PRABHU NARAIN Vs. KAMLA PRASAD

JUDGEMENT

(1.) This appeal is against the concurrent dismissal of the plaintiff's suit in the two Courts below. His action was for declaration of title and recovery of possession with mesne profits in respect of 6 kathas of land on the northern portion of survey plot No. 172 of Khata No. 45 in tauzi No. 10323 in village Baghmani in the town of Hajipur. The defendants first party were in possession or the land and claimed occupancy right over it. Defendants second party were the landlords who had executed a registered patta on the 22nd September 1949 in favour of the plaintiff on taking Rs. 1800/- from him. Defendants third party were the other cosharer landlords of the same tauzi. Survey Plot No. 172 of Khata No, 45 was gairmazrua malik land and was divided between the landlords in an amicable partition by virtue of which 6 hathas to the north of the plot came to the share of defendants second party who in 1949 settled that with the plaintiff. The defendants first party were also anxious to take that settlement but they were defeated by a higher premium offered by the plaintiff. There was disturbance between them and the plaintiff and a proceeding under Section 144, Criminal Procedure Code, was started and order was made absolute against the plaintiff on the 16th of April 1950 following that the defendants first party dispossessed the plaintiff from the suit land and, therefore, he came to the court to recover possession and mesne profits from them. He also alternatively claimed Rs. 1800/- to be paid by the defendants second party obviously for the reason that as i.e. failed to obtain the land settled with him, he was entitled to get back money which he had paid for that settlement.

(2.) The defence of the defendant first party was that when he purchased the adjoining survey plot No. 176 he came in possession of some of the disputed portion of survey plot 172 as that was also in possession of his vendors. The purchase took place on the 25th of November, 1936, since when the defendant first party has all along been in peaceful and uninterrupted possession in assertion of his right and in denial of the rights of others. He thus completed his title by adverse possession by the time the suit was brought. Plaintiff's title was also disputed on the ground that the settlement was not for agricultural purpose and in absence of any Kabuliat or any document executed by the plaintiff, he was hit by the provisions of Section 107 of the Transfer of Property ACT. Defendants second party supported the plaintiff but at the same time they pleaded that as the plaintiff had taken settlement of the suit lands after due enquiry about the settlor's title and possession, they were not liable to refund the consideration money paid for settlement on account of any illegal dispossession of the plaintiff from the land by the defendants first party. Defendant No. 7's case was that his predecessor-in-interest, the District Board of Muzaffarpur were all along in possession of the suit land and, as such, they had acquired title by adverse possession.

(3.) The concurrent findings of both the Courts nave been against the plaintiff. They have held that the plaintiff did not acquire any title as the registered instrument of lease was not executed by both the lessor and the lessee. Defendant first party was found to be in possession for six years and before that the possession of the land was with the landlords defendants second party who has perfect title to that. Defendant first party's claim or title by adverse possession was not established. It has also been held that the plaintiff was not entitled to refund of the consideration money from the defendants second party.