CHAMRU YADAV Vs. TANUK LAL YADAV AND ORS.

JUDGEMENT

(1.) HEARD learned counsel for the parties. The defendant is the appellant herein and is aggrieved by judgment and decree dated 26.7.2011 passed by learned Additional District Judge, Fast Track Court -I, Khagaria in Title Appeal No. 6 of 1997 by which he allowed the Title Appeal filed by respondents and set aside the judgment and decree dated 26.5.1997 and 1.6.1997 respectively, passed by learned Munsiff, Khagaria in Title Suit No. 17/1993.

(2.) THE suit was filed for declaration of title and confirmation of possession with respect to the lands in khata No. 59, plot No. 592 (1 bigha 11 kathas 4 dhurs) and with respect to khata No. 8, plot No. 130 (10 khata 11 dhurs 10 dhurkies), khata No. 59, plot No. 592 (1 bigha 10 kathas), under khata No. 8, plot No. 130 (11 kathas), under khata No. 63, plot No. 592 (10 kathas), khata No. 63, plot No. 592 (1 bigha) and khata No. 63, plot No. 592 (1 bigha). The plaintiffs also sought for a declaration that the order dated 12.8.1991 passed by learned Land Reforms Deputy Collector (LRDC), Khagaria in correction of Jamabandi Case No. 3 of 81 -82 in favour of defendant first party was illegal, inoperative and not binding on the plaintiffs. The plaintiffs also sought for permanent injunction restraining the defendant first party from interfering with possession of the plaintiffs over the suit land and also to restrain the defendant first party to get corrected their names in Jamabandi in Register -II on the basis of such illegal and wrong order dated 12.8.1991 passed by learned LRDC, Khagaria in correction of Jamabandi Case No. 3/81 -82. The plaintiffs also sought for a relief that if the plaintiffs got dispossessed from the suit land during the pendency of the suit, a decree of recovery of possession also be passed in their favour against defendant first party, in that case.

(3.) THE plaintiffs pleaded that lands of khata Nos. 5 and 2 of Jamalpur mouza and khata No. 1 of Bahadurpur mouza stood recorded in the name of Khedu Gope in survey records of rights. Khedu Gope died in state of jointness with his two sons, Jalim Gope and Narsingh Gope. Jalim Gope and Narsingh Gope separated by metes and bounds, after the death of Khedu Gope, their father, and they had been living separate since time of partition between them. The plaintiffs asserted that Narsingh Gope, the ancestor of defendant first party, felt necessity of money and he borrowed some money from Mathuranath Mishra, ancestor of defendant second party, in the year 1909 and, in lieu of that, he executed a registered mortgage deed in favour of Mathuranath Mishra, on the basis of which he put the land of khata Nos. 5 and 2 of Jamalpur mouza and land of khata No. 1 of Bahadurpur mouza under mortgage with respect to half of his share. The loan amount, however, could not be paid. Mathuranath Mishra filed mortgage suit for realization of mortgage money in the Court of Munsif -I, Munger vide Case No. 668 of 1912. The suit was decreed in favour of mortgagee. The decree -holder, Mathuranath Mishra, thereafter filed execution case vide Case No. 386/1913 in the Court of Munsif -I, Munger to execute the decree. In consequence to which the mortgaged property to the extent of half share of Narsingh Gope was attached and sold in auction sale. The decree holder, Mathuranath Mishra, purchased the land in auction sale, which property has been described in schedule -II of the plaint.