P.K. Deb, J.
1. This appeal has been preferred against the judgment and decree dated 10.1.1981 passed by the then 2nd Additional District Judge, Palamau in Title Appeal No. 32 of 1977 reversing the judgment and decree dated 11.8.1977 passed by the then Munsif, Jamshedpur in Title Suit No. 47 of 1963.
2. The plaintiffs in the original suit are the appellants in this Second Appeal. The suit property related to plot No. 1743 appertaining to Khewat Nos. 4/1 to 4/4 which were held by several khewatdars wherein Khewat No. 4/5 was the Samillat Khewat of the abovementioned Khewatdars of 4/1 to 4/4. The Khewatdars in those Khewats have been recorded as Dwarni Thikedars and Khewats were situated in village Chiyaki under Chainpur Estate. The suit plot No. 1743 was recorded as Gair Mazurwa land. According to the plaintiffs by amicable arrangement among the Khewetdars the suit land appertaining to part of plot No. 1743 number' being 1743-A came in possession of the plaintiffs. As per the plaintiffs' case, their predecessors reclaimed the suit land and a Bandh was constructed over the same by the predecessors and after coming into force of Bihar Land Refroms Act, when the intermediary interest were vested in the estate the suit land which were under the cultivation of the plaintiffs were mentioned in the return in 'K' form by the plaintiffs. But the defendants in collusion with the Karamchari applied for settlement of the suit land before the Circle Officer, Daltonganj and their application was registered as Settlement Case No. V1II/14 of 1955-56, but without, giving any notice to any of the parties as the processes were being suppressed, on the recommendation of Mr. S.N. Haider, Incharge of Jarnindary (Deputy Collector) recommended for the settlement of the suit land in favour of the defendants. In the proceedings of settlement, no notices were served on the plaintiffs and while making such recommendation by the then Deputy Collector did not at all consider 'K' form which was submitted by the plaintiffs during the time of vesting. But, afterwards when the defendants applied for loan on the basis of the lands settled in their names the Additional S.D.O., Daltonganj found that the land was practically in possession of the plaintiffs and as such the loan application filed by the defendants were rejected. The defendants preferred appeal against the order of the Additional S.D.O. before the Additional Collector who also dismissed their appeal by order dated 13.6.1960. The defendants also brought a case under Section 447 IPC against some of the plaintiffs for dispossession over the suit land but the same also ended in acquittal of the accused. Thereafter the defendants initiated a proceeding under Section 144 Cr.P.C. which was ultimately converted into a proceeding under Section 145 Cr.P.C. and the declaration of possession was made in favour of the defendants. Thus, the plaintiffs' title and possession over the suit land were clouded as such they filed the Title Suit No. 47 of 1963 for declaration of their raiyati title and also for recovery of possession. The plaintiffs also sought for mesne profits from the date of dispossession which was to be ascertained in the separate proceeding.
