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Supreme Court of India
Rakesh Bhushan Prasad Alias … vs Radha Devi(D) By Lrs. on 7 September, 2021Author: A.M. Khanwilkar
Bench: R. Subhash Reddy, Sanjiv Khanna
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 494 – 495 OF 2016
RAKESH BHUSHAN PRASAD ALIAS
RAKESH PRASAD AND OTHERS ….. APPELLANT(S)
VERSUS
RADHA DEVI (D) BY LRS. AND OTHERS ….. RESPONDENT(S)
JUDGMENT
SANJIV KHANNA, J.
On or about 5th August, 1967, Shri Banaras Sah (since
deceased and now represented by his legal representatives), son of
late Shri Parmeshwar Sah, acting for himself and as legal guardian
of his six minor sons, had instituted Title Suit No. 73 of 1967
claiming ownership of 6 kathas in land bearing CSP No. 2353
(corresponding to RSP No. 4861) of village and police station
Parihar, District Sitamarhi, Bihar, against Shri Krishna Kant Prasad.
The plaintiffs had also inter alia prayed for a decree of delivery of
Signature Not Verified
Digitally signed by
possession in their favour by dispossessing Shri Krishna Kant
Rachna
Date: 2021.09.07
15:56:42 IST
Reason:
Prasad and conversion of the disputed land in original state after
Civil Appeal Nos. 494-495 of 2016 Page 1 of 19
removal of any new construction over it. The appellants before us
are legal representatives of since deceased Shri Krishna Kant
Prasad, the first defendant before the trial court.
2. The plaint was amended from time to time. By a subsequent
amendment, the second set of defendants, being the legal
representatives/heirs of Devi Sah, Akal Sah and Nageshwar Sah,
kin of the first plaintiff’s father Parmeshwar Sah, were impleaded.
3. It will be apposite to mention the family structure of the Sah family
for a better understanding of the facts in the present civil appeal.
The Sah family headed by Ganga Vishun Sah had two sons: Gudar
Sah and Shibshankar Sah. Gudar Sah had two sons, Devi Sah and
Akal Sah, while Shibshankar Sah also had two sons, Parmeshwar
Sah and Nageshwar Sah. Mahadev Sah was the son of Devi Sah
and Bharat Sah and Rajendra Prasad Sah were sons of Akal Sah.
Banaras Sah was the son of Parmeshwar Sah, and Nageshwar
Sah had three sons: Jagannath Sah, Jag Bahadur Sah and
Chandeshwar Sah. The genealogical table below is instructive and
describes the relationship inter-se the plaintiffs and the second set
of defendants:
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4. For clarity, we would refer to the parties in the present appeal as
per their description before the trial court. Accordingly, the
appellants before this Court, i.e. legal representatives of late Shri
Krishna Kant Prasad, have been referred to as defendant No.1;
legal representatives of late Shri Banaras Sah, have been referred
to as the plaintiffs. However, second set of defendants who were
impleaded later, i.e. legal representatives/heirs of Devi Sah and
Akal Sah (sons of Late Gudar Sah), have been referred to as Gudar
Sah group and legal representatives of Nageshwar Sah (son of
Shibshankar Sah) have been referred to as Nageshwar Sah group.
It would be appropriate to recall that late Parmeshwar Sah and late
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Nageshwar Sah were brothers, their father being late Shibshankar
Sah. Late Gudar Sah and late Shibshankar Sah were also brothers,
their father being late Ganga Vishun Sah.
5. The Sah family owned two sets of properties under Sirsia Gaddi
and Sursand Gaddi.
6. We would begin by referring to both undisputed as well as disputed
(to be resolved and adjudicated) facts. They are –
Late Krishna Kant Prasad was a doctor or a medical officer of
Darbangah Raj Hospital. After resigning from the service, he had
started his private practice at Parihar. The plaintiffs state that in
19501 they had permitted and allowed late Krishna Kant Prasad to
occupy the suit land, free from all charges, including rent or licence
fee. It is the case of late Krishna Kant Prasad that thereupon he
had constructed a tile shed on the suit land for his family’s abode.
