ABDUL JABBAR ANSARI Vs. BHOLA TIWARI

JUDGEMENT

(1.) This appeal, at the instance of the defendant Ist party, is directed against the judgment of affirmance passed in Title Appeal No. 12/6 of 1998/1998 by the 6th Additional District Judge, Motihari.

(2.) The plaintiffs filed the suit for declaration that they are the rightful owner of the suit land which they got in an oral partition and was in their possession and the defendants had/ have no right title therein and the possession of the defendant 1st set (appellants herein) over the suit land is of a trespasser. The plaintiffs also sought for a declaration that the order dated 9.12.1987 passed under Section 145, Cr.P.C. is bad in law and, further, for recovery of possession and mesne profits, besides decree of cost and other necessary reliefs. The suit was decreed and the appeal filed by the defendant 1st set has also been dismissed, on contest, and the judgment and decree passed by the Trial Court has been affirmed.

(3.) The case of the plaintiffs, in short, is that one Satya Narayan Tiwari, the common ancestor of the plaintiffs and defendant No. 5, purchased an area of 2 bighas 16 kathas 8 dhurs of land, including the suit land, by a registered sale-deed dated 3.6.1959 from Bishambhar Jha and Murat Jha in the name of his minor grandson Yamuna Tiwari (defendant No. 5) and came in possession of the same. After the death of Satya Narayan Tiwari, his family members separated and partitioned the family property and on 25th Baisakh, 1977 a memoraudum of partition was prepared. In the said partition, YamunaTiwari got 16 kathas 1.6 dhurs of lands of Plot No. 21/2, which was purchased by Satya Narayan Tiwari in his name from Motihari Mill and the suit property has been allotted to the plaintiffs. Yamuna Tiwari sold his said land to Usman Mian and in this way he ceased to have any interest, yet, as alleged, he sold the suit land to Sitaram Sah, father of defendant 2nd set. Later on, Bhola Sah, son of Sitaram Sah executed aBaibul wafa (conditional sale) to Appellant No. 1 and subsequently on 1.12.1986 executed sale-deeds in his favour. Thereafter, a proceeding under Section 144, Cr.P.C. was initiated at the instance of defendant 1st set (appellants) and defendant 2nd set, which was 1 ater converted into one under Section 145, Cr.P.C. It is alleged that the defendant 1st set managed to get a favourable order and being emboldened by the said order, they dispossessed the plaintiffs from the suit land. It is alleged that defendant No. 5 Yamuna Tiwari, who is addicted to liquor and Ganja, is in collusion with defendant 1st set and defendant 2nd set and all such things have been done with the sole purpose to harass the plaintiffs. Thus, according to the plaintiffs, the possession of the defendants over the suit land is illegal and is of a trespasser.