BADRI SINGH Vs. MANSURUL HASAN KHAN

JUDGEMENT

(1.) This appeal by the defendants 1 to 7 arises out of a suit filed by the plaintiff respondant for a declaration of his title to and recovery of the lands described in Schedules B and C of the plaint. The plaintiff has also claimed a certain sum of money as the price of the usufruct from the land besides mesne profits.

(2.) One Umrao Singh was the landlord of the village in which the suit lands are situated and he and his family members were in possession of the suit land which was their bakasht and zirat. Umrao Singh died long time back leaving behind several sons, the eldest being Uigambar Singh. They are said to have borrowed a sum of Rs. 1250/- from the family of one Durga Bhagat on the basis of a registered usufructuary mortgage-deed dated 4.4.1971. According to the case of the plaintiff, Digambar Singh and his brothers gave in bharna the entire village where the suit lands are situate. The document has been marked as Ext. 1 in the case. On 12.1.1926, the Bhagats assigned their interest to the defendant No. 18 under Ext. 2 and the latter filed a mortgage suit which was numbered as Mortgage Suit No. 67 of 1926. A prelimary decree was passed on 7.11.1927 which was followed by a final decree dated 9.7.1928. The decree was put in execution in Execution Case No. 141 of 1928 and the plaintiff claimed that defendant No. 18 on 9.4.1929 purchased the entire village including the suit properties. The sale was confirmed on 24.2.1930 and delivery of possession was thereafter effected. An attempt to undo all this by a junior member of the family of Digamber Singh also failed and thereafter on 6.1.1932 the plaintiff purchased the village from the defendant No. 18 under a registered document, Ext. 15, and he claims to have been in peaceful possession of the land in village. But after his title as a landlord vested under the provisions of the Bihar Land Reforms Act on 23.2.1954, the members of Umrao Singh started raising false claims which resulted in initiation of certain proceedings under the Code of Criminal Procedure. Ultimately, two proceedings under section 145 of the Code of Criminal Procedure in respect of Schedules B and C were finally decided against the plaintiff and in favour of the defendants-appellants on 21.9.1964 which necessitated the filing of the suit. The other defendants were impleaded in the suit as they were parties to the proceedings under section i 45 of the Code of Criminal Procedure but they have disclaimed any interest in the suit land and have not taken part in the trial. During the pendency of this appeal, defendant No. 13 Jadu Pahan died and a note was made that the appeal abated against his heirs. However, in view of the claim of the parties, the admission of Jadu Pahan and the findings recorded by the courts below, it is manifest that he was not a necessary party to the suit or this appeal at all and this appeal has not become defective in the absence of substitution of his heirs.

(3.) The suit has been contested by the defendants 1 to 8 who have pleaded that the bakasht and zirat lands were not the subject-mattar of the mortgage, and the sale certificate Ext.-11, dated 9.4.1929 issued in favour of the defendant No.-18 has been interpolated by inclusion of bakasht and zirat lands. It has further been asserted that the family of Umrao Singh of which these defendants are members continued in possession of Schedule B and C lands all through and the decision in the proceeding under section 145 of the Code of Criminal Procedure in their favour was correctly given. They have seriously challenged both title and possession of the plaintiff, as claimed in the plaint.