S.N. Pathak, J.
1. This second appeal is directed against the judgment dated 24-9-1987 and decree dated 7-11-1987 passed by 3rd. Sub-judge. Aurangabad, in Title Appeal No. 24/83 reversing the judgment of the trial Court dated 7-2-1983 passed in title suit No. 119/80/36/82. The defendants of the suit are the appellants here and they were respondents in the 1st appellate Court as well where they lost.
2. The case of the plaintiff-respondents in the trial Court was that plot No. 921 under khata No. 3 was under the proprietorship of Sundarganj and Kunda estate. It was the Bakasta land of the ex-landlords. The aforesaid plot has a total area of 61 decimals. Sundarganj estate granted Hukumnama No. 115 dated 15-1-1941 on accepting Nazrana of Rs. 75/-. The landlord of Kunda estate also granted Hukumnama No. 215 dated 16-2-1938 on payment of Rs. 65/-. These Hukumnamas were executed in favour of Shyam Sundar Prasad, who came in possession and remained so till he sold the suit plot No. 921 including other lands to Chameli Devi. Subsequently, Chameli Devi transferred six decimals of plot No. 921 to one Hajari Kewani by registered sale-deed dated 14-3-19.63, Thereafter, Hajari Kewani gifted nine decimals of plot 921 to plaintiff-respondents Patia Kewani and Jugeshwar Kewani through a registered deed of gift dated 11-7-1972, The plaintiffs came in possession and they used to settle palm and other trees standing on the suit land to various persons. However, defendant-appellants who had an evil eye on the suit land started creating trouble and this led to a proceeding under Section 144, Cr. P.C. which was decided in favour of defendants. So. the suit was filed seeking declaration of the plaintiffs title over the suit land and the defendants were sought to be permanently restrained from disturbing the peaceful possession of the plaintiff-respondents.
3. The case of the defendant-appellants was rather, that 30 decimals of the suit plot was settled to the father of the defendants by Kunda estate by sada Hukumnama in the year 1939 and the defendants accordingly came in possession through their father and they remained so and the proceeding was rightly deeded in their favour. The plaintiffs had no title nor possession over the suit land and, therefore, they sought dismissal of the suit.
4. The trial Court dismissed the suit holding that the plaintiff-respondents had failed to prove their title over the suit land. Then, the plaintiffs went in appeal and succeeded before the first appellate Court against the judgment of which this appeal has been filed.
5. Before, I proceed to discuss the judgment of the first appellate Court, I would like to refer to the settled principle of law that the plaintiffs of the suit must prove their title in a suit for declaration. The plaintiffs cannot also gain anything from the weakness of the defendants case or its evidence. The first appellate Court has accepted the principles of law and it has stated the same in its judgment. I find that the first appellate Court instead of deciding the plaintiffs' title over the suit land on the basis of the documents filed by them started discussing the evidence of the defendant-appellants and held that the defendants had admitted the title of the plaintiffs over the suit land.
6. In the background of the aforesaid judgment of the appellate Court, would advert to the main question of law and fact involved in the suit The plaintiffs' claim of title over the suit land, which was described in Schedule-A of the plaint, was based on the fact that the suit plot No. 921 was the bakasta land of Sundarganj and Kunda estate both. This very pleading was self-defeating and self-deceptive. If plot No. 921 having a total area of 61 decimals was under the bakasta cultivation of both the two estates, it was for the plaintiff-respondents to state as to what area of the aforesaid plot was under the personal cultivation of both the two estates. Two estates cannot be in personal physical possession of particular plot jointly and if it was so, the plaintiffs should have clearly stated that both the estates had such possession of this plot. There is no such pleading. In such a circumstance, and moreover, so far the alleged Hukumnamas of the year 1938, and 1941, are concerned, which the plaintiffs in their plaint stated, the same have not been filed in order to show that Shyam Sundar Prasad received settlement over the entire area of suit plot No. 921 from the two estates. So, the sale-deed executed by Shyam Sundar Prasad would be of no avail for plaintiffs. Moreover, the sale-deed executed by Shyam Sundar Prasad in favour of Chameli Devi was not filed. So, unless this sale-deed concerned would be produced in Court the title which Chameli Devi acquired over the suit land to sell the same to Hajari Kewani, would not also be supported by any title deed of he predecessor. So, the sale-deed executed by Chameli Devi in favour of Hajari Kewani in the year 1963 would also be invalid for want of her own title. Subsequently, Hajari Kewani gifted the said suit plot No. 921 and the sale-deed dated 11-7-1972 shows that plot No. 921 had been mentioned twice in the description of plots being sold. At one place it refers to plot No. 921 for three decimals and then it refers to the same plot at another place for an area of six decimals. So, it appears that both the plaintiff-respondents were claiming six decimals and thee decimals of this plot having taken as gift from Hajari Kewani, but it is surprising that Hajari Kewani himself had purchased only six decimals of plot No. 921 from Chameli Devi in the year 1963. So, the sale-deed of 1972 in favour of the plaintiffs cannot also create valid title in favour of the plaintiff-respondents. When Hajari Kewani himself did not acquire nine decimals from Chameli Devi, it is not understandable how he will transfer nine decimals to the plaintiffs by way of gift. Other documents filed by the plaintiffs referred to certain rent receipts (Ext. 1 series) to establish their title. Some of these rent receipts are in the name of Hajari Kewani which are Zamindari rent receipts. Hajari Kewani had himself purchased the suit land in the year 1963 from Chameli Devi and, therefore, any jamabandi receipts in his favour would be also of suspicious circumstance. Moreover, receipts are neither proof of title nor possession and this is settled principle of law because it is very easy to obtain certain receipts and besides the same there is no document of mutation produced in favour of the plaintiffs either in the name of Hajari Kewani or in their own names at any point of time. Learned Trial Court has taken notice of the fact and it has also referred to certain P. Ws. whose evidence was contradictory inter-se as to who applied for mutation. So, from the aforesaid discussion of the documentary evidence, it is difficult to hold that the plaintiffs had acquired title over the suit land by valid document.