3. Amongst the defendants, the defendant Nos. 1 to 4 and 6 filed joint Written Statement. They stated, inter alia that the suit was not maintainable in its present form, that the plaintiffs had no cause of action, that the suit was barred by estoppel, waiver and acquiescence and that the suit was barred by limitation and adverse possession. According to the defendants, Udho Chamar, Dhanu Chamar, Dinu and Bhairo Chamar were Dehi raiyats of village Chiyaki and records of right was prepared in their names in the cadestral Survey. The Dehi raiyati of village Chiyaki were also entitled to reclaim Gair Mazurwa land without permission of the superior landlord or the proprietors and as such the predecessors of the defendants and some of the defendants started reclaiming the above plot No. 174 about 25-30 years ago and after reclaiming the plot was divided into different blocks, namely, plot No. 1743-A, 1743-B and 1743-C. Bhairo Chamar constructed two houses on plot No. 1743-A and also some houses were constructed on the block of land 1743-C. According to the defendants, defendant No. 1 was living in the house situated in the suit plot i.e., plot No. 1743-A while defendant Nos. 2 and 3 were living in the house of plot No. 1743-C and Sukan Chamar had no concern with plot No. 1743-A and he has been made unnecessary party in the suit and as such the suit was barred for misjoinder of parties and according to the defendants neither the plaintiffs nor their predecessors-in-interest ever reclaimed any portion of plot No. 1743 and they had no right over the suit plot. The bandh over the suit plot was constructed by the predecessors of the defendants. It was the further case of the defendants that they used to pay Battai rent to one Panchu Mahto and also paid rent to Sahdeo Mahto and Maldeo Mahto, sons of Panchu Mahto. According to the practice and customs in the area, no rent receipts were ever granted. The defendants also used to supply hand made shoes made by themselves to the landlord besides the Battai rent. The suit lands never fell to the share of the plaintiffs by any amicable arrangement nor they were ever in cultivable possession of the same. The plaintiffs were tenure holders over the suit land and that the plaintiffs' tenures had vested into the Estate. The plaintiffs assertion that they were cultivating tenants over the lands were totally false and frivolous.
According to the further case of the defendants after the vesting was made of the whole Estate, Bhujarat was done on the enquiry and during such Bhujarat enquiry Karamchari finding the possession of the defendants over the lands asked them to file application for settlement of the land and accordingly they applied for settlement and State of Bihar also granted them Hukumnama. They were assessed of rent on the basis of Hukumnama and they went on paying rent to the State of Bihar. According to the defendants, in collusion with the staff of Revenue Department, plaintiffs managed to insert the suit plot in 'K' form submitted by them after the defendants had been granted Hukumnama and assessed of rent. The plaintiffs were never assessed of rent regarding the suit plot. According to the defendants, the suit was barred under the provisions of Section 35 of the Bihar Land Reforms Act as the matter had already become final when the defendants were granted Hukumnama and were assessed of rents and the plaintiffs did not raise any objection whatsoever and now on the basis of wrongful and collusive insertion of suit plot in the 'K' form the plaintiffs were trying to set up their claims over the suit property. The plaintiffs somehow managed the Additional S.D.O. Daltonganj and as such the loan applied for by the defendants had been rejected. Possession of the defendants were found in the proceeding under Section 145 Cr.P.C. and as such the plaintiffs had got no cause of action for the suit and that the suit was hopelessly barred by limitation.
4. During the course of trial, the plaintiffs amended the plaint by attaching a sketch map. The defendants by filing additional written statement challenged the veracity of that sketch map and they averred that the Amin Commissioner did not make any actual measurement of the suit plot and that the Amin Commissioner was biased towards the defendants as he happened to be a local Pleader's clerk.
5. On the basis of the pleadings of the parties, following issues were originally framed:
(i) Have the plaintiffs valid cause of action for the suit?
(ii) Is the suit as framed maintainable?
(iii) Is the suit barred by law of limitation and adverse possession?
(iv) Is the suit barred by estoppel, waiver and acquiescence?
(v) Is the suit under valued and Court fees paid insufficient?
(vi) Is the suit bad for misjoinder of parties?
(vii) Have the defendants acquired any valid title to the land in suit?
(viii) Are the plaintiffs entitled to declaration of title and recovery of possession?
(ix) Are the plaintiffs entitled to mesne profits and if so to what extent?
(x) To what relief or reliefs are the claimants entitled to?
6. The suit was originally dismissed by judgment and decree dated 30.7.1967 and appeal was preferred being Title Appeal No. 30 of 1966 (7 of 1971) by the plaintiffs and the appellate Court had set aside the judgment and decree of the Court below and sent it back on remand, by framing two more issues, namely;
(xi) Whether the plaintiffs' suit is hit by Section 35 of the Bihar Land Reforms Act, 1950?
(xii) Is the story of settlement set up by the defendants, genuine and acceptable on the facts on record?
