JAI NARAIN MAHTON Vs. GOPAL RAI

JUDGEMENT

(1.) The plaintiffs-appellants appellants have filed this second appeal against the Judgment and Decree dated 22.09.1995 passed by Sri Surendra kumar Sinha, the learned second Addl. District Judge, Bhabua in title appeal No.68 of 1983 / 27 of 1992 whereby the lower appellate Court dismissed the appeal and confirmed the trial Court Judgment and Decree dated 14.11.1983 passed by the learned Sub Judge, Bhabua in title suit No.330 of 1974.

(2.) The plaintiff-appellant filed the aforesaid suit for declaration that the decree passed in title suit No.15 of 1950 by Addl. Sub Judge, Sasaram and the Mungeshwar Sahoo, J. Decree passed in title appeal No.420 of 1954 by Hon'ble High Court are fraudulent and not binding on the plaintiff and liable to be set aside. The plaintiffs further prayed for declaration of title and possession over land of Schedule "E" and "F" and in the alternative for recovery of possession.

(3.) The plaintiff's case in short is that the land detailed in Schedule "A" of the plaint was under cultivating, possession of Swaroop Mahton and Mostt. Udesia till their death. Swaroop Mahton and Ramdhari Mahton were full brothers. Ramdhari died issueless leaving behind his widow Udesia. Swaroop Mahton died leaving behind the plaintiff No.1 Harkaliya and her sister Bhagwania. Bhagwania was married to Sumiran Mahton during life time of Swaroop Mahton. Plaintiff No.1, Harkalia was married with Deo Narayan Mahton the defendant No.23 after the death of her father. Defendant No.25 is the nephew of Swaroop Mahton in agnatic relation who was in possession of Schedule "B" land. Swaroop Mahton had no son so he kept his son-in-law Sumiran and Deo Narain with him. After the death of Swaroop, his two daughters Harkalia and Bhagmania inherited the properties and came in cultivating possession thereof. The defendant No.1 in collusion with defendant No.2 to 7 filed title suit No.15 of 1950/ 47 of 1953 in the Court of Ist Addl. Sub Judge, Sasaram with respect to the Schedule "A" and "B" land giving wrong facts. In the said suit, the plaintiffs were not made party rather only Deo Narain, the husband of Harkalia was made party who was unintelligent man. The decree was obtained fraudulently by defendant No.1 keeping the Court in darkness. The defendant No.23, Deo Narain, was claiming Schedule "C" land which was Baskast land of defendant No.1. Schedule "D" land belonged to defendant No.2 to 7 who were other Malik and were claiming in title suit No.15 of 1950. The defendant No.1 by playing fraud got the appeal filed before the High Court wherein the plaintiff No.2 and 3 who were minor were added as appellant. The defendant No.1 got a compromise application filed on 24.2.1959. On the basis of the compromise decree, the defendant is trying to dispossess the plaintiff. According to the plaintiff, the case stated in title suit No.15 of 1950 regarding surrender by Swaroop and Bechu in the year 1924 and 1926 are imaginary and incorrect. The deed were forged and fabricated.