ASHWANI OJHA Vs. DEVENDRA NATH OJHA

JUDGEMENT

(1.) This First Appeal has been filed against the judgment and decree passed by Shri D. Topno, the then Ist Additional Subordinate Judge, Dhanbad in Title Suit No. 8/11 of 1976 -78, whereby and whereunder the learned Sub -Judge decreed the suit declaring the 2/3rd share of the plaintiffs in the money described in the Schedule of the plaint.

(2.) The case of the plaintiffs/respondents in brief is that one Lachman Ojha along with one Dwarka Nath Mishra acquired Darpattani right of entire Mouza Asansol and half of mouza Kairakandi. Later on, Dwarkanath Mishra executed deed of release in favour of Lachman Ojha, who became exclusive Darpattandar. Lachman Ojha died leaving behind five sons, namely, Jagat Ojha, Saddananda Ojha, Mahendra Ojha, Bimalanda Ojha and Baglananda Ojha who inherited his Darpattani right. It is further claimed that Lachman Ojha died before Survey Settlement Operation and he died leaving behind them Bimalanand Ojha alone so he used to manage the entire property as Karta and as such Khewat No. 6 of Mouza Asansol had been prepared in his exclusive name. The mother of the plaintiff brought a Title Suit No. 103 of 1925 claiming 1/4th share therein and the said suit was decreed ex parte. The mother of the plaintiffs again brought a Title Suit No. 384 of 1975 which was also decreed on contest in favour of the plaintiffs. Mouza Asansol and Kairakaundi were being possessed by the plaintiffs. Bimlandana Ojha and Upendra Nath Ojha jointly. It is further claimed that Pattani interest of Mouza Asansol was sold which was purchased by Smt. Kumudbati Devi wife of Sri Rajendra Prasad Singhdeo of Raghunathganj. Thereafter by registered patta dated 19th July, 1949 the plaintiffs and Tupumani alias Lakhimani Devi, mother of the defendants had taken Darpattani settlement of their previous Darpattani property along with Khewat Nos. 7 to 13 of Mouza Asansol and Khewat No. 10, 11, 12 and 13 of Mouza Kairakundi. The settlement was not taken by Bimalandana and widow of Manhananda as they died issueless. The plaintiffs and defendants were in possession of their Darpattani property of the lands described in Schedule -II of the plaint and the said lands have been acquired by the Lands Acquisition Department, but the award has been made in favour of defendant No. 1 alone whereas the plaintiffs are also entitled for the award as being a 2/3 share over the same. The plaintiffs came to know that the learned Land Acquisition Judge has awarded a sum of Rs. 8,29,196/ - in favour of defendant No. 1 in the Land Acquisition Reference Case No. 553 of 1971. It has also come in knowledge that State Government, although, preferred an appeal against that Order in the Hon'ble High Court and the plaintiffs are entitled 2/3rd share in the said award, hence the suit.

(3.) The defendant No. 1 also filed written statement claiming inter aha that the suit as framed is not maintainable and it is barred by limitation and res -judicata. It is further pleaded that Bimalananda Ojha was the only owner of the suit land and the plaintiffs and other defendants have got no interest over the land in question. The defendants took raiyati settlement from Bimalananda Ojha on 2nd day of March, 1351 B.C. corresponding to 4 -2 -1945 through Hukumnama and the defendant No. 1 is the only owner of the suit land. It is also claimed that defendants had reclaimed the land and converted the said lands into paddy field in its own expenditure. The plaintiffs all along attending the proceedings of the case but did not raise any protest against the claim of the defendant No. 1 and the plaintiffs have got no right, title and interest in the compensation money and they have got no cause of action for the suit and it is fit to be dismissed.