INDU SINGH Vs. AWADH KISHORE SINGH

JUDGEMENT

(1.) THIS First Appeal has been filed by the plaintiffs-appellants against the judgment and decree dated 10.07.2008 passed by Sri K.K.Mahtha, the learned Subordinate Judge I, Jamui in Eviction Suit No.1 of 1997 whereby the learned Court below dismissed the plaintiffs suit for declaration of right, title and interest of Schedule-1 premises and for eviction of defendant nos.1 and 2 from room no.6 and 10 mentioned in the sketch map in the Schedule-2 of the plaint.

(2.) THE plaintiffs filed the aforesaid suit alleging that Pitambar Singh had four sons namely Kamla Prasad Singh, Bindeshwari Prasad Singh, Triveni Singh and Saryug Singh. THE plaintiffs and the defendants, first set belonged to branch of Saryug Singh. THE defendants, second set belonged to the branch of Bindeshwari Prasad Singh. Saryug Singh died leaving behind Tripurari Prasad Singh, Brij Bihari Singh and Awadh Kishore Singh. THE plaintiffs are the heirs of late Tripurari Prasad Singh who died in 1988. In the year 1958, there was partition between the four sons of Pitambar Singh. In that partition, the lands measuring 3.01 acres comprised within plot no.377 was divided between the four brothers in such a way that Saryug Singh, Bindeshwari Singh and Triveni Singh got 93 decimals whereas Kamla Prasad Singh got 22 decimals. A sketch map showing the division has been given in the plaint. According to the plaintiffs case, 93 decimals of Saryug Singh and 93 decimals of Bindeshwari Prasad Singh were in the middle of the plot no.377 and were contiguous to each other. In the year 1965, Saryug Singh partitioned this 93 decimals of plot no.377 among his three sons with other properties and in that partition, the entire 93 decimals of plot no.377 fell in the share of Tripurari Prasad Singh. In lieu thereof, the other two sons of Saryug Singh were given more lands in other villages. After this partition, Tripurari Prasad Singh came in possession of 93 decimals and in 1970, he exchanged two plots of Village Nardih with Kailash Prasad Singh who in term gave 93 decimals of his share in plot no.377 to Tripurari Prasad Singh which was adjacent south to the 93 decimals of Tripurari Prasad Singh. However, Kailash Prasad Singh did not execute registered deed of exchange but he never objected the possession of Tripurari Prasad Singh and, therefore, the plaintiffs continued uninterrupted and continuous possession for several 12 years to the knowledge of all, as such, they have acquired title by adverse possession. Kailash Prasad Singh sold the exchanged land of village Nardih. Tripurari Prasad Sigh was M.L.A., Minister and also Speaker from the year 1967 till his death. In 1970, he constructed a pucca house in the middle of 93 decimals which he got in exchange from Kailash Prasad Singh(this portion of land has been shown as C,D,H and I in the sketch map). After completion of the construction, the plaintiff no.1, Indu Singh has been assessed with respect to the said 93 decimals. Nobody raised any objection. Well had been dug for irrigation and also electric motor pump had also installed. One room was let out to an Engineer for Rs.150 rent per month till 1978. THEreafter, 3 rooms were let out to Soil Conservation Department of Govt. of Bihar since 1978 for Rs. 330 as rent per month. When ancestral Dalan fell down, the defendants, first set who was living with his family members allowed to stay temporarily in the house constructed by the husband of plaintiff no.1. THErefore, the defendants, first set came in permissive possession in room no.6 and 10. When the plaintiffs husband requested the defendants, first set to vacate the house, he refused and filed title suit no.29 of 1980 for partition. In that suit, Kailash Prasad Singh was examined as D.W.4 who admitted the exchange of 93 decimals with Tripurari Prasad Singh and also admitted construction of house of Tripurari Prasad Singh over the same land. THE said suit was partly decreed and it has been held that the plaintiffs of that suit who are defendants, first set in this suit have got share in 93 decimals of land of Saryug Singh and so far 93 decimals of Kailash Prasad Singh is concerned, they have no right to partition. THErefore, in that suit, 93 decimals of plot no.377 was excluded from partition. On the basis of these findings of the Court below in title suit no.29 of 1980, the plaintiffs have filed this suit for declaration of their title over the 93 decimals of plot no.377 alleged to have been exchanged from Kailash Prasad Singh and further prayed for eviction of the defendants, first set from room no.6 and 10.

(3.) AFTER trial, the learned Court below considering the materials available on record came to the conclusion that the partition between the four sons of Pitambar Singh was not done according to the plaintiffs case rather plot no.377 was partitioned only in three shares. As alleged by the defendants, first set only 93 decimals was allotted to Triveni Singh and 1.86 acres was allotted to Saryug Singh and rest 22 decimals was allotted to Kamla Prasad Singh. No share was given to father of Kailash Prasad Singh in plot no.377 vide page 19 of the judgment. The learned Court below also found that in title suit no.29 of 1980, the case of partition between the three sons of Saryug Singh in the year 1965 alleged by Tripurari Prasad Singh i.e. the ancestor of plaintiffs of this case has been disbelieved. Therefore, there was no partition. The learned Court below also found that plot no.325 of khata no.86 measuring 86 decimals and plot no.414 measuring 11 decimals of village Nardih never fell in the share of Tripurari Prasad Singh because there was no partition between the three sons of Saryug Singh in the year 1965. Since there was no partition, no question arises for exchange of that two plots by Tripurari Prasad Singh. The learned Court below also found that the said two plot nos.325 and 414 of Mauja Nardih fell in the share of Kailash Prasad Singh who had sold the same. The learned Court below found that the plaintiffs have failed to prove that lands of plot no.377 fell in the share of Kailash Prasad Singh and plot no. 325 and 414 fell in the share of Tripurari Prasad Singh or Saryug Singh and, therefore, the learned Court below disbelieved the story of exchange. The learned Court below also found that in title suit no.29 of 1980, it was found that the disputed property is joint property of the sons of Saryug Babu and against this decision, the plaintiffs have not filed either cross-objection or cross appeal and, therefore, they are estopped to say that there had been partition in 1965. The learned Court below also found that the story of partition in the year 1965 and exchange, as pleaded by the plaintiffs have been disbelieved in title suit no.29 of 1980, there is no question of adverse possession arises.