SAVITRI PANDEY Vs. ASHARFI RAI

JUDGEMENT

(1.) THIS Second Appeal has been preferred against the judgment dated 24th February, 1990 passed by Sri N.K. Choudhary, 1st Sub -Ordinate Judge, Muzaffarpur, in T.R.A. No. 8 of 1977 whereby he has been pleased to dismiss the appeal filed by appellant Smt. Savitri Pandey against the order dated 16.5.1977 passed by the Charge Officer, Muzaffarpur, in Suit No. 3004 of 1973 under section 106 of the Bihar Tenancy Act, by which order the learned trial court had allowed the claim of the plaintiffs -respondents.

(2.) FIRST of all I would like to state the case of the respective parties. The case of the plaintiffs -respondents, in brief, is that R.S. Plot No. 850 corresponding to C,S. Plot No. 462 appertaining to R.S. Khata No. 110 of Mauza Bhagwanpur fully described in Schedule -A of the plaint stands recorded in the Sirista of State of Bihar as Gair Mazarua Aam Rasta as per the entry in cadestral survey and the same has been coming in peaceful possession of the State of Bihar as Aam Rasta without any hindrance or disruption from any person but during the provisional survey operation the original defendant, Chaitu Rai, fraudulently got his name recorded with respect to 8 decimals of land of Plot No. 850/1369 appertaining to Khata No. 110 in his name by bringing the survey authority in his collusion and when this fact came to the knowledge of the original plaintiff, Chandu Rai, (father of respondent nos. 1 to 3), he filed a suit under section 106 of the B.T. Act which was numbered as Title Suit No. 3004/1973 for removing the name of Chaitu Rai from the revisional Khatiyan. The case of the present appellant (defendant in the suit) is that she is the purchaser of the suit land from the recorded tenant Chaitu Rai and when she got knowledge that the plaintiffs -respondents had filed a suit under section 106 of the B.T. Act bearing Suit No. 3004/1973, she made appearance in the suit and prayed to implead her as party to the suit and, accordingly, her prayer was allowed. Further case of the contesting defendant is that the original defendant, Chaitu Rai, had acquired 3 Kattha 10 dhur of land of Cadestral Survey Plot No. 462 appertaining to C.S. Khata No. 361 through a registered Patta Deed dated 24.11.1945 executed by ex -landlord, namely, Ahmad Khan and Aulaad Khan about ten years before the vesting of the estate in the State of Bihar and thereafter the said Chaitu Rai came in possession of the suit land. He had been paying rent of the suit land to the ex -landlord and was getting rent receipts. After vesting of the estate in the State of Bihar, tne said Chaitu Rai was paying rent to the State of Bihar and was getting rent receipts. Out of the abovementioned 3 Kattha 10 dhur of land. Chaitu Rai sold 1 kattha 1 dhur of land to one Kismatiya Devi wife of Saryu Rai before the revisional survey which was recorded in the name of Kismatiya Devi during the revisional survey and the remaining land was recorded in the name of Chaitu Rai during the revisional survey and accordingly, Khatiyan was prepared in his name in respect of R.S. Plot No. 850/1379 appertaining to R.S. Khata No. 110. On 16.12.74, the said Chaitu Rai sold the land to the defendant -appellant Smt. Savitri Pandey by a registered deed of sale and since the date of purchase the defendant -appellant has been coming in peaceful possession of the said land which is the subject matter of the suit land.

(3.) FROM the perusal of the record of this Second Appeal, it appears that at the time of admission of this appeal following substantial question of law was formulated to be decided in this case which is as follows: "Whether the decision in the analogous case will operate as res judicata in the case out of which this appeal arises -