ARVIND KUMAR Vs. MINA DEVI AND ORS.

JUDGEMENT

(1.) THE plaintiffs has filed this First Appeal against the judgment and decree dated 20.04.1983 passed by the learned Subordinate Judge, Biharsharif in title suit No. 114 of 1978 whereby the court below dismissed the plaintiff's suit for partition.

(2.) THE plaintiffs filed the aforesaid title suit No. 114 of 1978 alleging that the parties are descendants of common ancestor and are members of joint Hindu family. The ancestor of the parties had kasth land described in Schedule II of the plaint. The plaintiff and the defendant No. 1 are in joint possession of the land since 15.06.1977. Title Suit No. 155 of 1957 filed by the plaintiffs was decreed. The title appeal No. 81 of 1961 filed against the aforesaid judgment and decree was dismissed. Execution case was filed for executing the decree and in execution case, the delivery of possession was given to the plaintiffs. In the execution case, the defendant No. 1 appeared and filed objection under Section 47 of the Code of Civil Procedure. However, the said miscellaneous case was dismissed with condition that a note shall be made in the delivery of possession that it shall not affect the right, title and interest of the appellant. After mentioning this in the writ of delivery of possession, the possession was handed over to the plaintiffs on 23.04.1965. Since the date of delivery of possession, the plaintiffs were in possession of the same. After delivery of possession in favour of the plaintiffs, the defendant No. 1 never took any step for recovery of his land and, therefore also, the plaintiffs have acquired title by adverse possession.

(3.) ACCORDING to the written statement filed by the defendant No. 1, there is no unity of title and possession between the parties. One, Ambrika Prasad Singh filed money suit No. 98 of 1953 which was decreed against Nathuni Singh and others. The said decree was put in execution by Ambrika Prasad Singh. The suit property was auction sold and the properties were purchased by Ambrika Prasad Singh, who got his name mutated. After mutation, the purchaser, Ambrika Prasad Singh started paying rent against the grant of rent receipt. Objection was filed by the father of plaintiff No. 1 which was rejected. Ambrika Prasad Singh sold the suit land to the defendant No. 1 on 18.06.1962 and since then, the defendant No. 1 is coming in possession of the suit land after redeeming the property which was mortgaged. The plaintiffs lost the case upto the High Court and thereafter title suit No. 104 of 1954 was filed in which the father of this defendant was party. However, the suit was dismissed on 11.04.1963. It was held that the plaintiff is entitled to recover 4 Annas share but for recovery of his 4 Annas share, the plaintiffs never took any step. The alleged compromise pleaded by the plaintiffs is wrong, false and concocted story. There is no unity of title and possession between the parties nor there was any oral compromise.