KULESHWARI DEVI Vs. JAGDAMBA DEVI

JUDGEMENT

(1.) This second appeal by the defendant against the judgment of affirmance arises out of a suit for declaration of title, recovery of possession and for mesne profits.

(2.) The case of the plaintiffs, in short, is that the suit lands were recorded in two khatas in the name of three brothers, namely, Panchu, Buniyad and Mahabir as raiyats thereof in the cadastral survey Khatian, wherein Banwari and Chulhai who are ancestors of the defendant were shown as sikmidars. Sometime after the cadastral survey, Panchu and Buniyad died in jointness leaving behind their third brother Mahabir upon whom the lands of the aforesaid Khatas devolved and who came in possession exclusively thereof since that day. The sikmidars thereafter surrendered their sikmi right in the lands of the aforesaid khatas with Mahabir. Later on Mahabir died leaving behind his son Muso upon whom the lands of the aforesaid khatas devolved and who came in possession thereof exclusively. The plaintiffs' father purchased the lands of the aforesaid khatas under a registered sale deed from the aforesaid Muso and came in possession thereof from the date of purchase. Later on, there was a proceeding under S.145, Criminal P.C. between the parties which was decided against the plaintiffs, but in spite of the final order passed in the said proceeding the plaintiffs continued to remain in possession of the subject of dispute. But the defendants after passing of the order under S.145, Criminal P.C., being emboldened thereby dispossessed the plaintiffs from the suit lands which necessitated filing of the present suit.

(3.) The case of the defendants, in short, is that Mahabir was not the brother of Panchu and Buniyad. According to them, Panchu, Buniyad and Chhakauri were the three brothers. So far as Mahabir is concerned, they say that he was son of Banwari. According to them, though Mahabir was not the brother of Panchu and Buniyad, but upon the death of Panchu and Buniyad interest in the disputed khatas in question devolved upon Mahabir and Chhakauri both and consequently Mahabir did not acquire the entire interest in the disputed khatas. They denied the case of the plaintiffs regarding surrender and pleaded that since there was no surrender, the sale in favour of the plaintiffs by defendant's father Muso was invalid. It was also pleaded on behalf of the defendants that the suit was bad for non-joinder of necessary party and that the suit was barred by limitation.