7. While hearing the appeal the following direction was made:
In the result, this appeal is allowed and remanded back to the learned lower Court for framing two independent and separate issues so indicated above in this judgment, to hear the parties afresh, may give an opportunity to the parties for fresh notice, to give his independent findings on these issues and write out a fresh judgment accordingly. In the special circumstances of the case, there shall be no order as to costs.
8. After such remand, the original Court again decided all the issues afresh and then held that the plaintiffs could be able to establish their case as genuine and the story of settlement set up by the defendants are not genuine in view of the fact that the plaintiffs were in cultivable exercise of possession of the suit land at the time of vesting and as such there cannot be any settlement in favour of defendants as the land included in the 'K' form submitted by the plaintiffs at the time of filing return.
9. Then an appeal was preferred by the defendants being Title Appeal No. 32 of 1977. On reconsideration of all the facts and circumstances, First Appellate Court held that the plaintiffs could not be able to establish their right over the suit land and basing on the interpretation of the words Dwami Thika as contemplated by this Court as reported in AIR 1939 Patna 376, held that the plaintiffs cannot have any raiyat right over the suit land as they became tenure holder during the course of time and the same had been vested in the State.
10. Against this judgment, the present appeal hap, been preferred.
During the course of admitting this Second Appeal, following substantial question of law were formulated:
(i) Whether the learned lower Appellate Court has erred in adopting a wrong legal approach in the question of title and possession by ignoring the provisions of Article 65 of the Limitation Act, 1963, which has vitiated his judgment.
(ii) Whether the learned lower Appellate Court after having interpreted the entry of the appellants' right in the land in question as Thika Dwami in the record of rights as raiyati has committed error of law?
11. The first point as mentioned above had not been pressed by Mr. N.K. Prasad, appearing on behalf of the plaintiffs-appellants and although I find that the ground regarding Article 65 of the Limitation Act had been taken in the memo of appeal but the same has not been elucidiated either in the memo of appeal or during the course of argument by Mr. N.K. Prasad.
12. The plaintiffs have come up with the suit on the basis of decision being arrived at under Section 145 Cr.P.C. against them and the suit has been filed within the period of alleged dispossession. The question of application of Article 65 of the Limitation Act is of no much application in the present case. Regarding possession over the suit, plot of land, there is practically balanced evidence from both sides and in that view of the matter, the 1st Appellate Court while referring to the oral evidence had considered the documentary evidence vis-a-vis to consider the case of the parties.
13. Originally the suit was dismissed by the Munsif and against that dismissal, appeal was preferred but the 1st Appellate Court had remanded the case to the original Court by making two fresh issues as already mentioned but while setting aside the judgment, all the issues which were already been decided by the Munsif although not been specifically set aside, but by the trend it could be found that the whole of the findings of the original Court were set aside by the 1st Appellate Court while remanding the case to the Court below. The original Court then again decided all the issues afresh and then decreed the suit in favour of the plaintiffs. While going through the original court's judgment, it could be found that the original Court made a wrong approach in finding fault with the defendants' case. When the plaintiffs have come up with the suit, it was their bounden duty to stand on their own legs. Any defect or lacuna in the defence case cannot support the plaintiffs' legs to stand rather the plaintiffs must prove their case to the satisfaction of the Court for getting a decree in their favour.
14. The land system in Bihar specially in Chotanagpur area has got unique position. Tenants, tenure holders and raiyati lands are being defined under different Sections of the C.N.T. Act. Dowami Thika by its own meaning means taking settlement and then distribution it to the tenants on the basis of rents. Whether Dowami Thikedar is a raiyat or a tenure holder would depend on the circumstances of each particular case. The significance and the position of Dowami Thika had come up for consideration before this Court long back in the year 1928 and 1929. In this respect, as the 1st Appellate Court had referred to AIR 1928 Patna 451 Tikati Krishna Pd. Singh v. Budhan Manjhi and AIR 1929 Patna, 376, Jagadishwar Dayal Singh v. Bulak Mahto and Ors. a have again been referred to by Mr. N.K. Prasad, appearing on behalf of the appellants and also by Mr. K.K. Sinha, appearing on behalf of the respondents.
