CHINTAMAN MAHTO Vs. FANINDRA DEVI

JUDGEMENT

(1.) This second appeal by defendant No. 1 is directed against concurrent judgments and decrees of the courts below decreeing the suit of the plaintiff for declaration of raiyati right and recovery of possession over Plot Nos. 104, 457 and 473 measuring 2.49 acres in village Chowrah in the district of Hazaribagh.

(2.) Admittedly this village once upon a time belonged to Serampur Gaddi and in order to appreciate respective cases of the parties it is necessary to state the facts including the history of succession to the Gaddi in somewhat details. Dubraj Singh had three sons, Pratap Narain, Ajit and Bharat. Ajit died issuless. The estate was governed by law of primogeniture. On the death of Dubraj, Pratap Narain succeeded to the Gaddi. A, khorposh was created in favour of Bharat (on the materials on the record it is not possible to say whether by Dubraj himself or by Pratap Narain) of several villages of the estate including village Chowrah. On the death of Pratap Narain his son Garur Narain succeeded to the Gaddi. He died in the year 1879 and was succeeded by his son Sharda Narain. Bharat also died in the year 1879. He had two sons, Nilkanth Narain and Hari Prasad. It is also not possible to say on the materials on the record whether the khorposh estate was treated as impartible and was inherited in its entirety by Nilkanth Narain or it was inherited by both the brothers, but it is admitted that village Chowrah came to be possessed by Nilkanth Narain. On 9th of September, 1890 Nilkanth Narain made two subordinate khorposhes in favour of his wife Hridaya Kumari and his brother Hari Prasad in respect of some bakast lands of village Chowrah. There was some dispute between the parties as to the nature of the khorposh grant in favour of Hridaya Kumari. According to the appellant it was a heritable grant According to the plaintiff respondent No. 1 it was a grant for life only. The Courts below have found it to be a grant for life only. The document, Ext. A (2) by which the grant was created has also been placed before us and it clearly shows that the grant was one for life only. In that view of the matter, it has been conceded by learned counsel for the appellant that the aforesaid finding of the courts below is correct.

(3.) Sharda Narain died on 16th of April, 1907. On his death a dispute arose between Nilkanth Narain and Jagdamba Kumari, widow of Sharda Narain as to the succession to the Gaddi. His suit was decreed by the trial Court. During the pendency of the appeal in the High Court Nilkant Narain died and his son Wazir Narain was substituted in his place. The matter also went to the Privy Council. Ultimately it was held that Nilkanth Narain was entitled to succeed to the Gaddi, but properties acquired by Sharda Narain were to go to his Widow. On 17th of June, 1931 Hridaya Kumari gave the properties in dispute in rehan to Durga and Nanhu. On 6th of April, 1935, Ramgarh Estate auction purchased Serampur Gaddi at a court sale in auction of a mortgage decree. On 30th of September, 1935, Hridaya Kumari gave in rehan 8.61 acres of land including the disputed hinds to Khagpat Ram and his brother. Wazir Narain also joined this document as an executant. Khagpat and his brother redeemed the rehan of Durga and Nanhu. In February, 1936 Ramgarh Estate obtained delivery of possession. Hridaya Kumari died on 15th of October, 1939, Wazir Narain died in 1940 leaving behind two sons Bisambhar and Baidyanath as his heirs and legal representatives. In the year 1944 Baidyanath executed a registered confirmatory patta (Ext. A) recognising the appellant as raiyat on naqdi rental in respect of the suit lands. In 1946 the proprietor of Ramgarh Estate instituted Title Suit No. 11 of 1946 against Khagpat and others for possession of the properties mortgaged to him. The two sons of Wazir Narain were not made parties to that suit. The suit was decreed ex parte on 3rd of March, 1947. On 5th of May, 1947 proprietor of Ramgarh Estate sold Serampur Gaddi to Prajapalak, a relation of his. On 12th of May, 1948, Prajapalak settled the lands in dispute with the plaintiff who is daughter-in-law of Khagpat. In 1949 Prajapalak obtained delivery of possession through court of the lands which were subject-matter in Title Suit No. 11 of 1946.