ARUN KUMAR SINHA Vs. JAGARNATH SAHAY

JUDGEMENT

(1.) THE defendants have filed this Second Appeal against the Judgment and Decree dated 19.12.1973 passed by the learned 5 th Addl. Subordinate Judge, Saran at Chapra in Title Appeal No.221 of 1964 whereby the learned lower appellate Court reversed the Judgment and Decree of the trial Court dated 25.07.1964 passed by the learned Munsif, IInd Court Siwan in Title Suit No.115 of 1960.

(2.) THE plaintiff respondent filed the suit for redemption and for possession of the suit property and further prayed for decree for the mortgage money amounting to Rs.161/ - with interest and mean profits. The plaintiff prayed the relief of redemption alleging that one Tapsi Lal with others were co -sharer landlord of Tauzi No.1458 and 1459. The defendants are the descendant of Tapsi Lal who inherited the property of Tapsi. Butan Dusadh and Ram Ratan Dusadh had Gorait Jagir over the lands measuring 3 bigha 5 katha 8 dhur. Butan and Ram Ratan gave the land in zarpeshgi to Tapsi Lal, the ancestor of the defendants on 20.06.1911 for Rs.161/ - and Tapsi Lal came in possession of the land as zarpeshgidar. The date of redemption was fixed as 1322 Fasli. On the death of Tapsi, his descendant, i.e., the defendant No.1 to 7 came in possession of the land and they sold the same in favour of defendant No.8 to 15 who came in possession. According to the plaintiff, Ram Ratan died issueless and Butan died leaving his son Kanhai and Darbari. They inherited the entire family property of Ramratan and Butan. Kanhai and Darbari sold the Jagir land to the plaintiff and on 12.09.1959 the plaintiff purchased the land for Rs.5511/ -. Zarpeshgi amount was kept for payment of the same. Prior to sale in favour of plaintiff, Kanhai and Darbari had tendered the amount to defendant No.1 to 7 and then the defendant No.8 to 15 but they refused.

(3.) THE trial Court after trial came to the conclusion that Kanhai and Darbari never work as Gorait as such they have no right, title and interest left in the land , therefore, they cannot confer any title on the plaintiff. Butan had left the service and had abandoned the land. The heirs of Jagirdar had no right, title or interest over the Jagir lands. Accordingly, the suit for redemption was dismissed. The plaintiff filed appeal before the lower appellate Court. The lower appellate Court held that there was no redemption of the mortgage bond of the year 1911. Tapsi Lal was the mortgagee and not the Bakast holder. The defendant No.1 and his heirs are in possession as zarpeshgidar. Kanhai Dusadh is also one of the plaintiff, therefore, the plaintiff were entitled to a decree. Accordingly, the Judgment and Decree of the trial Court was set aside and the plaintiff's suit for redemption was decreed.