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Patna High Court FA No.12 of 1978 dt.

04-09-2014
1

IN THE HIGH COURT OF JUDICATURE AT PATNA

First Appeal No.12 of 1978
(Against the judgment and decree dated 24.09.1977 passed by 1
st

Additional Sub Judge, Muzaffarpur in Title Suit No.63 of 1965).
===========================================================
State of Bihar
.... .... Defendant 3
rd
Party-Appellant
Versus
United Commercial Bank Ltd., Nagpur & Anr.
.... .... Defendant 1
st
Party-Respondent
===========================================================
Appearance :
For the Appellant/s : Mr. Kundan Bahadur Singh, S.C.22
Mr. Neeraj Kumar, A.C. to S.C.22
For the Respondent/s : None
===========================================================
CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO
C.A.V. JUDGMENT
Date: 04-09-2014


1. The defendant-State of Bihar has filed this First
Appeal against the judgment and decree dated 24.09.1977 passed by
the learned 1
st
Additional Subordinate Judge, Muzaffarpur in Title
Suit No.63 of 1965.
2. The plaintiff, Chandeshwar Prasad Narain Singh,
who was respondent no.1 in this appeal has died and his name has
been deleted as his son is already on record as respondent no.3. The
original plaintiff filed the aforesaid suit praying for setting aside the
order dated 07.07.1964 passed by Execution Court in Misc. Case
No.109 of 1961 and further for declaration that the suit properties
belonged to the plaintiff.
3. The plaintiff claimed the aforesaid relief alleging
that the suit properties are the self-acquired properties of the plaintiff
Patna High Court FA No.12 of 1978 dt.04-09-2014
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and not the ancestral properties. Defendant no.2, Sushil Kumar Singh
is his eldest son but he has no right over the property. The defendant
no.1, Bank obtained a money decree from the Court of 5
th
Additional
Sub Judge, Nagpur against Sushil Kumar Singh and others and filed
Execution Case No.78 of 1959. The plaintiff has nothing to do with
the said decree and execution case but the defendant no.1 got
attachment issued against the property of the plaintiff. The plaintiff
had been Indian Ambassador to Japan till 01.02.1960 and thereafter
he is residing in Delhi. He had no knowledge about the attachment.
The plaintiff came to know about the attachment on 22.11.1961 and
inspected the record and came to know about the fraud committed by
the defendant 1
st
party. The further case of the plaintiff is that the
State of Bihar acquired a part of the suit properties to which the
plaintiff agreed. At that time, the plaintiff and State of Bihar had no
knowledge about the attachment so the plaintiff put the State of Bihar
in possession of the property. Since the property belonged to the
plaintiff, the same are not liable to be attached in Misc. Case No.109
of 1961 under Order XXI Rule 58. Defendant no.2 had neither any
saleable interest in the property nor was in possession.
4. The defendant no.1, United Commercial Bank
Limited, Nagpur through Branch Manager, Muzaffarpur filed
contesting written statement alleging that in fact, the property is the
Patna High Court FA No.12 of 1978 dt.04-09-2014
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joint family property and moreover, on the date of attachment, the
property was in possession of defendant no.2, therefore, defendant
no.2(defendant 2
nd
party) has got right, title and interest in the suit
property. The properties are ancestral properties of defendant 2
nd

party. Even if it is held that the property belonged to Babu Krishna
Kishori Narain Singh and others of village Sursand, the same was
acquired after a protracted and costly litigation, the expenses of which
were met from the ancestral properties of the plaintiff and defendant
2
nd
party and the Sursand properties were also placed in the hotch-
potch of joint family properties of the plaintiff and defendant 2
nd

