TILA DEVI Vs. CHHATIA

JUDGEMENT

(1.) THIS second appeal is directed against the judgment dated 19.1.88 and decree dated 2.2.88 passed by 6th Additional District Judge, Siwan, in Title Appeal No. 169/83, confirming the judgment of the trial court dated 9.11.83 passed by 5th Additional Munsif, Siwan, in Title Suit No. 226/81.

(2.) THE case of the plaintiff -appellants in the lower court was that they are the heirs of one Narsing Sah. There were two brothers namely, Ramlal Sah and Khelawan Sah, who owned and possessed survey plot nos. 1478 and 1479. Ramfal Sah left behind his sons, Anand Sah and Bishwanath Sah. Khelawan Sah left behind his son Baijnath Sah, the original defendant no. 1 of the suit. Anand Sah and Baijnath Sah along with their minor brother Bishwanath Sah executed a Jarpesgi (mortgage) of both the aforesaid plots on 14.11.37 in favour of Narsing Sah. Subsequently, Bishwanath Sah died. Thereafter Anand Sah and Baijnath Sah executed a sale - dded dated 15.9.71 in favour of Narsing Sah, who got 1 katha 2 dhurs of land of plot no. 1478. The earlier mortgage was mentioned in the deed and the mortgage money was adjusted towards part of the consideration money. Narsing Sah came in possession on the basis of the sale -deed. However, on account of the mistake of scribe plot no. 1478 was mentioned as 1471 in the deed, in question. In course of time some structures on plot no. 1478 got demolished. Thereafter Narsing Sah constructed a tiled osara for running a shop. A shop of utensils was set up in the aforesaid room. Baijnath Sah and Anand Sah left the village Hasanpur and went to village Chainpur. Subsequently in the year 1365 fasti Baijnath Sah returned to the village and wanted to live in the western room constructed on the suit land and then Narsing Sah allowed him to live in the aforesaid room for one month. Subsequently, when Baijnath Sah refused to vacate the room; he rather filed a false case against Narsing Sah which ended in acquittal, but some observations were made in the judgment of the Gram Panchayat against the interest of Narsing Sah. Then Narsing Sah filed a title suit no. 177/62 seeking declaration of his title. The suit was decreed. Then there was an appeal by Baijnath Sah. The appellate court allowed the appeal. In spite of this Narsing Sah was recognised as a tenant by the ex - landlord who realised rent from him. After abolition of Jamindari Narsing Sah started paying rent to the State Government. Baijnath Sah thereafter executed a deed of gift in favour of Prabhunath Gupta (defendant no. 2 of the suit). Baijnath Sah also filed a criminal case against Narsing Sah emboldened by the decision of the appeal. Narsing Sah was convicted, but the judgment of conviction was pending in appeal. Thereafter Baijnath Sah filed a false petition before the C.J.M., Siwan, and got a forced entry inside the suit house after breaking open the lock with the help of the police on 24.7.76. Some aluminium utensils and Rs. 200/ - in cash were taken away by the defendant Baijnath Sah. Thereafter on refusal of Baijnath Sah to return the articles and to vacate the house, in question, the suit was filed seeking declaration of title and recovery of possession.

(3.) THE learned trial court on the basis of documentary and oral evidence adduced by the parties dismissed the suit on the ground that the present suit was barred by res judicata and, so, the plaintiff was not entitled to any relief. The appellate court also affirmed this judgment of the trial court and, hence, this appeal has been filed by the plaintiff -appellants,