THAKURJI Vs. DHULAN AHIR

JUDGEMENT

(1.) This is an appeal by the plaintiffs against the judgment and the decree passed by the second Additional Subordinate Judge of Arrah reversing those of the third Additional Munsif of the same place.

(2.) The facts leading to the title suit out of which the present appeal arises may be shortly stated as follows: On 24-12-1918, one Rameshwar Dayal made a will appointing Munshi Bhawani Prasad alias Bhondu Lal, the present defendant 3, and two other persons as executors. By that will, the testator devised the property to several persons including the present plaintiff 1. In the year 1919 Rameshwar Dayal died. In the year 1931 an application was made for a grant of probate. On 31-3-1932. letters of administration were granted to the plaintiffs after contest by the present defendant 3. On 26-9-1932, the present defendant 3 filed Title Suit No. 130 of 1932 for a declaration that Rameshwar Dayal aforesaid had died joint with him and that he had no disposing power. In that suit he had claimed an alternative relief that he had acquired title by adverse possession in respect of the properties in that suit. The suit was contested by the present plaintiffs and was ultimately dismissed on 8-9-1933. On appeal the decree passed by the trial Court was affirmed on 28-5-1935. On 5-12-1937, the names of the plaintiffs were mutated in Register D. On 18-11-1944, the present suit was filed for declaration of title, confirmation of possession, or, in the alternative, for recovery of possession in respect of 1.05 acres of land covered by plots 1396, 1397 and 1398 of khata No. 480 of village Akhtiarpur.

(3.) The case of the plaintiffs was that they had come to know that the present defendant 3 had brought into existence a sham deed of mokarrari dated 1-6-1930, by which defendants 1 & 2 were set up to create disturbance in possession of the plaintiffs. The lands in dispute were claimed as baka-sht of the plaintiffs in which the defendants had no right at all. The suit was contested by the defendants whose case was that defendant 3 had every right to create the mokarrari dated 1-6-1930. They further pleaded that the suit was barred by limitation and that they had acquired a valid title by adverse possession for over twelve years.