MUNDARIA Vs. RAI SHYAM SUNDAR PRASAD

JUDGEMENT

(1.) This appeal by some of the defendants is directed against the judgment and decree of an Additional Subordinate Judge of Patna affirming the judgment and the decree of a Munsif of Patna.

(2.) The suit out of which the appeal arises was instituted by the respondents first party for declaraticn of their title to a piece of parti land bearing municipal survey plot No. 1496 and holding No. 127/123 in circle No. 108 of ward No 21 of Patna Municipal Corporation, the area of the plot being roughly 1. Katha. There is an Imambara on a portion of this plot; and on the eastern and the wetsern boundaries of the plot are the admitted lands of the plaintiff-respondents. The' owners of this holding as recorded in the municipal assessment register of 1901-1902 were Rai Kishun Prasad, Rai Kashi Prasad and Rai Ram Chandra Prasad. The holding was described as an Imambara; and it was exempt from any municipal tax. The recorded owners were sons of Baijnath Prasad who had another son, named Jai Mangal Prasad, who died issueless. Both Baij Nath and Jar Mangal died before 1901. Subsequently, the other recorded owners also died; and the plaintiffs and defendant No. 10 (Madan Mohan Prasad) are their only heirs. Madan Mohan Prasad was impleaded as a defendant, because he did not join as a plaintiff. In the municipal survey khesra, which was prepared in the year 1932-33 under the Bihar and Orissa Municipal Survey Act, this plot was recorded as a public Imambara with Mirza Wazir Hussain (defendant No. 1) as mutawalli in the column meant for the person receiving rent from the actual occupier. This defendant died during the pendency of the suit; and his widow, sons and daughters, who were substituted in his place, are now the appellants. In 1942-43, the plot in question was again recorded in the municipal assessment register as an Imambara in a ruined condition belonging to the heirs cf the owners in 1901-1902.

(3.) The case of the plaintiffs-respondents was tnat Rai Kashi Prasad had set up a private Imambara some time before 1901 over a portion of the disputed plot and he himself became a Khalifa and used to keep a Tazia at his own cost on the Imambara during the Muharram festival in 1932, taking advantage of the property of the heirs of the recorded owners, Mirza Wazir Hussain got his name mutated dishonestly in the municipal survey khesra; but in spite of this fact, these heirs continued to be in possession of the plot. In 1950, there was a dispute between Mirza Wazir Hussain and one Jamuna Pariain, a pro forma defendant, who admittedly has no interest in the disputed plot. In a proceeding under Section 144, Criminal Procedure Code, both Wazir Hussain and Jamuna Pariain were restrained from going near this plot. Some time after the disposal of this proceeding under Section 144, Wazir Hussain began to construct a wall by the side ot the boundary a mud wall on plot No. 1495 belonging to Jamuna Pariain. This resulted ultimately in a proceeding under Section 145 between them and it was decided in favour of Wazir Hussain on the 16th February 1953. According to the plaintiffs-respondents, this decision cast a cloud upon their title and hence, this suit. Besides declaration of title, the plaintiffs also prayad for recovery of possession in case the court found that they had been dispossessed.