RAJESHWAR PD SINGH Vs. AWADH BEHARI SINGH

JUDGEMENT

(1.) This First Appeal was filed by the defendant no.1 against the judgment and decree dated 25.04.1988(decree signed on 03.06.1988) by Sri Rameshwar Tiwary, the learned Subordinate Judge VI, Patna in Title Suit No.68 of 1967/159 of 1985 decreeing the plaintiff -respondent's suit in part. During the pendency of the appeal, the sole appellant, Rajeshwar Prasad Singh who was defendant no.1 in the Court below died and his legal representatives have been substituted. Likewise, it appears that most of the plaintiffs -respondents also died and their legal representatives have been substituted.

(2.) The original plaintiffs -respondents filed the aforesaid Title Suit No.68 of 1967/159 of 1985 praying for declaration of plaintiff's title and want of defendant's title in the suit property and for recovery of possession and further for a decree for a sum of Rs.1,000, the sale proceeds of the produce of the suit land and also prayed for a decree for a sum of Rs.1,000 on account of mesne profits and Rs.498 approximately or any other sum that may be found due on account of future mesne profits. The plaintiffs -respondents claimed the aforesaid relief on the facts inter alia that the plaintiff no.1, Smt. Gulzaria Devi was the daughter of late Deo Narayan Singh of village Rupaspur Simra, P.S. - Phulwari, District - Patna. Deo Narayan died on 29.09.1961 leaving behind his only daughter, Gulzaria Devi as his wife pre - deceased him. The defendants created trouble in the peaceful possession of plaintiff no.1 and, therefore, a proceeding under Section 144 Cr.P.C. was initiated. The said proceeding was converted to 145 Cr.P.C. proceeding. The said proceeding was referred to Munsif III, Patna under Section 146 Cr.P.C. wherein the possession of the defendant no.1 over the suit property was declared by order dated 29.07.1965.

(3.) The further case of the plaintiff is that in the said proceeding, the case of defendant no.1 who was son of defendant no.2 was that Deo Narayan Singh died issueless on 29.09.1961. Because of the fact that he had no issue, he had adopted defendant no.1, Rajeshwar Prasad Singh as son in the year 1939 and gifted all the suit property and surrendered the possession of the property in favour of the defendant no.1 and still then after adoption, the defendant no.1 was continuing in possession of the property as owner thereof even during the lifetime of Deo Narayan Singh. According to the plaintiffs, the defendant no.2 is a greedy man and falsely set up a story of adoption and oral gift and surrendered regarding the suit property in favour of his son, Rajeshwar Prasad Singh who is deaf and dumb by birth. The defendant no.2 created all the forged documents for claiming title on the suit property. The defendant no.2 got a false and fictitious title suit being Title Suit No.3 of 1947 filed in the name of Subedar Singh against Parmeshwar Dayal Singh regarding the inheritance of the property of Sajiwan Singh and Kung Behari Singh. In the said suit, Deo Narayan Singh had no concern nor had he any interest of the property and that suit but fraudulently he was made defendant no.10 and in that suit, a fraudulent fictitious compromise application was filed between the parties wherein it is stated that Deo Narayan Singh has adopted Rajeshwar Prasad Singh as a son and he had made oral gift and surrendered his properties to defendant no.1. The said compromise petition was forged document. Deo Narayan Singh had no knowledge about the petition nor he ever signed it. When the plaintiff no.3, Keshaw Singh came to know about the said fictitious compromise, he filed Title Suit No.87 of 1955 for declaration of their title over the property involved in Title Suit No.3 of 1947. In that suit, defendant no.2 appeared and then compromised with plaintiff no.3 and admitted the title of plaintiff no.3 over the property involved in Title Suit No.3 of 1947.