party. The plaintiff had got the knowledge of the attachment earlier.
The State of Bihar cannot derive any advantage of the alleged land
acquisition. The papers have been fabricated and the plaintiff has
filed the suit with malafide intention. The Miscellaneous Case was
dismissed for default which was filed by the plaintiff.
5. The defendant no.2 i.e. son of the plaintiff neither
appeared nor filed written statement nor contested the suit.
6. The State of Bihar-appellant filed application
under Order I Rule 10 C.P.C. for being impleaded as party which was
allowed. The State of Bihar in the written statement alleged that the
suit properties are the self-acquired properties of the plaintiff
including the house standing in survey plot no.21 which have been
Patna High Court FA No.12 of 1978 dt.04-09-2014
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rightly and validly acquired by the State of Bihar under the Land
Acquisition Act in the year 1961 which was within the knowledge of
the plaintiff and defendant nos.1 and 2. Vacant possession has
already been made over by the plaintiff to the State of Bihar. The
land was acquired for construction of office of Joint Director,
Agriculture, Tirhut Division, Muzaffarpur. On 10.08.1976, two sale
proclamations were found attached to the wall of the office of Joint
Director, Agriculture, Muzaffarpur and then State of Bihar came to
know about this attachment order. After enquiry, defendant filed
Miscellaneous Case wherein the Sub Judge held that the attachment
order will not be confirmed till the disposal of Miscellaneous Case
which is still pending for disposal. The properties have been acquired
lawfully, therefore, the decree obtained against defendant no.2 by
defendant no.1 in the Court of Nagpur is not binding either on the
plaintiff or on the State of Bihar who is successor in interest of the
plaintiff as the properties have been acquired under the Land
Acquisition Act.
7. The further defence is that the plaintiff happened
to be the absolute owner and it was agreed that the compensation
amounting to Rs.2,32,800 would be paid by the State of Bihar to the
plaintiff who is owner. The agreement was entered into to avoid
unnecessary prolonged litigation for compensation under Section 18
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of the Land Acquisition Act. A registered power of attorney was
executed by the plaintiff in favour of his son being Deed No.296 dated
25.09.1954 to act on behalf of the plaintiff and accordingly,
agreement dated 27.03.1961 was executed and registered between
Collector and defendant no.2, acting as power of attorney of plaintiff.
Therefore, the compensation amount settled was paid to the defendant
no.2.
8. On the basis of the aforesaid pleadings of the
parties, the learned court below framed the following issues:
I. Is the suit, as framed, maintainable?
II. Has the plaintiff got valid cause of action or right to sue?
III. Is the suit bad for defects of parties?
IV. Whether the court fee paid is sufficient?
V. Whether the attached property in Execution Case No.78 of
1959 are the separate properties of the plaintiff alone or also
in possession of defendant no.2 on the date of attachment?
VI. Whether the attachment of the suit properties was illegal and
fraudulent as alleged by the plaintiff?
VII. Whether the acquisition of the part of the land and house
mentioned in appendix of the written statement of defendant
no.3, by the State of Bihar under Land Acquisition Act, is
legal and valid?
VIII. Is the plaintiff entitled to declarations sought for?
IX. To what relief or reliefs, if any, is the plaintiff entitled?
9. After trial, the trial court recorded a finding that
the plaintiff failed to prove that the property is the self-acquired
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property of the plaintiff and further recorded that the attachment is
valid and legal, accordingly, dismissed the plaintiffs suit.
10. The learned S.C.22, Mr. Kundan Bahadur Singh
appearing on behalf of the appellant submitted that after acquisition of
the property, the State of Bihar is the owner of the property.
Therefore, although, the plaintiffs suit has been dismissed, the
finding recorded by the court below is affecting the right, title and
interest of the State of Bihar and, therefore, the State of Bihar was
compelled to file this First Appeal. The learned S.C.22 further
submitted that the court below wrongly recorded the finding that the
property belonged to defendant no.2 and this finding is based on
surmises and conjectures. The court below wrongly discarded the
registered sale deeds produced by the plaintiff in support of the fact
that the properties have been purchased by the plaintiff. The son of
the plaintiff i.e. defendant no.2 neither appeared nor contested the suit,
therefore, impliedly he admitted the case of the plaintiff but the court
below without properly appreciating the evidences in their right
perspective held that property belonged to defendant no.2. It is
further alleged that once it is held that the property belonged to the
plaintiff then automatically, the attachment order will go because the
decree was obtained by the Bank against the defendant no.2 and in
that decree, neither the plaintiff is party nor the plaintiffs property is
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mortgaged against the loan obtained by defendant no.2. So, there is no
question for attachment of plaintiffs property.
11. Nobody appeared on behalf of the respondent
nos.1 and 2.
12. In view of the submission of the learned counsel
for the appellant, the only point arises for consideration in this appeal
is as to whether the suit property is the self-acquired property of the
plaintiff or is the property of defendant no.2 or that the property is
joint family property?
13. In support of the claim of the plaintiff, the plaintiff
has produced documentary evidences and also has examined oral
evidences. P.W.2 and 3 both have clearly stated that the suit
properties are the exclusive properties of plaintiff. The court below
