JADUNANDAN MANDAL Vs. HITLAL MANDAL

JUDGEMENT

(1.) This appeal has been preferred by the plaintiffs and it has been placed for hearing before me on a difference of opinion between two of the learned Judges of this Court, Ramratna Singh, J. has held that the plaintiffs cannot recover possession of the suit land without redeeming a mortgage of the year 1917, and Anwar Ahmad, J. has held that the suit cannot be defeated on the ground that it was not framed as a suit for redemption. The learned Judges has stated the point of difference thus:--

(2.) The relevant facts are as follows: The plaintiffs alleged that one Kanchan Mandal, father of defendants 1 and 2, was the occupancy raiyat of Cadastral Survey Khata No. 1485, consisting of Cadastral Survey Plots Nos. 2440 and 2443. He had sold plot no. 2440 to Anuplal Mandal, father of the plaintiffs and plot no. 2443 to one Madhuram Singh by oral transactions. The vendees had come in possession, but the landlord, namely. Raj Darbhanga had instituted a rent suit in 1925 against the present defendants as tenants, as the holding was not transferable without the landlord's consent and no consent of the landlord had been obtained for the oral transfers. A decree had been obtained by the landlord in 1926 which was put in execution. In 1928 the holding was sold and it was purchased by Anuplal and Madhuram. The sale was confirmed and Anuplal continued in possession of plot no. 2440. It was alleged that rent had again fallen due and the landlord brought another rent suit in 1929, impleading defendant no. 1 and the purchasers of 1928, This suit was again decreed and was put into execution. It was alleged that no auction purchasers had paid the decretal amount to the Raj Pleader and obtained a receipt from him. But their names were not mutated in the landlord's Sherista, because of illegal demands of nazrana by the employees of the Raj and rent used to be paid in the name of Kanchan Mandal. Anup Mandal is said to have died in 1955 and the present plaintiffs contended that they remained in possession of plot no. 2440. It was alleged that during the recent survey and settlement operations Anuplal was recorded as a tenant with respect to plot no. 2440, with a note made in the remarks column as against revisional survey plot no. 6711 that it was in wrongful possession of defendant no. 1. Thereupon an objection was raised by this defendant under Section 103A of the Bihar Tenancy Act and decision was given in his favour, holding that he was in possession of revisional survey plots nos. 6710 and 6711, corresponding to Cadastral Survey Plot No. 2440. Hence the plaintiffs instituted this suit, after draft publication of revisional survey records. During the pendency of the suit there was final publication and the defendants were shown in the survey record-of-rights to be occupancy raiyats of revisional survey plots nos. 6710 and 6711 of revisional Khata no. 3303. The plaint was accordingly amended and the suit at the time of trial became a suit for a declaration that the entry in the record of rights was incorrect and for a declaration of the plaintiffs' title to and confirmation of their possession of the disputed land. In the alternative, the plaintiffs claimed a decree for recovery of possession. There was also a claim for permanent injunction restraining the defendants from interfering with the possession of the plaintiffs.

(3.) In substance, the defendants' case was as follows: The alleged purchase by the predeces-sor-in-interest of the plaintiffs at the auction sale of 1928 was denied. The alleged transactions in execution of the rent suit of 1929 were denied. It was contended that in 1917 Kanchan Mandal had executed a registered Sudbharna bond in respect of plot no. 2440 to one Govind Singh and put him in possession. It was alleged by the defendants that they redeemed this Sudbharna in 1947 and since then they were in possession. The rent suits of 1925 and 1929 were said to be collusive and fraudulent transactions. It was contended that the case under Section 103A had been rightly decided. They also claimed that even if the plaintiffs had any title, it had been extinguished by lapse of time, as they were never in possession.