JEO NARAYAN MAHTO Vs. BUDHAN MAHTO

JUDGEMENT

(1.) This is a plaintiff's appeal from a decree of the learned Additional Subordinate Judge of Patna dismissing his claim to possession of certain property. The suit giving rise to the appeal was brought by the plaintiff for recovery of possession of 1.28 acres but of khata No. 169 of Mauza Saidpore. It appears that one Shivanandan Mahto (defendant 8) held 7.55 acres of kasht lands in this mauza. On 27 September 1927 Shivanandan Mahto mortgaged his 7.55 acres of land as security for Rs. 500 borrowed from the plaintiff. On 17 August 193 Shivanandan Mahto sold 3.91 acres to the plaintiff in full satisfaction of the mortgage dues which were then said to be lis. 900. It is to be observed that 3.41 acres of this land sold formed part of the land which was the subject-matter of the mortgage of 27 September 1927. According to the plaintiff, he entered into possession of the land but was dispossessed of 1.28 acres thereof in March 1935 by the contesting defendant. Accordingly, he brought this suit for possession.

(2.) The defence to the claim for possession was that Shivanandan Mahto on 7th August 1934 that is ten days before the sale to the plaintiff, had sold 1.28 acres out of the land later sold to the plaintiff, to the contesting defendant. It appears that difficulties arose about the registration of this sale deed, but it was eventually registered compulsorily on 26 February 1935. The contesting defendant contended that the moment his deed was registered he had good title to the land, from the date of the sale deed namely 7 August 1934. That being so, Shivanandan Mahto could not ten days later, sell that same 1.28 acres of land to the plaintiff.

(3.) In the trial Court it was alleged inter alia by the plaintiff that the sale deed to the contesting defendant dated 7 August 1934 was a fictitious and colourable transaction, and the learned Munsif so held and decreed the plaintiff's claim. The lower appellate Court however disagreeing with the trial Court, held that this sale deed of 7 August 1934 was a genuine and bona fide transaction, and as it gave a good title to the contesting defendant the plaintiff who claimed title under a subsequent sale deed could not dispossess him. Accordingly, the plaintiff's claim for possession was dismissed in its entirety. This second appeal first came before a learned single Judge of this Court who referred it to a Bench.