MADAN KISHORE PANDEY Vs. RAGHUBANSH SINGH

JUDGEMENT

(1.) THIS appeal has arisen out of the judgment and decree dated 28 -8 -1985 passed by the then 2nd Addl. Sub -Judge, Chapra, in Title Appeal No. 137 of 1980 reversing the judgment and decree dated 24 -7 -1980 passed by the then Munsif -III, Chapra in Title Suit No. 144 of 1970.

(2.) THE plaintiffs of the suit are the appellants in this appeal. The case of the plaintiffs are that their father Dina Nath Pandey died in the year 1967 and he was bataidar under Tribhuban Pandey the predecessor of the defendants in respect of Schedule -I land and Sikmidar in respect of Schedule -Ill land. Dina Nath Pandey was close to Tribhuban Pandey and he was helping him in all respects during his old age as Tribhuban Pandey was not in a position to look after cultivation work. Dina Nath Pandey was given the lands in bataidari and sikmidari on condition of payment of rent by produce towards Schedule -I land and in cash in respect of Schedule -II land. Tenancy was created on 30 -10 -1940. There was no written settlement as relationship between the two were so close that the question of written settlement did not arise and Dina Nath Pandey the predecessor of the plaintiffs started possessing the lands as bataidar and sikmidar respectively on the basis of oral settlement. Dina Nath Pandey planted five jack -fruit trees on Schedule -Ill lands which alter full growth started bearing fruits and in the Schedule -I land the plaintiffs started cultivation and used to give rent both on produce and in cash as per oral settlement to Tribhuban Pandey. In the old age, before death. Tribhuban Pandey gifted away by registered gift, deeds the suit lands in favour of the defendants and after Baksisnama by Tribhuban Pandey in favour of the defendant Nos. 1 to 3, they started accepting the plaintiffs as bataidar and sikmidar. It was also stated that Tribhuban Pandey used to grant receipts in lieu of payment of rent and out of those receipts some have already been destroyed and some are in custody of the plaintiffs and one of them has been filed in the suit. In the year 1947, it is stated that Tribhuban Pandey has deposed in a case No. 4 of 1946 in which he had admitted that Dina Nath Pandey is a bataidar of the property in question. There was also some dispute between Dina Nath Pandey and Tribhuban Pandey and Tribhuban Pandey took possession of the suit land in the month of Ashardh 1954, but afterwards the. dispute was resolved and bataidari continued on payment of produce of the lands half and half between the landlord and tenant. On that way, on 30 -6 -1954 Tribhuban Pandey wrote a letter in the form of relinquishment in the name of Dina Nath Pandey. Just before filing of the suit, there was a proceeding under Section 144 of the Code of Criminal Procedure to respect of the suit land in which possession was found in favour of the defendants by the Executive Magistrate which clouded the status of the plaintiffs and hence, the suit was filed for declaration of tenancy right under the defendants.

(3.) THE plaintiffs were depending on oral evidence regarding settlement of tenancy and also on three documents, Ext. 1 was a single receipt alleged to be granted by Tribhuban Pandey in favour of Dina Nath Pandey. Ext. 2 is the certified copy of deposition of Tribhuban Pandey before the Munsif in case No. 4 of 1946 which was a money suit on the basis of a hand note filed by Tribhuban Pandey against another and Ext. 3 is the alleged letter of relinquishment by Tribhuban Pandey in favour of Dina Nath Pandey which, according to the plaintiffs, was the documents reverting the earlier settlement of tenancy in favour of the predecessor of the plaintiffs. The trial Court disbelieving Exts. 1 and 3 and found out that those two documents were prepared and manufactured for the purpose of creating evidence in favour of the plaintiffs regarding tenancy but on the basis of Ext. 2 regarding admission being made by Tribhuban Pandey regarding tenancy of the plaintiffs the suit was decreed in favour of the plaintiffs and then defendants preferred T.A. No. 197 of 1980.