Late Krishna Kant Prasad also claimed that the original documents
of the title were given to him. In return, late Krishna Kant Prasad
had given medical treatment to the Sah family and others at
Parihar. The plaintiffs, however, dispute this position and state that
a phoos hut was already in existence when late Krishna Kant
1 However, Late Krishna Kant Prasad claims that they had occupied the suit land in 1948.
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Prasad was allowed to occupy the suit land and late Krishna Kant
Prasad made no construction. The plaintiffs state that the phoos
hut/house was earlier used by Sukhdeo Sah, son-in-law of
Parmeshwar Sah (Shibsankar Sah’s son), and he utilised it for
running a kirana shop. The plaintiff’s case is that Krishna Kant
Prasad was permitted to use the suit land with the phoos hut
without payment of rent or licence fee with a clear understanding
that he would vacate the suit land when demanded and required by
the plaintiffs.
7. Another set of facts may also be noticed –
Parmeshwar Sah, father of Banaras Sah (the first plaintiff),
had expired in 1960. In 1960-61, Krishna Kant Prasad had started
construction of the suit property. He had earlier on 3 rd September,
1960 moved an application for mutation before Settlement Officer
recording that he had acquired the rights in the suit land from
Parmeshwar Sah, co-sharer of Akal Sah, and that he had been
residing for more than twelve years after constructing his house on
the suit land which he had received as a gift. This mutation
application of Krishna Kant Prasad was allowed and we would be
subsequently referring to these proceedings in some detail as they
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are of relevance. Krishna Kant Prasad had also applied for a loan
for construction in the suit property. It appears that the construction
was substantially undertaken and completed on or before filing the
suit, which was instituted on 5th of August 1967.
8. In 1967, the first plaintiff i.e., Banaras Sah instituted the title suit no.
73 in the court of Subordinate Judge, Sitamarhi. The trial court vide
judgment and decree dated 31st May, 1986 dismissed the title suit
of the plaintiffs primarily for the reason that the plaintiffs have failed
to establish their title to the suit land and hence they were not
entitled to evict Krishna Kant Prasad. The trial court observed that
Bharat Sah, son of Akal Sah, belonging to the Gudar Sah group,
was not impleaded as a plaintiff in the present suit. In fact, the trial
court held that Gudar Sah group had the title over the suit land and
hence, only they were entitled to evict Krishna Kant Prasad.
Further, the trial court found the plaint was instituted beyond the
limitation period.
9. The plaintiffs appealed against the trial court’s decision before the
Additional District Judge, Sitamarhi, who vide judgment and decree
dated 7th December, 1988, allowed the appeal preferred and
decreed the suit inter alia holding that the plaintiffs had subsisting
right, title, interest over the suit land and, therefore, were entitled to
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evict Krishna Kant Prasad. Summarily, the Additional District Judge
relied upon the depositions of PWs, the written statement of Bharat
Sah son of late Akal Sah in partition proceedings relating to the
properties of Sah family in Partition Suit No. 35/1941, the order
dated 11th November 1962 in proceedings under S. 103A of the
Bihar Tenancy Act, 1885, preliminary decree and the final judgment
in the Partition Suit No. 35/1941. These documents are revelatory
in the present appeal and we would be referring to them as they
were the basis for determination of title in favour of the plaintiffs, not
only in Additional District Judge’s court but later in the impugned
order of the High Court as well.
10. The second appeal preferred by the legal heirs of Krishna Kant
Prasad was dismissed by a single Judge of the High Court on 25 th
May, 1989, by a short order recording that the findings of facts
observed by the first appellate court were final finding of facts and
no substantial question of law arose. The legal
heirs/representatives of Shri Krishna Kant Prasad thereupon
preferred special leave to appeal before this court, which was
granted, and allowed vide order dated 23 rd February, 2000
observing that the High Court was not correct in dismissing the
appeal in limine as there was a serious dispute concerning title of
the land. Further, it observed that the trial court had dismissed the
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suit and the High Court was hearing the second appeal against the
judgment of reversal passed by the Additional District Judge. The
case involved interpretation of various documents that had been
tendered in evidence and hence, the question of law did arise for
consideration. Thus, the case was remanded for de novo
consideration by the High Court.
