KEWALA DEVI Vs. HIRA SAO

JUDGEMENT

(1.) THIS second appeal has been preferred by the plaintiffs appellants against the judgment and decree dated 31st August, 1989 passed by Sri Awadh Behari Srivastava, 5th Additional District Judge, Gaya in Title Appeal No. 7 of 1985/49 of 1983 D.J. confirming the judgment and decree dated 13th August, 1983 passed by Sri Ram Kumar Mishra, Munsif III, Gaya in Title Suit No. 10 of 1979/21 of 1983, whereby the learned Munsif had been pleased to dismiss the suit of the plaintiffs -appellants.

(2.) THE case of the plaintiffs -appellants, in brief, is that the suit land measuring an area of 5 decimals appertaining to Khata No. 60 plot no. 308 of Mauza Ajmalganj Paraiya stands recorded in the cadestral survey khatian in the name of Jhagru Sao. The father of plaintiff no. 2, namely, Saman Sao orally purchased 1 decimal of land of plot no. 308 of Jhagru Sao and since then the ancestors of the plaintiffs were coming in possession of the said 1 decimal of land. After the death of Jhagru Sao, the recorded tenant, his nephew Sarjoo Sao, who was the only heir left by Jhagru Sao inherited the remaining 4 kathas of plot no. 308 and after his death, his two sons, namely, Bachu Sao and Bulak Sao inherited the aforesaid property and on 22.11.1966 the said Bachu Sao alongwith three sons of Bulak Sao sold the aforesaid 4 decimals of land to the plaintiffs. The sale deed was executed in the name of plaintiff no. 1. Thereafter the plaintiffs came in possession of the entire 5 decimals of plot no. 308 and made it in one compact block by amalgamating the previously purchased 1 decimal of land with the newly purchased 4 decimals of land and thereafter the plaintiffs constructed the house over the same. Further case is that the defendants are agnates of plaintiff no. 2 and they requested the plaintiffs to allow them to occupy the suit house temporarily and accordingly, in the month of April 1970 the plaintiffs allowed the defendants to occupy the said house. Further case of the plaintiffs is that in the month of March, 1971 the plaintiffs asked the defendants to vacate the suit premises as well as the suit land but they refused to vacate the same and denied the title of the plaintiffs over the suit property. Thereafter the plaintiffs tried to persuade the defendants to get the suit premises vacated through the Panchayati but the defendants did not agree. There after the plaintiffs tried to get their names mutated in the revenue record but they failed in their attempt, 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 both the parties, the trial court framed as many as nine issues for decision in the suit. One of the issues was with regard to the area of the suit plot bearing plot no. 308. This issue was issue no. 8 which was framed in the following manner: - "Whether the area of survey plot no. 408 is 5 decimal as alleged by the plaintiffs or 1 decimal as alleged by the defendants."