KAMLESHWARI PD SINHA Vs. RUKMINI DEBI

JUDGEMENT

(1.) This second appeal is directed against the judgment dated 13-1-88 passed by 1st Additional District Judge, Bhagalpur, in Title Appeal No. 57 of 1978 partly allowing and partly dismissing the appeal against the judgment of the trial Court dated 9-5-78 rendered in Title Suit No. 23/66. The plaintiff of the aforesaid title suit had filed the appeal before the District Judge and the same plaintiff prereferred this appeal before this Court. The trial Court had allowed and decreed the plaintiffs claim over plot Nos. 323 and 324 for an area of 84 decimals and 48 decimals respectively. The appellate Court extended this claim of the plaintiff-appellant to an area of 11 decimals of plot No. 325. It was thus that the first appellate Court partly allowed the appeal and partly dismissed the same.

(2.) The case of the plaintiff-appellant in the lower Court was that Munshi Gorhi owned and possessed 5.84 decimals of land over plot Nos. 322, 323, 324 and 325. He sold 1.43 decimals of plot No. 323 which had atotal area of 2.78 acres to Deoki Mandal by a sale-deed dated 15-6-27 (Ext. 3A). Subsequently Deoki Mandal sold this land to the appellant by a sale-deed dated 16-6-59 (Ext. 3) Munsif Gorhi had also mortgaged 1.01 acres of plot No. 323 and 1.52 and 1/2 of plot No. 325 to one Jagarnath, father-in-law of original defendant No. 1 Biro Mandal (since deceased and substituted by his heirs), who had attested the sale-deed of the plaintiff of the year 1959 (Ext. E dated 8-6-31). In the year 1935 Munshi Gorhi sold, 1.41 acres of land out of plot Nos. 323 and 325. One Puran Gorhi, descendant of Munshi Gorhi, sold on 6-5-61 by a registered deed plot Nos. 322 and 324 in their entire area to plaintiff (Ext. 3D) and the plaintiff, accordingly, came in possession. However, this led to a dispute between the parties culminating into a proceeding under Sections 144 and 145 Cr. P.C. which was decided against the plaintiff-appellant. Emboldened by this decision, the plaintiff-appellant was dispossessed from the suit land having an area of 71 decimals as described in Schedule II of the plaint.

(3.) Written statement was filed by the descendant of Biro Mandal separately and then another written statement was filed by Dukhi Mandal and Ram Bilash Sao (defendant Nos. 2 and 3) and Manik Sao (defendant No. 5) jointly. However, the cases built up by W.S. of the aforesaid defendants was to the effect that, of course, Munshi Gorhi was possessed of plot No. 322 having a total area of 23 decimals, plot No. 323 having a total area of 2.78 acres, plot No. 324 having a total area of 48 decimals, plot No. 325 having a total area of 2.35 acres (total 5.84 acres). All these plots were amalgamated and formed one block at the spot. So, when Munshi Gorhi sold 1.43 acres out of this amalgamated land to Deoki Mandal, the boundary covered the entire area of plot No, 324 (48 decimals), 11 decimals of plot No. 325 and 84 decimals of plot No. 323, although the plot Nos. 324 and 325 were not mentioned in the sale-deed of Deoki Mandal, Subsequently, the same land was sold to the plaintiff by Deoki Mandal, Thereafter, Biro Mandal purchased the entire area of 2.53 and half decimals of the aforesaid amalgamated land which was in mortgage of Jagarnath Mandal measuring 1.01 acres of plot No. 323 and 1.52 and half acres of plot No. 3425. However, in the year 1935 Munshi Gorhi had sold 1.41 acres of the amalgamated land indicating plot No. 323 and plot No. 325. Thus, nothing had remained for Puran Gorhi, descendant of Munsif Gorhi to sell and, therefore, the sale-deed of the plaintiff of the year 1961 was invalid and illegal and the plaintiff came in possession of no land and, therefore, the proceeding under Section 145 Cr. P.C. was rightly decided against the plaintiffs-appellant