JANKI MISSIR Vs. DHARAMRAJ MISSIR

JUDGEMENT

(1.) The only two defendants in the suit are the appellants in this appeal against a judgment and decree of reversal. The respondents had instituted the suit out of which this appeal arises under Order 21, Rule 103 of the Code of Civil Procedure (hereinafter referred to as the 'code') for declaration of their title and recovery of possession over the lands described in Schedule A of the plaint which comprised portions of plots 98 and 108 appertaining to khata No. 48 of village Chakki Nawanga Mausame Rasoolpur Ramkarhi. The total area of both these plots is 435 bighas and odd out of which plaintiff No. 1 respondent No. 1 claimed 29 bighas 15 kathas 10 dhurs, plaintiff No. 2 respondent No. 2 an area of 5 bighas 9 kathas 2 durs, plaintiff No. 3 respondent No. 3. 6 bighas 8 dhurs and plaintiff respondent No. 6, 5 bighas 12 kathas 18 dhurs. the total area involved in the suit thus being 59 bighas 19 kathas 13 dhurs out of the aforesaid 425 bighas and odd. The learned Subordinate Judge who tried and heard the suit dismissed it, but on the plaintffs having appealed, the learned Additional District Judge, who heard the appeal decreed the suit. The defendants have challenged the appellate decree of the learned Additional District Judge.

(2.) Shortly stated the respondents' case as set out in the plaint was as follows. The village in question was cadastrally surveyed in the year 1935-37 and the names of the father of plaintiffs respondents Nos. 1, 2, 4 and 5 and uncle of plaintiff respondent No. 6 and plaintiff respondent No. 3 himself were entered in the survey record of rights in respect of the kast lands in their possession, but the unculturable lands were entered in Gairmazarua Gang Barar, khata No. 48 having an area of 425 Bighas 6 khatas. Since this huge area was mostly Munj and Junge and sand at that time, it was entered in the names of eleven leading persons of the village, who represented the plaintiff ancestors as well as the other kastkars of the village. In a proceeding under Section 145 of the Code of Criminal Procedure these eleven persons representing the entire village were declared to be in possession of the entire area in the village in question. During the survey proceedings in spite of the fact that the aforesaid eleven persons asserted their claim with respect to the entire area of the village, in a proceeding under Section 103-A of the Bihar Tenancy Act the Settlement Officer rejected their contentions with regard to the culturable lands of the village, but since the Gairmazarua Gang Barar Khata was not capable of actual physical possession at the time, he left it jointly in the names of those eleven persons. The further case of the plaintiffs respondents was that on the strength of the entry against khata No. 48 of the village in question the eleven persons recorded in the khatian and their descendants brought a collusive suit for partition in the court of the Subordinate Judge, Arrah of which the plaintiffs had no knowledge and a collusive final decree was obtained in that suit on 10-4-1956 and a prayer for delivery of possession was made in two execution cases being Nos. 9 and 11 of 1958. A pleader commissioner was appointed by the learned Subordinate Judge to give delivery of possession and when he went to the spot, he dispossessed the plaintiffs from their respective areas in dispute and put the appellants in possession of those areas, and it was then that for the first time the plaintiffs came to know of the fraudulent intentions of the group of those eleven leading members of the village. The plaintiffs thereafter filed nine miscellaneous cases under Order 21, Rule 100 of the Code before the First Additional Subordinate Judge, Arrah claiming that they were in possession on their own account and in their own right. The defendants entered objections in the aforesaid proceeding and their main defence was that the eleven recorded persons did not represent the whole village and in a subsequent suit brought by the Maharaja of Dumaraon against the recorded tenants claiming the lands to be his zirat, the raiyats entered into a compromise with the Maharaja by which they were recognised as tenants and rents were fixed. The plaintiffs further came to know from the objections filed by the defendants in the proceeding under Order 21, Rule 100 of the Code that there were rent suits brought in respect of the holding in question by the Maharaja of Dumaraon against the recorded tenants, but the plaintiffs or their ancestors were not even parties to those rent suits. The case of the plaintiffs further was that in the aforesaid proceeding evidence was led by them to prove that they were in possession of the lands on their own account and that in the suits brought by the Maharaja of Dumaraon either for title or for rent they were not parties, and, therefore, those judgments shall have no binding effect on them. And further that the persons who entered into compromise with the Maharaja had no right or authority to compromise on behalf of the plaintiffs and their ancestors. The proceeding under Order 21, Rule 100 of the Code was, however, decided against the plaintiffs and hence they were compelled to file this suit under Order 21, Rule 103 of the Code.

(3.) The appellants' defence, in short, was that the plaintiffs or their ancestors were never in possession of the suit lands; that the aforesaid eleven persons did not represent the others; that in the Title Suit No. 30 of 1935 brought by the Maharaja of Dumaraon against the plaintiffs and defendants' ancestors as well as other raiyats of the village, the lands of khata No. 48 were allotted to the share of the family of the eleven persons aforesaid including the defendants' ancestors and not to the plaintiffs' family, who chose to take other lands and gave up their claim, if any, to the lands of khata No. 48. The plaintiffs and/or their ancestors having chosen to take other lands under the compromise in Title Suit No. 30 of 1935 and in the compromise decree of the same date, the lands of this khata having been allotted to the family of those eleven persons including the defendants' predecessors in interest, and the defendants having been in possession ever since to the complete exclusion of the plaintiffs, the plaintiffs' suit was barred both by limitation and the principles of estoppel.