ATRA DEVI Vs. RAMSWAROOP PRASAD SINGH

JUDGEMENT

(1.) This appeal by the defendants, including some heirs of Mahabir Dhanuk (defendant No. 1) who were substituted in place of defendant No. 1 on his death, is directed against the judgment and decree dated 27-6-1958, passed by the First Additional Subordinate Judge. Patna in Title Suit No. 61/33 of 1956/57. Respondents 1 to 8 were Plaintiffs in the said suit. Respondent No. 9 was pro forma defendant; whereas respondents 10 and 11 are some of the heirs who were substituted in place of defendant No. 1. The said title suit was instituted by the plaintiffs for declaration of title and recovery of possession along with mesne profits in respect of 5.70 acres of land appertaining to survey plot Nos. 1225, 1331, 1352, 1257, 1247, 1228, 1230, 1232 and 1241, bearing Khata No. 104 of Tauzi No. 7936, situated in village Husain Chak, Police Station Bakhtiarpur, (now P. S. Harnaut) in the district of patna.

(2.) Plaintiffs case. In brief, was that late Mahanth Madan Mohana Nandji of Gokulpur Math was the proprietor of the said tauzi and under the same he had 12.51 acres of Bakashta lands recorded under the said Khata No. 104. In the year 1940 the said Mahanth purchased 1 bigha 18 Kathas of raiyati land appertaining to survey plot No. 1259 under khata No. 89 belonging to one Maina Dusadhin in order to excavate a tank for the use of public, and instead he permanently settled 1.23 acres of bakashta land comprising of survey plot Nos. 1252, 1385, 1389 and 1418 of the said khata No. 104 at the naqdi rental of Rs. 11 : 13/-. In 1351 Fasli corresponding to 1944-45 A. D. the said Mahanth stood in urgent need of money for meeting some litigation expenses of the Math. Finding no alternative he wanted to settle 5.70 acres of bakashta lands appertaining to the aforesaid khata No. 104, which was the subject-matter of the suti. Ramswaroop Prasad Singh and Jagdip Singh, plaintiffs 1 & 2 respectively, offered to take permanent settlement of the said lands after offering a Naz-rana of Rs. 1,000/- in cash. The said Mahanth after receiving the Nazrana settled the suit lands permanently by a Sada hukumnama dated Jeth, 1351 fasli, with plaintiffs 1 and 2 at an annual rental of Rs. 48/6A including cess and also delivered possession of the same to them. After taking the settlement and coming into possession, Ramswaroop Prasad Singh and Jagdip Singh divided the land half and half between the each taking an area of 2.85 acres detailed under Schedule B of the plaint. The plaintiffs' further case was that since the date of settlement they were coming in peaceful possession of the suit lands over the area claimed by them separately and had been regularly paying rent to the Gokhulpur Math, and since after the vesting of the estate under the Bihar Land Reforms Act, they were paying rent to the State of Bihar. In the year 1947 the succeeding Mahanth Bisheshwara Nandii was also in need of money for performing Sradh ceremony of his Guru Madan Mohana Nandji, and he settled 10 bighas 7 Kathas and 2 dhurs of Bakashta lands of Khata No. 104 including lands of khata No. 89 which were purchased from Mossammat Maina Dusadhin, as mentioned earlier, by a registered patta and kabuliat. In 1949 plaintiff No. 1 and Make-shwar Singh (since deceased) who was brother of plaintiff No. 2 purchased 5.80 acres equivalent to 9 1/4 bighas appertaining to plot Nos. 1240, 1249 and others, by a registered sale deed dated 4-7-1949, from Kashi Sao and Ramji Sao. Plaintiff No. 1 had purchased the same in the name of his wife and in the name of the brother of plaintiffs 2 to 5. The land under plot No. 1249 was in mortgage. Therefore, the purchasers redeemed the mortgage on 26-5-1950 and subsequently both set of purchasers divided the land half and half among themselves. Plaintiff No. 1, for the sake of convenience in cultivation, amalgamated the disputed plot 1247 with plot 1249. Similarly plaintiff No. 2 also amalgamated his share of land in Plot No. 1240 with disputed plots Nos. 1232 and 1241. The plaintiffs stated In their plaint that there was a theft committed in the house of plaintiff No. 1 and several documents including the said hukum-nama dated Jeth, 1351 Fash" were stolen. They had, therefore, lodged a saneha dated 17-10-1951 regarding the said theft. In the month of Jeth, 1362 Fasli corresponding to the year 1955 A. D., the plaintiff No. 1 was in urgent need of money. Therefore, he transferred .70 acres of land appertaining to plot No. 1257 to Jagarnath Mahto (respondent No. 7) who took possession of the same, and later on Jagarnath Mahto got a sale deed executed for the same on 5-9-1955. in the name of his minor son Bindeshwar Mahto, plaintiff No. 8 (respondent No. 8). The plaintiffs alleged that Mahabir Dhanuk, defendant No. 1, and Pato Dusadh, defendant No. 4, both residents of village Hussain Chak, in collusion with other raiyats of the said village including one Ragho Mahto, Dafadar, filed two petitions dated 12-8-1955 under Section 144 of the Code of Criminal Procedure before the Sub-divisional Officer Barh alleging therein that as servants of the Math defendant No. 1 had taken settlement of 2.93 acres whereas defendant No. 4 had taken settlement of 2.77 acres (total being 5.70 acres) under Khata No. 104, the disputed land. by virtue of two separate hukumnamas dated 22nd Magh, 1347 fasli corresponding to 1940-41 A. D., granted by the late Mahanth after receiving salami. During the pendency of the proceeding under Section 144 of the Criminal Procedure Code, the Sub Inspector of Police, Bakhtiarpur P. S. visited the spot and found some disputed plots amalgamated with undisputed plots of the plaintiffs as alleged by them. Thereafter the plaintiffs filed their show cause in the said proceeding on 12-10-1955. The said proceeding was converted into one under Section 145 of the Code. The Magistrate after perusing the record of the case and hearing the parties decided in favour of the defendants by order dated 13-3-1956. The plaintiffs' case was that the defendants being emboldened by the said order of the Magistrate, finally succeeded in dispossessing the plaintiffs from the suit land on 14-3-1956; thereby a cloud was cast on the title of the plaintiffs and as they were dispossessed they had no alternative than to file the said title suit seeking the declarations mentioned above. Thus, those were the circumstances in which the said title suit was instituted.

