KANHAIYA SINGH Vs. BHAGWAT SINGH

JUDGEMENT

(1.) This appeal by the plaintiffs is directed against the judgment and decree of the first Additional Subordinate Jurge of Arrah affirming those of the Munsif, 2nd Court, Buxar.

(2.) On 23-10-1907, plaintiff No. 1 and the ancestors of the other plaintiffs gave 10.25 acres of land appertaining to plot Nos. 122 and 125 of Khata No. 10 and plot No. 128 of Khata No. 21 in usufructuary mortgage to defendant No. 1 by means of a usufructuary mortgage bond, exhibit 2 (a). On 20-7-1909, they again gave 5.48 acres of land in usufructuary mortgage to defendant No. 1 by means of a usufructuary mortgage bond, exhibit 2, and one of the plots covered by that mortgage bond is plot No. 32 of Khata No. 21 having an area of 2.96 acres. On the same day they executed in his favour a third usufructuary mortgage bond, exhibit 2(d), in respect of 7.21 acres of land consisting of various plots one of which was plot No. 16 of khata No. 25 having an area of 1.59 acres. They also executed in his favour a fourth usufructuary mortgage bond with respect to 3.65 acres of land. The total area covered by all the four usufructuary mortgage bonds was 26.59 acres.

(3.) In 1941 the plaintiffs made payment of the mortgage dues to defendant No. 1 & redeemed all the four mortgages. After redemption, according to the case of the plaintiffs, they got possession over 11.79 acres out of which 2.52 acres related to the second usufructuary mortgage bond, exhibit 2, 5.62 acres related to the third usufructuary mortgage bond, exhibit 2 (d), and 3.65 acres related to the fourth usufructuary mortgage bond. The plaintiffs could not get possession over the remaining area, namely, 14.80 acres of land, which contained the entire 10.25 acres of the first usufructuary mortgage bond, exhibit 2(a), 2.96 acres of plot No. 32 in khata No. 21 of the second usufructuary mortgage bond, exhibit 2, and 1.59 acres of plot No. 16 in khata No. 25 of the third usufructuary mortgage bond, exhibit 2 (d). Therefore, the plaintiffs brought a suit for declaration of their title to and recovery of possession of the aforesaid 14.80 acres of land with mesne profits. The case of the plaintiffs is that the lands in question were their 'zirat' lands which they gave in usufructuary mortgage to defendant No. 1 and when, on redemption, they went to take possession over them, they were resisted by defendants 2 to 30 who were the creatures of defendant No. 1. Their further case is that defendant No. 1 fraudulently got the names of those defendants recorded in the cadastral survey record-of-rights, prepared in 1911, as being the occupancy raiyats of the lands in suit.