SRI DAMODAR JEW THAKUR Vs. HEMA NARAYAN MISRA

JUDGEMENT

(1.) THE disputed properties belong to the deity Sri Damodar Jew Thakur. The deity is the plaintiff. The suit was brought through Barada Kanta Misra one of the marfatdars. The trustee appointed by the Endowment Commissioner has been substituted in this Second Appeal in place of the marfatdar representing the deity. Defendants 1 and 3 to 19 are the marfatdars of the plaintiff deity who has also been put as defendant No. 2. Defendant No. 1 was the landlord of the disputed lands and thus had dual roles. He as landlord filed a rent suit in 1935-36 against Barada Kanta Misra and some of the defendants-marfatdars and obtained an ex parte decree which was executed in execution case No. 264 of 1936-37. He purchased the disputed lands on 29-7-36. After the sale the father of Barada Kanta Misra and other cosharer marfatdars filed an application to set aside the decree for rent on the ground of fraud. During the pendency of that proceeding there was a compromise. The decree for rent was set aside and another decree was passed to the effect that defendant No. 1 would be entitled to realise Rs. 150/- by certain date and in case the judgment-debtors did not satisfy the decree defendant No. 1 would be entitled to execute the decree, the case of defendant No. 1 is that he did not execute the decree, but took delivery of possession amicably. The marfatdars filed Original Suit No. 400 of 1941 against defendant No. 1 and others for setting aside the rent sale. It was however dismissed for default. The plaintiff thereafter again tiled Original Suit No. 303 of 1943 alleging that he was a minor at the time of the institution of O. S. No. 400 of 1941. O. S. No. 303 of 1943 was decreed on 22-12-44. It was thereby declared that defendant No. 1 did not have any right, title and interest in the disputed properties by virtue of the rent sale, and that the plaintiff had joint title with him and was entitled to recover joint possession. Barada Kanta Misra and other marfatdars alleged that defendant No. 1 voluntarily put them in joint possession and they did not accordingly take delivery of possession through court. The present suit is filed on 21-12-56 on the allegation that defendant No. 1 transferred the disputed properties to defendants 21 to 49 by 8 permanent registered leases Exts. A to A (7) on 19-4-44 and 20-4-1944. It is to be noted at this stage that the total disputed lands consist of 46. 98 acres. Out of these, 2. 20 acres are tenanted lands. 22 acres are covered by the permanent pattas Exts. A to a (7) in favour of defendants 21 to 49. The balance 22. 78 acres are said to be in possession of defendant No. 1 and his wife defendant No. 20 in whose favour a permanent lease has also been effected by defendant No. 1. Defendants 1 and 20 did not contest. Defendants 21 to 49, the transferees contested the suit mainly on the basis of adverse possession. Both the courts below have held that the suit has been barred by adverse possession and accordingly dismissed the plaintiffs' suit. The plaintiff deity has filed this Second Appeal.

(2.) MR. Rath contends that the suit is not barred by adverse possession, and the learned courts below misconceived the legal position.

(3.) TO correctly appreciate the position it would be necessary to distinguish the various types of land involved in the suit. As has already been stated 2. 20 acres are in possession of the tenants under defendant No. 1. The tenants are not necessary parties. The suit has proceeded ex parte against defendants 1 and 20. The plaintiff's positive case is that after the decree in O. S. No. 303 of 1943 he was put into joint possession. As the plaintiff's title and possession are not controverted in respect of the tenanted land, he is entitled to declaration of joint title and symbolical possession with the other marfatdars.