GULZAR MAHTO Vs. RAM DULARI DEVI

JUDGEMENT

(1.) This second appeal is directed against the judgment and decree passed by Sri Hirdaya Narain, 1st Additional Sub -ordinate Judge, Muzaffarpur in Title Appeal No. 17 of 1981, which was a judgment of reversal against the judgment and decree passed by the Special Execution Munsif, Muzaffarpur in Title Suit No. 139 of 1979. The plaintiffs of the suit are the appellants here.

(2.) The palaintiffs of the suit (appellants) had filed the aforesaid suit for declaration of their title over 21 decimals of the suit land which was part of Revisional Survey Plot No. 3204 which was carved out of C.S. Plot No. 1701. The case of the plaintiff -appellants was that their father Kailash Mahto and their uncle Sitaram Mahto had inherited the aforesaid C.S. Plot No. 1701 from their ancestors. The total area of this plot was 17 katha 8 dhurs, equivalent to 74 decimals. On partition, Kailash Mahto and Sitaram Mahto got 8 katha 14 dhurs each. However, Sitaram Mahto sold his share to the Defendant No. 1 of the suit in 1986. But, the Defendant No. 1 fraudulently got 10 kathas entered in the sale -deed. However, Prakash Mahto and Defendants were entered into the Sirista of ex -landlord only over 8 kathas 14 dhurs and, on vesting of Jamindari also, Jamabandi was created in favour of plaintiff -appellants and Defendant No. 1 only for 8 kathas 14 dhurs. Moreover, the plaintiffs also gave Gena Mahto this land of 8 katha, 14 dhurs, in mortgage which was redeemed in the year 1960. However, during the revisional survey proceedings, the Defendant No. 1 got 21 decimals of Plot No. 1701 entered in his name which was taken out form the plaintiffs' land over Plot No. 1701, corresponding to R.S. Plot No. 3204. The plaintiffs prayed for declaring this entry as wrong and also for confirmation of their possession or, in the alternative, for recovery of possession. This 21 decimals of the suit land was included in the R.S. Plot No. 3133 of the Defendant.

(3.) The case of the contesting Defendant No. 1 (respondent here) was that the total area of C.S. Plot No. 1701 was 1 bigha and the ancestor of plaintiff Prakash and Sitaram got 10 katha each. The western half of this plot fell to the share of the plaintiff's ancestor and the eastern half fell to the share of Sitaram Mahto, which the Defendant No. 1 purchased in the year 1946. In the year 1960, the Defendant No. 1 exchanged certain lands with the plaintiff and, thus, he was in possession of a larger area. Three plots were carved out from the C.S. Plot No. 1701 and one of the plots was plot No. 3133 in which allegedly 21 decimals of the land of plaintiffs was included for the recovery of which, plaintiffs tiled suit and for declaring the survey entry as wrong, plot No. 3204 was the plaintiffs' land in the revisional survey which corresponded to Plot No. 1701 from which 21 decimals of land of the plaintiffs was included in the Defendants' land of Plot No. 3133 which was also carved out from C.S. Plot No. 1701. This was exactly the case of the plaintiff, but this was denied by the Defendant -respondent asserting that the Defendants came in possession of this land in the year 1946 and subsequently in the year 1960 on account of exchange with the plaintiffs certain more lands came in his possession. Thus, the survey operations were rightly conducted and all the entries were rightly prepared.