JULUMDHARI RAI Vs. DEBI RAI

JUDGEMENT

(1.) Some of the defendants of first, second and ninth parties are appellants in this appeal. The plaintiffs and other defendants are the respondents. The original suit was for declaration of title, and recovery of possession with mesne profits in respect of 134 bighas of land in village Pursotimpur in tauzi No. 11840 in the district of Muzaffarpur. All the plaintiff did not claim interest in all the suit lands. Different items were mentioned in schedule 6 of the plaint to show which portions of the suit lands were claimed by which of the plaintiffs. It was alleged that the plaintiffs had been dispossessed by the defendants first party following a judgment passed in a case under Section 145, Criminal Procedure Code, on the 13th of July 1950 in which the present plaintiffs and defendants first to sixth parties were involved. 175 bighas of lands were the subject-matter of that proceeding and possession in that was found by that Court to be with the present defendants first, second and third parties. It will be convenient to indicate here the groups of the defendants in the present suit; Defendants first party-defendants 1 to 21a, defendants second party-defendants 22 to 29a, defendant third party-defendant No. 30, defendants fourth party-defendants 31 to 37, defendants fifth party-defendant No. 38, defendants sixth party-defendant No. 39, defendants seventh party-defendant No. 40, defendant eighth party-defendant No. 41 and defendants ninth party-defendants 42 and 43.

(2.) The case of the plaintiffs was that village Pursotimpur is situate on the bank of river Ganges and belonged to Syed Mohammad Hussain and others of Patna. It had an area of more than 417 bighas which was recorded as gairmazrua malik and constituted Diara lands, being subject to alluvion and diluvion. The milkiat interest of the village was sold for arrears of revenue to four persons, Ganesh Prasad, Ram Pratap Singh, Amir Singh and Baijnath Prasad Singh. They carved out separate pattis for their respective shares in Partition suit No. 11 of 1929 in the Court of the Subordinate Judge, 2nd Court, Muzaffarpur, and retained their possession accordingly. Amir Singh's share came to be sold for arrears of revenue and purchased by Baijnath Prasad Singh defendant No. 40, who thus acquired 12 annas patti in the tauzi. By that time, about 32 bighas of land had become cultivable, the rest remaining under water or covered by sand. In 1943 some more land became cultivable and then a dispute arose between Baijnath Prasad Singh and the ancestors of the present defendants first and second parties, leading to a proceeding under Section 145, Criminal Procedure Code, in respect of 223 bighas of land claimed in the patti of Baijnath Prasad Singh in lieu of his 12 annas share in the milkiat. That proceeding, however, was dropped on compromise on the 13th January 1947, when the present defendants second party admitted the title and possession of Baijnath Prasad Singh over the disputed land and the latter agreed to settle 36 bighas of land with them under registered deeds of lease. The defendants second party took the lease on the 5th of February 1947 for 28 bighas 18 kathas from Baijnath Prasad Singh and remained in possession of the same. On the same day, defendant third party took a similar lease for 7 bighas 2 kathas. Schedule 2 of the plaint describes those lands. Another 267 bighas of land was settled by Baijnath Prasad Singh with the plaintiffs on the 5th and 10th of February 1947 by registered documents and the description of those lands is given in schedule 3. Plaintiffs claimed that they came in possession of that. The settlement taken in the name of plaintiff No. 1 was for the joint family consisting of himself and plaintiffs 1(a) to 1(e). The other plaintiffs took separate settlement of separate portions of lands as detailed in Schedule 6. The milkiat interest of Ganesh Prasad devolved on his son Ram Prasad who transferred his entire interest to plaintiff No. 1 by a deed of sale dated the 13th of March 1947, in the name of his brothers plaintiffs 1(a) and 1(b). Another cosharer Ram Pratap Singh also transferred his milkiat interest to the plaintiffs 1 to 1 (e) and defendant No. 12 Kalicharan Rai and defendant No. 42 Deonarain Rai, on the 2nd of April 1947. Kalicharan Rai and Deonarain Rai got a share of 8 gandas and odd each. The rest went to plaintiffs 1 to 1 (e). Thus the plaintiffs claimed that they were settlees and some of them proprietors in respect of 3 annas and odd share in mauza Pursotimpur.

(3.) Another proceeding under Section 145 Criminal Procedure Code was started in October 1947 in respect of 175 bighas of those lands. The details of those lands are given in Schedule 5 of the plaint. Defendant first party took a settlement of 5 bighas from Kalicharan Rai (defendant No. 12). Similarly plaintiff No. 13 took settlement of 5 bighas from Deonarain Rai. These lands are described in Schedule 4. That proceeding, however, ended against the plaintiffs on the 13th of July 1950 (Ext. 1), and following; that the plaintiffs were dispossessed out of the suit lands described in Schedule 6. A sum of Rs. 12,500/- being the income of the land under attachment in the proceeding under Section 145 was in deposit in the Court of the Magistrate and the plaintiffs claimed in the suit their right to withdraw that money. The plaintiffs also asked for recovery of possession and mesne profits of the suit lands.