RAMPAL SINGH Vs. MANSUKH RAI KHEMKA

JUDGEMENT

(1.) This is an appeal by the defendants whics arises out of a suit for recovery of possession of 21.92 acres or 32 bighas, 1 katha, 15 dhurs of bakasht lands in village Barhee Pali Tajpur Ind. These lands are said to be comprised in a patti of la Id and odd share which formerly belonged to Rai Bahadur Tukanath Singh. He mortgaged the patti with some other property to the plaintiffs predecessor Ramkishun Ram under a simple mortgage bond dated 17 September 1891, for Rs. 15,001. On the basis of this mortgage, Ramkishun Ram obtained a mortgage decree on 30 April 1908. In execution of that decree he purchased the mortgaged properties on 15 September 1914, and obtained delivery of possession over the same on 1 June 1915. The sale proceeds being insufficient, he obtained a decree under Order 34, Rule 6, Civil P.C. In execution of this decree he purchased another patti of 19 dams and odd share in the same village on 27th August 1918, and took delivery of possession on 6 July 1919.

(2.) The plaintiffs case is that since the delivery of possession taken on 1 June 1915, Ramkishun Ram and after him the plaintiffs were all along in possession of the disputed lands. But in 1932 there was a proceeding under's 145, Criminal P.C., with regard to these lands between the plaintiffs and defendants 1 and 2. In that case defendants 1 and 2 alleged that the disputed lands appertained to the patti of 19 dams and odd share and were given in usufructuary mortgage by Rai Bahadur Tukanath Singh to Banshi Singh, Karu Singh and Bija Singh under a deed dated 28 September 1900, for Rs. 3151 and that they (defendants 1 and 2), having purchased one bigha out of the disputed lands from Rai Bahadur Tukanath Singh's son Jhalak Kishore Singh by an unregistered sale deed dated 5 March 1916, redeemed the said usufructuary mortgage and came into possession of the entire disputed lands. The Magistrate decided the case under Section 145 in favour of the defendants on 4 August 1932. The plaintiffs filed an application for revision before the Sessions Judge of Monghyr who made a reference to the High Court on 29 Sep. tember 1932. But the High Court by its order dated 11 November 1932, discharged the reference.

(3.) The present suit was brought on 13 November 1935. The plaintiffs alleged that the usufructuary mortgage of Banshi, Kara and Bija was redeemed by Rai Bahadur Tukanath himself, that the unregistered sale deed propounded by defendants 1 and 2 is a fraudulent and collusive document and that the defendants were never in possession of the disputed lands until the decision under Section 145, Criminal P.C., The remaining defendants are members of a joint Mitakshara family with defendants 1 and 2 who are the managing members.