SARASWATI DEVI Vs. MAHABIR PD. DARUKA

JUDGEMENT

(1.) THE defendants 2nd party have filed this First Appeal against the judgment and decree dated 31.05.1979 passed by the learned 3rd Additional Subordinate Judge, Sitamarhi in Title Suit No.122 of 1966/8 of 1979 decreeing the plaintiff-respondent's suit.

(2.) THE plaintiffs-respondents filed the aforesaid suit praying for declaration of title and recovery of possession over 8 katthas 11 dhurs land with structure thereon. The plaintiffs prayed for the aforesaid relief alleging that the plaintiff nos.1 to 3 and 5 and one Narain Prasad Daruka had filed Money Suit No.195 of 1950 in the court of Sub Judge, Darbhanga for recovery of Rs.10,000 against the defendants 1st party wherein the suit properties were attached before judgment. The said suit property belonged to defendants 1 st party. Ultimately, the suit was decreed on 16.05.1952 for Rs.11,896 and odd. In Execution Case No.73 of 1955, the Schedule I property were auction sold and the decree holder purchased the same for Rs.8,800 on 22.05.1957 and he got delivery of possession through court on 19.05.1957.

(3.) THE defendants 2nd party only contested the suit. Besides taking various pleas, the main defence put fourth by the defendants 2nd party is that the allegation of attachment before judgment is false and incorrect. In fact, no order for attachment before judgment was passed. Any report about the service of notice of attachment before judgment was collusive. On the date of alleged purchase by the plaintiffs, the property had already been sold to defendants 2nd party who had already come in possession of the same. The defendants 2nd party had already purchased the Schedule I land in Execution Case No.153 of 1956 and the auction sale was confirmed. The defendants 2nd party also obtained delivery of possession on 09.10.1956 and since then the defendants 2nd party are coming in possession over the Schedule I land. They have filled up the ditch and have constructed a temple and Fush house. Their names have been mutated and they are paying rent for 8 katthas 11 dhurs land. Subsequently, they purchased 1 kattha 8 dhurs and they are getting consolidated receipts for 9 katthas 19 dhurs land. The further defence is that in revisional survey operation, the plaintiffs got their names recorded, therefore, the defendants 2nd set filed objection and thereafter the name of the plaintiff was removed by order dated 23.10.1962. The defendants denied the story of permissive possession and asserted that they are in possession as title holder obtained by them through auction sale, sale certificate and delivery of possession.