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Judgment
This appeal under Section 100 of the Code of Civil Procedure is directed against the judgment and decree dated 15.12.2008 passed by the Sessions Judge, Sahibganj in Title Appeal No.07 of 2008 by which the judgment and decree dated 29.02.2008 and 11.03.2008 respectively passed by Sub Judge II, Rajmahal in Title Suit No.35 of 2007 was confirmed.
Prayer of the plaintiff (original appellant herein) is for a declaration that he has full right and ownership over the suit land and his possession be confirmed. Further prayer has been made to declare the order dated 24.08.2005 of the Deputy Commissioner, Sahibganj in Revenue Misc. Case No.10/1997-98 (State versus Sanaullah Sk.) be set aside and a direction be given to the Circle Officer, Barharwa to accept the rent from the plaintiff.
Plaintiff's case is that the original landlord of the suit property (a pond stretched over an area of 5 bigha 5 katha 2 dhura bearing Jamabandi No.128, Plot No.436 at Mouza Satgachhi under Barharwa Anchal) Sudhamoy Devi Choudharani, vide a registered Mowrushi-Mokrari-patta bearing No.221 dated 20.02.1933 granted patta of land in favour of Satish Chandra Saha son of late Raghunath Saha on an yearly rent of Rs.5/- and accordingly, said Satish Chandra Saha exercised physical control, occupation and possession of the suit property. His name was also entered in Register II of Government of Bihar. After his death, his three sons Sudhir Chandra Saha, Shanti Bhushan Saha and Nayan Ranjan Saha partitioned the suit property equally and later this suit property was sold to plaintiff Nasir Sk., Sanaullah Sk. and Abdul Khatik under three different registered sale deeds in the year 1957-58 executed by Sudhir Chandra Saha, Shashi Bhusan Saha and wife of late Narayan Ranjan Saha. Thus, the plaintiffs came in possession over the suit property and started paying rent till 1994-95. In the year 1995 the Karamchari refused to accept rent. Plaintiff received a notice from the Court of D.C.L.R., Rajmahal in Revenue Misc. (Bogus Jamabandi) Case No.59 of 1995-96 to which the plaintiff had filed his show cause. Records of the said case were later sent to the Additional Collector, Sahibganj and was renumbered as Revenue Misc. Case No.10 of 1997-98, wherein vide order dated 24.08.2005 Jamabandi of plaintiffs was cancelled. In a writ petition filed by plaintiff being W.P. No.7176 of 2005, by an order dated 27.07.2006 passed by the High Court, it was observed that cancellation of Jamabandi will not affect right and title of any party. The three purchasers who were full brothers had made a oral family arrangement wherein the other two brothers relinquished their right in respect of the suit property in favour of the plaintiff. Plaintiff's name was mutated in respect of the suit property, plot No.465 and he is paying rent and exercising all right, title, interest and possession over the suit property.
The State, who is the defendant-respondent, appeared before the Court below, but failed to file written statement, within time specified, thus, the same was not taken into consideration by the Court. However, the defendant-State cross-examined the witnesses of the plaintiff and argued the case.
The Trial Court framed an issue to the effect that "whether plaintiff is entitled to declaration of right, title and interest over the suit land as well as confirmation of possession". Relying on the evidence and the documents on record, the Trial Court dismissed the plaintiff's suit, holding that the plaintiff has miserably failed to prove their case and the ownership over the land and thus, plaintiff has got no right, title and interest over the land in question. On appeal filed by the plaintiff being Title Appeal No.07 of 2008, the Appellate Court also concurred with the findings of the Trial Court and dismissed the appeal.
While arguing this appeal, the counsel submitted that admittedly, written statement of the defendant was not accepted and thus, the Court below should have considered that practically there was no opposition to the claim of the plaintiff. He submitted that the Additional Collector had no jurisdiction to pass the order cancelling the jamabandi. He submits that the rent receipts clearly suggests that the plaintiff has title over the property in question.
After hearing the parties, I find that both the Courts below have independently assessed the evidence of the parties and have gone through the records. It is true that the written statement of the defendant was not accepted and the same was not taken cognizance of by the Court. This does not mean that the statements in the plaint or the plaintiff's case has to be accepted as true. It is well settled principle of law that the plaintiff has to stand on his own feet and to prove and substantiate his case. Plaintiff, when he is asserting his right, title over the property in question, cannot take benefit of the lapse or inaction of the defendant, rather he has to establish and unambiguously prove that he has right, title, interest and possession over the property. In this case, both the Courts below have held that the plaintiff has failed to prove and substantiate his right, title and interest over the suit land.
So far as the prayer made by the plaintiff that the cancellation of Jamabandi by the authority being bad, same needs to be set aside, the claim was considered by both the Courts below. It is pertinent to mention here that challenging the said order of cancellation of Jamabandi, plaintiff had approached the High Court in W.P. 7176 of 2005 and admittedly the writ petition was disposed of, but, the said order of cancellation of jamabandi dated 24.08.2005 was not disturbed by the High Court. The plaintiff sought for a declaration of nullity of this order dated 24.08.2005, but, surprisingly, the certified copy of the said order was not filed before the Trial Court nor the same was exhibited before the Trial Court. The Appellate Court had also taken into consideration these laches on the part of the plaintiff and rightly concluded that the order, which is challenged, i.e., the order, which the plaintiff is seeking to set aside, not being brought on record nor exhibited, hence no order can be passed on it.
The Courts below held that the plaintiff has to prove his right, title on the basis of their oral and documentary evidence. The plaintiff relied upon the rent receipts. It is also well settled that the rent receipts are not conclusive proof of title. I also find that the Courts below have disbelieved the rent receipts because of manipulation and alteration in the same like cutting and overwriting. The disputed property is a tank and the Courts below have held that as per the evidence, the said tank is registered as Unabadi Pokhar. This clearly suggests that the tank is not settled in favour of the plaintiff as no settlement can take place with regard to Unabadi Pokhar by any Jamindar. The plaintiff has also not filed any document to show the entries in Khatian or Register II in support of his claim. The plaintiff claimed the disputed property on the basis of Mourashi Mokarari Patta. The said document was marked as Exhibit with objection. The Appellate Court held that the settlement through patta can only be for fixing rent and use of the same by the lessee and this cannot create any right or title in favour of the lessee and he cannot transfer title or execute sale in favour of any person.
Thus, I find that both the Courts below have given a concurrent findings of fact that the plaintiff has failed to prove his right, title over the land in question. This being a concurrent finding of fact by both the Courts, this, Court sitting in Second appeal and exercising jurisdiction under Section 100 of the Code of Civil Procedure, cannot disturb the said findings of fact. No substantial questions of law can be framed in this appeal. Thus, this appeal stands dismissed.