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Patna High Court

Vijay Shanker Choube vs Ram Sewak Kuer And Ors. on 22 August, 2001
Equivalent citations: 2001 (3) BLJR 2033
Author: P Deb
Bench: P K Deb
JUDGMENT P.K. Deb, J.
1. This appeal has been preferred by the above named defendants 2nd party-appellant against the
judgment and decree dated 8-5-1996 passed by the then 2nd Addl. District Judge, Sitamarhi, in Title
Appeal No. 9 of 1990 whereby and whereunder the appeal was allowed by setting aside the
judgment and decree dated 13-2-1990 passed by the Munsif, East Sitamarhi, in Title Suit No. 5 of
1986. Respondent Nos. 1 and 2 were the plaintiffs in Title Suit No. 5 of 1986. The reliefs claimed in
the suit were for declaration that Basgitparcha granted to defendant No. 1 is illegal, not effective and
not binding on the plaintiffs, (ii) For granting decree for recovery of possession against defendant
1st party and also for giving direction to them for removing all materials from the disputed land
failing which the Court be pleased to deliver possession to the plaintiff during the process of the
Court, (iii) For restraining the defendants for doing any new work and from challenging the nature
of the suit land.
2. The dispute relates to only 2 decimals of land appertaining to revisional survey Plot No. 2393,
Khata No. 3398 (new) and old Khata No. 1177 situated at village Bargaon Bazar in Bajpatti P.S., in
the district of Sitamarhi. The plaintiff's case, in brief, is that defendants are residents of village
Chapra where they have got their ancestral land both cultivable and homestead and they were
working as Purohit. But as their earnings from Purohiti and cultivation from land the family was not
maintaining good condition then several persons from district Chapra including the defendants had
come over to Sitamarhi and settled in village Bargaon Bazar and Madhuban Bazar. Defendant No. 1
also settled himself at Bargaon Bazar and he started working of Purohiti. He also acquired some
cultivable land, in R.S. Plot No. 2394 which is contiguous to that of the suit plot. The defendants
have the residential house which was a brick build building and was recorded in the name of
defendant No. 1 and other defendants. Further case of the plaintiffs is that C.S. Plot No. 537 was the
cast land of one Mahabir Sah and Ram Lakhan San who sold 2 Khatas 14 Dhoors along with the
bamboo plants standing thereon to one Yamuna Singh though the registered sale-deeds stated
3-12-1958 and 14-9-1959 and the purchaser Yamuna Singh came in possession of the land,
constructed hours over a portion of the land and started carrying on business and also working as a
Munib. In the revisional survey operation C.S. Plot No. 537 had been divided into two plots namely
Plot No. 231 measuring 10 acres and Plot No. 2393 measuring 02 acres and those were to be in
Khatian No. 3358 in the name of Yamuna Singh. When Yamuna Singh was badly in need of money,
he sold the entire land with house and bamboo plants to respondent-2nd party, namely, Nageshwar
Choudhary and Lakshmi Choudhary through registered deed of sale dated 27-10-1967 (Ext. 1/a) who
also came in possession of the purchased property, got the names mutated and started paying rent
to the State of Bihar. The Nageshwar and Lakshmi Choudhary the defendants-2nd party entered
into a contract of sale of the above two R.S. plots with plaintiffs and they executed a Mahadenama
dated 15-5-1985 (Ext. 7) after receiving Rs. 3,000 from the plaintiffs. Subsequently, by sale-deed
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dated 18-1-1986 (Ext. 1) Nageshwar and Lakshmi Choudhary after receipt of the remaining part of
the consideration amount sold the land to the plaintiffs. After purchase when the plaintiffs went to
pay the rent to karmachari then the plaintiffs were informed that Jamabandi stands in the name of
defendant-2nd party i.e. the vendors of the plaintiffs only with respect of R.S. Plot No. 2391 for an
area of 10 acres and in respect of R.S. Plot No. 2393 area being 02 acres a basgitparcha (Ext. B/2)
had been issued in favour of Vijay Shanka Choubey, defendant No. 2 of the defendant-1st party. On
an enquiry the plaintiffs learnt that a petition was filed in the name of Giridhari Gopal Choubey, the
elder brother of defendant No. 2, who has also been added as defendant No. 4, when the earlier filed
a petition for grant of Parcha in respect of the suit plot but on enquiry Anchal Adhikari and other
officers had found the vendors of the plaintiffs in possession of the same and also Giridhari Gopal
Choubey, defendant No. 4, along with his brother and defendant No. 2, Vijay Shankar Choubey were
having permanent house on a separate R.S. Plot No. 2394 and, as such, prayer of Parcha in favour of
Giridhari Gopal Choubey was rejected. But then again a fresh petition was filed by defendant No. 2
Vijay Shankar Choubey for grant of basgitparcha and the same Anchal Adhikari, who had earlier
enquired into the matter gave a finding that Vijay Shankar Choubey, defendant No. 2 was residing in
RS. Plot No. 2393. Learning this from the records the plaintiffs filed objection that the whole
proceeding of issuance of Basgitparcha in favour of defendant No. 2 were inoperative and that the
plaintiffs were in possession and defendant No. 2, Vijay Shankar Choubey was never in possession
of R.S. Plot No. 2393. The Circle Inspector on the basis of such objection was asked to report after
holding an enquiry and accordingly, he submitted a report (Ext. 14/a) dated 18-2-1981
recommending that no parcha should be issued or granted in favour of anybody and legal action
should be stayed in the matter.
