PURANMAL BAJORIA Vs. NAGARMAL

JUDGEMENT

(1.) These two applications arise out of a common order dated 31-7-1971 passed by the Additional Subordinate Judge, Second Court, Monghyr, in Title Suit No. 12/13 of 1961/71 and have been heard together. This order will govern them both.

(2.) Opposite party Nos. 1 to 16 and one Sitaram, who was plaintiff No. 11, filed the aforesaid Title Suit no. 12 of 1961 in the Court of the Subordinate Judge, First Court, Monghyr, for declaration of title to and confirmation of possession in respect of 25.35 acres of land in Monghyr district, fully described in Schedule 2 of the plaint. In that suit they also prayed for partition of two houses along with certain lands situated in the district of Bhagalpur, detailed in Schedule 1 of the plaint, and also for recovery of Rs. 17,750 and Rs. 81,800 as compensation for use and occupation of the two houses aforesaid and half share of the price of the trees detailed in Schedule 4 of the plaint. According to the plaintiffs Schedule 2 properties had been purchased by them, but in the name of the defendants who were their 'benamidars', but as the defendants refused to execute a deed of relinquishment in their favour, the plaintiffs had to institute the suit. The plaintiffs alleged that though the Bhagalpur properties described in Schedule 1 of the plaint belonged to the plaintiffs and the defendants half and half and the defendants were in possession of the half share in the house belonging to the plaintiffs as tenants, they had claimed to be the full owners of the entire Schedule 1 properties and were thus liable to pay compensation for use and occupation of the half share and the price of the trees standing on the lands appurtenant to the houses which they had cut away and sold and that the plaintiffs were entitled to partition of Bhagalpur properties.

(3.) The defendants resisted the suit on the ground that the plaintiffs had no title or possession over the Bhagalpur properties. As regards the Monghyr properties detailed in Schedule 2 to the plaint, the defendants admitted that they were the benamidars and asserted that there was no cause of action for the suit in respect of Schedule 2 properties as they were always prepared to execute a deed of relinquishment subject to the execution of a deed of indemnity by the plaintiffs.