MOTI SHAH Vs. BULAKI SAH

JUDGEMENT

(1.) This appeal has been preferred against the judgment and decree dated 31.1.1986 passed by the 8th Additional District Judge, Munghyer, in Title Appeal No. 44 of 1981 reversing the judgment and decree dated 26.9.1981 passed by the Munsiff-I. Munghyer, in Title Suit No. 3-8/6 of 1975-80.

(2.) At the admission stage under Order XLI. Rule 11 of the Code of Civil Procedure, the respondents have been noticed and heard both the parties on merit also. The plaintiffs- respondents filed the suit for declaration of title and also for recovery of possession in respect of the suit land appertaining to plot No. 121, Khata No. 55, Touzi No. 4884 of Mouza Ramchandrapur PS. Jamalpur within the District of Munghyer as described in Schedule-II of the plaint. The area of the suit land is 17 decimals towards north. The admitted position remains that one Gohan Sab was the original owner of the whole of the suit plot measuring 34 decimals. He left behind two sons Sonu and Chhathu. Sonu left the place and settled at Midnapur in the State of West Bengal and Chhathu remained in the place and was managing the property. Chhathu died leaving behind two sons Panchu and Rameshwar. The defendants are the heirs of Ranchu and Rameshwar and also the purchasers from Chhathu's heir in the year 1968. According to the plaintiffs, Sonu died leaving behind two sons Mahadeo and Sukhdeo. Sukhdeo died issueless and Mahadeo died leaving his wife Sharda Devi and one son Jagdish. The plaintiffs are the purchasers from Jagdish and Sharda Devi. According to the plaintiffs Chhathu's heirs and heirs of Sonu had privately partitioned their entire property and in the suit plot Rameshwar Sao and Panchu Sao got the allotment towards south measuirng half of the suit plot, namely, 17 decimals and rest of the 17 decimals has fallen in the share of Sharda Devi and Jagdish towards north and the same has been purchased with specific boundary by the plaintiffs. According to the plaintiffs Sonu's share have been duly mutated in the name of Sharda Devi and Jagdish Sao before Anchal Adhikari and their shares have been purchased by the plaintiffs by sale-deed dated 1.11.1968 and the plaintiffs names had also been mutated before the Anchal office. But, as the defendants demolished the southern ridge which was the demarcating line between the plaintiffs and defendants, the plaintiffs made a complaint on 19.2.1971 before the police and a proceeding was started under Section 144 of the Code of Criminal Procedure which was ultimately converted to a proceeding under Section 145 of the Code of Criminal Procedure but on adjudication between the parties possessions have been declared in favour of the defendants and as such, the defendants had dispossessed the plaintiffs being armed with the order of the proceeding under Section 145 of the Code of Criminal Procedure and hence the present suit. The relief claimed in the suit is for declaration of title over the suit land and for recovery of possession. There is also alternative prayer to the effect that if there was not partition between the heirs of Sonu Sao and Chhathu Sao, the Court may be pleased to partition the properties and a preliminary decree of partition may be passed for half share over the suit plot.

(3.) The defendants-appellants contested the suit by filing written statement. The usual pleas as non-maintainability of the suit, that the suit being barred by the principle of waiver, estoppel and acquiescence, etc. etc. have been taken. The genealogy as given by the plaintiffs have been admitted but according to the defendants, Sonu Sao in the early 40 had left the village and settled at Kharagpur in the district of Midnapur in West Bengal and died there. It was further contended that Sonu Sao was not married and Chhathur Sao remained in possession over the entire properties not only by way of survivorship but also when Sonu Sao left for West Bengal had delivered possession in favour of his brother Chhothu Sao and during this long period Chhathu Sao had death with properties exclusively without being interfered by any person and having no interference he made mortgaged to different persons. It was denied that Sharda Devi was the daughter-in-law of Sonu Sao and Jagdish Sao as his grandson. The existence of the predecessors of the vendors of the plaintiffs namely. Mahadeo Sao has been totally denied. Private partition as alleged from the side of the plaintiffs had also been denied. The contesting defendants have purchased the entire area of suit plot No. 121 by registered sale deed dated 20.6.1968 from Rameshwar Sao and Panchu Sao sons of Chhathu Sao and the whole area of the suit plot remained in exclusive possession of the contesting defendants. It was further alleged that the mutation of the plaintiffs vendors are collusive one and the defendants-first party had no knowledge of the same and it was further contended that the defendants-first party and their vendors remained in exclusive possession of the property all along.