RAMPRATAP BHAGAT Vs. B MADAN GOPAL PRASAD SINGH

JUDGEMENT

(1.) Defendants 1 to 3, 7 and 8 of the defendants first party are the appellants. The plaintiff-respondent No. 1 filed a suit for declaration of his title to and recovery of possession over 8 kathas and 8 dhurs of land bearing survey plot No. 534. His case is that the defendants second party were the proprietors of the village in which the suit land lies to the extent of one anna six pies share and by private partition between the co-sharer landlords three plots of bakasht land, including the suit land, were allotted to their patti. On the 19th of June, 1935, they gave those three plots in simple mortgage to the plaintiff's father. In the year 1943, the father of the plaintiff instituted Mortgage Suit No. 213 of 1943 on the basis of the above mortgage bond and obtained a mortgage decree. That decree was put in execution and he purchased the three plots, including the plot in suit, at auction sale in the year 1951. After the death of his father the plaintiff obtained delivery of possession over these plots in March, 1953. The case of the plaintiff is that soon thereafter, on the 10th of May, 1953, he was obstructed in his possession by the defendants first party and hence he filed the suit on the 16th of January, 1954, for the reliefs stated above. The suit was contested by the appellants only, who pleaded that they had taken an oral settlement of the suit land on batai basis from the defendants second party in Baisakh, 1325 Fs., corresponding to 1918, and subsequently they wanted to construct a house on the land, and therefore, got a registered lease executed with respect to the suit land on the basis of nakdi rent on the 12th of November, 1942, in the "names of defendants 1 and 2, who were the kartas of their respective families. It was stated that the plaintiff, having full knowledge of the settlement, did not make them parties in the mortgage suit, although defendant No. 3, a Junior member of their family, was impleaded as a party thereto. It was further stated that even on defendant No. 3 the summons was not served at all. On these pleas it was contended that the mortgage decree and the auction sale in execution thereof were not binding on these defendants.

(2.) Both the Courts below held that the story of batai settlement raised by the appellants was not established and that their lease was invalid under Section 107 of the Transfer of Property Act (hereinafter to be referred to as 'the Act'), as well as under Section 65-A of the Act. They also held that the defendants are trespassers. Therefore, the suit of the plaintiff was decreed by the trial Court and that decree was affirmed by the Appellate Court. Hence, this appeal.

(3.) Mr. Shambhu Barmeshwar Prasad, appearing for the appellants, has raised three points, namely, (1) that the suit for possession by the plaintiff was not maintainable against the appellants and the only remedy of the plaintiff was to bring a fresh mortgage suit against them; (2) that even assuming that the suit in ejectment was maintainable, the plaintiff, not having proved his possession or the possession of his predecessors within 12 years of the suit, the suit should have been dismissed; and (3) that the appellants, at any rate, could use their 3ossession as a shield by way of part performance under Section 53-A of the Act.