MUNA KUAR Vs. LALA PRASAD SINGH

JUDGEMENT

(1.) This appeal was preferred by Bacha Singh and others who were some of the members of the defendants first party in the trial Court. After the appeal was filed, Bacha Singh appellant No. 1 died and in his place Mossomat Muna Kuer was substituted as his legal heir. Title Suit No. 44/18 of 1952/58 which has given rise to this appeal, was institut- ed by Lala Prasad Singh and his minor son Lachml Narain Singh impleading as many as 17 defendants. Defendant Nos. 1 to 12 were made defendants first party and Chandradeo Singh, Satnarain Singh son of Sitaram Singh, Rambharosi Singh son of Chandradeo Singh and Sheo Shankar Singh, son of Badri Narain Singh, defendants 13, 13 (a), 13 (b) and 14 respectively, were made defendants second party; whereas Choudhary Raj Rajeshwar Prasad Singh, Dr. Rameshwar Prasad and Umesh-war Prasad Singh, both sons of Choudhary Raj Rajeshwar Prasad Singh were arrayed as defendants 15, 16 and 17 respectively, constituting defendants third party. The suit was for declaration that the plaintiffs have got eight annas share in the lands comprised in plot Nos. 894 (portion), 895, 896, 897, 898, 920 and 930, fully described under Schedule A of the plaint and for recovery of possession to the extent of their share from the defendants first party. The plaintiffs also claimed mesne profits with respect to the land from the year, 1357 fasli, corresponding to 1950, till the recovery of the possession of land and they further claimed Rs. 2,778 from the defendants first party, being the proportionate amount of sale proceeds, which was deposited in the Court during the pendency of case under Section 145 of the Code of Criminal Procedure, which was withdrawn by defendants first party. It may be noted that the plaintiffs' co-sharer for the other eight annas share in the aforesaid plots is Choudhary Raj Rajeshwar Prasad Singh, defendant No. 15, being brother of Lala Prasad Singh, plaintiff No. 1 (both being sons of Choudhary Sant Saran Prasad Singh, deceased). Therefore, Choudhary Raj Rajeshwar along with his sons filed another suit being Title suit No. 46/12 of 1952/58 for a similar declaration with respect to their eight annas share in the aforesaid plots and they also claimed mesne profits and claimed half of the sale proceeds deposited in the Court during the pendency of the proceeding under Section 145 of the Code of Criminal Procedure, which was withdrawn by defendants first party. The plaintiffs of title Suit No. 44 were made defendants second party in Title Suit No. 46. Defendants first party were common In both the suits, against whom the main reliefs were sought. Chandradewa Singh and others defendants second party in suit No. 44 were settlees at one time, of the disputed land. Hence, they were made parties in the suits, but no relief was claimed against them. Both suits were made analogous and were, tried together. The claim of the plaintiffs in both the suits was that the lands comprised under plot Nos. 894 to 898 were Zirat and Khudkasht lands and have been coming in possession of the ancestors of the plaintiffs and their co- sharers, for more than 12 years continuously before the passing of the Bihar Tenancy Act, 1885; in other words, since the time of permanent settlement. Their further case was that their lands were wrongly recorded as bakasht in the re-cord of rights. Their case, as regards plot Nos. 920 and 930 was that those lands were given in maintenance to Mossomat Domno Kumari, Parekhno Kumar and Bhonda Singh, who were the relatives of the plaintiffs. After their death, the plaintiffs and their co-sharers got those lands. On Civil Court partition, the lands under those two plots also were allotted to the share of the plaintiffs No. 1 of both suits. Therefore, the plaintiffs asserted that the lands under those two plots also were the zirat lands.

(2.) On the other hand, the case of the defendants first party in both the suits, in brief was that the lands covered under all the aforesaid plots were rightly recorded as bakasht in the record of rights, and they alleged in their written statement that they were raiyati lands before the last survey operation, and before the passing of the Bihar Tenancy Act but the landlords somehow or other came in possession of those raiyati lands, and got them recorded as bakasht.

(3.) On the pleadings of the contesting parties in both the suits various common issues were framed. Of them, only the following need be mentioned:--