BECHAN PANDEY Vs. DULHIN JANKI DEVI

JUDGEMENT

(1.) The plaintiff-appellants filed a suit in the Court of Sub-ordinate Judge Arrah against 41 defendants for a declaration of the title to land measuring 142 baghas, 17 kathas described in the schedule to the plaint situated in village Shivpur Diar in District Shahbad. Prayer was also made for delivery of possession of the land and for the profits amounting to Rs. 4,100. The trial Court dismissed the suit in respect of land measuring 28.36 acres out of plot No. 3863/41. Suit in respect of the remaining land was decreed. The plaintiffs were also held entitled to recover mesne profits from defendants who might be found in possession of the land decreed. On appeal by defendants 3, 7, 12 and 14 the Patna High Court accepted the appeal and dismissed the suit in its entirety. The plaintiffs have come up in appeal to this Court against the judgment and decree of the High Court on certificate granted under Article 133 (1) (a) of the Constitution.

(2.) Village Shivpur Diar consists of five Mahals, Shivpur Diar Nambari, Shivpur Diar Gangbarar Shumah, Shivpur Diar Gangbarar Janubi, Shivpur Diar Sarju Barar and Shivpur Diar Naubarar. Each of the two Mahals Shivpur Diar Gangbarar Shumali and Shivpur Diar Nambari has 18 pattis. Proprietorship rights in each patti were calculated at 16 annas. One Brahmdeo Singh had a share of 5 annas 4 pies in patti Bhrighunath Singh in the above Mahals. He also held different shares in the other pattis of the two Mahals. Bramdeo Singh mortgaged with possession his share in the said lands in favour of Sitaram Sahu and Sheogulam Sahu by means of several mortgage deeds. As the mortgages were dispossessed from some of the lands mortgaged in their favour, they filed a suit for recovery of the mortgage amounts. Final decree was awarded in that suit on June 13, 1925. In execution of that decree proprietary interest of Brahmdeo Singh in Mahal Shivpur Diar Nambari and Mahal Shivpur Diar Gangbarar Shumali was auctioned on June 15, 1932 and was purchased by Maina Kuer, widow of Sitaram Sahu mortgagee. Sale certificate was granted to Maina Kuer auction purchaser on February 26, 1935. She got delivery of possession of the land sold in her favour on March 19 and 20, 1935. On November 9, 1936 Sheo Prasad Singh, who held general power of attorney from Maina Kuer, executed a patta (lease) for seven years in respect of 135 bighas, 15 kathas out of the land purchased by Maina Kuer in favour of Mahadeo Rai and others. On September 27, 1940 Sheo Prasad Singh executed on behalf of Maina Kaur a deed for perpetual lease of land measuring 134 bighas, 17 kathas out of the land purchased by her in favour of plaintiffs 1 to 3, 14 16 to 18 and father of plaintiffs 10 to 13. Three days later on September 30, 1940 Sheo Prasad Singh executed and other deed for perpetual lease in respect of the remaining land measuring 8 bighas in favour of plaintiff No. 15. On May 16, 1941 Mahadeo Rai and others, in whose favour lease deed of the land had been executed for seven years, relinquished their rights under the lease in favour of the plaintiffs. On July 13, 1942 Maina Kuer sold her proprietary interest which she had acquired under the auction sale to Rajendra Prasad Singh and others.

(3.) The plaintiffs in whose favour deed for perpetual lease of the land purchased by Maina Kuer had been executed filed the present suit in January 1950 against the defendants, on the allegation that defendants 1 to 18 had taken wrongful possession of the land. Prayer was also made as mentioned above for recovery of Rs. 4,100 as niesne profit. It was also mentioned by the plaintiffs that proceedings under Section 145 of the Code of Criminal Procedure in respect of the land in dispute had been initiated but as those proceedings were dropped the plaintiffs had to seek redress by means of the present suit.