3. It is the further contention of the plaintiffs that on 4-2-1986 the defendant-1st party extended the
room of their northern verandah up to R.S. Plot No. 2393 and also started digging plinth and as
such dispossessed the plaintiffs on 4-2-1986. Police was informed but when nothing happened and
it came to the knowledge of the plaintiffs that defendant No. 2 had procured an antedated parcha
and on the strength of that he had committed the mischief then the present suit was filed to the
effect that the said parcha issued in the name of defendant No. 2 was not only tainted with fraud but
also it is lacking in jurisdiction and the same being ante dated and obtained by playing fraud should
be discarded.
4. None other defendants had contested the suit except by defendant No. 2 Vijay Shankar Choubey.
He filed written statement on 5-9-1986 besides taking other usual pleas of non-maintainability of
the suit, suit being barred by limitation, being barred by estoppel, waivers and acquiescence etc., it
was contended that defendant No. 2 and his brothers had entered into a partition about 26 to 27
years ago and defendant No. 2 was not given any share in the homestead land appertaining to R.S.
Plot No. 2394 contiguous to east of the disputed land and thus being deprived of any share in the
homestead land defendant No. 2 Vijay Shankar Choubey became landless and as such, he entered
into the service of Yamuna Singh and being pleased with his sincerity and honesty gave the suit land
i.e. 02 acres of R.S. Plot No. 2393 to Vijay Shankar Choubey on assurance that Vijay Shankar
Choubey will continue service and since thereafter, Vijay Shankar Chaubey was residing in the Tatti
house which stood on the disputed land. He applied for basgitparcha in case No. 78 of 1979 and such
parch was issued by the order of the Anchal Adhikari on 1-4-1980. According to defendant No. 2,
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parcha was issued properly after maintaining all formalities as required under the Bihar Privileged
Persons Homestead Tenancy Act (hereinafter referred to as the 'Act') and that the plaintiffs or their
vendors had come in possession of the suit land nor the brother of defendant No. 2 i.e. Giridhari
Gopal Choubey had ever made any application for issuance of basgitparcha.
5. Ort the basis of the pleadings of the parties several issues were framed including the issue of
maintainability and also on limitation matter. Both parties adduced evidence both oral and
documentary. The certified copies of the relevant portion of the records proceeding of basgitparcha
had also been produced by both the parties and also the revenue records including the parcha, map
etc. The original Court held that as a bar has been created under Section 18 of the Act, the present
suit is not maintainable as Basgitparcha was issued in the name of Defendant No. 2 and even if some
irregularities might be there is not following the Rules framed under the Act, but those should be
construed only as irregularities and do not take the place of playing of fraud and jurisdictional error
and the suit is not maintainable in the civil Court. Against that judgment of dismissal the plaintiffs
filed their appeal being Title Appeal No. 9 of 1990 and then the impugned judgment has been passed
by setting aside the dismissal of the suit holding that the issuance of basgitparcha is not only tainted
with fraud in favour of the defendant No. 2 rather it lacks in jurisdiction as the mandatory
provisions had not been complied with. On the ground of limitation it was held that the Parcha
dated 1-4-1980 in favour of defendant No. 2 was only a procured ante-dated also does not bear from
the records of issuance of the same when already the proceedings of issuance of Parcha had been
stayed on objection being raised from the side of the plaintiffs and, as such, the question of
limitation does not arise as the existence of Parcha in favour of defendant No. 2 is very much in
question. The suit has been decreed by allowance of the appeal and hence, this second appeal.
