SARIFA DEVI Vs. ANNA KHATOON

JUDGEMENT

(1.) This second appeal has been preferred by the defendants-appellants against the judgment and decree dated 6-1-1989 passed by Sri B. N. P. Singh, 3rd Additional District Judge, Nawadah in Title Appeal No. 86 of 1973/2 of 1987 upholding the judgment and decree dated 28-4-1973 passed by Sri Kailash Bihari Verma, Munsif III, Gaya in Title Suit No. 65 of 1967 whereby the learned Munsif had decreed the suit of the plaintiffs-respondents in part.

(2.) The brief facts of the case are as follows :- The plaintiffs-respondents instituted Title Suit No. 65 of 1967 in the Court of Munsif, Gaya for declaration of their title and recovery of possession of the suit land together with decree for mesne profit. The said suit was decreed in part by judgment dated 28th April, 1973 delivered by the Munsif III, Gaya. Against the said judgment, the defendants- appellants preferred appeal which was numbered as Title Appeal No. 86 of 1973/2 of 1987. The appeal was finally heard by Sri B. N. P. Singh, the then 3rd Additional District Judge. Nawadah who by his judgment dated 6-1-1989 dismissed the appeal filed by the defendant--appellants and then they preferred this second appeal against the concurrent findings of the Courts below.

(3.) The plaintiffs' case, in brief, is that the suit premises, as described in schedule of the plaint, belonged to one Harkhu Kahar, ancestor of defendant Nos. 1 and 2. The said Harkhu Kahar sold the suit plot with the house standing thereon to one Ghujan Sao in the year, 1921 by virtue of the oral sale accompanied by delivery of possession for a consideration of Rs. 25/-. The said oral sale was also evidenced by a sada sale deed. ter purchase of the suit property, the said Ghujan Sao subsequently sold it to one Halkhori Sao through a registered sale deed (Ext. 5) for a consideration of Rs. 100/- and put him (Halkhori Sao) in possession. After . the said sale sometime in the year, 1931 a dispute cropped up between the original tenant Harkhu Kahar and purchaser Halkhori Sao in respect of the use of Kaneta (common wall of the house). However, the controversy was set at rest and thereafter a sada Ekrarnama (Ext. 2) was executed between the parties in the year, 1947. Thereafter Halkhori Sao, the purchaser of the suit premises, mortgaged the suit property to one Hari Lai Sao and thereafter a deed of Kirayanama of the suit property (Ext. 4) was executed by the mortgagor in favour of the mortgagee. After termination of period of lease Halkhori Sao vacated the suit premises and then mortgagee Hari Lai Sao inducted some other tenants in the suit premises. After lapse of time the suit property became unfit for habitation and then Ganesh, who was the son of Halkhori Sao, sold the suit premises to the plaintiffs through a registered sale deed (Ext. 5/A) dated 16-2-1966 and thereafter the plaintiffs being the purchaser of the suit plot came in possession of the suit premises. It is stated that due to mistake of scribe, in place of plot No. 1604 which is the suit property, plot No. 1605 was inadvertently mentioned in the mortgage deed although the correct boundary of plot No. 1604 was mentioned and the same mistake again cropped up in the future deeds. Further case is that the defendants were also intending purchasers but when they failed to get the suit premises, they in collusion with the police got a collusive report submitted whereupon a proceeding under Section 144 of the Code of Criminal Procedure was started Th' plaintiffs had no knowledge of the said proceeding and in the meantime the- defendants opened a door in the western wall of Lhe house on plot No. 1603 leading to the room of the suit house. The plaintiffs came in possession of the suit house but on 11-4-1966 the defendants made preparation for taking forcible possession of the suit house whereupon the plaintiffs moved a petition before the S.D.O., Nawadah whereupon a proceeding under Section 144 of the Cr.P.C. was started and it was later on converted into a proceeding under Section 145, Cr.P.C. and the said proceeding was decided against the plaintiffs on 29-8-1967. Further case is that being emboldened by the abovementioned order, the defendants dispossessed the plaintiffs from the suit premises on 29-8-1967 and hence, this suit was filed.