MAHABIRJI OF ASTHAL SAIFGANJ Vs. SARASWATI DEVI

JUDGEMENT

(1.) This appeal by the plaintiff arises out of a suit for declaration of title and recovery of possession over a portion of land containing a house and the machinery of a mill.

(2.) The relevant facts for the purpose of this appeal are that the plaintiff alleged that the property was purchased on the 24th December, 19231 by one Kedarnath who duly came into possession. On the 27th March, 1944, Kedarnath made an endowment of the property in favour of the plaintiff Sri Mahabirji of Asthal Saifganj. Kedarnath acted as shebait of the deity during his life time. He died, however, in 1950, when the present shebait, Sheo Bhagwan Marwari succeeded him in the office. On the 27th July, 1951, the defendant, Mt. Saras- wati Devi, executed a ladavi deed stating that she had no interest in the property. In spite of that document, however, she took forcible possession of a portion of the land only 2 1/2 months prior to the institution of the suit alleging that this property was a joint property of Kedarnath and her father, Amarchand. In fact, however, the property belonged to Kedarnath with which Amarchand had no concern. The plaintiff also pleaded that in any view Kedarnath continued in possession of the property since 1923 and had acquired title to it by adverse possession, and, as such, he had t right to make an endowment in 1944 in favour of the plaintiff.

(3.) The defendant pleaded, however, that the property in suit belonged to her father Amarchand, and that she had been married in the district of Rangpur. Her father, however died in the year 1940 or 1941. Kedarnath was a mere servant of her father and was looking after the management of the property. He continued to be the manager of the property even after the death of her father Amarchand inasmuch as the defendant and her husband resided at Saidpur in the District or Rangpur, which was her husband's place, but after the creation of Pakistan in 1947, the defendant permanently migrated to Katihar with her entire family and had since been residing on the premises in suit. Sheo Bhagwan Agarwala the so-called shebait, however, unlawfully dispossessed her of the premises and assaulted her for which 3 criminal case was duly filed. The defendant, however, resisted him successfully. Accordingly, Sheo Bhagwan took recourse to the device of bringing the present suit setting up a fictitious endowment of the property in favour of Sri Mahabirji. The ladavinama alleged to have been executed by her also was a forged document inasmuch as Sheo Bhagwan Agarwala managed to obtain her thumb marks on Hank papers and took her and her husband to the registration office on false pretext where he managed to get the document registered. The alleged possession and dispossession set up on behalf of the plaintiff was also challenged as false and baseless. Among other pleas, the defendant also challenged the valuation of the suit and the court-fee paid thereon by the plaintiff.