LAKSHMI DEVI Vs. SHANKAR JHA

JUDGEMENT

(1.) This second appeal by the plaintiffs arises out of a suit for declaration of title and recovery of possession.

(2.) The plaintiffs' case was as follows. One Mohan Choudhary was the owner of 25 plots of the lands in suit which stood recorded in his name. Two other plots 700 and 728 were recorded in the name of one Srinath Choudhary, his Gotia. Mohan had two sons Naubat Lal and Bhopal and a daughter Merowati. In -the year 1912 Naubat died leaving behind him his widow Basantwati. Mohan died thereafter in the year 1925. Bhopal also died issueless in the year 1941. Merowati died in the year 1946 and her son Sahdeo Thakur is plaintiff No. 2. Basantwati died in the year 1957. As a result of the death of Mohan, Bhopal his son had become the sole survivor and thus the absolute owner in the year 1925 and after his death his sister Merowati inherited the property. The widow of Naubat, namely, Basantwati, had. however, only got maintenance after the death of her husband. At the death of Bhopal in the year 1941 she was the sole heir and inherited the entire property and came in exclusive possession thereof. At that time, however, Basantwati started claiming an interest in the suit lands and the dispute was, therefore, referred to arbitration by an agreement dated 25-5-1942 entered into by Basantwati, Sahdeo, Merowati and Srinath Choudhary aforesaid. A deed of agreement was then executed by the aforesaid parties on 31-5-1942 and signed by the Panches. According to it, half of the lands was given to Basantwati as her life interest in lieu of maintenance and the other half was given to Merowati. It was further decided by the Panches that 1 bigha and 5 kathas of lands be given to Srinath Choudhary. In spite of the deed, however, neither Basantwati nor Srinath came in possession of the lands allotted to them and Merowati continued in possession. Under a wrong advice, however, Merowati filed a title suit in the year 1945 in the Court of the Deputy Collector for a declaration that the award was illegal and inoperative. The matter went up to the Commissioner in a civil revision and it was held that the award was legal so far as Basantwati was concerned but illegal so far as Srinath was concerned. According to the plaintiffs, in spite of this decision Basantwati could not get possession. The lands remained in the cultivating possession of Merowati and Sahdeo. They used to divide the produce with Basantwati who had got a right of maintenance but after her death in the year 1957 Sahdeo became the absolute owner of the property. In the year 1958, however, there was a family arrangement in the family of Sahdeo by which the first plaintiff got the lands situated in village Motia and the other heirs of Sahdeo got other properties. At the instigation of defendants second party who were inimical to Sahdeo and the father-in-law of the first plaintiff the first defendant was set up to claim title and possession. This led to a proceeding under Section 144 of the Code of Criminal Procedure which, started in November, 1958. In that proceeding the defendants first party alleged that Basantwati had left a daughter named Bhawani who had been married to one Bhuneshwar Jha and defendant No. 1 was their son and entitled to the property. Defendants second party, the heirs of Srinath claimed the two plots recorded in his name. The proceeding was converted into one under Section 145 of the Code of Criminal Procedure. Possession was found with the defendants. Hence this suit.

(3.) The defendants' case was that Mohan Choudhary had died leaving behind him both his sons Naubat and Bhopal who had separated from each other and Naubat had died leaving his widow Basantwati, that Basantwati had a daughter who died during the lifetime of her mother leaving a son defendant No. 1 and two daughters. Theirfurther case was that Basantwati was in possession of the lands and became full owner thereof and after her death the defendants first party inherited the properties and came to be in possession thereof, that Merowati had never come in possession of the suit lands, that in view of the family arrangement Srinath had been given the two plots of land that the defendants second party were in possession thereof since then.