CHANNOO MAHTO Vs. JANG BAHADUR SINGH

JUDGEMENT

(1.) This plaintiffs' appeal is directed against a judgment of reversal of Mr. H.R. Kazimi, District Judge, Muzaffarpur dated 15-12-53.

(2.) The plaintiffs brought a suit for a declaration of their title to and recovery of possession of 6k. 15dh. out of plot 228 of khata 24 in village Phulwaria. The plaintiffs' case was that there was one Bucha, who died before the survey, which took place in 1897, leaving behind a major son Daulat, and a minor son Maulat. Bucha died leaving some properties also including plot 228. At the time of survey Maulat was a minor, and, therefore, all the properties left by Bucha were recorded in the name of Daulat only, as he was the major son of Bucha. The two brothers, however, continued to be in joint possession of the properties left by Bucha. Even after the death of Daulat, his son, Mohammad Jan, defendant No. 5, and Maulat continued to be in joint possession of all the properties. Thereafter there was a partition between Mohammad Jan and Maulat, by virtue of which the disputed land was allotted, to the share of Maulat, and the remaining portion of the plot fell to the share of Mohammad Jan. Maulat continued to be in exclusive possession of, the disputed land for a number of years, and thereafter he sold the same to the plaintiffs on 13-6-1915 under Exhibits 1-A and 1-B, The plaintiffs continued in possession of the disputed land, but thereafter, due to interference by the defendant 1st party they discontinued their possession in' December, 1950, On these allegations the plaintiffs sought a declaration of title to and recovery of possession of the disputed land. Alternatively, the plaintiffs also prayed that if it was found that plot 228 was not partitioned be-ween Maulat and Md. Jan, then as each of them had a moiety share in it, the plaintiffs were entitled to a half share in plot 228 after partition. They also prayed that in such a case they were entitled to get a refund of the proportionate amount of the consideration from Maulat. Maulat was originally a defendant to the suit as defendant 6, and he filed a written statement supporting the case of the plaintiffs. He, however, died during the pendency of the suit, and his wife Sanichri was substituted in his place. She filed a written statement supporting the defendants 1st and 2nd parties. Later on she also died and her name was expunged.

(3.) The suit was, therefore, contested mainly by defendants 1st and 2nd parties. Their case war that Bucha died after the survey, that he had no property of his own, and all the properties which Stood recorded in the survey record of rights in the name of Daulat, were his self-acquired properties and belonged to him alone, and Maulat had nothing to do with the same. They also denied the allegation of partition between Md. Jan and Maulat, and the feet that by partition the disputed land fell exclusively to the share of Maulat, Their further case was that a portion of plot 228 was given in para to one Ramnandan Prasad, who orally sold his bharna rights to Maulat, and, therefore, Maulat was in possession for a number of years as bharnadar but when the bharna was redeemed the land came back in possession of Md. Jan, the mortgagor. They also denied the case of possession and dispossession set up by the plaintiffs.