6. The appeal came up for hearing under Order XLI, Rule 11 of the Code of Civil Procedure on
placing of the following substantial question of law from the side of defendant No. 2-appellant.
(i) Whether the suit is barred by limitation under Article 100 and whether the learned Court below
has committed error in complying Section 14 of the Limitation Act for condoning the delay in filing
of the suit ?
(ii) Whether the appellate Court's judgment is vitiated under the law on misconstruction of Khatian
(Ext. 16/a)
(iii) Whether the Circle Officer not being made a party in the suit, the suit is bound to fail for
non-impleading the necessary parties?
(iv) Whether the learned appellate Court had any jurisdiction to make out a third case in allowing
the appeal rather he should have held that the suit is definitely barred under Section 18 of the Act?
7. While the matter was being heard under Order XLI, Rule 11 of the Code of Civil Procedure it could
be felt that as the case is based practically on factual aspects and points of law as raised were based
on totally on factual issues, the appeal could be decided at this stage itself and, as such, the lower
Court records had been brought and scope of elaborate argument had been given to the learned
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Counsel for both the parties.
8. The crux of dispute is regarding the legality and validity of the basgitparcha being issued vide Ext.
B/2 in favour of the defendant-appellant while staying the same (Ext. 14./a) in case No. 78 of
1978-79. According the plaintiff issuance of parcha allegedly on 1 -4-1980 to an antedated procured
one and does not bear from the records of the above-mentioned case. It is true that an order was
passed for issuance of parcha on being satisfied by the authorities but the record does not disclose
that parcha and the proceedings in the case before the Anchal Adhikari had ever been issued rather
the subsequent development showed that parcha was never issued because if it would have ever
been issued then there was no question of staying all proceedings and issuance of parcha by the
authorities. It has been held by the original Court and also by the appellate Court that issuance of
parcha and the proceeding in the case before the Anchal Adhikari in case No. 78 of 1978-79 were
tainted with very many irregularities as the mandatory Rules provided under the Act itself had not
been complied with. According to the trial Court, such irregularities were mere irregularities and do
not go to the foundation of the issuance of basgitparcha in favour of defendant No. 2, to the
appellant. The irregularities as revealed from the records were that just before the present
proceedings initiated on the basis of the application filed by the defendant No. 2 Bijay Kukar
Choube, his elder brother had filed a petition for the basgitparcha but the same Karmachari had
given a report to the effect that there was no possession of the brother of defendant No. 2 over the
suit plot in question and that the same were in possession of the vendors of the present plaintiffs
and then the issuance of parcha was denied in favour of defendant No. 4, the elder brother of
defendant No. 2. Soon after that the defendant No. 2 applied for parcha and the said Karmachari
after due deliberation had given a report in favour of issuance of parcha and such report was
accepted and general notices were said to be published and then order was passed for issuance of
parcha but it had been admitted by the Karmachari who had deposed in the suit that it was within
his Knowledge that Nageshwar Choudhary and another, vendors of the plaintiffs were the recorded
proprietors at the relevant time and during the enquiry, notice was never served on them. In that
way, it remains that with the vital discrepancy of non-service of notice on the proprietors of the
land, the issuance of parcha has been ordered and when objected to from the side of the plaintiffs,
such issuance order had been stayed by the authorities. The irregularities in the circumstances
cannot be said to be mere irregularities but they form the basis of illegality and jurisdictional error
on the face of it. By elaborate discussion of the Rules framed under the Act, it has been held by the
appellate Court that such issuance of parcha is not only illegal but without jurisdiction. In this
connection learned Counsel for the respondents have referred to a Division Bench judgment of this
Court as reported in 1979 (27) BLJR 136 (Bhagarshan Rai v. State of Bihar and Ors.) wherein it was
held that if a parcha has been issued without giving notice to the land-owners then the issuance of
parcha or the order to that effect is not only illegal but without jurisdiction. On going though the
judgments of both the Courts below and on careful scrutiny of the records of the Courts below I am
also of the view that the order passed for issuance of parcha was not only illegal but without
