RAJA JHA Vs. RAMCHANDRA JHA

JUDGEMENT

(1.) This is a defendant's appeal from a decree of the learned District Judge of Darbhanga reversing a decision of the learned Munsif and decreeing the plaintiff's claim for a declaration and possession of certain property.

(2.) To appreciate the points involved in the case, it will be necessary to set out the facts in some detail. Musan and Mahesh were two brothers who held a holding of 7 bighas, 17 kattas, 1 dhur. In the record of rights, however, the holding was recorded in the name of these two brothers and Maksudan; but both the lower Courts have come to the conclusion that Maksudan was not a joint owner of the holding but was some kind of transferee of a very small portion of 6 kattas odd by sale or gift or some such like transaction. Mahesh died issueless, and the holding was inherited by Musan. On 81 January 1905, Musan sold 1 bigha 10 kattas of this holding to Jag. mohan Misser. On 81 May 1927, the father of plaintiffs 1 to 10 took a usufructuary mortgage of this 1 bigha 10 kattas of land from Eajkant Misser, who were the heirs of Jagmohan Misser.

(3.) In the year 1929 or thereabouts Musan died leaving his son Abhinandan and a grandson, Sitaram, a son of deceased son Harikrishun. In the year 1930 after the death of Musan the Darbhanga Raj who were the proprietors of the land in question brought a rent suit against Abhinandan and Sitaram and obtained a decree. It appears that Abhinandan had a minor son Kamlakant who was not impleaded in this suit. Maksudan also was not impleaded, neither were the plaintiffs 1 to 10 who held a usufructuary mortgage of the 1 bigha 10 kattas which had been sold to Jagmohan Misser. The holding was sold in execution of this decree and was purchased by the defendant appellant some time in 1933, and a sale certificate was granted to him, which is dated 11 May 1934. Delivery of possession was actually given to the defendant appellant on 26 July 1934.