MAHABIR SINGH Vs. SHAYAM NANDAN PRASAD

JUDGEMENT

(1.) This is an application in revision on behalf of the defendants challenging the order of the 1st Additional Subordinate Judge, Gaya, whereby he has directed that the heirs of plaintiff No. 2 should be brought on the record.

(2.) The plaintiffs who were originally five in number filed a suit being title suit .No. 45/18 of 63-67. Their case was that there were four branches in the family of Babu Deoki Nandan. Each branch was separate from the other. Plaintiff No. 1 was Karta of his family. Plaintiff No. 2 was Karta of the family of the branch of Babu Bhagwat Prasad, deceased. It may be stated" that plaintiff No. 3 is also another son of the aforesaid Babu Bhagwat Prasad. Similarly, plaintiffs Nos. 3 and 4 were Kartas of their respective families- It is stated that the plaintiffs were 8 annas proprietors of tauzi No. 4246 in the district of Gaya which tauzi contained Milkiat Bakasht and Gairmazjarua Bakasht lands also. The plaintiffs borrowed a sum of Rs. 30,000/- from defendants 1 and 2 and gave 4 annas Milkiat and Bakasht interest in the aforesaid tauzi in usufructuary mortgage to defendants 1 and 2. The tauzi in question vested in the State of Bihar on 26-1-1955 and the defendants mortgagees became dispossessed from both the Milkiat and the Bakasht interest, A claim case being claim case No. 32 of 1955 was filed by the mortgagee for determination of the amount to which they were entitled under the provisions of the Bihar Land Reforms Act. The defendants in their petition before the Claims Officer claimed that the aforementioned mortgage money was partly realisable from the compensation amount and had partly to be allotted for realisation from the Bakasht lands. Bifurcation of claim was rejected by the Claims Officer and the entire amount was held to be realisable from the compensation money payable to the plaintiffs. The decision of the claims officer was upheld in appeal. It was, therefore, averred in the plaint that the defendants had no longer any interest in the Bakasht lands which were in the possession of the plaintiffs. It was alleged, however, in the plaint that the defendants were trying to take forcible possession of the bakasht lands. Consequently there was a proceeding under Section 144 of the Code of Criminal Procedure between the parties in which the paddy stored in the Khalihan was sold by auction and the sale price was deposited in the Treasury. The plaintiffs, therefore, claimed the following main reliefs:--

(3.) The defendants in their written statement claimed to be in possession of the property and claimed that they are entitled to continue in possession thereof as mortgagee. They further claimed that the plaintiffs are not entitled to any of the reliefs sought for in the suit.