RADHA KRISHNA Vs. RAM NIRANJAN

JUDGEMENT

(1.) The plaintiff-respondent filed the suit giving rise to the appeal wherein he prayed for declaration of his title and recovery of possession with mesne profit with respect to Plots Nos. 1648 and 1653 under Khata No. 2 situate in Muhalla Choudhary Tola within the Colgong Municipality in the district of Bhagalpur. The trial court gave a decree in favour of the plaintiff-respondent declaring that he has title with respect to 8 annas of the land appertaining to Plots Nos. 1648 and 1663 of Khata No. 2. It, therefore, restrained the defendants from interfering with the possession with respect to half of the suit land. With regard to the remaining half of the suit land, the trial court dismissed the suit.

(2.) Two appeals were filed against the decree passed by the trial court; one by the plaintiff and the other by the defendant. The appeal filed by the plaintiff-respondent was numbered as Title Appeal No. 1 of 1974 whereas the appeal filed by the defendant was numbered as Title Appeal No. 9 of 1974. The two appeals were heard together and disposed of by one common judgment whereby Title Appeal No. 1 of 1974 was allowed and Title Appeal No. 9 of 1974 was dismissed. Thereafter only one second appeal has been filed by the defendant assailing the decrees passed in Title Appeal No. 1 of 1974 and Title Appeal No. 9 of 1974. The appeal was listed before me on 7th December, 1978, while I was sitting singly. After hearing the appeal for some time, I referred it to a Division Bench as there appeared to be some inconsistency between the two Bench decisions of this court in the case of Bhairab Prasad Singh v. Birendra Pratap Singh AIR 1950 Pat 1 and in the case of Satruhan Prasad Singh v. Sudip Narain AIR 1955 Pat 408. Incidentally the appeal came before a Bench of which I was a member along with the Hon'ble the Chief Justice. We heard learned counsel for the parties and allowed the appeal in part on 31st July, 1984 saying that reasons will follow later. These are the reasons.

(3.) According to the plaintiff's case, one Ram Mohan Mandal had three sons, Shital Prasad Mandal, Suresh Prasad Mandal and Satyadeo Mandal. The father and the three sons constituted one joint family and the suit land belonged to them. According to the plaintiffs case there was a partition on 6th April, 1939 by a registered deed. According to that partition Ram Mohan Mandal and the three sons separated from each other. Shital Prasad Mandal came in separate possession of the land allotted to him and shifted to his house at another place. The two other sons, namely, Suresh Prasad Mandal and Satyadeo Mandal continued to remain in joint possession of the properties along with their father and thus there was a notional reunion among them and they constituted a joint family with the intention of remaining joint. It is further said that Satyadeo Mandal died during the lifetime of his father leaving behind his widow and a daughter, who died in April, 1953 and November, 1954 respectively. Ram Mohan Mandal had executed a will bequeathing his property to Suresh Prasad Mandal in the year 1947 when Ram Mohan Mandal died in state of jointness with Suresh Prasad Mandal and then his share was inherited by Suresh Prasad Mandal by way of survivorship. In the partition deed the suit lands were allotted to Ram Mohan Mandal. Therefore, after the death of Ram Mohan Mandal, the plaintiff said, it came to Suresh Mandal. But unfortunately trouble arose and there was a proceeding between Shital Prasad Mandal and Suresh Mandal under S.107 of the Code of Criminal Procedure concerning the land in suit. That proceeding was disposed of by a compromise wherein Shital Prasad Mandal admitted the title and possession of Suresh Mandal in respect of the property which was allotted to Ram Mohan Mandal and Satyadeo Mandal by a partition deed in the year 1939. Subsequently Shital Prasad Mandal also executed a Bazidawa dated 22-8-1952 in favour of Suresh Mandal disclaiming his title and possession over the land allotted to Ram Mohan Mandal. On 9-8-1960 Suresh Mandal entered into an agreement with Hari Prasad Santhalia, brother of the plaintiff for purchase of the suit land for Rs. 5,000/- out of which Rs. 505/- was paid in advance. Thereafter Suresh Mandal and his son executed a sale deed on 24-8-1960 in favour of the plaintiff and his brother Hari Prasad Santhalia with respect to the suit land and the vendee came in possession over the same. Subsequently there was a partition between the plaintiff and his brother Hari Prasad Santhalia and the suit land fell to the share of the plaintiff. It is said that Mahadeo Prasad Santhalia, defendant No. 1, who is the eldest brother of the plaintiff had taken a Kobala in the name of his son, defendant No. 2 in respect of half share of the suit properties from one Sheo Nandan Mandal son of Dwarika Mandal. It is said that on enquiry it transpired that Dwarika Mandal had taken a sham and fictitious Kobala earlier from Shital Prasad Mandal with respect to his share in the suit properties. It is said that Shital Prasad Mandal was separate from his father, so he could not have inherited any share out of the inheritance of his father and as such he could not transfer half share which originally belonged to Ram Mohan in favour of Dwarika Mandal. It is further said that after taking of Kobala, defendants Nos. 1 and 2 along with defendant No. 4 started creating trouble as a result of which a proceeding under S.145 of the Code of Criminal Procedure was initiated. This proceeding was later on converted into a proceeding under S.146 of the Code of Criminal Procedure which was decided against the plaintiff. Thereafter the suit giving rise to this appeal was filed.