TULSI KENDU Vs. PRAHALAD SUKULA

JUDGEMENT

(1.) Syed Md.Mahfooz Alam, J.

(2.) THE case of the plaintiff - appellant is that the suit land described in Schedule A of the plaint appertaining to plot No. 116 of khata No. 79 measuring an area of 57 decimals situated in village Deodharpur Bahelia Bigha, Thana Tekari District Gaya stands recorded in the name of Balkishun Kandu, grand-father of the plaintiff and defendant No. 2 in the cadastral survey. THE said Balkishun Kandu had three sons, namely, Bigan Kandu, Suraj Kandu and Ekadashi Kandu. THE said Balkishun Kandu died after cadastral survey in the state of jointness with his abovementioned three sons and as such after his death all the three sons came in joint possession of the suit land. Further case is that Suraj Kandu and Ekadashi Kandu died issueless in the state of jointness with their brother Bigan Kandu and as such, Bigan Kandu came in exclusive possession over the suit land by way of right of survivorship. After the death of the said Bigan Kandu, the plaintiff and the defendant No. 2 being his sons, inherited the properties of their father and came in joint possession of the same including the lands of khata No. 79 of plot N. 116 (suit property). Both the brothers (plaintiff and defendant No. 2) sold portions of the land of plot No. 116 to different persons, namely, Srimati Rajkumari Devi wife of Krishnandan Prasad, Srimati Rajarani Devi wife of Paras Nath Singh, Srimati Sanju Devi wife of Ram Kishun Singh, Srimati Sharda Devi wife of Bishwanath Prasad Singh, Srimati Chanchla Devi wife of Mithilesh Singh, Srimati Shanti Devi wife of Laldeo Sharma and Srimati Uma Devi wife of Rajendra Singh and the purchasers are in possession over the portions of their purchased land. THEy have also constructed houses over the same. It is said that the entire suit plot i.e. plot No. 116 comprises an area of 1 acre 47 decimals and after sale of portions of the said plot, the plaintiff and defendant No. 2 are in possession of about 1 bigha and 6 kathas of land out of 1.47 acres of the total area of plot No. 116.Further case is that defendant No. 1 is a shrewd and cunning litigant. He is also a rich and influential person. He managed to bring into existence some false and illegal papers in respect of the suit land which are all collusive documents and cannot create title in favour of defendant No. 1. It is further said that on the strength of false and fabricated documents, the defendant No. 1 started laying false claim over the suit land in the month of November, 1984 which was resisted by the plaintiff and then on the petition filed by the plaintiff before the Sub-Divisional Officer, Gaya, a proceeding under Section 144 of the Code of Criminal Procedure was drawn up. In the said proceeding the defendant No. 1 alleged that the suit lands were auction purchased in a decree by the ex-landlord and later on, the land became Bakast land of the ex-landlord who settled the suit land with the ancestor of defendant No. 1. It is stated that the ex-landlord never obtained any decree either against the father or grand-father of the plaintiff and the ex-landlord never got the suit land auction sold in any execution case and it is false to say that the ex-landlord came in possession of the suit land and settled the land in favour of the ancestor of defendant No. 1. It is further stated that the proceeding under Section 144, Cr.P.C. was decided against the plaintiff but inspite of that, the plaintiff remained in possession of the suit land. Since the proceeding under Section 144, Cr.P.C. was decided against the plaintiff, hence the necessity of filing of this suit arose.

(3.) FROM perusal of the record of the trial court, it appears that on the basis of the pleadings of both the parties, the trial court framed as many as five issues which are as follows: