RAM CHARAN MISTRY Vs. PURNI

JUDGEMENT

(1.) THIS Second Appeal is directed against the judgment dated 20. -7 -87 passed by 6th Additional District Judge, Bhagalpur, in Title Appeal No. 77/83 confirming the judgment passed by Munsif, 1st, Bhagalpur, in Title Suit No. 43/79. The plaintiffs of the suit are the appellants before this Court.

(2.) THE case of the plaintiff -appellants was that there was one Bhukhan Mistry who left behind his two sons Bishun Mistry and Pairu Mistry. Bhukhan Mistry died in the year 1920 -21 leaving behind one residential house and some ban land. In the year 1923, Bishun and Pairu Mistry separated their mess and business and they also partitioned the ancestral land. Bishun Mistry was a skilled carpenter and he shifted to Calcutta where he earned handsome income, out of which he acquired 1.91 acres of land from one Kharju Mistry by registered sale -deed dated 2. -3 -1945. Thereafter, Bishun Mistry executed two mortgage deeds including the suit land of 46 decimals over khata No. 59, plot No. 166. However, taking advantage of the absence of Bishun Mistry from village home, his brother Pairu Mistry got his own name mutated in the revisional survey, which was started in the year 1959, and which was later -converted into consolidation proceedings, over the suit land. However, in the year 1965 a petition was filed by Pairu Mistry to the effect that he apprehended disturbance from Bishun Mistry over the suit land. The petition was filed in the gram panchayat. There was a compromise petition dated 7 -3 -65 in the gram panchayat where by Pairu Mistry relinquished his claim over the suit land. Pairu died in the year 1968 -69. Thereafter his widow, defendant No. 1, got her name mutated in the office of the Circle Officer, Sabour, Thereafter, the appellants challenged this order and the D.C.L.R. cancelled the mutation in favour of the defendants. Then, the defendants preferred an appeal before the Additional Collector who set aside the order of the D.C.L.R.. Thereafter, the plaintiff -appellants filed the suit.

(3.) THE case of the defendant -respondents was that Bhukhan Mistry acquired 1.91 acres of land along with one Kharju Mistry. Kharjus share was 10 annas and the share of Bhukhan was 46 annas (2/3rd and 1/3rd respectively). However, subsequently Bishun Mistry acquired 1.91 acres from Kharju jointly with Pairu Mistry. In 1947, there was partition between the two brothers, as a result of which Pairu Mistry got 6 decimals of land, 6 decimals of Pairu along with the 46 decimals of land was mutated in his name and he remained in possession. Thereafter, his widow got her name mutated. Thus, the order of Additional Collector was rightly passed. The defendants were all along in possession of the suit land right from the days of their ancestor Pairu Mistry. Thus, they had perfected their title also by adverse possession. No petition was filed in the gram panchayat by Pairu Mistry nor any compromise was effected between the parties in the gram panchayat. Mortgage deeds and sale -deeds executed by Bishun Mistry were all forged and fabricated documents.