(3.) Out of the various defendants only Mahabir Dhanuk (defendant No. 1) and Pato Dusadh (defendant No. 4) appeared in the suit and filed one joint written statement. Their case, in short, was that the suit lands originally were in possession of Mahanth Madan Mohana Nandji as bakasht land. In Jeth 1346 Fasli corresponding to 1939 A. D., defendant No. 4 took permanent settlement of 2.93 acres appertaining to plots Nos. 1241, 1247 and 1257, whereas defendant No. 1 took the remaining 2.77 acres of the suit land appertaining to plots Nos. 1225, 1228, 1230. 1232, 1352 and 1331 of Khata No. 104 on bhauli rental and both of them took their respective lands in cultivating possession. On 22nd Magh, 1347 fasli defendant No. 1 paid Rs. 444/- whereas defendant No. 4 paid Rs. 468/- by way of salami to the said Mahanth as fixed at the time of settlement in Jeth, 1346 Fasli. In token of settlement the said Mahanth granted a hukumnama to each one of them per pen Bisheshwar Lal Patwari and put his own signature on both the hukumnamas. Thereafter the defendants paid bhauli rent till the year 1353 fasli corresponding to 1946-47 A. D. and regularly obtained receipts. The receipts for the year 1347 fasli were signed by the Mahanth himself. In 1354 Fasli when Bisheshwara Nandii succeeded Madan Mohana Nandji, the bhauli rent payable for the lands which were settled with defendants 1 and 4, was commuted into naqdi rent For the lands of defendant No. 1 the cash rent was fixed at Rs. 27/9/- annually including cess, whereas for the land of defendant No. 4 it was fixed at Rs. 29/-annually including cess. In 1354 Fasli the said Mahanth granted receipts to those defendants in proof of the payment of naqdi rents so fixed and himself signed on the receipts. On 30th Bhado, 1359 fasli corresponding to 1952-53 A. D. one lump sum of Rs. 135/- as cash rental for the period 1355-59 fasli was paid by defendant No. 1 whereas Rs. 141/- was paid by defendant No. 4 to Mahanth Harkrishna Nand (defendant No. 11 -- respondent No. 9) who had succeeded Bisheshwara Nandji, and had become President of the Math Committee. Defendant No. 11, had issued one hukumnama to each defendants 1 and 4 and directed his Diwan Dwarika Lal (P. W. 10) to grant receipts to defendants 1 and 4. When they met P. W. 10, he declined to obey the direction of the said Mahanth, and did not grant receipts at the instance of plaintiffs Nos. 1 to 4, who wanted to grab the suit lands. The further case of the defendants was that the story of settlement, as disclosed by the plaintiffs, on payment of Rs. 1,000/- as salami in the year 1351 fasli, was not correct. The suit lands were already settled with defendants 1 and 4. Therefore, Mahanth Madan Mohana Nandji could not have settled the same land in the year 1351 fasli with the plaintiffs. According to the defendants, the plaintiffs never came in possession of the suit lands on the strength of the alleged settlement. The story of settlement, division, payment of rent, grant of receipts to the plaintiffs and amalgamation of the suit lands were all denied in the written statement. The defendants also alleged that the hukumnamas in favour of the plaintiffs did not exist and, therefore, the story regarding theft thereof was also false. They asserted that the order in the proceeding under Section 145 of the Code of Criminal Procedure was rightly decided in their favour, and the same was not initiated in collusion with other raiyats, and the receipts produced by the defendants in the said proceeding were all genuine documents, and not forged and fabricated as alleged by the plaintiffs. They alleged that plaintiff No. 1 being an influential person and being one of the trustees of the Math Committee, succeeded in taking the present Mahanth in collusion with himself and the plaintiffs have fabricated all the documents themselves to support their case. The plaintiffs were bent upon interfering with the peaceful possession of the defendants over the suit lands and, therefore, the defendants initiated the proceeding under Section 144 of the Criminal Procedure Code which was later converted into one under Section 145 of the Code. They lastly contended in the written statement that the suit was barred by limitation, estoppel, waiver, acquiescence, adverse possession and was also bad on account of misjoinder of causes of action.