GOLAP GADI GOALA Vs. RAMPARIKSHA REWANI

JUDGEMENT

(1.) This is a second appeal by the defendant arising out of a suit for declaration of title and confirmation of possession or in the alternative, recovery of possession over 0.79 acre of land forming the western part of plot 1027 situate in village Kitadih. The facts of the case He in short compass. The disputed land along with other lands constituted occupancy holding of Bikram and Ganesh Manjhi who were full brothers and was recorded jointly in their names, but with a note of their separate possession over different plots in the Remarks column of the khatian (exhibit 6), since they were separate. Bikram was also the Pradhan (landlord) of the village. On his death, his son Dasmath became the Pradhan. Ganesh owed Rs. 300 to plaintiff 1. He defaulted in rerpayment of the loan, but by mutal agreement between them expressed in a registered instrument dated 15-12-44, he was allowed time for payment of the loan by Magh of 1351 fasli. This agreement (exhibit 1) provided that if he failed to pay by the appointed day, he would surrender a portion of the plot in suit to the landlord, that is to say, to his nephew Dasmath, and cause it to be settled with plaintiff 1. Default occurred again, and the loan was not paid off by the appointed day. Pursuant to the agreement he surrendered the disputed laud to Dasmath by means of a registered deed of surrender dated 28-3-45 (exhibit 4), and on the same day the landlord in his turn settled the disputed land with plaintiff 1 by a registered patta (exhibit 2). Plaintiff 1 obtained this patta benami in the name of his wife, plaintiff 2. The plaintiffs had to pay a premium of Rs. 400 for this settlement, out of which Rs. 300 was set off towards their debt due from Ganesh, and Rs. 100 was paid to the landlord Dasmath. The plaintiffs alleged that the aforesaid arrangement was effected with the prior consent of the landlord and that the latter had agreed to settle the disputed land with plaintiff 1. The plaintiffs further alleged that they were put into possession of the land but on 12-8-48 there was interference with their possession by defendant 1 which resulted in a criminal proceeding under Section 447, Indian Penal Code. It, however, ended in acquittal of defendant 1. In the criminal proceeding defendant 1 produced a hukumnama snowing settlement of the suit land with him by Ganesh on 19 Jeth 1943. The plaintiffs asserted that hukumnama was forged, and the settlement was a sham transaction and defendant 1 was never in possession of the suit land. Defendants 2 and 3 are the sons of defendant 4, the widow of Ganesh Majhi.

(2.) Defendant 1 alone contested the suit. Defendants 2 and 4 filed a written statement supporting him. His defence in the main was that the plaintiffs had neither title to nor possession over the disputed land and that he had acquired valid title by virtue of the said settlement.

(3.) Both the Courts accepted the plaintiffs' version as correct and concurrently held that they had acquired valid title to the disputed land by virtue of the settlement of Dasmath, They were, however, of the opinion that the plaintiffs were not in possession and consequently they gave the plaintiffs a decree for possession of the suit land. Now, the defendants have come up in Second Appeal.