JITAN PANDY Vs. SHYAM NARAIN SINGH

JUDGEMENT

(1.) This appeal by the defendants is directed against the judgment and decree passed by the Additional District Judge, Chapra, eon-firming those of the Munsif, 4th court of the same place.

(2.) The facts relevant for the consideration of the present appeal may shortly be stated as follows. One Prayag Missir had four sons Ram-khelawan Missir, Ramprasad Missir, Naujad Mis-sir and jhontel Missir. Ramkhelawan Missir died leaving his widow Mst. Jugeshwar Kuer. On 18-12-1932 Ramprasad Missir, Naujad Missir and Jhontel Missir executed a zarpeshgi deed in favour of Shwanandan Singh for a sum of Rs. 400 giving in zarpeshgi 4 'bighas' 7 kathas and 4 dhurs of land. Rs. 385 out of the consideration of Rs. 400 was left with the zarpeshgidar to be paid to Bhawalpur Co-operative Society with which the area given in zarpeshgi had been previously mortgaged. On 22-12-1932 Shivanandan Singh paid Rs. 385 to the Co-operative Society. In 1939 Musammat Jageshwar Kuer obtained a decree for maintenance against Ram Prasad Mis-sir, Naujad Missir and Jhontel Missir which was made a charge on the family properties of the judgment-debtors. On the 29-6-1939 Hari Singh, brother of Shivanandan Singh, who had died since, assigned the garpeshgi bond dated 16-12-1932 and a money decree obtained in Money suit No. 2 of 1939 against Ram Prasad Missir, Naujad Missir and Jhontel Missir in favour of the plaintiffs. Jageshwar Kuer executed her decree for maintenance in Execution, case no. 1189 of 1939 in which 7 bighas 15 kathas and 10 dhurs of land including the lands given in the zarpeshgi bond of 1932 were sold on 10-2-1940 and purchased by the defendant-appellant. The defendant got delivery of possession on 4-4-1940. The plaintiffs executed the assigned money decree in Execution case No. 972 of 1939 in which they themselves purchased, on 10-2-1940, 7 bighas 15 kathas and 10 dhurs of land including the lands given in the zarpeshgi bond of 1932. On 18-4-1940 the plaintiffs, by the delivery of possession in their favour, dispossessed the defendant who thereaiter filed an application under Order 21, Rule 100, Civil P. C., in Miscellaneous case No. 123 of 1940. The Miscellaneous case was allowed on the 25th of September 1940. The present plaintiffs thereafter filed Title suit no. 182 of 1940 in accordance with the provisions of Order 21, Rule 103, Civil P. C. In this suit the plaintiffs got an injunction issued against the defendant restraining him from taking possession of the properties in pursuance of the order passed in Miscellaneous case No. 126 of 1940. On 31-3 1942 Title Suit -- 182 of 1940 was dismissed. On 12-4-1942 the defendant got back delivery of possession from the plaintiffs. The plaintiffs filed Title Appeal 101 of 1942 which was ultimately allowed on 17-2-1944. It was held in that appeal that until the present plaintiffs, who were the assignee of the original 'zarpeshgidars' had been redeemed they were entitled to keep possession of the properties given in 'zarpeshgi. On 17-7-1944 the plaintiffs got redelivery of possession of those properties. On 27-7-1944, the present defendant filed Redemption Suit 150 of 1944, which was decreed on 28-2-1946. The property has thereafter again passed to the possession of the defendant. The present plaintiff's thereafter filed the present suit for mesne profits from the 12th of April 1942 to 17-7-1944 on the allegation that during that period they had been wrongly kept out of possession by the defendant from the 'zarpeshgi lands.

(3.) The suit was contested by the defendant, who pleaded, 'inter-alia', that he had not appropriated any sugar cane crop or 'parora' crop alleged to have been grown by the plaintiffs on plot nos. 501 and 350 respectively. They further pleaded that the plaintiff had illegally taken delivery of possession on 20-4-1940 in respect of an area of 1 'bigha' 12 'khata' over and above the lands included, in the 'zarpsshgi' of 1932 for which the plaintiffs themselves were liable to pay mesne profits from 20-4-1940 upto 12-4-1942. It was further pleaded that" the 'zarpeshgi' amount was already satisfied from the price of the trees cut away by the plaintiffs and from the usufruct of 1 'bigha' 12 'kathas' aforesaid. It was further pleaded that the amount of mesne profits claimed in the plaint was highly exaggerated and imaginary,