15. The learned Counsel for the appellants submitted that the 1st Appellate Court had made wrong approach in interpreting the judgments mentioned above of this Court. According to him. Dowami Thikedars are always raiyati tenants unless it can be shown that those tenancies had been given up and transformed into an intermediary by giving settlement to sub-tenants and even if such tenants have been set up by Dowami Thikedars then also their character as raiyats cannot be taken away. By mention of Dowami in Khewat does not take away the character of the same and it cannot be construed that only because it was a Khewat the same can vest into the State of Bihar on coming into force of Bihar Land Reforms Act. The origin of Dwami Thikedar can be explained In the following way:
If a deserted land is being settled by a family and starts reclamation of the land either already cleared or partially cleared off Jungles then a tenancy arises which could not be in the form of Khuntkatti but be a permanent and of a non-resumable character. It has the tenancy character to that extent of reclaiming and by go of the day it may transform into a tenure holder.
In the present case, although the parties have claimed reclamation of the lands, the character of the land holders remained as Dwami Thikedars. Then the Khewats were being issued by mentioning the predecessors of the plaintiffs as Dowami Thikedars and according to the defendants from some of the co-sharers of the plaintiffs' predecessors settlement was taken on payment of rent. According to the plaintiffs, amongst the co-sharers, there was amicable arrangement and the suit plot came into the share of the plaintiffs and they remained in khas possession of the land on reclamation and it was never been given settlement to any tenant whatsoever and they had submitted 'K' form at the time of vesting showing the land to be in their culturable possession and prayer was made for assessment of rent but the rents were not being assessed till the suit, was filed by the plaintiffs. On the other hand, defence case is that the defendants after vesting, applied for settlement and Deputy Collector being authorised under the C.N.T. Act had given settlement by means of a Hukumama and rents were assessed and they remained in possession on payment of rent to the State of Bihar, although afterwards when they applied for loan, on the recommendation of a Revenue Authority the settlement granted in their favour had been said to be improper as they were not in possession.
16. Admittedly, the loan sanctioning authority had no authority to challenge the Hukumnama granted by the Collector. According to the plaintiffs, the Collector had no right or authority to make settlement in favour of the defendants by a Hukumnama when 'K' form was there filed by the plaintiffs in which the suit plot was also included. According to that 'K' form when the land was in cultivable possession of the Intermediaries then rent ought to have been assessed in favour of the plaintiffs. This is the crux of dispute in this suit and also in the appeal. Regarding Hukumnama, the original Court had made some comments regarding its boundaries etc. Whether attraction is there of the suit plot in the Hukumnama and such Hukumnama was said to be not included of the suit plot. Whether the defendants had got proper settlement of the suit land or not is a matter to be decided when the defendants come up for declaration of their right. Here, the plaintiffs must show that they had the possession over the suit land as Dowami Thikedar and that form 'K' was submitted by them. The form 'K' has been challenged by the defendants at the root that it was submitted afterwards in collusion of the Land Revenue officials. There are interpolations in form K' also. Moreover, from the oral evidence of the plaintiffs shows that the lands were not in total culturable possession of the plaintiffs rather the plaintiffs have admitted that some portion of the plot of 1743 had been given to some of the defendants and others for construction of house. In that view of the matter, atleast there is some admission on the part of the plaintiffs that the whole of the plot was never in khas possession of the plaintiffs. In that view of the matter, mentioning of the whole plot in the form 'K' was improper without going into the fact whether such form 'K' was filed afterwards or not. The original as to how the plaintiffs' name had been entered as Dowami Thikedars had never been stated by the plaintiffs either in the plaint or in the evidence, but the admitted position is that they were Khewatdars by mention of their status as Dowami Thikedars. Dowami Thikedars are definitely permanent tenants having non-resumable rights but when Khewat has been issued and those recorded Dowami Thikedar had been mentioned as Khewatdars then those tenancies must have grown into tenures and when they become Khewatdars then they come within the purview of Intermediaries as per the Bihar Land Reforms Act and definitely the same must have been vested unless it could be shown that a part of it had been in the culturable possession of the Intermediaries.
