PRAHALAD CHANDRA MAHATO Vs. STATE OF BIHAR

JUDGEMENT

(1.) This second appeal by defendants Nos. 6 to 10 has been preferred against the judgment of the first Additional District Judge, Singhbhum who dismissed the appeal of the plaintiffs and also set aside the decree which was passed by the trial court in favour of defendants Nos. 6 to 10 in respect of their half share i.e., 8 annas share in the disputed property.

(2.) The plaintiffs filed a suit for declaration that the tank situate in Survey Plot No. 307 with its embankment which is Survey Plot No. 306 are the homestead and khas property of the plaintiffs and the pro forma defendants (defendants Nos. 11 to 22) and for further declaration that defendants Nos. 6 to 10 (appellants before this court) have no title in the suit property and their recognition as tenant by the State is illegal. There was also a further prayer for permanent injunction restraining the defendants from interfering with the possession of the plaintiffs.

(3.) The plaintiffs' case in short was that the ancestors of the plaintiffs and the pro forma defendants excavated a tank for their domestic and agricultural use in Survey Plot No. 307. The further case was that the plaintiffs and their ancestors migrated to some other village but some time after the cadastral survey plaintiffs Nos. 1 and 2 came back to their original village, that is, village Rangatanr and constructed their residential house in several plots (which are not in dispute). The further pleading was that the tank with its ridge is the khas property and part of the homestead of the plaintiffs and pro forma defendants and they are still in possession by rearing fish. The estate of the plaintiffs vested in the State of Bihar some time in 1956-57 and the plaintiffs filed return showing the tank and the embankment aforesaid as part of their homestead and accordingly the State issued notices for fixation of rent. The further case of the plaintiffs was that there was a partition in the family through partition Suit No. 33 of 1966 which was compromised and the suit property was kept Ijmal amongst the cosharers. It was stated in the plaint that in the revisional survey of 1964 the disputed property was recorded in the name of defendants Nos. 6 to 10 (appellants before this court) on the basis of a registered kabuliat dated 2-3-1944 executed in favour of some of the cosharers namely Ramratan Mahanty and others to the extent of 8 annas share in spite of the objection preferred by the plaintiffs. The plaintiffs alleged that this kabuliat was never acted upon and the appellants never came in possession. With the aforesaid allegations the plaintiffs filed the present suit