BACHCHA PANDEY Vs. DEO SUNDER DEVI

JUDGEMENT

(1.) Both these appeals arise put of a suit instituted by Ram Chalitar Singh for recovery of Rs. 26,640 as damages from Bachcha Pandey (defendant No. 1) and Jagdeo Tewary (defendant No. 2), who were defendants 1st party, and Amiya Bhushan Banerjee (defendant No. 3), who was defendant second party. First appeal No. 15 of 1961 has been filed by defendants 1 and 2. The other appeal, namely, First Appeal No. 55/1961 was filed by Ramchalitar Singh, plaintiff. This Ram Chalitar Singh died during the pendency of the appeal and in his place his widow, sons and daughters have been substituted as appellants.

(2.) Plaintiffs' ease was that 61 bighas and 7 kathas of lands appertaining to Khata No. 813 situated in Mouza Jaisinghpur in the district of Champaran, fully detailed in schedule 1 of the plaint, were ghairmazrua Malik lands of Turkaulia Neel Kothi. Kri-pal Narain Singh, Jadu Lal, Kishun Pra-sad and Chaturbhuj Sahai jointly took settlement of those lands. Kripal's share was one half. The other half share belonged to the remaining three settlees in equal shares. Harbans Narain Singh (defendant No. 11) and Chitrakut Narain Singh (defendant No. 12) are sons of Kripal. Chandradeo Lal (defendant No. 9) is grandson of Jadu Lal. Jamuna Prasad (defendant No. 8) is son, and Gagandeo Narain Verma (defendant No. 7) is grandson of Kishun Prasad. Narain Prasad (defendant No. 10) is son of Chaturbhuj Sahai. Jadu Lal and on his death Gagandeo Narain Verma used to manage the settled lands on behalf of all the cosharers. Gagandeo fraudulently brought about the sale of settled lands in 1929 in a certificate case filed by Bettiah Raj and purchased the same in benami name of Suraj Prasad (defendant No. 6) who is brother of his wife. In spite of that purchase all the co-sharers continued to remain in possession ot the lands as usual. On the death of Kripal Narain Singh his sons defendants 11 and 12 executed a sale deed on 10th October, 1941 in respect of 21 bighas of land out of their share in the entire settled lands in favour of the plaintiff and put him in possession thereof. Experiencing inconvenience in joint occupation of the aforesaid lands the plaintiff instituted T. S. No. 11/3 of 1942/44 for partition of the same. The suit was dismissed by the trial court, but it was decreed by the appellate court on 4-12-1946 and it was held that Surajdeo Prasad, defendant No. 6 was only a Farzidar of defendant No. 7. Second Appeal against that decision was dismissed on 18-1-1950 Thereafter Bachcha Pandey, defendant No. 1 obtained a sale deed dated 10-3-1950 executed by Suraj Prasad, defendant No. 6 in respect of 15 bighas of land in the name of Jagdeo Tewary, defendant No. 2. Petition in Supreme Court appeal No. 19 of 1950 against the decision of this Court in the second appeal was rejected on 16-4-1951 and review No. 17 of 1951 was also dismissed on 12-2-1952. On a petition by the plaintiff a Commissioner was appointed to effect partition. He submitted his report, to which an objection was filed by Jagdeo Tewary, defendant No. 2 on the basis of the aforesaid sale deed executed in his name by Suraj Prasad, defendant No. 6. This objection was rejected on 13-6-1953 and final decree was passed in the partition suit that very day. According to that final decree 13 bighas 13 kathas and 1 dhoor of plot No. 6779 from east and 7 Bighas 6 kathas and 19 dhoors of plot No. 6776 from east i. e., in all 21 bighat of land were allotted in the patti of the plaintiff. Adjacent west of that patti an area of 9 bighas 13 kathas and 10 dhoon was allotted in the Patti of defendants 11 and 12. The plaintiff executed the final decree in execution case No. 32 of 1953 and obtained delivery of possession over lands of his Patti on 17-11-1953 with Morhan Sugar cane crop which was standing over an area of 8 bighas and came in possession of the same with the standing sugarcane crop.

(3.) Having failed in the civil actions, the defendants first party, with a view to cause harassment to the plaintiff took resort to the criminal court and in collusion with the local police and the Subdivisional Magistrate, who is defendant No. 3, got proceedings under sections 144 and 145 of the Code of Criminal Procedure started in respect of the entire 21 bighas of land which were allotted in the Patti of the plaintiff. The entire 21 Bighas of land including eight bighas of land, over which sugarcane crops were standing, were attached in the proceeding under Section 145 of the Code of Criminal Procedure on 9-4-1954. The land of the plaintiff fell within the reserved area of Sugauli Sugar Mills. On account of the proceedings under Section 144 and 145 of the Code of Criminal Procedure the plaintiff could not supply the sugarcane of 8 bighas of land to the Sugar Mill. The standing sugarcane crop began to dry, as a result of which it was sold by auction to defendant No. 4 at a low price of RS. 3250 only. Had the criminal proceedings been not ktartad, the plaintiff could have sold his sugarcane for Rs. 10,200 as per account given in the plaint. Thus the plaintiff was put to a loss of Rs. 6950 on this account. Besides that, on account of the attachment the plaintiff could not cultivate the remain-Ing 13 bighas of land of his Patti, as a result of which he sustained a loss of approximately Rs. 9,215 as per account given in schedule 4 of the plaint. The proceeding under Section 145 of the Code of Criminal Procedure with regard to the 21 bighas of land was quashed by the judgment of High Court and consequently the land was released on 29-1-1955. Again defendants first party in collusion with defendant No. 3 got started another proceeding under section 144 of the Code of Criminal Procedure in respect of raytoon sugarcane (Khunti) standing over the aforesaid 8 bighas of land. The proceeding was subsequently converted to a proceeding under Section 145 of the Code of Criminal Procedure on 18-4-1955. Because of these criminal proceedings ray-toon sugarcane crops also could not be supplied to sugar mill. The standing sugarcane crop were sold by auction on 28-4-1955 and they were purchased by defendants first party in the name of their Farzidar, Damri Lal, defendant No. 5, for a sum of Rs. 1350 only, though they were worth Rs. 5100 as per account given in schedule 4 of the plaint and thereby the plaintiff suffered a loss of Rs. 3750.