jurisdiction and if such order of issuance of parcha is without jurisdiction then even if a parcha had
been issued in pursuance of such order being passed by Anchal Adhikari then such parcha becomes
a non 1st in the eye of law. It has been strenuously argued by Mr. Dwivedi, Senior Counsel appearing
for and on behalf of the defendant-appellant that when parcha had been issued in pursuance of the
order passed by the authorities on 22-3-1980 and after that proceedings had been stayed regarding
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the issuance of parch?, the whole subsequent proceedings of staying has got no value on the face of
it because parcha had already been issued in the name of defendant-appellant on 1-4-1980 in
pursuance of the order passed on 22-3-1980. But it is the case of the plaintiffs from the very
beginning that such issuance of parcha in favour of the defendant-appellant is an ante-dated one
and by proper reasonings and circumstances it has also been held by the first appellate Court that
the same is ante dated one. This much can be said on perusal of the records that although order was
passed on 22-3-1980 for issuance of parcha but nowhere in the records it could be shown that
parcha was issued on 1-4-1980 and for that reason that subsequent proceedings of staying cannot be
said to be non est rather authorities were satisfied that although order was passed on 22-3-1980, but
no parcha was issued and as such issuance of parcha had been stayed. In that way, it had rightly
been held that Basgitparcha dated 1-4-1980, (Ext. B/2) is not only antedated but a procured one.
These are factual aspects on records. No question of law is involved in that matter. The procedure
adopted by the Anchal Adhikari is also very much in question, when just recently on the basis of the
report of the same Halka Karmachari issuance of parcha in favour of the brother of defendant No. 2
had been rejected then there remains no question of issuance of parcha in favour of defendant No. 2
when on the previous report it was found that the brother of defendant-appellant or anybody else
were not in possession of the land in question but the proprietors Nageshwar Choudhary and others
were in possession. Moreover, the story given by the defendant-appellant that he was deprived of
house accommodation in the contiguous plot due to amicable partition about 26/27 years back then
he came to serve to Yamuna Singh and he was given the plot in lieu of his service by Yamuna Singh
had also not been held on the records because Ext. 16/A the finally published khatian is against the
story given by the defendant-appellant. Moreover, the story given by the defendant-appellant in the
suit is conspicuously absent in his petition filed for issuance of Basgitparcha that is in Ext. 11/A. So
from the conduct of the defendant-appellant it can very well be found that by hook of crook he was
trying to grab the land, not only he but by his family members also and for that reason one by one
petitions were filed for basgit parcha. The findings by the learned first appellate Court that the
issuance of basgitparcha in favour of defendant No. 2 is without jurisdiction and hence, it is non est
in the eye of law cannot be said to be beyond the records or a third case has been made out.
9. The next point has been raised to the maintainability of the suit. It has been urged that although
Section 18 of the Act creates a bar of civil suit regarding issuance of parcha but suit can be filed if
fraud is alleged regarding the issuance of parcha and although the fraud has been alleged in the
plaint but no specification has been given as to how the fraud has been perpetrated. In that way, a
vague allegation of fraud may not be construed to give jurisdiction to the civil Court to giving go-by
to Section 18 of the Act. It has been held by the first appellate Court on proper adjudication of the
records and the evidence on record that the way the parcha had been issued giving go-by to all
norms and the mandatory rules, the issuance of parcha or the order thereof is not only tainted with
fraud but it is without jurisdiction also. On that point it has been submitted by Mr. Dwivedi that the
learned first appellate Court had no right to find out a third case for grant of relief to the plaintiffs.
When such irregularities and illegalities had not been specifically averred in the plaint, there was no
scope to find as such by the learned first appellate Court. When fraud and lack of jurisdiction has
been alleged and from the circumstances and the mandatory provisions of law it could be shown
that the order of issuance of parcha was not only tainted with fraud but also the same is without
jurisdiction then it cannot be said that a third case has been found by the learned appellate Court
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rather it was the crux of dispute from the very beginning and on the basis of that suit has been filed.
