SHEO SUNDER KUER Vs. DULHIN SURAYA MUKHA KUAR

JUDGEMENT

(1.) This appeal by the defendants arises out of a suit which was filed bv Dulhin Suraya Mukha Kuar, the respondent, under Order XXI. Rule 63 of the Code of Civil Procedure inasmuch as the claim of the defendants made under Order XXI, Rule 58. C. P. C. in Mis. Case No. 78 of 1956 was allowed against the plaintiff. The suit was filed for declaration of title and recovery of possession of 3 bighas 6 kathas and 9 dhurs of land in khata No. 148, Khewat No. 1/18 situated in village Arana, District Saran. In the suit the plaintiff also prayed for a declaration that the defendants had acquired no occupancy right in the suit land.

(2.) The material facts giving rise to this appeal may be summarised as follows: -- One Brij Behari Sahay of the aforesaid village had a proprietary interest of 8 annas 7 pies 4 karants in the aforesaid khewat bearing old tauzi No. 1310 and new tauzi No. 8154. This proprietary interest formed a separate patti itself. In the said khewat there were 10 bighas, 13 kathas and 4 dhurs of bakasht land recorded under khata No. 148 in the R. S. Khatian. He died leaving behind three sons, namely, Harihar Prasad, Bishundeo Narayan and Govind Narayan who separated among themselves. Harihar Prasad died leaving behind his widow Mosammat Maina Kuer whereas Bishundeo Narayan died leaving behind three sons, namely, Bisheshwar Prasad (defendant No. 1), Akhileshwar and Bhuneshwar (defendant No. 2). This defendant No. 2 was subsequently adopted by Govind Narayan. his uncle, as he had no issue of his own. For easy reference, the genealogical table of the family is also noted below:-- <FRM>JUDGEMENT_279_AIR(PAT)_1969Html1.htm</FRM>

(3.) On 6-2-1923 Mosammat Maina Kuer, Bisheshwar Prasad (defendant No. 1) and Bishundeo Narayan for self and as guardian of Akhileshwar and Bhuneshwar (defendant No. 2) executed a zarpeshgi deed for Rs. 7.250/- in favour of Pir Moham-mad Mian, Qurban Ali and Abdul Hai in respect of their entire proprietary interest in the said village Arana including the aforesaid bakasht lands. Under the terms of the zarpeshgi deed the mortgagees were not entitled to make any settlement of the bakasht lands. On ll-G-1926, Maina Kuer, Bisheshwar (defendant No. 1) and Bishundeo Narayan for self and as guardian of Akhileshwar and Bhuneshwar executed a simple mortgage bond for Rs. 1,200/- in favour of Pir Mohammad in respect of the entire zarpeshgi property. Subsequently on 3-8-1928 Bishundeo Narayan alone executed a mortgage bond in favour of one Mukhlal Singh in respect of his own share to the extent of 2 annas 8 pies. In 1934 Durga Singh and the other sons and the heirs of Mukhlal Singh filed mortgage suit No. 196/209 of 1934, on the basis of the simple mortgage bond of 1928 and obtained a decree against defendant No. 1 and his brother Akhileshwar after contest and thereafter started Execution Case No. 260 of 1937 and purchased 2 annas 8 pics proprietary interest including bakasht lands in Tauzi No. 8154 on 7-7-37 and obtained delivery of possession on 11-9-38. During the pendency of the execution case, tauzi No. 8154 including the patti of 8 annas 7 pies share was auction-sold on 5-6-37 in revenue sale and was purchased by Kanhaiyaji, father-in-law of defendant No. 2 who obtained delivery of possession on 27-6-39. According to the plaintiff's case, this revenue sale was subject to the mortgage encumbrance of Durga Singh and others who auction-purchased 2 annas 8 pies interest on 7-7-37 in execution of their mortgage decree. The plaintiff claims to have purchased 2 annas 8 pies interest out of 8 annas 7 pies, the proprietary interest of late Bri.j Behari Sahay from said Durga Singh by a registered sale deed dated 11-4-1939 (Ext. 11).