PEYARE GIR Vs. UNION OF INDIAMUNDARI

JUDGEMENT

(1.) This second appeal has been filed on behalf of defendants first party. It appears that the suit in question was filed on behalf of the plaintiffs-rcspondents for declaration of title and recovery of possession in respect of 8 kathas 10 dhurs of land appurtaining to plot No. 693, situated in village Akhtiarpur Chandauli in the district of Samastipur. According to the plaintiffs, the aforesaid plot measured about 1 bigha 3 kathas 10 dhurs and was recorded in the name of one Ramji Khan. After his death, his heirs Kashim Ali and others came in possession of the aforesaid plot. Kashim Ali executed a Bharna deed on 4th August, 1904 in favour of the ancestor of the plaintiffs in respect of 12 kathas 8 dhurs of land. Thereafter the family of the plaintiffs came in possession of that plot The Bharna deed included 8 kathas of plot No. 693 and 4 kathas of plot No. 707. It was alleged on behalf of the plaintiffs that Kashim Ali aforesaid sold 8 kathas of plot No. 693 to the family of the plaintiffs by an oral sale. This 8 kathas, on actual measurement, was 8 kathas 10 dhurs. According to the plaintiffs, then there was no custom of selling land without the consent of the landlord and that is why the portion of the plot in question was sold orally. It is said on behalf of the plaintiffs that defendants 1st party got a proceeding initiated under Section 144 of the Code of Criminal Procedure in respect of the said disputed land. In that proceeding a pleader commissioner was appointed who submitted his report saying that there was no land measuring 8 kathas on the spot. The proceeding under Section 144 aforesaid was decided in favour of the defendants 1st Party. Being emboldened by that order, they dispossessed the plaintiffs on 29th October, 1960.

(2.) The defence of the defendants-appellants, on the other hand, was that the block of land measuring 8 kathas of that plot was never sold by Kashim Ali and Family members of the plaintiffs were never in possession thereof. They claimed to have purchased the land in dispute under two registered sale deeds (Exts. C and C/1) and since then they have remained in possession thereof.

(3.) The learned Munsif, on consideration of the materials on the record, came to the conclusion that the oral sale, as alleged on behalf of the plaintiffs, was not proved. He also held that the case of possession and dispossession, as set up on behalf of the plaintiffs was not correct. He upheld the claim of the defendants first party regarding possession of the land in dispute. On that finding he dismissed the suit of the plaintiffs. On appeal being filed on behalf, of the plaintiffs, the learned Subordinate Judge reversed the Judgment and decree of the trial Court. According to him, the case of oral purchase, as set up by the plaintiffs, was correct. He was also of the view that the plaintiffs came in possession of the land in question and they had been dispossessed by the defendants first party.