11. By the first impugned order dated 20 th March, 2009, the single
Judge of the High Court of Judicature at Patna, recording several
findings and relying upon the mutation application dated 3rd
September, 1960 and other similar evidence as the Additional
District Judge, held that no substantial question of law arose and,
therefore, the appeal should be dismissed under Order XLI Rule 11
of the Code of Civil Procedure, 1908 (‘Code’, for short). By the
second impugned order dated 19 th August, 2009, the application for
review was dismissed by a single judge at the High Court of
Judicature at Patna in Civil Review 115/2009.
12. The first appellate court and the High Court, on the question of title
of the first plaintiffs, have held that in the year 1921 (1328 fasli)
there was an oral partition between Gudar Sah group and
Shibshankar Sah group in respect of Sirsia Gaddi properties and
thereupon the suit land was allotted to the branch of late
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Parmeshwar Sah, father of late Banaras Sah, the plaintiff who had
instituted the suit on behalf of himself and his six minor sons
against Krishna Kant Prasad. Further, the plaintiffs’ ownership was
accepted by late Krishna Kant Prasad himself in his application for
mutation (Exhibit D/4) dated 3 rd September, 1960 wherein he had
stated that he had received the suit land from late Parmeshwar
Sah. Bharat Sah, son of Akal Sah, belonging to Gudar Sah group,
in his written statement filed in another Partition Suit No. 35 of 1941
before the Subordinate Judge, Darbangah, had accepted that the
suit land belonged to late Parmeshwar Sah. Support was garnered
from the judgment and preliminary decree (Exhibit P-7 and P-6
respectively) dated 31st May, in Partition Suit No. 35 of 1941. The
first appellate court and the High Court in the impugned orders
have also referred to depositions of some witnesses produced by
the plaintiffs. On these basis, the first appellate court and the High
Court reasoned that the plaintiffs had title over the suit land.
13. The primary question that arises for consideration before us is
whether the plaintiffs have established their title over the suit land
and hence were entitled to a decree of possession against Krishna
Kant Prasad since deceased and now represented by his legal
representatives.
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14. To avoid prolixity and to curtail the length of this judgment, we
would avoid referring in detail to the arguments raised by the
learned counsels for the parties before us. We would, however, not
hesitate in observing that the plaintiffs in their arguments and the
written submissions, before this court, have substantially accepted
the case and the facts set up by the legal representatives/heirs of
Krishna Kant Prasad.
15. There are two partitions between the two groups of the Sah family:
one oral partition of 1921 and one decreed partition in Partition Suit
No. 35 of 1941 before the Court of the 2nd Additional Subordinate
Judge, Darbhanga. The private partition of 1921 (1328 fasli)
pertains to only Sirsia properties and is an accepted and
undisputed position. The 1921 partition resulted in the 2/3rd share
of Sirsia Gaddi being allotted to the Gudar Shah group and the
remaining 1/3rd share being allotted to the Shibsankar Sah group.