17. Form 'K' was submitted long back as per the plaintiffs and according to them, no rent was assessed in their favour. During the pendency of the suit, it is stated that their rent fixation cases were still pending but it appears form the Ext. E series that those rent fixation cases had been disposed of. The plaintiffs must have the knowledge about the settlement in favour of the defendants, although they stated in the plaint that those were never in their knowledge but from the admission of some of the plaintiffs in their oral evidence that defendants had got house on some portion of it then it cannot be said that the plaintiffs had no knowledge about the defendants' possession atleast in some portion. Moreover, plaintiffs definite case is that the suit plot had remained in their possession and share by amicable arrangement with other co-sharers. That had challenged at the very outset by the defendants but no cogent evidence had been given from the side of the plaintiffs as to how and on which year by amicable settlement they got the suit plot in their share. When in the record of rights, Dowami Thikas were the characteristic of the plaintiffs' predecessor, it must construed legally that originally it was cultivating tenancy or recorded tenancy, but when Khewats had been issued and not being challenged then the said tenancies must have the appearance of a tenure and their interest remained as permanent and as permanent tenure holder the same must be vested under the B.L.R. Act unless a part of it could be shown in the cultivable possession. The legal position regarding Dwami Thikedar as tenure holders have not been challenged and practically now the plaintiffs have got no scope to challenge such record of rights.
18. Mr. N.K. Prasad had streneously argued the l?nd as a Gair Mazurwa land and when Dwami Thika has been mentioned in the record of rights and when the characteristic of the land is Gair Mazurwa then it cannot have an appearance of any permanency and it remained as a cultivating tenancy and as such raiyati land of the plaintiffs' predecessors and the same even if in the form of tenure had never been vested.
19. The plaintiffs cannot blow Lot and cold at the same time. They had submitted 'K' form in respect of land in question showing it to be their intermediary interest and now when rent fixation have also been disposed of against them, there remains no scope of the plaintiffs to claim the land of their raiyati land rather the land had been vested and after vesting whether the same had been settled to the defendants or not is a matter between the State and the defendants, but the plaintiffs right had definitely been extinguished in respect of suit plot of land.
20. Thus, on legal position on the admitted record of rights the plaintiffs cannot have any scope to claim the land in question. There might be some flaw in the defence case but that does not give the benefit to the plaintiffs when their right over the suit property through their predecessors had transformed into a tenure and a permanent in nature then there was vesting, unless the same could be shown to be in their cultivable possession. On admission of the plaintiffs, some areas of the plots had already been settled for construction of house to some of the defendants and others and as such at the time of vesting there was no cultivable possession of the plaintiffs. Hence, the learned 1st Appellate Court has committed no error of law in construing the plaintiffs' right over the suit property as a tenure holder being recorded as Dowami Thikedar in the Cadestral Survey.
21. Mr. N.K. Prasad was pressing much for sending the case to the Court below as there is case of reclamation being claimed by both the parties. It is true that both the parties had claimed reclamation of the suit land but the plaintiffs' case even if admitted to have reclaimed by them but the same had already been transformed into a tenure as Khewat has been issued in the name of the predecessor of the plaintiffs during the C.S. survey, so there is nothing to be decide more on the point of reclamation in the suit, when there is no challenge regarding the entry in the record of rights.
22. Thus, I do not find any force in this appeal and hence the same is rejected.
No order as to costs.