KAMAL SINGH Vs. KALI MAHTON

JUDGEMENT

(1.) The appellants are the plaintiffs in the suit, and the respondents are the defendants. The court of the first instance decreed the plaintiffs' suit. The defendants preferred an appeal before the lower appellate court which set aside the judgment and decree of the first court and dismissed the plaintiffs' suit and allowed the appeal of the defendants. Against this order of the lower appellate court, the appellants preferred this second appeal.

(2.) The plaintiffs had brought the suit for a declaration of their title over the palas trees and jungle in plots Nos. 713 and 1053 in village Chuna. The entire village including the disputed plots, it is admitted, belonged to the deity, Madan Gopal .Tiew Thakur. It is further admitted that Rohini Debya was the former 'sebait' of the deity and Bireswar Kishore Deb was, the 'sebait' after her. The case of the plaintiffs is that Bireswar Kishore had settled the palas trees as well as the jungle with the plaintiffs by virtue of a patta dated 7-4-1941, and as a result of this, they, the plaintiffs, were to be in possession of the jungle from that date. The plaintiffs brought the suit because the defendants, it is alleged, were interfering with the plaintiffs' possession over the disputed plots.

(3.) The case of the defendants, on the other hand, is that the disputed jungle as well as the palas trees were in their possession in their own right, and that the 'sebait' could not settle the said jungle and the palas trees with the plaintiffs. It is alleged that Kinu Mahto had possessed the palas trees in the village, and the then sebait', namely, Rohini Debya, had brought a suit against Kinu Mahto, but it was dismissed. It is also alleged that Rohini Debya had brought another suit against Kinu Mahto, which was Title Suit No. 1616 of 1906, for possession over the palas trees. It is further alleged that during the pendency of this suit, Kinu sold half his interest to Ramdhan Mahto. That suit was compromised, and as a result of the compromise it was agreed that Kinu Mahto and Ramdhan Mahto were to remain in possession of the palas trees on payment of an annual rental of Rs. 11/-. It is alleged further that Kinu Mahto then sold the remaining half to Ramdhan Mahto by means of a sale deed dated 22-4-1908, and that thereafter Ramdhan Mahto got the entire sixteen annas share in the palas trees of the said village and that he remained in possession till his death, The defendants who are the heirs of Ramdhan Mahto, claimed to be in possession of the palas trees since the death of Ramdhan Mahto. The defendants, therefore, amongst other grounds, resisted the plaintiffs' claim on the ground that the 'shebait' had never settled the disputed two plots with the plaintiffs, and that these two plots had been incorporated fraudulently in the so called settlement with the plaintiffs.