LAGANDEO RAI Vs. RAJENDRA JHA

JUDGEMENT

(1.) THIS second appeal has been preferred against the judgment and decree dated 8.7.1988 passed by Sri Arun Chandra Das, 2nd Additional District Judge. Vaishali at Hajipur in Title Appeal No. 12 of 1985 affirming the judgment and decree dated 14.2.1985 and 26.2.1985, respectively, passed by Sri Uma Shankar Prasad, Munsif Ist. Hajipur in Title Suit No. 123 of 1974 and decreed the suit of the plaintiffs respondents.

(2.) THE brief fact of the case is as follows: Plaintiff Rajendra Jha and others filed, a title suit, before the Munsif Ist, Hajipur which was numbered as Title Suit No. 123 of 1974. THE said title suit was filed for declaration of plaintiffs' title and for recovery of possession of the suit land appertaining to old khata No. 31 Khesra No. 29 measuring an area of 2 kathas 10 dhurs situated in village Balatar P.S. Hajipur District Vaishali. THE plaintiffs' case, in short, is that one Damari Jha had two sons, namely, Brahmdeo Jha and Sukhdeo Jha. THE said Damari Jha died in the state of jointness with his two sons, as such, after the death of Damari Jha both the brothers, namely, Brahmdeo Jha and Sukhdeo Jha jointly inherited the suit properties along with other properties. Brahmdeo Jha was elder to Sukhdeo Jha and as such, he became karta of the joint family. In the year, 1926, 5 kathas of land appertaining to C.S. plot No. 29 under Khata No. 31 of Mauza Balatar was acquired by the income of the joint family but the sale deed was executed in the name of Brahmdeo Jha as he was Karta of the joint family. In 1940 both the brothers separated and they divided all the properties half and half. Accordingly, 2 kathas 10 dhurs of plot No. 29 from the north was alloted to Sukhdeo Jha whereas 2 kathas 10 dhurs of the said plot from the south was alloted to Brahmdeo Jha. Just after partition Brahmdeo Jha died in or about 1940 leaving behind him his widow Kaushalya Devi and a daughter Baban Devi. On 30.12.1946 Sukhdeo Jha executed a sale deed in favour of Udit Jha with respect to 2 kathas 10 dhurs of plot No. 29. After the said sale Udit Jha, came in possession of the purchased land. On 19.5.1948 the said Udit Jha sold the said 2 kathas 10 dhurs land to Maharakhi Devi. THE said Maharakhi Devi was the wife of Damari Jha and the mother of Brahmdeo Jha and Sukhdeo Jha. On 10.8.1950 Mahrakhi Devi executed a deed of gift with respect to the said 2 kathas 10 dhurs of land besides other lands in favour of Baleshwar Thakur who accepted the gift and came in possession of the said lands. On 2.4.1971 the said Baleshwar Thakur sold the said land to plaintiff No. 1 Rajendra Jha. Further case of the plaintiffs is that by virtue of the said sale deed the plaintiffs acquired right, title and interest in the said 2 kathas 10 dhurs land from north which was allotted to Sukhdeo Jha and came in possession thereof. It is said that the defendants were desirous of purchasing the aforementioned land from Maharakhi Devi but she refused to sell the land to the defendants due to which the defendants were very much aggrieved and when they (defendants) came to know about the execution of gift deed by Maharakhi Devi in favour Baleshwar Thakur they brought Kaushalya Kuer in their favour and got a mortgage deed executed from Kaushalya Kuer with respect to the suit land on 21.8.1950 in favour of Ram Padarath Thakur, although Kaushalya Devi had already sold her share in the disputed Khersa to her daughter Baban Devi by virtue of the sale deed dated 27.6.1945 and as a matter of fact, the said mortgage deed was never acted upon. Further case is that when the defendants did riot get any benefit from the abovementioned mortgage they again brought a farzi document in existence and got executed a gift, deed by Kaushalya Kuer in favour of Bechan Jha with respect to her half share in the disputed plot although the said Kaushalya Devi had already sold her share to her daughter. However, the said Bechan Jha never came in possession of the land by virtue of the gift deed. It is further said that the defendants have also fabricated some other documents in their favour. Further case is that on 28.4.1971 the said Kaushalya Devi and Bechan Jha executed two sale deeds - one in favour of defendant Nos. 1 and 6 and another in favour of defendant Nos. 3 to 5 with respect to the entire 5 kathas of land appertaining to plot No. 29 under Khata No. 31 including the northern half allotted to Sukhdeo Jha and then on the strength of the said sale deeds, the defendants started interfering with the possession of the plaintiffs over the suit land as a result of which 144 and 145 Cr.P.C. proceedings were stared between the plaintiffs and the defendants which were decided in favour of the defendants vide order dated 26.7.1973. THEreafter on the strength of the order passed, in 145 Cr.P.C. proceeding the defendants dispossessed the plaintiffs from the suit land on 27.7.1973 and hence, the necessity of filing of the suit arose.

(3.) FROM perusal of the judgment of the trial court it appears that on the basis of the pleadings of the parties, altogether nine issues were framed which are as follows: