BAIJNATH TIWARY Vs. JAMUNA SINGH

JUDGEMENT

(1.) This appeal has been filed by appellants Baijnath Tiwary and Kanchan Prasad who were plaintiffs in title Suit No. 49 of 1978. The suit was decreed by Sri Surendra Kumar Srivastava, Munsif, Bettiah. Then, the defendant -respondents of this second appeal, preferred an appeal and the first appellate Court allowed the appeal and dismissed the suit. So the plaintiffs of title suit have preferred this second appeal.

(2.) The relevant facts are that plot No. 1922 was recorded in the name of Gopichand and Bhuar Rout, full brothers and its recorded area was 10 dhurs. Accordingly, plot No. 1923 was also recorded in the name of these two brothers having an area of 4 dhurs. There was one plot, i.e., plot No. 1924, also in the suit over which the plaintiffs claimed easementary right over 3 dhurs and this easemenlary right was not in dispute between the parties. So the decision of the lower Court regarding this plot is irrelevant.

(3.) It was the case of the plaintiff -appellants that Gopichand died in February 1937 leaving behind his widow Mateshwari Devi, who died subsequently and so Bhuar acquired plot Nos. 1922 and 1923 by survivorship. Bhuar left behind his wife Dhanwa. This Dhanwa sold 7 dhurs out of plot Nos. 1922 and 1923 to one Ram Prasad who, in turn, sold it to defendant -respondent. However, the actual area of plot No. 1922 was 1 katha 3 dhurs on the map and on the spot, although it was wrongly recorded in the record of rights as 10 dhurs. So after the sale of 7 dhurs of land to Ram Prasad and, in turn, to respondent Jamuna Singh, 18 dhurs of plot No. 1922 and 2 dhurs of plot No. 1923 still remained in possession in Most. Dhanwa which was purchased by plaintiff -appellants in the year 1967 by a registered sale -deed and he was put in possession thereof. However, the defendant -respondent encroached upon this land of the plaintiff and, in spite of request to vacate the same, did not oblige and then this suit was filed for declaration of title and recovery of possession. The defendant -respondent's case was that Gopichand did not die in the year 1937, rather he died in the year 1941 and, thereafter, his wife Mateshwari came in possession of disputed land jointly with Dhanwa. Dhanwa sold 7 dhurs to Ram Prasad and then to defendant and Mateshwari had also sold her share to Dhanwa and, therefore, nothing was left for Dhanwa to sell to the plaintiff. The plaintiff was, therefore, not entitled to a decree and, hence, the suit was fit to be dismissed.