GOURI SHANKAR PRASAD Vs. RAM KISHUN DASS

JUDGEMENT

(1.) This second appeal is by defendant No. 2 against a judgment of the learned Additional Subordinate Judge decreeing the alternative relief of the plaintiffs respondents for repayment of Rs. 2,000 which the plaintiffs respondents had paid to the appellant as a consideration for transfer of a land measuring 26 acre.

(2.) The plaintiffs filed Title Suit No. 137 of 1960 alleging that plot No. 459 was the nakdi joat land of one Raghunath Sahai who had constructed a house thereon. The said Raghunath Sahai died leaving behind three sons-- Lachhmi Narain, Shambhu Narain (defendant No. 3) and Gouri Shankar (defendant No. 2). It is further the case of the plaintiffs that defendant No. 2 came in exclusive possession of the said plot as owner thereof and he, under a registered sale deed dated 27-9-55, transferred the said plot of land in favour of the plaintiff's for a consideration of Rs. 2,000. The plaintiffs also claimed that after the said purchase they came in possession of the plot in question but defendant No. 1 claiming the said plot under a fictitious hukumnama raised an unfounded dispute and a proceeding under Section 144 of the Code of Criminal Procedure having been drawn, was decided against the plaintiffs. Ultimately the plaintiffs were dispossessed on 1-11-59 by defendant No. 1. On the'above allegations, the plaintiffs made a prayer for a decree for declaration of their title and recovery of possession. There was an alternative relief prayed for in the said plaint that in case there was anv difficulty in passing a decree for title and possession in favour of the plaintiffs then a decree for the aforesaid amount of Rs. 2,000 with interest, be passed in their (plaintiffs') favour.

(3.) Defendant No. 1 challenged the assertion of the plaintiffs on the question of title and possession. According to the said defendant, the plot in question had been recorded in name of Lachhmi Narain and Shambhu Narain. But after the last earthquake the plot in question came in possession of the maliks as the recorded tenants abandoned the same and defendant No. 1 took settlement of the said plot under a hukumnama dated 5th Jeth, 1349 fasli and since that day he was in possession of the same.