SATYA NARAYAN RAI Vs. RAM ASHRAY MAHTO

JUDGEMENT

(1.) Defendant Nos. 3, 4, 5 and 6 have preferred this appeal against the order dated 25.9.2004 passed by the learned Additional District Judge-Xth, Patna, in Title Appeal No. 63 of 1999 holding that the entire appeal has abated as they (appellants) did not take steps to set aside the abatement of the Title Appeal which has been filed against the judgment and decree dated 15.6.1999 passed by the learned Sub-Judge-VIth, Patna, in Title Suit No. 10 of 1988. Kailash Mahto and his sons, namely, Ram Ashray Mahto, Mithilesh Mahto, Chhote Mahto, Lalan Mahto, Munna Mahto and Binod Mahto had filed Title Suit No. 10 of 1988 for declaration of absolute and perfect title on the suit land and the house described in schedule-l of the plaint and also for declaration that the defendants have got no right, title and interest therein and defendant No. 6 namely, Smt. Sharda Devi, wife of Satya Narain Rai, did not acquire any title and possession of the suit land on the basis of sale deed dated 16.9.1993 which was brought into existence during the pendency of the Title Suit No. 280 of 1983 and the sale deed of the defendant No. 6 in respect of the suit land is illegal, null and void, inoperative, ineffective, unauthorized, without consideration and mere papers transaction.

(2.) The case of the plaintiffs, in brief, is that Chhotan Mahto Had a son Kailash Mahto and Kailash Mahto had six sons. Kailash Mahto and his six sons, who are plaintiffs in this case, are the members of the joint family and as plaintiff No. 1 Kailash Mahto had become very old, Ram Ashray Mahto (plaintiff No. 2) is the Karta of the joint family. The plaintiffs had ancestral house in Mouza-Dhimoi, P.S.-Harnaut, District-Patna at present Nalanda and the plaintiffs' family had one kucha mud built house and no other landed property was there. 35 years ago Kailash Mahto (plaintiff No. 1) abandoned his village and came to Patna Town and started plying rickshaw and began to live in Mouza-Dhakanpura presently known as Boring Canal Road, Patna. 1.39 acres of land bearing plot No. 54, Khata No. 507 under Touzi No. 227 in Mouza-Dhakanpura, P.S.-Phulwari at present Shri Krishnapuri, Patna, stands recorded in the name of Ajit Mahto, son of Lakhraj Mahto and Harihar Mahto and Lakshman Mahto, sons of Gopi Mahto and Kumari Banlata De acquired entire area of plot No. 54 from Khatiyani raiyat and had been coming in possession and got building constructed in the southern portion of plot No. 54 and started a girls' school and she was working as one of the teachers and the entire land measuring 1.39 acres including the building on the southern portion of plot No. 54 came to be known as Subhash Kanan. Plaintiffs are the privileged tenants and men of backward community and Kailash Mahto and his wife helped Banlata De in house-work and Banlata De had love and affection for Kailash Mahto and having been pleased from the service of Kailash Mahto and his wife, treated Kailash Mahto as her son. Banlata De became pleased with the service of Kailash Mahto and gave western portion of plot No. 54 measuring 92 feet in length from east to west and 32 feet in width from north to south in plot No. 54 described in Schedule No. 1 of the plaint, to Kailash Mahto for construction of house and for residence and she got settled Kailash Mahto in that land. Kailash Mahto constructed permanent house in the said land from his own fund and have been living there with the members of his family since 1958. He also constructed a brick-built house in the year 1958-59 and constructed three rooms in the western side and thatched it with tiles and has been living there with the members of the family and also constructed a hut on the eastern portion of the land by the side of Boring Canal Road, Patna. The members of his family have been holding shops of fruits and now at that place Ram Ashray Mahto (plaintiff No. 2) is earning from the painting. Plaintiff No. 1 also planted Sisam tree and Papaya plants. The plaintiffs have also constructed Tulsi Chaura in the courtyard and fixed deity of Bajrang Bali and Shivji near Tulsi Chaura. They also planted a Bargad tree which is standing near the deity of Shivji. They have also kept cattle there.

(3.) Banlata De died unmarried and her property devolved upon her nephew Ashish Kumar De who died leaving behind his widow Bani De and his son Debashish De who succeeded the property of Ashish Kumar De. The plaintiffs are in possession of land since 1958 uninterruptedly without any objection within the knowledge and exclusion of Banlata De and her heirs, successors and everybody else in the locality. By adverse possession also the plaintiffs have acquired title and possession over the suit land and the house. It is further stated that defendant No. 6 purchased the land including the suit land during the pendency of the Title Suit No. 280 of 1983 pending in the Court of Sub-Judge-I, Patna (Kailash Mahto vs. Bani De & Ors.) and defendant Nos. 3 to 6 had full knowledge and during the pendency of the Title Suit No. 280 of 1983 defendant No. 6 purchased the litigations and sale deed dated 16.9.1983 in respect of the suit land is illegal, null and void, inoperative and without consideration.