BALKISHUN RAM Vs. JAMUNA RAM

JUDGEMENT

(1.) THIS appeal arises out of the judgment and decree dated 27th June. 1990. passed in Title Suit No. 204 of 1974 by the 7th Additional Subordinate Judge, Bhagalpur which has been dismissed on contest.

(2.) THE suit was filed by the plaintiff -appellant for declaration that he is in possession of the entire land described in schedule 5 of the plaint and that the defendant -respondent has no manner of right, title, interest thereof and possession over the same and also fur decree in his favour for recovery of possession of the suit land. The plaintiff further sought for direction to the defendant to remove the well from the suit land within a time to be fixed by the court, failing which the same be removed through the agency of the court at the cost of the defendant and for further decree of mesne profits.

(3.) THE case of the plaintiff, in short, is that in the year 1948 he and Thakur Sah purchased the share of Dhirendra Nath Mitra who was holding 1/3rd share in old holdings no. 10 and 12 out of the total area of 5 bighas 4 kathas by virtue of sale deed (Ext. 1) and after the aforesaid purchase Thakur Sah and the plaintiff filed Title Suit No. 24/49 in the court of Sub Judge, Bhagalpur for partition of and allotment of 1/3rd share against the co -sharers of said Dhirendra Nath Mitra. The suit was decreed and they came in possession over 1/3rd share measuring 1 bigha 14 kathas and 13 1/2 dhurs. During the pendency of execution case, Thakur Sah sold his 8 annas interest to Changuri Mahto and Kahanai Mahto and thus, Changuri and Kahanai became co -sharer with the plaintiff and according to the plaintiff, there was amicable division between them in the year 1959 in which 10 kathas 5 dhurs fell in the share of the plaintiff fully described in schedule. On said division plaintiff's name was mutated in the office of Anchal Jagdishpur and Bhagalpur Municipality.