ADHAR MALIK Vs. KANHOO

JUDGEMENT

(1.) THIS second appeal by defendants 1 to 7 arises out of a suit for declaration of title, confirmation of possession, or in the alternative for recovery of possession of the disputed land, and for an injunction restraining the defendants from demolishing the house standing thereon and from disturbing the possession of the plaintiffs in respect thereof.

(2.) THE suit-land has been set out in two schedules of the plaint, Ka and Kha. Ka schedule land comprises of five decimals and Kha schedule land comprises of three decimals. The suit-lands are comprised in plot No. 431 of Khata No. 107 of mouza Malipur, and they were recorded in the name of Gopinath Das and others, as landlords, in the settlement record of rights. The recorded Sikimi-tenants in respect thereof were Pan, Nisamani, Sindhu (defendant 7) and Kanda (defendant 8) and Gandhi. Pan's sons are defendants 3 to 6, Nishamani's son is defendant 1 and his widow is defendant 3. These recorded Sikimi-tenants defaulted to pay rent and ultimately surrendered their Sikimi-tenancy right in favour of the landlords in april, 1929. On 9-11-33 Gopinath Das as the Karta of the entire body of the landlords leased out five decimals from the middle of the plot (Ka sch.) in favour of the father of plaintiff 1 by an unregistered sale-deed. Thereafter plaintiff-1's father constructed a house on a portion of the land and used the rest, of the land as Bari. Plaintiff No. 1's father died 12 to 13 years back and plaintiffs were in possession thereafter. Out of the balance or nine decimals, one decimal was leased out by the said gopinath Das to one Chhakadi who constructed a house thereon for holding a school and thus possessed it. Later on the house broke down and Chhakdi abandoned it and that land came into possession of defendant-4. Rest of the eight decimals were leased out to defendant-7, Gandhi and Tula (d-2) and they are in possession. Coming to Kha sch. lands the plain-tiff's case is out of the eight decimals leased out to Sridhar, Gandhi and Tula, three decimals were leased out by those lessees to the father of plaintiff-1 and piaintiff-2 by an unregistered sale-deed dated 4-1233 (Ext. 5 ). This, in short, is the story of the plaintiff's acquisition of full title, that is, status of a raiyat, and possession. Subsequently, on 24-3-50 defendant-7 executed -and registered a sale-deed in respect of two decimals out of Ka schedule land in favour of defendant 4 who along with his brother, defendant-5, have lands adjoining the suit-lands to the south. This transaction is alleged to be a sham document. They also alternatively claimed acquisition of title of a raiyat by adverse possession.

(3.) THE case of defendants 1 to 7 is substantially a denial of the plaintiff's averments. They deny the alleged surrender by the recorded Sikimi-tenants in favour of the landlords and also deny the subsequent leases by Gopinath, one of five decimals in favour of Dibakar, father of plaintiff No. 1 under Ext. 6, lease of one decimal in favour of Chhakadi and the further lease of eight decimals in favour of Sindhu and others. They also deny the transaction evidenced by Ext. 5. Their case is that they had a house on a portion of suit-plot No. 431 and used the rest of it as Bari. Tula and Sindhu leased out one decimal and two links out of it to chhakadi and after the death of Gandhi defendant-7 was entitled to two-fifths share of 0. 14 decimals that is five decimals and six links. Sindhu transferred four decimals out of it in favour of defendant-4. Chhakadi also transferred one decimal and two links in favour of defendant-4. Thus defendant-4 possessed six decimals and two links. In 1952 he built two houses on his land and also constructed a permanent house in 1956. The plaintiffs having their original house sold in auction came and lived in the house of Gandhi Mallik, their agnatic brother. Defendant-4 permitted them to live in the house temporarily for a year. Subsequently, they fraudulently obtained a lease deed from Radha Prassanna Das, son of the ex-landlord and some bogus rent-receipts to buttress up their present case.