JAYANTI DEVI Vs. SRICHAND MAL AGRAWAL

JUDGEMENT

(1.) This appeal has been placed for hearing before me on the difference of opinion between Nagendra Prasad Singh, J. and S. Ali Ahmad, J. Nagendra Prasad Singh, J. has allowed the appeal, set aside the judgment and decree passed by the Second Additional District Judge, Gaya, (the court of appeal below) and remitted the case back to be heard afresh in accordance with law in the light of the observations made by him. S. Ali Ahmad, J. has dismissed the appeal. Nagendra Prasad Singh, J. has held that it appears from the judgment of the court of appeal below that after having held that the plaintiff did not acquire any title by virtue of the court sale it has purported to consider the question of possession saying that the plaintiff having failed to prove title, now it was to be considered whether she acquired title by adverse possession ; and held :-

(2.) Before difference of opinion on the points of law are spelled out and the contentions raised on behalf of the parties are considered, I may. indicate the relevant facts. The plaintiff is the appellant before this court, According to her survey plot No. 156 under Khata No. 347 measuring 1 acre survey plot No. 157 under Khata No. 169 measuring .O. 23 acre and survey plot No. 152 under Khata No. 310 measuring O. 38 acre had been mortgaged in her favour by Gopi Dusadh, father of defendant No. 5 and Nathuni Dusadh (defendant No. 6) under a registered mortgage bond dated 6th January, 1928. As the mortgage dues were not paid, a mortgage Suit No. 151 of 1938 was filed on behalf of the plaintiff against Gopi Dusadh and Nathuni Dusadh (defendant No. 6) and his sons (who are defendants 7 and 8 in the present suit). That suit was decreed ex parte. The decree was put in execution giving rise to Execution case No. 620 of 1941. On 4th February, 1942 lands which were subject matter of the mortgage were put on auction sale and were purchased by her (the plaintiff). The sale was confirmed. In the mortgage bond as well as in the above said title suit there has been a mistake in mentioning the correct plot number of one of the plots in dispute inasmuch as instead of plot No. 156 of Khata NO. 347 it was mentioned plot No. 139 of Khata No. 343. Similarly, the Khata of plot No. 157 was mentioned as 69 instead of 169. The area of all the three plots was correctly mentioned in the mortgage bond as well as in the plaint of the earlier suit. Delivery of possession, however, was effected on 26th November, 1943 upon the plots, in question. Since then she, the plaintiff remained in possession. She executed an usufructuary mortgage bond in favour of defendant No. 9 on 30th September, 1943 in respect of plot Nos. 152 and 156 but possession was given to him after 26th November, 1943 and he (defendant No. 9) continued to be in possession of those plots as mortgagee. On 10th September, 1962 defendant No. 5, son of Gopi Dusadh, executed two sale deeds (Exts. H and H/1) in respect of portions of plot No. 157 in favour of defendant Nos. 3 and 4. On 9th October, 1966, defendant Nos. 5 and 6 executed yet another sale deed (Ext. H/2) in respect of a portion of plot No. 157 and the entire plot Nos. 152 and 156 in favour of defendant Nos. 1 and 2. Defendant Nos. 1 and 2 raised a dispute claiming under the sale deed executed by defendant Nos. 5 and 6 in their favour resulting in a proceeding under Section 144 of the Code of Criminal Procedure. This proceeding went against the plaintiff. Defendant No. 9, as alleged by the plaintiff, in collusion with other defendants refused to deliver possession of the lands mortgaged with him. The plaintiff accordingly filed the instant suit seeking a declaration of her title over the aforesaid 3 plots and confirmation of possession or in the alternative recovery of possession.

(3.) Defendants 1 to 4 who contested the suit maintained that the mortgage bond or the year 1928 and the suit filed earlier by the plaintiff were collusive. The mortgage bond was never to be acted upon and in fact it was not acted upon. The suit and the ex parte decree passed in the suit being collusive no title was acquired by the plaintiff. Their respective vendors were in possession of the lands purchased by them and ever since the execution of the sale deeds they were/are in possession of the lands in dispute.