PRAKASH YADAV Vs. RAM KHELAWAN YADAV

JUDGEMENT

(1.) This appeal is directed against the judgment and decree dated 23.11.2011 / 14.12.2011 passed by the 3rd Additional District Judge, Naugachhia, District-Bhagalpur in Title Appeal No. 129 of 2007, whereby the appellate court below has been pleased to set aside the judgment and decree dated 23.11.2007 / 07.12.2007 whereby the learned Sub Judge-II, Naugachhia, District-Bhagalpur had been pleased to decree Title Suit No. 26 of 1999 in favour of the plaintiff. I shall be referring to the party position as it existed before the trial court for the sake of convenience. The suit in question had been filed by the plaintiff who happens to be a purchaser from defendant no. 8, Prabhakar Mishra son of Late Govind Lal Mishra seeking, inter alia, to declare survey entries relatable to the property mentioned at schedule-A not binding on the plaintiff or his vendor and to declare the plaintiff having absolute right, title and interest over schedule-B property which is a part of schedule-A property as also to declare the sale deed executed by the daughters of Jaideo Mishra in favour of defendant no. 1 Ram Khelawan Yadav as not being binding upon the plaintiff. The relief prayed by the plaintiff in the suit is being reproduced hereinbelow for the sake of ready reference:

(2.) It is the case of the plaintiff that the land admeasuring 10 bigha 1 katha 12 dhurs which is equivalent to 8 acres 80 decimals bearing old khesra no. 574, old khata no. 167 in Mauja Nagar Para, Anchal-Bihpur, District-Bhagalpur was khatiyani land recorded in the name of one Dukha Mishra in the record of rights and by virtue of non-payment of rent, the ex-landlord Barari Estate came into the khas possession of the land after its auction purchase on 10.12.1928 through Sale Certificate Case No. 872 of 1927. It is the case of the plaintiff that the said Dukha Mishra had six sons, namely, Govind Lal Mishra, Nava Lal Mishra, Basudeo Mishra, Lakhi Prasad Mishra, Yamuna Mishra and Jaideo Mishra who had separated by metes and bounds in the year 1930. It is further the case of the plaintiff that Govind Lal Mishra the eldest son of Dukha Mishra had taken settlement of the entire land measuring 10 bigha 1 katha and 12 dhurs as detailed hereinabove from the ex-landlord Babu Naresh Mohan Thakur of Barari Estate in the year 1935 in his own name and on the basis of the settlement, his name was recorded in the Jamabandi Sherista. It is stated that after vesting the Zamindari into the state of Bihar the ex-landlord submitted the returns and on the basis whereof the name of Govind Lal Mishra stood recorded in the Sherista of State of Bihar bearing Holding No. 49. It is stated that Govind Lal Mishra used to pay rent for the said land to the State of Bihar. It is the case of the plaintiff that Govind Lal Mishra left behind five sons, namely, Kedar Mishra, Divakar Mishra, Prabhakar Mishra, Chakradhar Mishra and Medni Mishra who separated by metes and bounds in the year 1958 and the entire land was divided amongst the five sons of Govind Lal Mishra with each getting one bigha 10 katha of land approximately in their share with additional 1 katha as "Jethansh" to sons of Govind Lal Mishra. It is stated that Jagdamba Devi, wife of Medni Mishra had executed a deed of gift in favour of the sons of Prabhakar Mishra who got right, title and interest over the share of his brother Medni Mishra in addition to his own share. The plaintiff contended that following the revisional survey the two plots were renumbered as khata no. 49, khesra no. 1218 admeasuring 4.45 acres and khesra no. 1219 admeasuring 4.2 acres but the same was wrongly recorded in the name of Kedar Mishra, Divakar Mishra, Prabhakar Mishra and Chakradhar Mishra sons of Govind Lal Mishra to the extent of four annas; Mostt. Jagdama Devi wife of Medni Mishra to the extent of one anna; Keshav Lal Mishra, Dharnidhar Mishra and Pran Mohan Mishra, son of Neva Lal Mishra to the extent of three annas; Mukund Mishra, Umesh Mishra, Jagdish Mishra and Maheshwar Mishra all sons of Basudeo Mishra to the extent of three annas; Shashidhar Mishra, son of Lakhi Prasad Mishra to the extent of three annas; Jaideo Mishra to the extent of three annas and Nageshwari Devi, wife of Chakradhar Thakur to the extent of three annas, although the only owner of the entire land measuring 10 bigha 1 katha 10 dhurs, was Govind Lal Mishra. It is thus the case of the plaintiffs that the entry made in the R.S. Khatiyan was wrong, illegal and not binding on the sons of Govind Lal Mishra who had exclusive right, title and interest as well as possession over the suit land. It is the case of the plaintiff that he purchased the land described in schedule-B of the plaint