u/s 144; but he submitted his report later on in 1952 after the conversion of the said proceeding into a proceeding u/s 145. But, even if that be not so, if the order of attachment was passed subsequent to the date of vesting, it does not improve in any way the case of the defendants-first-party, inasmuch as the plaintiff, according to the evidence adduced, would be in possession till the date of the vesting, and the suit cannot be, dismissed on the ground urged by learned Counsel. I do not find any merit in this contention, and it must be overruled.

Another question for consideration is that the trial Court , has passed a decree for confirmation of possession as the plaintiff had asked for confirmation of possession or, in the alternative, for recovery of possession; but, the lands being under attachment, the defendants were not able to give back possession to the plaintiff,, and the relief for confirmation or-recovery of possession was not at all essential, as held by the Supreme Court in the case of Deokuer and Another Vs. Sheoprasad Singh and Others, , already referred to above. In this view of the matter, the plaintiff is not entitled to ossession in respect of the lands in suit, and the decree of the Court below must be modified to this extent.

In the result, the appeal is dismissed with costs payable to the plaintiff-respondent, and the Judgment and decree of the trial Court are confirmed subject to this modification that the plaintiff''s suit is decreed only in respect of the declaration of title regarding the lands in suit.

B.N. Jha, J.

I agree.