RAMASHRAY SINGH Vs. HARE KRISHNA SHARMA

JUDGEMENT

(1.) This civil revision application is directed against the order dated 18.8.95 passed by Subordinate Judge-II Munger in Title Suit No. 95/86 whereby and whereunder the suit filed by the Plaintiff opposite party under Section 6 of the Specific Relied Act has been decreed and it was held that the Plaintiff is entitled to a decree for recovery of possession.

(2.) The original Plaintiff namely Jaya Devi instituted the aforementioned suit but during the pendency of the suit she died and her husband and children were substituted in her place. The Plaintiff's case in short is that the suit land bearing plot No. 738 is recorded in the revenue record of right in the name of one Laxman Pandit and Manorit Pandit. Similarly possession of plot No. 740 is recorded in the name of Munger Besra, Laxman Pandit and Manori Pandit and after their death their sons continued in possession. Munger Besra left plot No. 740 and became traceless. Manori Pandit acquired 3 decimals of plot No. 740 by virtue of settlement from the ex-landlord in 1921. Similarly Laxman Pandit alleged to have acquired 6 decimals of plot No. 740 from the ex-landlord in 1928 and they came and continued in possession of plot No. 740 also. The Plaintiff's further case is that the two brothers partitioned the entire land of plot No. 738 and 2 1/2 decimals of plot No. 740 by private partition by virtue of which plot No. 738 and 2 1/2 decimals of plot No. 740 was allotted to the branch of Laxman Pandit and rest of the land of plot No. 740 was allotted to the branch of Manori Pandit and they came in separate possession over their respective portions. The Plaintiff's further case is that after the death of Birju Pandit the remaining three sons of Laxman Pandit namely Darbari, Tulsi and Raghubir partitioned four decimals of plot No. 738 and 2 1/2 decimals of plot No. 740 in such a way that two decimals of land from east of plot No. 738 was allotted to the share and possession of Darbari Pandit. Raghubir Pandit was allotted 2 decimals of plot No. 738 and 1/4 decimal of plot No. 740 adjacent west of Darbari Pandit and Tulsi Pandit was allotted 2 1/2 decimals of plot No. 740 adjacent west to Raghubir Pandit and accordingly three brothers came in separate possession over their respective share allotted to them. Birju Pandit died issueless so he was not allotted any share. In the adjacent south and west of plot No. 73b and 740 there was a common passage which was used by Raghubir and Tulsi for their egress and ingress from their houses. The Plaintiff's further case is that the original Plaintiff Jaya Devi purchased that 2 decimals of land with house allotted to Darbari Pandit by virtue of registered sale deed dated 13.4.73 and came and continued in possession of the same. Her name was entered in Register II after disposal of the mutation case. She used to pay rent to the knowledge of other brothers of Darbari Pandit. Further case of the Plaintiffs is that she pur chased house from Darbari Pandit in dilapidated condition and the western room fell down. The Plaintiff got them repaired and also sunk a tubewell in between the vacant land of two rooms. The Defendants have got executed a sale deed dated 27.2.86 executed by Raghubir Pandit and Tulsi Pandit and another sale deed dated 7.4.86 from Yamuna Pandit and Kishun Pandit with wrong averments. The details of the land in those sale deeds are wrong so the Defendants could not come in possession over their alleged purchased land. The Plaintiff's case is that the land so purchased by the Defendant was never in the share or possession of Tulsi Pandi, Raghubir Pandit and Rameshwar Pandit or Hari Pandit. In a proceeding under Section 144 of the Code of Criminal Procedure the aforementioned Raghubir Pandit, Tulsi Pandit and Rameshwar Pandit did not claim the said land. The Plaintiff's further case is that on 2.8.86 the Defendant in absence of Plaintiff made attempt to enter into the purchased house of the Plaintiff which was witnessed by the police and local people and others. On the basis of report lodged with the police a proceeding under Section 144 of the Code of Criminal Procedure was initiated which was converted into 145 proceeding which was pending. It is alleged that the police in collusion with the Defendants wrongly reported that the Defendants have entered into the eastern room a week before the occurrence. It is further alleged that the Defendants forcibly entered into the eastern room of the Plaintiff on 2.6.86 and illegally dispossessed the Plaintiff. Hence the suit.

(3.) The Defendants contested the suit by filing written statement denying and disputing the averments made in the plaint. The suit is said to be barred by limitation, waiver, estoppel and acquiescence and also barred by Section 34 of Specific Relief Act. The Defendants challenged the story of partition claimed by the Plaintiff. The Defendant's case is that there was petition between Laxman Pandit and Manori Pandit in 1917 in which plot No. 738 was partitioned in two parts. The southern half running from east to west fell in the share of Laxman Pandit with possession and north half running from east to west fell in the share and possession of Manori Pandit. The Defendant's further case is that in the year 1921 Manori Pandit got settlement of 3 decimals of plot No. 740 adjacent west to the share of plot No. 738 and amalgamated the same. So Manori Pandit and his son came in possession of 5 decimals of plot No. 738 and 740. Laxman Pandit died leaving behind four sons. In 1928 Birju being karia of the family took settlement of 6 decimals of plot No. 740 and thereby they became owner of 8 decimals of plot No. 738 and 740. The Defendants have denied acquisition of land by Laxman Pandit arid jointness of Manori Pandit. The Defendant further denied the alleged construction over plot No. 740 which was said to be Parti land and there was no common passage adjacent south and west of plot No. 738. The Defendant's further case is that the husband of the Plaintiff Jaya Devi might have created a sale deed by impersonation and Jamabandi was created. The Defendant's further case is that on the basis of purchase they filed two mutation cases before Anchaladihkari which were numbered as Mutation case No. 124/86-87 and 125/86-87. The Anchaladhikari made local inspection and was pleased to cancel the Jamabandi of Plaintiff and allowed the mutation case of Defendant by his order dated 26.8.86. The area karam-chari, Anchaladhikari, anchal amin and Circle Inspector found possession of the Defendants over the purchased land and house. It is alleged that the Plaintiff preferred mutation appeal No. 19/86-87 in the Court of L.R.D.C. Lakhisarai which was dismissed. The Plaintiff preferred mutation revision before the Additional Collector, Munger which is pending. The Defendant claimed to have got a tubewell sunk on the suit premises and after obtaining proper permission from the municipality. The Defendant's further case is that in a proceeding under Section 144 of the Code of Criminal Procedure the parties were directed to get their title decided by the civil Court of competent jurisdiction. The Defendant denied to have dispossessed the Plaintiff on 2.6.86. The Defendant's further case is that after purchasing the suit property the Defendant got a house plan sanctioned from the Municipality for construction of house on portion of plot No. 740 and constructed a septic latrine on a portion of plot No. 738 and also a brick built room thereon. They also alleged to have constructed boundary wall and their title and possession over the two plots are legal and valid.