RAM KAILASH SINGH Vs. BALIRAM SINGH

JUDGEMENT

(1.) This is an appeal by the plaintiff under Clause 10 of the Letters Patent from the decision dated the 8th October, 1956, of a learned Single Judge of this Court in Second Appeal 1714 of 1951. Three second appeals were disposed of by the said decision which is final in respect of the other two second appeals. All the three second appeals had arisen out of one suit filed by the plaintiff for redemption in respect of 6 bighas 16 kathas of lands in village Soya bearing tauzi No. 1503/23 given in usufructuary mortgage as per rehan bond dated 24th Fagun, 1297 fasli corresponding to some date in the year 1890.

(2.) The case of the appellant as made out in the plaint was that one Ganesh Prasad Singh of village Soya had four sons, namely, Anant Singh, Fakir Singh alias Nandlal Singh, Balmakund and Gurubux Singh. The suit land belonged to them. Balmukund and Gurubux died issueless. Anant had three sons, namely, Ramdahin, Sheodahin and Ramcharitar. Defendant No. 2 in the suit -- Bishwanath Singh -- is the son of Ramdahin. Nandlal and his two deceased brothers had 6 pies 16 karants and Ramdahin and his brothers had 2 pies 10 karants proprietary shares in village Soya in tauzi No. 1503/23. In 1890 Ramdahin and his brothers and Nandlal executed a rehan bond (Ext. C/1) in favour of one Ganga Singh In respect of 6 bighas 16 kathas of lands characterising them to be their zerat lands in the usufructuary mortgage bond. The rehandar came in possession of the lands. In the year 1898 the share of Nandlal arid his brothers in the village was sold for arrears of cess under the Public Demands Recovery Act and was purchased by Maharaja of Dumraon. During the survey operations, a separate khewat No. 1/56 was prepared in the name of the Maharaja Bahadur and a samilat Khewat No. 1/57 was prepared for the suit lands in the name of the Maharaja Bahadur and Ramdahin. A darmeyani khewat No. 120 was prepared in the name of Ganga Singh with respect to the suit lands. At the time of survey 2-39 acres out of the rehan lands in question were recorded as bakasht in the name of Ganga Singh under Khata 694 while the remaining lands measuring 1-97 acres were recorded as raiyati kaimi of defendants 3 and 4 under Khatas 695, 696 and 697. The Maharaja of Dumraon executed a permanent lease in respect of 6 pies and odd share of Nandlal purchased by him along with other shares in other properties in favour of the plaintiff appellant on the 9th of October, 1944, and the latter got possession as mokarraridar. The plaintiff's case further was that Ramdahin after the death of his brothers redeemed the rehan bond (Ext. C/1) on the 30th of Jeth, 1340 fasli, corresponding to some date in the year 1933. He subsequently executed a dar-rehan in respect of 2-39 acres of bakasht lands in favour of one Ramnarain Misra on 31-8-1938. Thereafter he gave in dar-rehan the same lands to defendant No. 1 on 8-11-1939 and the latter came in possession of the lands. It is said that the plaintiff tendered the rehan money to defendant No. 1 but the latter refused to accept it and then he deposited the money in court under Sec. 83 of the Transfer of Property Act. According to the appellant's case, after the deposit of the rehan money, defendant No. 1 had no right to remain on the rehan land and that the names of defendants 3 and 4 were fraudulently recorded as raiyats in the Khatian against the name of Ganga Singh although they were never in possession of those lands. The appellant accordingly brought the suit giving rise to this appeal for redemption of the rehan bond (Ext. C/1) on payment of his proportionate share of the rehan money. He prayed for recovery of possession over the entire lands measuring 6 bighas 16 kathas covered by the said rehan bond together with mesne profits. He also prayed for partition of a separate takhta with respect to his share after redemption but the claim for partition was not pressed at the time of trial.

(3.) The suit was contested by defendants 1, 3 and 4. They disputed the purchase of Nandlal's share by Dumraon Raj and challenged the plaintiff's right to redeem alleging that the mokarrari patta (Ext. 1) executed in favour of the plaintiff by the Raj was farzi. Defendant No. 1 also pleaded that Ramdahin and his son, Bishwanath Prasad Singh, defendant No. 2, had settled 2-39 acres of land of Khata No. 694 with him under a registered patta dated 25-11-41 (Ext. E) and he had acquired occupancy right, therein, being settled raiyat of the village and, as such, he could not be ejected therefrom. This defendant also alleged that the plaintiff had never tendered the rehan money and that he had no occasion for doing so. In a joint written statement, defendants 3 and 4 pleaded that the lands recorded under Khatas 695, 696 and 637 were the raiyati Kasht of the ancestors of these defendants and were recorded as such in their names in the survey Khatian. Their ancestors and they had been fn possession of the lands on payment of rent to the proprietors and rehandars and that they were not liable to be ejected therefrom.