JHALKU SINGH Vs. CHANDRIKA SINGH

JUDGEMENT

(1.) This second appeal by the plaintiffs has arisen under the fallowing facts and circumsances. There are two plots of land bearing numbers 1766 and 1769, portions of which are in dispute in this case. According to the survey khatian, the area of plot No. 1766 was 1 katha 18 dhurs and plot No. 1769, which is to the south of plot No. 1766, had an area of 4 kathas 16 dhurs. They appertained to touzi No. 2845 under gairmazarua malik khata No. 82. Plot 1766 contained a house and sahan of the maliks, the ancestors and predecessors-in-interest of the pro forma defendants. The principal defendants in the suit are defendants 1 to 3. Plot 1769 was a parti piece of land belonging to the said maliks. By a collectorate partition, the entire plot No. 1766 and the western portion of plot No. 1769 measuring 3 kathas, 12 dhurs fell in tauzi No. 15477, the 16 annas maliks of which, on partition, were the predecessors-in-interest of the pro forma defendants. The remaining 1 katha 4 dhurs of plot No. 1769 was allotted to tauzi No. 15474, the 16 annas proprietors of which were the plaintiffs. In a rough sketch map appended to the plaint, that portion of plot No. 1769 which fell to the share of the plaintiffs by the partition of the tauzis has been shown in the stripped portion of the map. To the east of this is trip plaintilis' another plot, namely, plot No. 1767. The portion of plots 1766 and 1769 measuring 1 katha 10 dhurs, which is the suit land, has been shown in red colour in the sketch map. The disputed portion of plot No. 1766 is its eastern portion and further east of this is the plot of the principal defendants bearing number 1765. The portion of plot No. 1769, which fell to the plaintiffs share on partition of the tauzis, is to the east of the disputed portion of that plot. According to the plaintiffs' case, the landlords, namely, the predecessors-in-interest of the pro forma defendants shifted to another place and the latrine, osara, nads, Khuntas, etc., which had, been constructed by them several years ago in the disputed land, were of no use to them. The plaintiffs, therefore, took oral settlement of the disputed land measuring 1 katha 10 dhurs in Aswin, 1357 fasli, on payment of a salami of Rs. 1000/-, at an annual fixed rental of annas eight only. The suit land was settled along with the latrine, osra, nads, etc., standing over it. They (plaintiffs) came in physical possession of the land as well as the structures standing thereon They opened some doors in their construction standing on the adjacent plots and stacked about 20000 bricks on the disputed land for further construction. A registered deed of settlement was executed in their favour by the pro forma defendants on 13-9-52 which was registered 3 or 4 days later confirming the previous settlement. One of the landlords had not joined the-execution and, to remove that technical defect another deed was properly executed and registered by both parties on 15-6-53. Their further case-is that the principal defendants, who have got their house on plot No. 1765, on learning about the fact that a registered deed of settlement was going to be executed by the pro forma defendants in favour of the plaintiffs, lodged a false sanaha. On police report a proceeding under Section 107 of the Code of Criminal Procedure was started against both the parties. Ultimately, it was converted into a proceeding under Section 145, Cri. P. C. and was decided against the plaintiffs. Being emboldened by that, the principal defendants dispossessed the plaintiffs from the suit property on 10-6-53. The plaintiffs have, therefore, instituted this suit for declaration of their title to and recovery of possession of the suit property as also for reeovery of either the 20000 bricks or its value amounting to Rs. 400/-. They have also prayed for a decree for mesne profits past and future.

(2.) The principal defendants, inter alia, have pleaded in paragraph 9 of their written statement :

(3.) The pro forma defendants also put in a written statement but they fully supported the case of the plaintiffs.