MAHENDRA MANDAL Vs. UPENDRA PD

JUDGEMENT

(1.) Present appeal filed under clause 10 of the Letters Patent Appeal of the High Court of Judicature at Patna, is directed against the order dated 23rd May, 1997, passed by a learned Single Judge of this Court in First Appeal No. 544 of 1977 Upendra Prasad Mandal and Ors. v. Mahendra Mandal and Ors., whereby the appeal preferred by the respondents herein has been allowed.

(2.) A brief background of the case may first be indicated. Plaintiffs (appellants herein) filed Title Suit No. 21 of 1972, seeking the relief of declaration that they are occupancy 'raiyats' in respect of the suit properties detailed in schedule 1-19 of the plaint, and for the further declaration that different sale-deeds executed by defendant Nos. 4 and 5 in favour of defendant Nos. 1 to 3, be declared as forged, fabricated, in-operative, and not binding on the plaintiffs. The said suit was decreed on contest by the learned trial Judge by the Judgment and decree dated 30.06.1977. Being aggrieved by the aforesaid judgment and decree, defendant Nos. 1 to 3 (the contesting defendants), filed aforesaid First Appeal No. 544 of 1997. A learned Single Judge of this Court allowed the aforesaid appeal, and set aside the judgment and decree passed by the learned Trial Court. Aggrieved by the said judgment dated 23.05.1997, the plaintiffs (appellants herein) filed the present appeal which was dismissed by this Court by order dated 28.10.1997. Aggrieved by the said order dated 28.10.1997, the present appellants approached the Apex Court in Civil Appeal Nos. 1540 of 1998, which was allowed by order dated 19.11.2003, the order of the High Court has been set aside, and the present appeal has been remitted to this Court for re-consideration/re-hearing and decision on merits. That is how the present appeal has been laid before us for hearing and final disposal We shall prefer to go by the description of the parties occurring in the plaint.

(3.) The case of the plaintiffs as set out in the plaint is that one Sukhai Mandal was the tenure holder in respect of several acres of land falling under C.S. Khata No. 508, Mouza Bhutauli, Touji No. 4920, Thana No. 174. In an auction sale, Mahabir Prasad Singh purchased 62 and odd Bighas of suit land and became the tenure holder. Sometime in 1908, the aforesaid Mahabir Prasad Singh settled around 60 Bighas of land in question with one Dip Narain Singh and Narsingh Lal by way of a Parwana (Exhibit-6). As per the arrangement between Dip Narain Singh and Narsingh Lal, 20 Bighas out of 60 Bighas of land so settled with Dip Narain Singh fell in the share of Narsingh Lal. By different sale-deeds, executed in respect of small tracts of land executed on different dates (Exhibit-2 series), parts of the suit land were sold to the plaintiffs or their vendors by the aforesaid Dip Narain Singh. It is the plaintiffs case that sometime in 1919-20, the aforesaid Mahabir Prasad Singh died leaving behind his two sons, namely, Surendra Narayan Singh (defendant No. 4), and Jitendra Narayan Singh (defendant No. 5). They were minors at that point of time and as such their estate was taken over and managed by the Courts of Wards until they became major. Sometime in 1927-28, the suit properties, on their attaining majority, were released. Subsequently some issues between the sons of Mahabir Prasad Singh (auction purchaser), and Dip Narain Singh (settlee), arose as a result whereof, returns in respect of suit land were got filed by the sons of Mahabir Prasad Singh (defendant Nos. 4 and 5), in which name(s) of the settlee(s), namely, Dip Narain Singh and Narsingh Lal, were not mentioned. On 11.08.1970, the aforesaid two defendants executed three sale-deeds in favour of defendant Nos. 1 to 3 (contesting respondents herein). These sales were effected in respect of lands covered by the Parwana (Exhibit-6), earlier executed on behalf of their father, namely, Mahabir Prasad Singh and sold to the plaintiffs or their vendors by means of several sale-deeds (Exhibit-2 series), and they were in physical possession thereof and were paying rent initially to aforesaid Mahabir Prasad Singh and subsequently to the State of Bihar. Defendant Nos. 4 and 5 appeared in the suit but did not contest the same. They seem to have supported the case put up by defendant Nos. 1 to 3. Defendant Nos. 1 to 3 (purchasers) contested the suit by filing written statement. Their case is that Mahabir Prasad Singh was not tenure holder/ ex-land lord or proprietor in respect of 62 and odd Bighas of land which is claimed to have been purchased by Mahabir Prasad Singh in an auction sale. He was a raiyat and as such he had no right to settle the suit lands with Dip Narain Singh or others by way of Parwana (Exhibit-6). The Trial Court on consideration of the materials on record found and held that Mahabir Prasad Singh had, in fact, purchased 62 and odd Bighas of land in auction sale and became tenure holder respecting the suit land which was subsequently settled with the vendor(s) of the plaintiffs. The suit was decreed.