IN THE HIGH COURT OF JUDICATURE AT PATNA SECOND APPEAL No.250 of 2023 ====================================================== 1. Most. Girja Kuwar W/o Late Vipat Rai, Resident of Village and P.O. - Tikulia, P.S. Adapur, District - East Champaran. 2. Ramnath Rai, Son of Late Vipat Rai, Resident of Village and P.O. - Tikulia, P.S. Adapur, District - East Champaran. 3. Vinod Rai, Son of Late Vipat Rai, Resident of Village and P.O. - Tikulia, P.S. Adapur, District - East Champaran. 4. Rajesh Rai @ Rajesh Kumar, Son of Late Vipat Rai, Resident of Village and P.O. - Tikulia, P.S. Adapur, District - East Champaran. 5. Mithilesh Rai @ Mithilesh Kumar, Son of Late Vipat Rai, Resident of Village and P.O. - Tikulia, P.S. Adapur, District - East Champaran. ... ... Appellant/s Versus 1. Ram Daresh Rai Son of Late Kawal Rai, Resident of village- Tikulia, P.S. - Adapur, District -East Champaran. 2. Rishideo Rai, Son of Late Kawal Rai, Resident of village- Tikulia, P.S. - Adapur, District - East Champaran. 3. Devendra Rai, Son of Late Yogi Rai, Resident of village- Tikulia, P.S. - Adapur, District - East Champaran. 4. Baleshwar Rai, Son of Late Yogi Rai, Resident of village- Tikulia, P.S. - Adapur, District - East Champaran. 5. Krishna Rai, Son of Late Rajendra Rai, Resident of village- Tikulia, P.S. - Adapur, District - East Champaran. 6. Dinesh Rai, Son of Late Rajendra Rai, Resident of village- Tikulia, P.S. - Adapur, District - East Champaran. 7. Kameshwar Rai, Son of Late Ramdaresh Rai, Resident of village- Tikulia, P.S. - Adapur, District - East Champaran. 8. Om Prakash Rai, Son of Late Ramdaresh Rai, Resident of village- Tikulia, P.S. - Adapur, District - East Champaran. 9. Ashok Rai, Son of Rishideo Rai, Resident of village- Tikulia, P.S. - Adapur, District - East Champaran. 10. Jai Prakash Rai, Son of Rishideo Rai, Resident of village- Tikulia, P.S. - Adapur, District - East Champaran. ... ... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Binod Kumar Singh, Sr. Advocate Mr. Vagisha Pragya Vacaknavi, Advocate For the Respondent/s : Mr. Samir Kumar, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE KHATIM REZA CAV ORDER Patna High Court SA No.250 of 2023(8) dt.24-03-2025 2/9 8 24-03-2025 This Second Appeal has been filed by the plaintiffs- appellants/appellants against the judgment and decree of affirmance. A Title Suit bearing Title Suit No. 405 of 2013 was filed by the plaintiffs-appellants for declaration of title and confirmation of possession over the suit land and further to set aside the order dated 07.02.2013 passed by the S.D.M. and also for grant of injunction. 2. The suit was dismissed by the Sub-Judge-Xth, Motihari by the judgment and decree dated 27.02.2017 against which the plaintiff filed Title Appeal No. 55 of 2017 which was also dismissed by the learned Additional District Judge-Vth, Motihari by its judgment and decree dated 08.02.2023 which is under challenge in the instant Second Appeal. 3. The case of the plaintiff, is that, Faujdar Rai and Ramji Rai were brother. It is further contended that the plaintiffs are the descendants of Faujdar Rai and defendants are descendants of Kawal Rai. It is further pleaded that the entire joint property was partitioned orally between both branches and got possession. It is further case of the plaintiffs that out of that property 5 kattha of Khata No. 23, Plot No. 07 of Mauza- Tikuiya was alloted to Kawal Rai by oral partition. The said property was sold by Kawal Rai through registered sale deed Patna High Court SA No.250 of 2023(8) dt.24-03-2025 3/9 dated 05.08.1970 executed in favour of Bipat Rai and his brother Jagroop Rai. Jagroop Rai also sold his share of 5 kattha to Binod Rai. It is further contended that due to interference of defendants, a proceeding under Section 145 Cr.P.C. was started between both the parties. The learned S.D.M., Raxual passed wrong order dated 07.02.2013 in the aforesaid proceeding under Section 145 Cr.P.C. It is further pleaded that the entire area of Khata No. 23, Plot No. 7 is of 15 Kattha and whole property belongs to plaintiff out of which 5 kattha land was purchased by Binod Rai from Late Jagroop Rai and 5 kattha land is their share. It is further contended that 5 kattha out of 15 kattha is wrongly claimed by the defendants. 