vide sale deed no. 2034 dated 28.8.1998 admeasuring 1.31 acres after payment of valuable consideration to Prabhakar Mishra, son of Govind Lal Mishra and since then has been in the cultivating possession thereof. It is stated that the name of the plaintiff has been mutated and he is paying rent under Jamabandi no. 527. It is contended that the sale deed executed by the daughters of Jaideo Mishra who are defendant second set in favour of Ram KhelawanYadav defendant no. 1 on 6.4.1999 is a fraudulent act and an illegal document. It is stated that as the survey entry and the sale deed executed by the defendant second set in favour of the defendant no. 1 resulted in threat being issued to the plaintiff hence the suit was filed. Defendant no. 1 is the purchaser from defendant second set. Defendant second set are daughters of Jaideo Mishra, son of Dukha Mishra and brother of Govind Lal Mishra. Defendant third set are sons and grandsons of Govind Lal Mishra who have supported the case of the plaintiff and defendant fourth set are the remaining brothers of Govind Lal Mishra i.e. the other sons of Dukha Mishra. The defendant second set and fourth set did not choose to appear and contest the suit. Defendant third set i.e. defendant no. 8 to 16 who are sons and grandsons of Govind Lal Mishra appeared and filed a joint written statement supporting the case of the plaintiff. Defendant no. 1 filed a separate written statement contesting the claim of the plaintiff as not being maintainable and the suit being a collusive suit instituted at the behest of the defendant no. 8 Prabhakar Mishra. It was also contended that the suit was also hit by the law of limitation and the provisions of section 34 of the Specific Relief Act, 1963. It is the case of the defendant no. 1 that Dukha Mishra, the ancestors of defendant second set, third set and fourth set had land measuring 10 bigha 1 katha and 12 dhurs in old khesra no. 574 and after his death, his six sons inherited the property and remained in jointness through their life. The defendant contended that on 28.2.1934 all the sons of Dukha Mishra declared themselves as members of joint Hindu family under the guardianship of Govind Lal Mishra and Neva Lal Mishra through registered deed no. 546 of 1934. It is stated that in Title Suit No. 24 of 1944 also, the sons of Dukha Mishra were referred to as members of joint Hindu family. It is stated that in the year 1962 an oral settlement took place and whereunder the sons of Govind Lal Mishra were allotted two bigha ten katha of land including one bigha as "Jethansh" and the other brothers got one bigha 10 katha each. It is stated that in the revisional survey khata no. 49, R.S. plot no. 1218 measuring 4.28 acres and R.S. plot no. 1219 measuring 4.2 acres has been jointly recorded but the share of each branch had been completely distinct according to the oral settlement of 1962 and thus there was a partition amongst the brothers of Govind Lal Mishra in the year 1962 following which the heirs of Govind Lal Mishra were allotted two bigha 10 khatas towards extreme west. Adjacent east of Govind Lal Mishra was the share of Basudeo Mishra. Towards the east of Basudeo Mishra was the share of daughter of Yamuna Mishra, namely, Nageshwari Devi and to her east was the share of sons of Lakhi Mishra and on the extreme east of plot was the share of Jaideo Mishra and his daughter. It is the case of the defendant that on 24.8.1996 Nageshwari Devi, daughter of Yamuna Mishra sold her share to Mani Mala Devi and Pratibha Devi, daughter of late Basudeo Mihra. It is stated that the sale made by Nageshwari Devi was never questioned by the plaintiff though It was within the knowledge of Prabhakar Mishra. It is further stated that in a similar manner the defendant no. 1 purchased the share of the daughter of Jaideo Mishra after payment of consideration money and has acquired title over the said land. The trial court framed five issues and upon consideration of the rival contentions, the oral and documentary evidence on record, was pleased to decree the suit in favour of the plaintiff and declared the sale deed executed in favour of the defendant no. 1 as illegal. Being aggrieved the defendant no. 1 preferred appeal giving rise to Title Appeal No. 129 of 2007. The judgment and decree of the trial court was questioned by the defendant no. 1 on the following grounds:

(3.) The plaintiff as respondent in appeal contested the stand of the defendant to submit that the judgment and decree of the trial court did not require any interference. On the basis of the arguments advanced on behalf of the contesting parties in the backdrop of the evidence on record, the appellate court formulated the following points for determination: