MAHADEO KUMAR Vs. SHAKUNTALA DEVI

JUDGEMENT

(1.) THE plaintiffs appellants have filed this first appeal against the judgment and decree dated 27.6.1978 passed by the learned 3 rd Additional Subordinate Judge, Bhagalpur in Title Suit No. 38 of 1971 dismissing the plaintiffs appellants' suit.

(2.) THE plaintiffs appellants filed the aforesaid suit for declaration of their title only. The suit property has been described in Schedule- D i.e. Khata No. 29 measuring 8 bigha 12 kattha 16 dhur and Khata No. 412 measuring 9 bigha 16 kattha 5 dhur in village Sonbarsa and schedule-C i.e. Khata No. 191 measuring 14 bigha 8 kattha 12 dhur of village Bikrampur. According to the plaintiffs the suit lands were recorded in the name of ancestors of the plaintiffs and since then the plaintiffs are in possession. The suit lands were subjected to aluvion and diluvion in the river Ganges. In the year 1947 some portion of land of village Bikrampur came out of the water and likewise the land of village Sonbarsa became cultivable in the year 1955-56 since after 1948-49. The plaintiffs' ancestors Raj Kumar and Maharaj Kumar were two brothers of joint family. Rajkumar died much prior to 1923 in jointness. The sons of Maharajkumar remained joint after death of Mahraj Kumar in 1932 ­ 33. In 1934 his son Yamuna Kumar also died. Dhaneshwar Kumar died in 1945-46. Mitthu Kumar and others mortgaged Khata No. 191 of Bikrampur village and khata No. 29 of Sonbarsa on 26.9.1923 for Rs.700/- in favour of brother of Gudari Kumar namely Kutai Kumar. Both the brothers were joint at that time. After death of Dhaneshwar the defendant started looting the crops of the land. Subsequently 144 Cr.P.C. proceeding was initiated. The defendants had neither title nor possession over the suit property and the claim of the defendants regarding auction sale, rent suit and purchase settlement etc. are false and concocted.

(3.) THE defendants also accepted that the land of Bikrampur also belonged to the ancestor of the plaintiffs. Because there was rent dues the said land was auction sold by the ex-landlord Mr. Grant and he sold the same. Gudri Kumar being the karta purchased the same in the name of Anandi Kumar on 10th January 1930 and since then the ancestors of the plaintiffs had no concern with the said land. There was rent due against the defendants also therefore the ex-landlord purchased the said land in auction sale in the year 1943. Subsequently the said land was returned to the family of the defendant by Samaharta, Bhagalpur under the provisions of Bhumi Bakhas Pratyavartan Adhiniyam and since then defendants are in possession of the same. They also partitioned the said property. In survey the name of Kutai Kumar and others names have been recorded accordingly. There was partition between Gudri Kumar and Kutai Kumar much prior to 1929 ­ 1930 and were residing separately. This fact has been recoded in title suit No. 1968 of 1964 and the appeal arising out of the said suit being title appeal No. 22 of the 1969. All other allegations made in the plaintiffs were denied by the defendants. The revisional survey khatiyan has been prepared in the name of the defendants. In the written statement the defendant have given a great details and the date and case numbers in which the auction sale were made and sale certificates were issued and delivery of possession were affected.