4. On summons, the defendants filed their written statement in two sets stating therein that the suit as framed is not maintainable and also barred by law of limitation. It is pleaded that Ramji Rai died before survey leaving behind his two sons, namely, Gopal Rai and Faujdar Rai and thereafter Khatiyan of the ancestral and joint property was prepared in the name of Faujdar Rai and Gopal Rai. The property was partitioned between both the parties and they came into possession of their respective shares. Gopal Rai died leaving behind his daughter Muniya Devi, who had one son Kawal Rai. Kawal Rai died Patna High Court SA No.250 of 2023(8) dt.24-03-2025 4/9 leaving behind his four sons, namely, Yogi Rai, Rajendra Rai, Ram Daresh Rai and Rishideo Rai. Yogi Rai died leaving behind his two sons, namely, Devendra Rai and Baleshwar Rai, who have settled in Nepal doing their business. Rajendra Rai died leaving behind Krishna Rai and Dinesh Rai. Ram Daresh Rai have four sons, namely, Kameshwar Rai, Akhileshwar Rai, Om Prakash Rai and Bhutan Rai. Ashok Rai and Prakash Rai are sons of Rishideo Rai. It is further pleaded that Gopal Rai transferred 10 kattha 4 dhurs of land in which 5 kattha of Plot No. 7 was also included through registered sale deed dated 07.02.1922 and gave right title and possession to Kawal Rai. Kawal Rai executed sale deed on 05.08.1970 in favour of Bipat Rai and Jagroop Rai with regard to and fraudently added the property of Plot No. 7 also. Although there was no contract of sale for Plot No. 7. When this fraud came into light, a panchayati was done. Jagroop Rai and Bipat Rai executed unregistered sale deed on 15.04.1971 instead of making it of relinquishment. Thereafter, since then Bipat Rai and Jagroop Rai had no claim of title and possession over Plot No. 7 and sale deed of Plot No. 7 is null and void. It is further contended that Bipat Rai and Jagroop Rai filed application for mutation on the basis of sale deed dated 05.08.1970 which was dismissed after Patna High Court SA No.250 of 2023(8) dt.24-03-2025 5/9 inspection by the Circle Officer because the property of Plot no. 7, Area 5 kathas was not in their possession. Plaintiffs also filed a case under Section 144 Cr.P.C. which was later converted into 145 Cr.P.C. and in which order was passed in favour of defendant no. 1. It is further contended that plaintiffs also filed Miscellaneous Suit No. 10 of 2008-09 in the Court of DCLR against the defendants in respect of disputed property which too was dismissed on 23.10.2008. It is vehemently submitted that Faujdar Rai and Ramji Rai were not brothers and also denied that Area 5 kathas of Plot No. 7 were allotted to Munia Devi in her share rather it is mentioned that the sale deed of Plot No.7 Area 5 kathas was executed by Gopal Rai vide sale deed dated 07.02.1922 in favour of Kawal Rai. It is further contended that Area 5 kathas of Plot no 7 was in peaceful possession of Kawal Rai since 1922 and after his death, it is in possession of his heirs. 5. After considering the pleadings and materials on record, the learned Trial Court dismissed the suit and held that plaintiffs are not in peaceful possession over the disputed land rather, the defendants are in possession which is also adverse to the plaintiffs since long i.e. from the date of unregistered sale deed dated 15.04.1971, which is more than 12 years. The Patna High Court SA No.250 of 2023(8) dt.24-03-2025 6/9 possession of immovable property or any interest therein, based on title, suits have to be filed within 12 years when the possession of the defendants became adverse to the plaintiffs but the instant suit has been filed by the plaintiffs in the year 2013, therefore, the suit is also barred by law of limitation. It is also held that plaintiffs’ right to property has been extinguished as per Section 27 of the Limitation Act, 1963. Moreover, unregistered sale deed dated 15.04.1971, in the light of provision of Section 49 of the Registration Act, can also be received as evidence of part performance of contract for the purpose of Section 53(A) of the Transfer of Property Act, which provides that notwithstanding that transfer has not been completed as per manners prescribed by the law even then, it debars from enforcing against the transferee and person claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of contract. It is further held that since the defendants are in possession and the plaintiffs have filed the suit for declaration of title and also confirmation of possession and injunction although they have no possession over the disputed land. Hence, they have omitted to seek the further relief of recovery of possession. Hence, the suit was Patna High Court SA No.250 of 2023(8) dt.24-03-2025 7/9 dismissed. 6. Being aggrieved, the plaintiffs-appellants filed Title Appeal against the judgment and decree of the Trial Court. The learned Appellate Court after analyzing the Trial Court’s judgment and materials on record also dismissed the appeal filed by the plaintiffs on the finding that the sale deed executed by Kawal Rai on 05.08.1970 was with regard to Plot No. 6, 26, 29, 7, 81, 161 and 162. The sale deed reveals that portion of land of Plot No. 7 at northern portion was executed but the plaintiffs claim their right, title over the southern side of Plot No. 7 on the basis of registered sale deed dated 05.08.1970. It is further held that on the basis of enquiry in mutation proceeding, the plaintiffs have not been found in possession of plot no. 7. It is further held that the settled principle of law is that the plaintiffs will succeed in a suit on his own documents/legs. A court cannot create another case except to fact brought on record by the pleadings of the parties. It appears that the certified copy of order in case of Vinod Rai vs. Ramdaresh Rai in Case No. 3/M/2009 has been brought on record. In the said order, the learned S.D.M., Raxaul held that the land in suit is in possession of Ram Daresh Rai. The plaintiffs failed to prove their right and title over Plot No. 7 from Southern side. Patna High Court SA No.250 of 2023(8) dt.24-03-2025 8/9 7. Considering the findings of the Trial Court, the learned Appellate Court affirmed the judgment and decree of Trial Court. 8. After considering the submissions made on behalf of the parties and perusal of the materials on record including the judgments of the learned Courts below, it appears that the learned Court of Appeal below, which is the final court of facts, after considering the pleadings of the parties and the evidences adduced by them came to a clear finding that the plaintiffs purchased the land of Plot No. 7 at northern side. How they are claiming such land on the southern side? The plaintiffs have failed to prove their possession upon the suit property, rather, the defendants have proved their possession over the suit property. 9. The learned Appellate Court further held that it appears from the record that before the Trial Court, no prayer for amendment in pleadings was brought on record by the plaintiffs-appellants. In the course of hearing of title appeal, a petition was brought for amendment in pleadings which was rejected vide order dated 16.03.2019 against which Civil Miscellaneous Case No. 827 of 2019 was filed by the plaintiffs, which was also rejected vide order dated 25.08.2022. Patna High Court SA No.250 of 2023(8) dt.24-03-2025 9/9 10. However, the sale deed dated 05.08.1970 was executed by the ancestor of the defendants in favour of plaintiffs with regard to northern portion of plot measuring 5 kathas land and the suit has been filed for title and confirmation of possession with regard to Southern portion of plot no. 7 of Khata No. 23, which was not purchased by the ancestor of the plaintiffs. Both the Courts have held that plaintiffs are not in possession of the suit land, rather, the defendants are in possession of the suit land. 11. Considering the aforesaid facts and circumstances as well as materials on records, it is quite apparent that the judgments and decree of the Courts’ below are covered by the findings of facts and no question of law, much less substantial question of law, arises for consideration in the instant appeal. 12. Accordingly, this appeal is dismissed at the stage of Order XLI Rule 11 of the Code of Civil Procedure. Sankalp/- (Khatim Reza, J) U