DHANI JHA Vs. RAM BAHADUR SAH

JUDGEMENT

(1.) This is a plaintiffs' appeal and it arises out of a suit for declaration of title and recovery of possession with regard to two plots of land recorded in the Survey as plots Nos. 43 and 44. Plot No. 43 is a part of holding No, 493 and has got an area of 1.14 acres, and plot No. 44 is a part of holding No. 482 and has got an area of 1.11 acres. The plaintiffs are the 16 annas proprietors of the patti in which these two plots lie. With regard to plot No. 43 the case which the plaintiffs had set up was that the Belsand Kothi which had lease of the milkiat interest under which plot No. 43 lies had made a temporary transfer of this plot to Aklu Sah, the ancestor of the defendants, in exchange for plots Nos. 171 and 506 of khata No. 320 and that after the expiry of the lease the patti came under the khas possession of the plaintiffs and the exchange terminated with the result that the plaintiffs obtained possession of plot No. 43, and plots Nos. 171 and 506 were returned to the ancestor of the defendants. In respect of plot No. 44 the plaintiffs' case was that it was not in possession of the Kothi and had not been transferred by the Kothi to Aklu Sah and that it had all along been in their possession. The trouble arose in 1944, and according to the plaintiffs' allegation the defendants had lodged a false information at the Belsand police station as to the apprehension of a breach of peace and had also filed certain criminal cases against the plaintiffs Nos. 1, 2, 3 and others alleging loot of paddy crops. These cases ended in the conviction of the plaintiffs, and it is said that after the plaintiffs had been convicted the defendants began to interfere with their possession. The plaintiffs therefore instituted this present suit in which the prayer was that their title be declared and their possession confirmed. There was, however, a proceeding under Section 144 of the Code of Criminal Procedure after the institution of the suit, and the plaintiffs filed a petition for the amendment of the plaint in which they alleged that they had been dispossessed from the two plots about 1 1/2 months after the institution of the suit. The amendment prayed for was allowed, and the prayer for recovery of possession was substituted in place of the prayer for confirmation of possession, ana the plaintiffs further claimed a sum of Rs. 185/4/-as the price of paddy crops alleged to have been forcibly cut and removed by the defendants from an area of 1 bigha 6 kathas out of the land in suit.

(2.) The defendants contended that both the plots had been in possession of the Belsand Kothi as thicadars and that their ancestor Aklu Sah had exchanged his plots Nos. 133, 143, 424, 441 and 442 with these two plots, and that by virtue of the exchange which was of a permanent nature these tlwo plots had all along been in their possession. The story of possession and dispossession as put forward by the plaintiffs was challenged as absolutely incorrect.

(3.) The Court of first instance decreed the suit on the finding that plot No. 44 had never come in possession of the Kothi and had never been the subject of exchange and that plot No. 43 had only been temporarily exchanged. The evidence of possession adduced by the plaintiffs was accepted by the learned Munsif, and he accordingly held that the plaintiffs were entitled to a decree. On appeal by the defendants, the learned 1st Additional Subordinate Judge of Muzaffapore decreed the plaintiffs' claim in respect of plot No. 44 but dismissed their claim with regard to the other plot. The finding of the learned Subordinate Judge is that the title of the plaintiffs with regard to plot No. 44 has been established but that they have failed to prove their title with regard to plot No. 43. On the question of possession the learned Subordinate Judge held that the plaintiffs had failed to establish their possession over any of these two plots within the period of twelve years preceding the institution of the suit, but in spite of such a finding on the question of possession he was of opinion that the plaintiffs were entitled to a decree with regard to plot No. 44, inasmuch as the defendants had failed to show that they had any title over this plot or had adversely been in possession of it for the statutory period.