However, the Sursand Gaddi properties were not the subject matter
of the partition of 1921. The findings recorded by the first appellate
court and the High Court do not dispute this position. Legal
representatives/heirs of Krishna Kant Prasad has in support of the
factual position rightly drawn our attention to the second partition in
suit No. 35 of 1941 in which both the Gudar Sah and Shibshankar
Sah groups had not challenged this earlier partition of 1921. The
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partition suit No. 35 of 1941 was filed by Mahadev Sah, son of Devi
Sah and grandson of Gudar Sah against other members of the
Gudar Sah group seeking his personal share in Sirsia Gaddi
properties allocated to Gudar Sah group in the partition in 1921 and
against both Gudar Sah and Shibshankar Sah groups in respect of
the Sursand Gaddi properties. Bharat Sah and Rajendra Prasad
Sah, son of Akal Sah and grandson of Gudar Sah, were defendants
Nos. 1 and 4 to the suit. Pulkit Sah and Ram Iqbal Sah, sons of
Bharat Sah and grandson of Akal Sah, were defendant Nos. 2 and
3 to the suit. Parmeshwar Sah and Nageshwar Sah, belonging to
the Shibshankar Sah group were defendants 5 and 7. Banaras Sah,
son of Parmeshwar Sah, was defendant No.6. Jagannath Sah and
Jang Bahadur Sah and Chandra Sah, sons of Nageshwar Sah were
defendants 8, 9 and 10.
16. Therefore, the subject matter of this partition suit for Sirsia Gaddi
properties was inter se Gudar Sah group and for Sursand Gaddi
between Gudar Sah and Shibshankar Sah group as Sursand Gaddi
properties were till then joint between the two groups.
17. The properties of Sirsia Gaddi which fell in the 2/3 rd share of Gudar
Sah group on partition in 1921( 1328 Fs.) and in respect of which
Mahadev Sah, son of Devi Sah, had sought partition from Gudar
Civil Appeal Nos. 494-495 of 2016 Page 11 of 19
Sah group in Suit No.35/1941 were specifically and categorically
mentioned in the Schedule to the plaint. The relevant portion of
Schedule-Ga detailing Sirsia Gaddi properties belonging to Gudar
Sah group as attached to the plaint reads:
“Schedule (Ga)
Tafsil Jaedad ijmal badarmean mudai and Modaiah
Nos. 1 to 4 (Details of properties joint between Plaintiff
and Defendant Nos. 1 to 4)
Details of properties under item nos. 1 to 3 of schedule
‘Ga’…
No.4 Jagarnath Sahu
Kumar Sahu Sons of Ramdayal Sahu decd.
Mawaji 4B: 14 K. 8 dh. Eraji – kast of Village
Pariharpur Manas, Munsifi Sitamarhi
Kharidgi – bazaria – kebala – dated 3.12.17
Khesar 486-501-2353-555-504-2537-2523-2630-2675
Details of properties under item nos. 5 to 8 of
schedule ‘Ga’ … and properties under schedule ‘Ga/1’
….
Signed/- illegible Sd/- illegible
Muharrir Sheristedar”
18. As already stated above, the plaintiff in Suit no. 35/1941 (Mahadev
Sah) and defendant No. 1 to 4 in the said suit belonged to Gudar
Sah group: Mahadev Sah, son of Devi Sah being the plaintiff and
the descendants of Akal Sah, namely, Bharat Sah, his two children,
and Rajinder Prasad Sah, brother of Bharat Sah being defendant
Nos. 1 to 4. A preliminary decree of partition in Suit No. 35 of 1941
passed on 31st May, 1948 referring to Schedule-Ga states that the
acquisitions in it were made by Sirsia Gaddi. In his separate joint
written statement, the Defendant No. 5, namely, Parmeshwar Sah,
Civil Appeal Nos. 494-495 of 2016 Page 12 of 19
son of Shibshankar Sah had supported and affirmed the
partition/division in 1921(1328 Fs.) as pleaded in the plaint. He had
subsequently not appeared to contest the proceedings at the time
of the hearing and in his defence he did not raise any dispute as to
the extent of shares of different co-sharers. Similarly, Nageshwar
Sah, brother of Parmeshwar Sah and son of Shibshankar Sah, had
too not contested the suit at the time of the hearing. Thereupon, the
trial court while passing the preliminary decree had proceeded to
record as under:
“Although there was a previous partition of the Sirsia
properties between the descendants of Shibshankar
Sah, on the one hand, and the descendants of Gudar
Sah, on the other, in the year 1328 Fs. is the admitted
case between the contesting parties, yet it is rather
admitted that the descendants of Gudar Sah remained
joint after that partition with respect to the remaining
two-third share in these properties. The legal
presumption of jointness, therefore, is not displaced as
between the descendants of Gudar Sah. The
defendant No.1, who pleads subsequent partition in
the year 1329 Fs., therefore, will have to establish the
alleged previous partition by adducing sufficient and
satisfactory evidence, before he can not (sic) suit the
plaintiff in this action for partition. The evidence, the
circumstances and the probabilities all strongly lean
against him and when their cumulative effect is
concerned, which I will presently do, one would come
to an irresistible conclusion that the plea of previous
partition set up on behalf of the defendant No.1 is
completely false.”
