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




CIVIL APPEAL NOS. 494 – 495 OF 2016





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
Date: 2021.09.07
15:56:42 IST

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

Civil Appeal Nos. 494-495 of 2016 Page 3 of 19
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.

Civil Appeal Nos. 494-495 of 2016 Page 4 of 19
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

Civil Appeal Nos. 494-495 of 2016 Page 5 of 19
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

Civil Appeal Nos. 494-495 of 2016 Page 6 of 19
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

Civil Appeal Nos. 494-495 of 2016 Page 7 of 19
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

Civil Appeal Nos. 494-495 of 2016 Page 8 of 19
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


Civil Appeal Nos. 494-495 of 2016 Page 9 of 19
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

Civil Appeal Nos. 494-495 of 2016 Page 10 of 19
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

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
Civil Appeal Nos. 494-495 of 2016 Page 13 of 19
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,


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


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.


SEPTEMBER 07, 2021.

Civil Appeal Nos. 494-495 of 2016 Page 19 of 19


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