MANGAL DAS CHAUDHURY Vs. BHAGERAN SAO

JUDGEMENT

(1.) This is a second appeal by the plaintiffs and is directed against the judgment and decree dated 6-2-1952, passed by the learned 3rd Subordinate Judge of Patna, by which he reversed the judgment and decree of the learned 1st Additional Munsif of Patna, dated 21-7-1951, in a suit for a declaration of title and for possession in respect of 9 dhurs of land. The material facts are the following. The present appellants, who were plaintiffs in the Court of first instance, had a plot of land, numbered plot 85, in village Mosimpore Kurtha. The area of the plot was about 1 katha and 5 dhurs only. Adjacent west of the said plot was plot No. 86, which belonged to the respondents, defendants in the action. The appellants alleged that their father had purchased plot No. 85 by means of a sale deed dated 24-5-1917. Their case further was that their father built a 'kuchcha' house on 16 dhurs of land and left about 9 dhurs as 'khund' towards south and west; about 15 or 16 years ago the 'kuchcha' house was demolished and in its place a pucca building was constructed. Some piece of land was left at the back of the house on which there was a latrine. The appellants alleged that the respondents, who had their plot No. 86 adjacent to west of plot No. 85, began to interfere with the possession of the appellants over the latrine and the parti piece of land. It was further alleged that a criminal case was fought between the parties in which there was a compromise by which the present respondents admitted the title of the appellants to the latrine and the parti piece of land, the area of which was about 9 dhurs only. On these allegations the appellants asked for a declaration of their title and confirmation of possession. The defence of the respondents was that the parti piece of land, measuring about 9 dhurs3 was part of plot No. 86 and belonged to and were in their possession for a long time. The respondents denied that any piece of land out of plot No. 85 was left at the back of the house constructed by the appellants.

(2.) The suit was first tried by Mr. A. K. Sinha, an Additional Munsif of Patna, who dismissed the suit on the finding that the present appellants had failed to prove that the disputed land was part of plot No. 85. There was an appeal, and the learned Additional Subordinate Judge who heard the appeal remanded the case for giving an opportunity to the appellants for getting the land measured. After the order of remand three commissioners, one after the other, went to the locality but were unable to come to any definite decision as to whether the disputed land formed part of plot 85 or plot 86: this was because the configuration of the plots had undergone considerable change and it was not possible to relay the survey man by reason of the change in the locality.

(3.) Be that as it may, the Additional Munsif, who dealt with the suit after remand, gave a decree to the present appellants on the finding that by reason of the compromise effected on 13-3-1947, between the appellants on one side and the respondents on the other, the appellants had proved their title and possession over the disputed land. There was again an appeal, which was heard by the learned 3rd Subordinate Judge of Patna. The learned Subordinate Judge held that the present appellants had failed to establish their title or possession over the land in dispute and in that view of the matter, he reversed the decision of the learned Munsif and dismissed the suit of the appellants with costs. The present second appeal is directed against the aforesaid decision of the teamed 3rd Subordinate Judge of Patna.