19. The trial court in partition suit No. 35 of 1941 had accepted the plea
of oral partition in 1921 (1328 Fs.). A plea regarding another
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partition after 1328 Fs. i.e., 1329 Fs. was taken by Bharat Sah, son
of Akal Sah and brother of Mahadev Sah. However, the trial court in
partition suit No. 35 of 1941 rejected the oral partition plea in 1329
Fs. stating that the parties had not adduce sufficient and
satisfactory evidence to non-suit the plaintiff therein.
20. The final decree of partition in Suit No. 35/1941 subsequently
passed on 11th September, 1971 has affirmed without any change
and without accepting rights of the plaintiffs herein on the suit land
contained in item No. 4 of Schedule-Ga.
21. Therefore, the plaintiffs were not owners of the property on the date
they had filed the present suit for title and possession on 5 th August,
1967.
22. Other documents relied on by the Appellate court and the High
Court is the mutation application by Krishna Kant Prasad and the
proceedings therein. In mutation proceedings before Settlement
Officer in the year 1960, Krishna Kant Prasad had moved an
application stating that his name be recorded in the revenue
records in respect of the suit property. The settlement officer had
recorded his statement that the house on the suit property was his,
having received it from Parmeshwar Sah co-sharer of Akal Sah and
was in his possession. Bharat Sah, belonging to the Gudar Sah
group, had objected to the mutation stating that he had given the
Civil Appeal Nos. 494-495 of 2016 Page 14 of 19
house on rent to Krishna Kant Prasad. However, the claim of Bharat
Sah was rejected recording that Bharat Sah was deliberately
absenting himself and on examination of papers his claim had no
merit. No doubt, that this order records that there was an oral
partition and CSP No. 2353 came into possession of Shibshankar
Sah, the father of Parmeshwar Sah and Nageshwar Sah, but this
as noticed above is contrary to the findings recording by the trial
court in the suit for partition No. 35 of 1941 vide preliminary decree
of partition passed on 31st May, 1948 and the final decree of
partition dated 11th September, 1971. When we have the primary
undisputed documents on record, the content thereof would matter
and should be accepted, and the wrong and mistaken observations
in the secondary proceedings should be discarded. What is also of
importance is the statement made by Sukhdeo Prasad, son in law
of Parmeshwar Sah, who in the course of the mutation proceedings
had stated that they had no claim whatsoever on the suit land. The
order sheet also records that Krishna Kant Prasad had recorded
statements of villagers who had affirmed the construction of house
by Krishna Kant Prasad and that the construction had existed for
about twelve years. The construction in the nature of the house, it
was observed, would have been with the owner’s consent, as no
objection was received to it.
Civil Appeal Nos. 494-495 of 2016 Page 15 of 19
23. Reference at this stage must be made to another document relied
upon by the two appellate courts i.e., Exhibit D/5 which is a record
of proceeding instituted by Parmeshwar Sah against Krishna Kant
Prasad under Section 103A of the Bihar Tenancy Act, 1885 in 1962.
Notice on this application was issued and thereupon, appearance
was entered on behalf of Krishna Kant Prasad. The
application/case was dismissed because of the absence of
Parmeshwar Sah on 24th October, 1962. However, subsequently
the case was restored. Thereafter, Parmeshwar Sah again
absented himself and on 11th November, 1962 his objections/case
was dismissed. Thus, the mutation proceedings and the above
discussed Exhibit D/5 do not help the plaintiffs’ case in establishing
their title on the suit land.
