VIJAY SHANKER CHOUBE Vs. RAM SEWAK KUER

JUDGEMENT

(1.) This appeal has been preferred by the above named defendants 2nd party -appellant against the judgment and decree dated 8 -5 -1996 passed by the then 2nd Addl. District Judge, Sitamarhi, in Title Appeal No. 9 of 1990 whereby and whereunder the appeal was allowed by setting aside the judgment and decree dated 13 -2 -1990 passed by the Munsif, East Sitamarhi, in Title Suit No. 5 of 1986. Respondent Nos. 1 and 2 were the plaintiffs in Title Suit No. 5 of 1986. The reliefs claimed in the suit were for declaration that Basgitparcha granted to defendant No. 1 is illegal, not effective and not binding on the plaintiffs, (ii) For granting decree for recovery of possession against defendant 1st party and also for giving direction to them for removing all materials from the disputed land failing which the Court be pleased to deliver possession to the plaintiff during the process of the Court, (iii) For restraining the defendants for doing any new work and from challenging the nature of the suit land.

(2.) The dispute relates to only 2 decimals of land appertaining to revisional survey Plot No. 2393, Khata No. 3398 (new) and old Khata No. 1177 situated at village Bargaon Bazar in Bajpatti P.S., in the district of Sitamarhi. The plaintiff's case, in brief, is that defendants are residents of village Chapra where they have got their ancestral land both cultivable and homestead and they were working as Purohit. But as their earnings from Purohiti and cultivation from land the family was not maintaining good condition then several persons from district Chapra including the defendants had come over to Sitamarhi and settled in village Bargaon Bazar and Madhuban Bazar. Defendant No. 1 also settled himself at Bargaon Bazar and he started working of Purohiti. He also acquired some cultivable land, in R.S. Plot No. 2394 which is contiguous to that of the suit plot. The defendants have the residential house which was a brick build building and was recorded in the name of defendant No. 1 and other defendants. Further case of the plaintiffs is that C.S. Plot No. 537 was the cast land of one Mahabir Sah and Ram Lakhan San who sold 2 Khatas 14 Dhoors along with the bamboo plants standing thereon to one Yamuna Singh though the registered sale -deeds stated 3 -12 -1958 and 14 -9 -1959 and the purchaser Yamuna Singh came in possession of the land, constructed hours over a portion of the land and started carrying on business and also working as a Munib. In the revisional survey operation C.S. Plot No. 537 had been divided into two plots namely Plot No. 231 measuring 10 acres and Plot No. 2393 measuring 02 acres and those were to be in Khatian No. 3358 in the name of Yamuna Singh. When Yamuna Singh was badly in need of money, he sold the entire land with house and bamboo plants to respondent -2nd party, namely, Nageshwar Choudhary and Lakshmi Choudhary through registered deed of sale dated 27 -10 -1967 (Ext. 1/a) who also came in possession of the purchased property, got the names mutated and started paying rent to the State of Bihar. The Nageshwar and Lakshmi Choudhary the defendants -2nd party entered into a contract of sale of the above two R.S. plots with plaintiffs and they executed a Mahadenama dated 15 -5 -1985 (Ext. 7) after receiving Rs. 3,000 from the plaintiffs. Subsequently, by sale -deed dated 18 -1 -1986 (Ext. 1) Nageshwar and Lakshmi Choudhary after receipt of the remaining part of the consideration amount sold the land to the plaintiffs. After purchase when the plaintiffs went to pay the rent to karmachari then the plaintiffs were informed that Jamabandi stands in the name of defendant -2nd party i.e. the vendors of the plaintiffs only with respect of R.S. Plot No. 2391 for an area of 10 acres and in respect of R.S. Plot No. 2393 area being 02 acres a basgitparcha (Ext. B/2) had been issued in favour of Vijay Shanka Choubey, defendant No. 2 of the defendant -1st party. On an enquiry the plaintiffs learnt that a petition was filed in the name of Giridhari Gopal Choubey, the elder brother of defendant No. 2, who has also been added as defendant No. 4, when the earlier filed a petition for grant of Parcha in respect of the suit plot but on enquiry Anchal Adhikari and other officers had found the vendors of the plaintiffs in possession of the same and also Giridhari Gopal Choubey, defendant No. 4, along with his brother and defendant No. 2, Vijay Shankar Choubey were having permanent house on a separate R.S. Plot No. 2394 and, as such, prayer of Parcha in favour of Giridhari Gopal Choubey was rejected. But then again a fresh petition was filed by defendant No. 2 Vijay Shankar Choubey for grant of basgitparcha and the same Anchal Adhikari, who had earlier enquired into the matter gave a finding that Vijay Shankar Choubey, defendant No. 2 was residing in RS. Plot No. 2393. Learning this from the records the plaintiffs filed objection that the whole proceeding of issuance of Basgitparcha in favour of defendant No. 2 were inoperative and that the plaintiffs were in possession and defendant No. 2, Vijay Shankar Choubey was never in possession of R.S. Plot No. 2393. The Circle Inspector on the basis of such objection was asked to report after holding an enquiry and accordingly, he submitted a report (Ext. 14/a) dated 18 -2 -1981 recommending that no parcha should be issued or granted in favour of anybody and legal action should be stayed in the matter.

(3.) It is the further contention of the plaintiffs that on 4 -2 -1986 the defendant -1st party extended the room of their northern verandah up to R.S. Plot No. 2393 and also started digging plinth and as such dispossessed the plaintiffs on 4 -2 -1986. Police was informed but when nothing happened and it came to the knowledge of the plaintiffs that defendant No. 2 had procured an antedated parcha and on the strength of that he had committed the mischief then the present suit was filed to the effect that the said parcha issued in the name of defendant No. 2 was not only tainted with fraud but also it is lacking in jurisdiction and the same being ante dated and obtained by playing fraud should be discarded.