7. The appellate Court instead of discussing the evidence of the plaintiff-respondents banked on certain deficiencies in the evidence of the defendant-appellants to hold the plaintiffs' title. The appellate Court started discussing the evidence of certain D. Ws. and came to the conclusion that the boundary given by the plaintiff in their deed of gift and the same given in the Hukumnama (Ext. 8} of the defendants did not refer to the suit plot and on this account he came to the conclusion that the plaintiffs' title over the suit land, perhaps, stood admitted by the defendants. This was nothing short of perverted approach of the evidence on record, Then, the appellate Court referred to the evidence of particular D.W. 1, Doman Kewani, who was claiming to be cultivating the suit land on behalf of the defendants and he had come to support the possession of the defendants. He referred to the evidence of this witness where he admitted that he was cultivating the suit land for the last 30 years. This witness had deposed on 11-1-1983 and so from his evidence, the Court came to the Conclusion that he was supporting the possession of the defendants from the year 1953, but according to the defendant' case, he took settlement in the year 1939. l fail to understand as to how the appellate Court interpreted the evidence of the witnesses regarding his cultivation of the suit land on behalf of the defendants as the possession of the defendants. Simply because a particular man comes to cultivate anybody else's land, that does not mean that the batadar's possession would indicate the possession of the land lord also. Moreover, the
fire; appellate Court, however, went on to discuss the admission of Doman Kewani that in a title suit No. 23/85 one Hajari Kewani had sought removal of encroachment by this witness over the two decimals of plot No. 921 and the suit
was decreed. on the basis or this admission of Doman Kewani, the appellate Court held that the title of Hajari Kewani was validated and since the plaintiff was claiming through Doman Kewani he is bound by this decision of the suit. This opinion of the appellate Court is also perverted. The defendant was not claiming his title under Doman Kewani, rather Doman Kewani was cultivating the suit land as bataidar of the defendants and whatever the year of bataidari given to this D.W. that cannot constitute the possession of the defendants nor can a decision against Doman Kewani in a title suit can bind the defendant because neither he was claiming through Doman Kewani nor he was party to the earlier suit. Moreover, plot No. 921 had a total are of 61 decimals and two decimals of the same was subject-matter of title suit No. 23/65 and whether this two decimals form part of the suit land as described in Schedule-A of the plaintiff was not clarified by the evidence on record of the suit. So, the conclusion drawn by the appellate Court on the basis of decision of Title Suit No. 23/65 was also misplaced. Doman Kewani, of course, admitted that he was unable to say as to how defendants acquired the suit land, but this admission of Doman Kewani cannot lead to any inference that the plaintiffs had acquired title over the suit land because bataidar cannot be expected to speak about the title of his landlord or the source of his title. So, the admission of Doman Kewani did not refer to the title of the plaintiff-respondents. So far the conclusion drawn by the appellate Court regarding the boundaries given by the plaintiffs regarding the suit land and the same of the Hukumnama of the defendants compared with the village map, if these did not tally with each other, that fact cannot also lead to the conclusion that the plaintiffs had proved their title over the suit land and also their possession. It is fantastic that the appellate Court took a reverse gear approach to the plaintiff-respondents' case to hold that they had proved their title over the suit land and, therefore, I am of the opinion that the finding recorded by the appellate Court regarding title of the plaintiff-respondents was based on erroneous view of law and perverted interpretation of evidence on record and, therefore, I am further of the opinion that the judgment and decree passed by the appellate Court does not deserve to be allowed to stand.
8. In the result, this appeal is allowed. The judgment and decree passed by the first appellate Court is set aside. However, there shall be no order as to cost of this appeal.