disbelieved the evidence of P.W.3 on the ground that this witness at
paragraph 14 has stated that he had no idea about the document by
which the property was purchased and when the constructions were
made. Likewise, the evidence of P.W.2 has been disbelieved on the
same ground, the reasons assigned by the court are untenable reasons.
The plaintiff has produced Exhibit 5 series which are the registered
sale deeds in the name of the plaintiff. The court below
disbelieved/discarded and did not rely upon these registered sale
deeds on the ground that there is fluctuation in the area mentioned in
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the sale deed and in the area mentioned in the schedule of the plaint.
In my opinion, on this ground, the registered sale deeds could not
have been discarded. Exhibit 1 has been produced by the plaintiff to
show the purcha wherein the name of the plaintiff has been recorded
but the court below erroneously did not rely on this, on the ground
that the plaintiff should have produced the khatiyan instead of raiyati
purcha.
14. The plaintiff in support of his case that Will was
executed in his favour and he has obtained Probate with regard to
some suit property has produced Exhibit 4, the original Will and the
Probate, Exhibit 3 but the court below observed that these documents
will not help the plaintiff in the present suit. No reason has been
assigned as to how and why it will not help the plaintiff. The further
reason has been assigned that these documents only show that the
plaintiff is duttak putra i.e. adopted son without considering that
Probate has been obtained by the plaintiff. Exhibit 6, a deed of
release in favour of the plaintiff executed by Visheshwar Prasad with
respect to the property purchased by plaintiff by sale deed No.8053
has also been not relied upon. These are the documentary evidences
and oral evidences produced by the plaintiff in support of the case that
the suit properties are the self-acquired properties. The court below
wrongly discarded all these evidences on untenable reasons.
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15. On the contrary, the defendant, Bank has
examined D.W.1 to 4. D.W.1 has stated that he got the matter
investigated and the Advocate who investigated the matter told him
that defendant no.2 is the owner of the property who is in possession.
D.W.2 is the karpardaz of defendant no.1 and the defendant no.3 is
the retired clerk of the Bank. He has stated that he has found
possession of the defendant no.2. These are the evidences produced
by the State Bank of India. The State of Bihar produced Exhibit B
which is the agreement entered into between Collector, Muzaffarpur
and the defendant no.2 to show that defendant no.2 entered into
agreement with the Collector on behalf of plaintiff on the basis of
power of attorney. In the agreement itself, it is mentioned that
defendant no.2 has entered into agreement on behalf of the plaintiff
but the court below did not rely on this, on the ground that the power
of attorney has not been produced. In my opinion, this approach of
the court below is not acceptable. Exhibit C has been produced to
show that possession was delivered by the plaintiff to the State of
Bihar, defendant no.3. Exhibit E has been produced by the State of
Bihar to show that compensation was received by defendant no.2. It
may be mentioned here that the case of the plaintiff is that he was
embassy to Japan and after 1960, he was residing in Delhi. Therefore,
he executed power of attorney in favour of his eldest son, defendant
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no.2. This is mentioned in the agreement itself. Defendant no.2 was
appointed as power of attorney to look after land acquisition case and
received the compensation, therefore, the defendant no.2 has received
the compensation. The question is only because he has received the
compensation, can it be said that he is the owner of the property. The
court below further considering Exhibit J held that defendant no.2 is
the owner. This Exhibit J is khatiyan prepared in land acquisition
case by State of Bihar. It is settled principles of law that revenue
records neither create tile nor extinguish title and on the basis of
Exhibit J, no conclusive finding can be recorded that the suit property
is the joint family property or that the defendant no.2 is the exclusive
owner of the property in face of the overwhelming documentary
evidences including the title deeds produced by the plaintiff.
16. In view of the above discussion, I find that the
court below wrongly approached the case and has not appreciated the
evidences in their right perspective. The defendant no.2 has not
produced any document or adduced any evidence to show that it is his
property. Likewise, the defendant no.1 also did not produce any
reliable evidence on the basis of which it can be recorded finding that
defendantno.2 is the owner of suit property. The nature of evidence
adduced by defendant no.1 is that a lawyer investigated the matter and
informed that defendant no.2 is owner and is in possession. It may be
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mentioned here that Advocate has not been examined. In view of the
above, I find that the plaintiff has been able to prove that he was the
owner of the property which was his self-acquired property. The
finding of the trial court on this question is, therefore, reversed. Since
the properties belonged to the plaintiff, it could not have been
attached by the defendant no.1 in the execution case which was
obtained against defendant no.2.
17. In the result, the part of the judgment and decree
whereby it was held that the property was not the self-acquired
property of the plaintiff is hereby set aside and it is held that the
property belonged to the plaintiff and the State of Bihar has acquired
the same according to law. Accordingly, this First Appeal is allowed
and the judgment and decree of the court below is modified to that
extent. No order as to costs.





Saurabh/-
(Mungeshwar Sahoo, J)


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