JAGESHWAR MANDAL Vs. T SAFIA

JUDGEMENT

(1.) First Appeal No. 518 of 1964 is against original decree and the other appeal is against the amendment in the decree. The result of the litigation will, however, depend upon the result of First Appeal No. 518 of 1964.

(2.) These appeals are by defendants 1 and 2. The suit was for recovery of possession over 7.71 acres of land in Mauza Salempur Saini appertaining to Khata Nos. 43, 33, and 67. Mauza Salempur lies under Police Station Colgong in the District of Bhagalpur. The original plaintiff was one Tuna Mian. Initially lie filed the suit for recovery of possession over the said land in the court of Munsif 1st Court, Bhagalpur, where it was registered as Title suit No. 57 of 1958. The plaint was however, returned on the point of valuation and it was then filed in the Court of the Subordinate Judge, Bhagalpur, who by his judgment and decree dated the 19th of September, 1964 and the amendment to the decree dated 3rd August, 1965, decreed the suit. Hence the present appeals have been filed here.

(3.) According to the plaintiff, the aforesaid Tuna Mian possessed the lands in question as a Raiyat and used to cultivate it himself. At the request of defendant No. 1 Tuna Mian agreed to give the lands in Thika to him for a period of three years commencing from Jeth 1360 Fasli and ending in Jeth 1363 Fasli on an annual rental of Rs. 800/- by means of a registered Thika deed dated 20th May, 1953, which is exhibit '1' in this appeal. The land in dispute was given on Thika as per the aforesaid agreement. Defendant No. 1 paid the Thika rent for the first two years of the lease and for a part of the third year. When the Thika expired, defendant No. 1 did not give up possession and instead got a petition under Section 144 of the Code of Criminal Procedure filed in the name of Tuna Mian and obtained an ex parte order against Tuna Mian and in his favour. Tuna Mian had, however, no knowledge of it. The matter relating to the possession of the disputed land came to a head, when Tuna Mian wanted to take possession of the land and occasion for a serious riot between Tuna Mian and defendant No. 1 arose. At this stage, on 4-6-1957 their dispute was referred to a Panchayati constituted of twelve persons and they are said to have jointly elected, on 13-6-1957, one Ram Sundar Mandal as an umpire. According to the plaintiffs, the Pan-chas decided that defendant No. 1 should give up the land and Tuna Mian should forgo the arrears of rent due against defendant No. 1 and should pay Rs. 200/-to the said defendant towards the price of the sugarcane crop standing on a part of the land. In pursuance of the decision of the Panchas, the plaintiffs' case is that a sum of Rs. 200/- in cash was paid to defendant No. 1 and Tuna Mian was given possession along with the standing crop. Thereafter the plaintiffs constructed a hut on a part of the land and grew crops such as Rahar, Kalai etc. on the land. Notwithstanding the acceptance of the cash amount of Rs. 200/- from Tuna Mian, defendant No. 1 reported to the police about an apprehension of a breach of the peace. The Sub-Inspector of Police, Colgong recommended, vide his report dated 6th October, 1957, for proceedings under Section 145 of the Code of Crimnal Procedure to be started in the matter. The police also got a proceeding under Section 107 of the Code of Criminal Procedure started against Tuna Mian and a large number of his relations but the same was dropped. The proceedings under Section 145 of the Code of Criminal Procedure was registered as Miscellaneous case No. 457 of 1957. The sub-divisional Officer, Sadar by his order dated 10th July, 1958 declared the possession of defendant No. 1. The crops grown in the disputed land were auctioned for a sum of Rs. 1700/- and the amount was kept in deposit with the Sub- Divisional Officer. As stated earlier, the plaintiff instituted the suit in the Court of the Munsif first court, Bhagalpur on 4th August, 1958, which on the question of valuation came to be filed before the learned Subordinate Judge, Bhagalpur on 28th October, 1958. The reliefs claimed by the plaintiffs were for recovery of possession after a declaration that the order passed by the Sub-Divisional Officer in Miscellaneous case No. 457 of 1957 was wrong and further that the plaintiffs were entitled to the sum of Rs. 1700/- lying in deposit with the Sub-Divisional Officer as the sale value of the crops auction sold in the 145 proceedings. A decree for eviction of the defendants from the suit land as also for mesne profit were also prayed for.