The suit as has been framed can be construed to be a suit for recovery of possession of the plaintiffs
with a further declaration that any parcha being issued in favour of defendant No. 2 had not given
any affect to the title and possession of the plaintiffs. In that way, I do not find that the learned first
appellate Court has made out any third case in finding that the basgitparcha issued in the name of
defendant No. 2 was not only a procured one but an antedated also and also without jurisdiction on
the face of it as the proceedings on the basis of which parcha had been issued was without
jurisdiction. When a lack of jurisdiction has been pleaded then even if the fraud has not been proved
then also the suit is maintainable and the bar created under Section 18 of the Act has got no bearing
in the present suit itself. Then a point has been raised regarding the suit being barred for
non-impleading the Anchal Adhikari as necessary party to the suit inasmuch as a fraud has been
alleged then such fraud can only be answered effectively by Anchal Adhikari alone and
non-impleading him as a party-defendant in the suit, the present suit should be dismissed for
non-impleading of necessary party. This is a new plea taken for the first time before this Court.
Neither this was there in the pleadings nor any issue was framed to that effect nor the same has been
pleaded before the Court below at any point of time. So in the second appeal such sort of submission
cannot be entertained. On factual aspect also as the suit has been framed, the Anchal Adhikari
cannot be said to be a necessary party in the suit. A proceeding has been initiated for issuance of
basgitparcha by the Anchal Adhikari and such proceeding was found to be without jurisdiction and
hence, this plea of impleading of necessary party has got no force.
10. The last point urged is about limitation. It is submitted that Article 100 of the Limitation Act is
attracted in the present suit as the basgitparcha issued in the year 1980 has been challenged in the
year 1986 when under Article 100 only one year limitation is there. Learned first appellate Court by
implication of Section 14 of the Limitation Act held that the suit is not barred by limitation. I am
also of the same opinion as submitted by Mr. Dwivedi that Section 14 of the Limitation Act has got
no application in the present circumstances and Section 14 of the Limitation Act cannot give any
relief to the plaintiff for extending the limitation period as provided under Article 100 of the
Limitation Act. Now the question first of all remains whether Article 100 of the Limitation Act could
be attracted in the present case or not. As I have already stated that the suit, as has been framed, is
in the form of recovery of possession of the plaintiffs with a further declaration that the issuance of
basgitparcha in favour of defendant No. 2 would not affect in any way of the title and possession of
the plaintiffs. The relief claimed should be construed as a whole and not isolated regarding the
declaration of the basgitparcha to be illegal void etc. etc. For recovery of possession of the plaintiffs
and not affecting the same by issuance of parcha in favour of defendant-appellant cannot in any way
attract the provisions of Article 100 of the Limitation Act. Moreover, it appears that the issue of
limitation has been given go-by by the defendants before the original Court but they pressed it
before the first appellate Court and also before the second appellate Court. It may band stated that
when statutory bar is there even if the same is not pressed, it remains the duty of the Court to see
whether the statutory bar creates effect on the suit itself or not, I have already stated that from the
frame of the suit I do not find that Article 100 of the Limitation Act is attracted in the present suit
and the question of Section 14 of the Limitation Act would not come in any way to create any
extension to the limitation as provided under Article 100 of the Limitation Act rather the suit as
framed cannot be barred under the provisions of the Limitation Act because the limitation as per the
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frame of the suit would run from the date. When alleged dispossession is there and in that way the
suit is within the limitation. Moreover, when it has been held and also found by this Court that
issuance of parcha is without jurisdiction then it remains a non est in the eye of law and hence, when
a thing is non est in the eye of law seeking of its implementation to be invalid cannot have any
specific limitation as contemplated under Article 100 of the Limitation Act. A document having lack
of jurisdiction is non est in the eye of law and, hence, the question of limitation does not come in
and for that reason the plaintiffs have not pressed the question of limitation before the original
Court. On scrutiny of the judgments of the Courts below and the lower Court records I fully agree
with the decisions arrived at by the first appellate Court. The question of law as has been evolved
and submitted from the side of the appellant have got no bearing in the present suit and practically
no substantial question of law is involved.
11. However, I have discussed the points as raised from the side of the defendant-appellant as
mentioned above and then come to the finding that this second appeal has got no force. Hence, the
same is dismissed holding thereby the judgment and decree of the first appellate Court to be
affirmed. However, in the facts and circumstances, no cost is awarded in the second appeal to either
of the parties.
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