DEONANDAN SINGH Vs. RAMBAHAL SINGH

JUDGEMENT

(1.) Plaintiffs who brought a suit for declaration of their title and recovery of possession with mesne profits are the appellants. Their case was that plaintiffs 3 and 4 purchased from pro forma defendants 7 to 10 the raivati interest in respect of the suit lands under two deeds of sale (Exts. 5/f and 5/g) executed on the 21st of November, 1953, The contesting defendants resisted the suit on the ground that they had been in cultivating possession of the suit lands apart from two plots, plot No. 1 and plot No. 25 in Rajmahal Sub-Division under the pro forma defendants 7 to 10 for many many years and they had acquired occupancy right therein. Plaintiffs, therefore, were not entitled to evict them from the lands though they may be entitled to receive rent from the defendants. The plaintiffs had asserted that before their purchase they were on the land as batai-dars under defendants 7 to 10 belonging to Rajmahal Sub-Division. Except the two plots, 1 and 25. other lands under the two deeds of sale were in Ramnagar, P. S. Barh, Tauzi Nos. 8092 and 8705 in the district of Patna.

(2.) The trial Court decreed the plaintiffs' suit on a finding that the defendants were neither in possession over the suit lands nor they had any title thereto in any way. On appeal by the defendants that finding has been reversed and the suit has been entirely dismissed on two reasons; one was that the plaintiffs had practised fraud on registration by including plots 1 and 25 situate in Rajmahal Sub-division in the deeds of sale (Exts. 5/f and 5/g) so as to get them registered at Rajmahal. The other reason was that the plaintiffs failed to prove their story that they were in cultivating possession of the suit lands as bataidars before November, 1953 or were in possession after that till the institution of the suit which .was on the 9th of August, 1958. The lower appellate court categorically found that the defendants succeeded in proving their possession over the lands for a very long time, more than twelve years by which they acquired right of occupancy over the lands.

(3.) Learned Counsel appearing for the plaintiffs appellants urged that the finding that there has been any fraud in regard to registration was not correct. He pointed out that the two Plots, 1 and 25 situate in Rajmahal Sub-division which were included in the two deeds of sale (Exts, 5/f and 5/g) really belonged to the plaintiffs' vendors, defendants 7 to 10 and the Court below was wrong in thinking that they had no interest therein. Exts. 10 and 10(a) are the two khatians which the plaintiffs had produced to show that the pro forma defendants 7 to 10's ancestors had interest in those two plots of land, but the lower appellate court found that those two documents, Exts. 10 and 10(a) (Khatians) did not show that they were finally published nor did they show the date of such publication. Secondly, the lower appellate Court thought thai neither of those two documents showed the name of the father of the pro forma defendants 7 to 10. I am afraid, there has been a serious error of record committed by the lower appellate court in this respect. Ext. 10 which includes plot no, 25 bears the name of Balgovind Singh, father of defendants 7 to 10. In the other one, Ext. 10(a), the name of Balgovind Singh appears to have been scored through and the name of his cousin Haricharan Singh, son of Damari Singh was mentioned. There cannot be any doubt that these two plots, 1 and 25 belonged to the joint family consisting of the descendants of Mohan Singh. Haricharan Singh and Balgovind Singh belonged to that family; that at one point of time the two branches including that of defendants 7 to 10 had interest in these two plots cannot be denied. It was further asserted that there had been a partition and defendants 7 to 10's branch ceased to have any interest in these two plota That will hardly be very much relevant on the question of alleged fraud in registration unless it is established that defendants 7 to 10 fraudulently inserted these two plots in the sale deeds without intending to transfer title in those two plots to the vendees so as to obtain registration at Rajmahal. The lower appellate court also appears to have committed another error in regard to the evidence of P. W. 18, who was the plaintiff No. 4. The trial court referred to his evidence and said that he asserted that the plaintiffs were in possession whereas the lower appellate court referring to that evidence has stated that he admitted that the plaintiffs were not in possession of the two plots, 1 and 25. Though no special ground was taken in the memorandum of appeal in regard to this incorrect reading of the evidence of P. W. 18, I went through that evidence, when I found that there was a conflicting reference to this witness in the two judgments and I was not able to discover that P. W, 18 had stated that the plaintiffs were not in possession ot plots, 1 and 25.