RAMDULAR DASS Vs. JAMUNADHAR JHA

JUDGEMENT

(1.) This is an appeal from the judgment and decree of the Subordinate Judge, Darbhanga, dated the 13th July, 1950, which reversed the judgment of the Additional Munsif, Madhubani, dated the 15th June, 1949, and dismissed the plaintiffs suit for declaration of title to and confirmation or, in the alternative, recovery of possession of 9 Kathas 21/2 dhurs of land comprised in survey plots 946 and 128 situate in village Balia. The following admitted pedigree will help in appreciating the facts of this case:-- <frm> JHAULI JHA | __________________|___________________ | | Grihman Gudar | | _______________|____________ ______________|___________________ | | | | | | Uahlt Gena Ajab Jogdhar Dharnidhar Buchan = Mt. Sumitra =Mt. Batahi | | = Mt. Thakni | ____________________|__ | | Amoldat | | | Pitambar Lakshmi Ram Faujdar Pratap (deft. 15) (deft. 3) </frm> Paramhansh Ram Dass, Guru of the Plaintiff, obtained a money decree against Jogdhar and others, and in execution of it in Execution Case 115 of 1930 attached and put to sale plot 946 measuring 6 Kathas 8 dhurs besides other lands and himself purchased the same on the 28th January, 1930, and obtained delivery of possession through Court on the 8th July, 1931. This auction sale did not satisfy the entire decree, and in a second execution for the unsatisfied amount of the decree in Execution Case 55 of 1932 the plaintiffs Guru purchased the other plot in suit, namely, plot 128, having an area of 4 Kathas 12 dhurs and obtained delivery of possession on the 15th October, 1932. He died in 1342 fasli and was succeeded by his Chela, the plaintiff.

(2.) It will appear from the above genealogy that the judgment-debtors were descendants of Gu-dar. In the money decree Pitambar, Mst. Batahi and Mst. Thakni were not made parties. Accordingly, after the delivery of possession of plot 940 on the 8th July, 1931, Pitambar (defendant 15) filed an application under Order XXI, Rule 100, Civil Procedure Code, which was registered as Miscellaneous Case 167 of 1931. This application was allowed, and his one-sixth share in plot 946 was released. This share comes to about 1 Katha 1 1/3 dhurs, and accordingly the plaintiff has claimed only 5 Kathas 6 3/4 dhurs out of this plot. Mst. Batahi, widow of Gena, and Pitamber instituted Title Suit 66 of 1937 against the plaintiff, the former for the release of her one-fourth share in both the plots and the latter for the release of his one-sixth share in plot 128. Similarly, Mst. Sumitra, widow of Uchit, instituted Title Suit 67 of 1937 for the release of her one-fourth share in the two disputed plots. Both these title suits were tried together and were dismissed. In appeal, however, the claim of Pitambar was allowed; in other words, his one-sixth share in plot 128 also was released from attachment and sale. Accordingly, the plaintiff has claimed only 3 kathas 15 3/4 dhurs out of plot 128.

(3.) The plaintiff asserted that he had acquired good title to the disputed land by virtue of the auction sale and was in peaceful and continuous possession until June, 1942, when defendants 1 and 6 for the first time interfered with his possession and forcibly and without right plucked mangoes from the orchard which stood in plot 128. The plaintiff instituted against them a criminal case, There was a counter-case against the plaintiff. Both the cases ended in acquittal of the accused. Thereupon, the plaintiff instituted the present suit for the reliefs indicated above.