24. Interestingly, during the course of title suit proceedings before the
trial court, Bharat Sah son of Late Akal Sah (Gudar Sah group) had
filed an affidavit dated 17th January, 1968 accepting the case of
Krishna Kant Prasad. Further, Rajinder Prasad, second son of Late
Akal Sah, filed affidavit and deed of relinquishment (Ladavi) dated
19.9.1967 accepting/stating that the suit land was gifted to Krishna
Kant Prasad. It is correct that these documents were post the
institution of the suit by the plaintiffs and, therefore, may not be
read as evidence for lack of the plaintiffs’ title, albeit it indicates that
Civil Appeal Nos. 494-495 of 2016 Page 16 of 19
Gudar Sah group did not want eviction and dispossession of
Krishna Kant Prasad.
25. Faced with the aforesaid situation, the plaintiffs had urged and
argued that item No. 4 of Schedule-Ga is being misread and in fact
gives the title to Jagannath Sah, son of Nageshwar Sah (of
Shibshankar Sah group), defendant No. 8 in partition suit No. 35 of
1941. The contention is not only fallacious but misleading. The suit
property became part of Sirsia Gaddi for the first time in 1917 when
it was vended in the name of one Ramdayal Sahu, son of Ram
Bhaju Sahu. This document marked Exhibit M records that the sale
deed in the name of Ramdayal Sahu is executed in view of the
amounts due and payable by the executant to Akal Sah, son of
Gudar Sah. The position was also accepted by Jagarnath Sahu,
son of late Ram Dayal Sahu, who had appeared as PW-14. In his
deposition, he had affirmed that the land in question was purchased
in his father’s name as he was muneem to Parmeshwar Sah. He
had also deposed that the land belonged to Parmeshwar Sah, but
as noticed above, the position was that the land was part of Sirsia
Gaddi properties and not the personal land of Parmeshwar Sah. On
oral partition in 1921(1328 Fs.) the suit land as per the Schedule-
Ga had fallen in the share of Gudar Sah group. This is the admitted
and accepted position of the Shibshankar Sah group.
Civil Appeal Nos. 494-495 of 2016 Page 17 of 19
26. Ram Dayal Sahu had two sons, Jagarnath Sahu and Kumar Sahu,
and this is clearly reflected and stated in the preliminary decree
dated 31st May, 1948. Thus, the plaintiffs’ contention that item No. 4
in Schedule-Ga actually refers to Jagannath Sah, son of
Nageshwar Sah (Shibshankar Sah group), as the owner of the suit
land is clearly a misstatement.
27. This brings us to the statement of witnesses recorded before the
trial court. PWs 13, 14, 15, 16, 20, 22, 23, 24, 25, 26, 27 and 33
had supported the plaintiff’s version that Parmeshwar Sah had
constructed the phoos hut whereas DWs 6, 9, 10, 11, 12, 13, 14, 15
and 16 had testified that Krishna Kant Prasad constructed the tile
shed. Referring in detail to the deposition of these witnesses would
not help us determine and decide this controversy in light of the
direct documentary evidence and admission by the parties in the
suit for partition No. 35 of 1941 and in the course of mutation
proceedings. We are not, therefore, referring to these testimonies in
detail.
28. In view of the aforesaid discussion, we would allow the present
appeals and set aside the judgment of the first appellate court
affirmed by the High Court decreeing the plaintiffs’ suit. We find that
the judgment of the trial court dismissing the suit is correct.
Civil Appeal Nos. 494-495 of 2016 Page 18 of 19
Accordingly, we allow the present appeals and dismiss the Title Suit
No. 73 of 1967. However, there would be no order as to costs.
………………………………..J.
(A.M. KHANWILKAR)
………………………………..J.
(SANJIV KHANNA)
NEW DELHI;
SEPTEMBER 07, 2021.
Civil Appeal Nos. 494-495 of 2016 Page 19 of 19
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