RAI SUNIL KUMAR MITRA Vs. THAKUR SINGH

JUDGEMENT

(1.) Plaintiffs' second appeal is against a judgment of reversal. Plaintiff's suit is for declaration of title and confirmation of possession or in the alternative recovery of possession of the schedule lands and for further declaration that the two sale deeds executed on 2-12-1961 by one Deonarain Singh in favour of defendants 5 to 20 are illegal, void and not binding upon them. Suit was decreed by the trial Court but the appellate Court set aside the said judgment and decree of the trial Court and dismissed the suit.

(2.) In short, the case of the plaintiffs is that late Biman Bihari Mitra and Banku Bihari Mitra, two brothers, held extensive Zamindari interest in the district of Gaya. They were proprietors of mouza Hitampur. P. S. Aurangabad, District Gaya of Tauzi No. 4858 having-/8/- annas share each. Banku Bihari created a trust and the executors of the trust were looking after the estate of Banku. Biman Bihari along with the executors of the estate of Banku Bihari, while having 16/- annas proprietory interest, purchased 55.9 acres of land of khata No. 6 in a rent execution sale (Case No. 37/41 Sub Judge I Court, Gaya) and in due course they obtained delivery of possession of the same on 20-7-1944. It is said that since then the executor of the trust and Biman Bihari remained in possession of the purchased land as their bakasi. As the original tenants of the purchased land in question were creating trouble, the executors of Banku Bihahi made settlement of their -/8/-annas interest in the purchased land with the original tenants. The tenants of -/8/- annas share of Biman Bihari also were creating trouble and since Biman Bihari was living at Calcutta it was decided that a local man can deal with the situation more effectively and being thus motivated created a farzi oral settlement with one of his oldest and trusted gomasta Deonarain Singh.

(3.) As there was inconvenience in cultivation with the original tenants of the executor of the trust of Banku Bihari, it was thought that the land should be partitioned and, therefore, Biman Bihari through his farzidar Deonarain Singh got instituted a partition suit bearing Partition Suit No. 48/52 against the original tenants as well as the executor of estate of Banku Bihari. In the said suit Biman Bihari was one of the defendant. The suit was contested up to High Court and it was ultimately disposed of on 23-4-1959 in First Appeal No. 228 of 1955. The suit for partition was allowed. The purchased lands were partitioned to the extent of -/8/- annas share between Deonarain Singh and the original tenants of the executor of the trust. After this Deonarain Singh started committing misconduct and, therefore, Biman Bihari was constrained to terminate his service in the year 1960. On 2-12-1961. Deonarain Singh claiming to be the sole owner of -/8/-annas purchased land, which was given in farzi settlement, executed two sale deeds in favour of defendant Nos. 5 to 20. Biman Bihari died leaving behind the present plaintiffs as his sole heirs sometime in the year 1962. Since the sale deeds dated 2-12-1961 cast a cloud upon plaintiffs' title and possession, the suit was brought in the year 1964, out of which the instant appeal arises.