HARIHAR PRASAD SINGH Vs. DEONARAIN PRASAD

JUDGEMENT

(1.) The properties which are the subject matter of this litigation are agricultural lands of the extent of 18 acres 23 cents situate in Mauza Chowki. They originally belonged to Khiran Rai, Firangi Rai and others, and were usufructuarily mortgaged by them on 10-8-1900 to Babunath Prasad and Babu Misri Lal under two sudbharana deeds, Exhibits 2 and 3, for a sum of Rs. 1,600. The defendants of first party are the representatives of these mortgagees. In execution of a money decree passed against the mortgagors 9 acres 6 cents out of the above lands were brought to sale on 11-6-1907 and purchased by Rameshwar Prasad Singh, the undivided uncle of the first plaintiff. On 23-12-1913 the remaining extent of 9 acres 17 cents was purchased by the first plaintiff from the mortgagors, and thus, the plaintiffs who were members of a joint Hindu family became entitled to all the interests of the mortgagors in the suit lands. In 1943 they deposited under S. 83, T. P. Act, the amounts due on the mortgage deeds, Exhibits 2 and 3, in the Court of the District Munsif, Monghyr. The defendants of the first party withdrew the amount, and the mortgages thus became redeemed. When the plaintiffs attempted to take 'khas' or actual possession of the lands they were obstructed by the defendants of the second party who claimed occupancy rights therein. The plaintiffs then instituted the suit out of which the present appeal arises in the Court of the Subordinate Judge, Monghyr, for recovery of possession of the lands from the second party defendants.

(2.) The plaintiffs alleged that the lands were 'kamat khudkasht', which had been in the personal enjoyment of Khiran Rai and Firangi Rai and therefore of the mortgagees and the defendants of the first party by virtue of the sudbharna deeds, Exhibits 2 and 3, that the second party defendants claimed rights as occupancy raiyats under a settlement by the mortgagees, that the settlement was not real or 'bona fide', and was not binding on the mortgagors. In the alternative the plaintiffs claimed damages against the defendants of the first party, if it was found that the second party had acquired occupancy rights under a settlement from them. Both sets of defendants denied that the lands were kamat lands, or that the defendants of the first party settled the defendants of the second party as raiyats on the land. They pleaded that the latter had been in possession even prior to the mortgages, Exhibits 2 and 3, under a settlement with the mortgagors, and that accordingly the plaintiffs were entitled neither to possession from the second party nor damages from the first party.

(3.) The Subordinate Judge of Monghyr who tried the suit, held that the lands were private lands of the proprietors, that the defendants of the second party or their predecessors-in-title had not been inducted on the lands by the mortgagors that they were put into possession by the mortgagees only under the lease deed, Exhibit 2(a) dated 27-5-1905, that they were mere creatures of the first party, and that the settlement was not 'bona fide' and not binding on the plaintiffs. He accordingly granted a decree in favour of the plaintiffs in ejectment. Against this judgment, there was an appeal by the defendants to the High Court of Patna, which agreed with the Subordinate Judge that the defendants of the second party were inducted into possession only in 1905 under the lease deed, Exhibit 2(a), and that they were not raiyats settled by the mortgagors prior to 1900. But the learned Judges held that the suit lands were not proved to be 'sir' or private lands, that the second party defendants were not the creatures of the first party, that the lease deed Exhibit 2(a) was a 'bona fide' transaction and the recognition of the defendants of the second party by the mortgagees as tenants would confer occupancy rights on them. In the result, the suit was dismissed. The plaintiffs appeal. It was be stated that the alternative claim for damages against the first party was abandoned by the plaintiffs, and the only relief now claimed is possession of lands as against the second party. Mr. Misra, counsel for the first party, had accordingly nothing to say abut the merits of the controversy between the appellants and the second party defendants, and merely pressed for his costs being awarded. It was the second party appearing by counsel Mr. Tarachand Brijmohan Lal, that vigorously contested the appeal.