DEOKI MALLAH Vs. SURJI MALLAHAIN

JUDGEMENT

(1.) THIS appeal has been preferred by the above named defendant -appellant against the judgment and decree dated 11.10.1982 passed by Shri Jhouri Prasad Paul, the then 2nd Additional Subordinate Judge, Palamau in Title Suit No. 120 of 1981, whereby the plaintiffs -respondents suit has been decreed.

(2.) THE facts of the case run in narrow compass. The suit land consist of 19.86 acres of land appertaining to khata No. 98 of village Danda Tola Kajarma within Garhwa P.S. District -Palamu. Thakur Mallah was the original occupancy raiyat and in the survey settlement in the year 1916 -17 for the Palamau area, record of rights were created in the name of Thakur Mallah. Thakur Mallah, the original raiyat had two sons namely Somaru Mallah and Sita Mallah. Both the sons predeceased Thakur Mallah. Somaru Mallah has one son Deoki Mallah who happens to be the sole defendant -appellant in the case while Sita Mallah the youngest son of Thakur Mallah had three sons, who are the plaintiffs -respondents. According to the plaintiffs, during the life time of Thakur Mallah and before survey settlement, Somaru Mallah was separated and he was given his share of properties and Thakur Mallah and Sita Mallah remained joint both in mess and cultivation. Besides the suit -Khata, there were other lands in Khata Nos. 99 and 101 and according to the plaintiffs, land in those khatas on separation had been given to Somaru Mallah. Somaru Mallah also died during the life time of Thakur Mallah and Thakur Mallah and his youngest son Sita Mallah while remaining joint both in mess and property, Sita Mallah predeceased Thakur Mallah leaving behind plaintiffs as his heirs. According to the plaintiffs, three plots in suit khatas were in exclusive possession of Somaru Mallah and then to defendant -appellant, Deoki Mallah and all other lands in the said khata remained in exclusive possession of the plaintiffs as on the death of Thakur Mallah only Sita Mallah heirs i.e. grand sons of Thakur Mallah had inherited by succession and not by survivorship as the other co -sharer i.e. defendant since the days of his father were separated and divided regarding the share. It was also asserted that there was partition during life time of Thakur Mallah and Somaru Mallah has got his share totally separated. Cause of action arose when plaintiff No. 1 filed an objection before the Revenue authorities for reduction of rent in respect of their shares which was objected to from the side of Deoki Mallah. According to Deoki Mallah, he was paying half of the share of rent since before.

(3.) BECAUSE of this dispute, the present suit has been filed for declaration of right, title and interest of the plaintiffs over the suit land, which is a part of khata No. 98.