MOHAN SAO Vs. CHHOTELAL SAO

JUDGEMENT

(1.) THIS appeal has been preferred against the judgment of reversal dismissing the plaintiffs ' suit recorded by the 3rd Additional Sessions Judge, Madhepura in Title Appeal No. 14 of 1981. Originally Title Suit No. 46 of 1977 was decreed by the Munsif, Madhepura. The present appellants had filed the suit for declaration of right title and interest in respect of 11 Kathas 18 dhur of land situated at village Madhepura under plot no. 3702 of Khata No. 334. According to the plaintiffs one Bhyalal Tanti was the recorded owner as per Cadestral survey. He left behind his son Bichkun Tanti who by two sale deeds dated 16.11.1925 being Exhibits 2/E and 2/F had sold away the lands to defendant nos. 6 and 7 and Ishwar Tanti the predecessor -in -interest of the other defendants third party but due to mistake of the scribe the land was mentioned as Khata no. 333 Khesra no. 1130 in those two sale deeds. The said land had been purchased by the plaintiffs from the defendant no.6 and the daughter of defendant no.7 and also from the heirs in interest of Ishwar Tanti vide two sale deeds dated 11.7.1974 and 11.7.1977 but then there was a proceeding under Section 144 Cr.P.C. which was transformed to a proceeding under Section 145 Cr.P.C. in which possession of the contesting defendants first party was declared. Hence the present suit. The contesting defendant first party case is that the defendant no.1 Chhotelal Sao purchased the suit land in the name of his two sons vide documents dated 20.4.1974 and 11.10.1974 from the sons of Bichkun Tanti who were arrayed as defendant second party to the suit and they remained in possession over the suit land and neither the plaintiffs nor his vendors had ever any possession or title over the suit property. In the R.S. Khatiyan the name of the sons of Bichkun Tanti i.e. defendant second party had been recorded and no objection were ever raised from the side of the plaintiffs. It was mentioned that in the title deeds of 1925 one Bichkun Tanti son of Kalicharan Tanti had sold to the defendant third party but Bichkun Tanti is the son of Bhyalal Tanti and that Bhyalal Tanti was never known aliasly as Kalicharan Tanti. Both parties adduced both oral and documentary evidence. From the plaintiffs side some rent receipts, certified copy of Register II and rent receipts paid to the State Government had been produced. From the side of the defendants their purchased deeds and during the course of appellate stage some more documents had been produced to show that Bhyalal Tanti had never been known as Kalicharan Tanti as back in 1917 and thereafter two other sale deeds were executed by Bichkun Tanti in favour of different purchasers and therein his father 's name was recorded as Bhyalal Tanti and no -where it was Kalicharan Tanti. Such evidence was adduced in the form of additional evidence during the course of appellate stage. Defendant second party had supported the case of the defendant first party while defendant third party had supported obviously the plaintiffs ' case.

(2.) THE hurdle of the plaintiffs were two folds: - namely their original title deeds by which they claim the devolution of title on them suffered from two defects, namely, the vendors name was recorded as Bichkun Tanti son of Kalicharan Tanti and it has been pleaded during the course of trial of the suit that Bhyalal Tanti was aliasly known as Kalicharan Tanti. Some oral evidence has been adduced including that of P.W. 3 who happened to be the old man of the village. The second hurdle was that the original title deeds did not relate to the suit land rather they denotea separate Khata numbers and separate kesera numbers and it was the case of the plaintiffs that due to mistake of scribe such defect arose but practically Bichkun Tanti had sold the suit land and the plaintiffs remained in possession. According to the plaintiffs they were in possession of the suit land and only after the decision in the 145 Cr.P.C. proceeding they had been dispossessed by the defendant. On the other hand defence plea is that neither the plaintiffs nor their vendors had ever got possession over the suit land and it was all along in possession of Bichkun Tanti and after his death his two sons i.e. vendor of the defendants and they had sold the land to the defendants and the same has been supported by the defendant second party who happened to be the vendors of the defendants. By scrutinising the evidence on record the learned trial court held mainly basing on the evidence of P.W.3 that Bhyalal Tanti had another name as Kalicharan Tanti and, as such, the original title deeds had been executed by Bichkun Tanti son of Bhyalla Tanti, who was the recorded proprietor. Regarding wrong description in the sale deed it was also held by the original court that those were only the wrong committed by the Scribe as it appeared that the vendors of the defendants had paid rent to the Darbhan -ga Raj Sherista and after abolition of Zamindari to the State Government. The appellate court reversed the findings on both points. It was held by the appellate court that except the oral evidence from the side of the plaintiffs through P.W.3 that Bhyalal Tanti was also having another name as Kalicharan Tanti, there is no other evidence on record to prove that fact rather the plaintiffs ' case shows that it was never their case earlier while they fought 145 Cr.P.C. proceeding that Bhyalal Tanti was having alias name as Kalicharan Tanti rather the plea before the 145 Cr.P.C. proceeding was that Bhyalal Tanti had a son Kalicharan Tanti and Bichkun Tanti happened to be the son of Kalicharan Tanti. It was never their case in the 145 Cr.P.C. proceeding that Bhyalal Tanti has an alias name as Kalicharan Tanti. In view of the plaintiffs ' own case till the suit was filed the learned appellate court held that the documentary evidence produced from the side of the defendants rather proved that Bhyalal Tanti was never named as Kalicharan Tanti. When the plaintiffs themselves were having vasoilating cases at different time so the reliance put on the so called evidence of P.W.3 was said to be not justified and hence the first hurdle on the side of the plaintiffs could not be overcome and it could not be proved that sale deeds of 1925 were executed by Bichkun Tanti who happened to be the son of recorded proprietor Bhyaial Tanti.