state of bihar vs united commercial bank ltd.,.aspx

8/11/2019 State of Bihar vs United Commercial Bank Ltd.,.Aspx

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Patna High Court FA No.12 of 1978 dt.04-09-2014

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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 3rd

Party-AppellantVersus

United Commercial Bank Ltd., Nagpur & Anr.

.... .... Defendant 1st

Party-Respondent===========================================================

Appearance :For the Appellant/s : Mr. Kundan Bahadur Singh, S.C.22

Mr. Neeraj Kumar, A.C. to S.C.22For the Respondent/s : None

===========================================================

CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOOC.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 1st 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

o.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 plaintif


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oint family property and moreover, on the date of attachment, the

property was in possession of defendant no.2, therefore, defendant

no.2(defendant 2nd

party) has got right, title and interest in the suit

property. The properties are ancestral properties of defendant 2nd

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

2nd

party and the Sursand properties were also placed in the hotch-

potch of joint family properties of the plaintiff and defendant 2nd

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 plaintif

including the house standing in survey plot no.21 which have been


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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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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 o

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 o

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

oint family property?

13. In support of the claim of the plaintiff, the plaintif

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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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 o

power of attorney. In the agreement itself, it is mentioned that

defendant no.2 has entered into agreement on behalf of the plaintif

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 o

the court below is not acceptable. Exhibit C has been produced to

show that possession was delivered by the plaintiff to the State o

Bihar, defendant no.3. Exhibit E has been produced by the State o

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 o

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)

U T

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