LAKHPAT THAKURAI, MAJOR Vs. GURSARAN THAKURAI

JUDGEMENT

(1.) The suit oat of which this appeal arises was a suit brought by Adya Saran Thakurai and Gursaran ThakuKu against Lakhpat, Mahadeo and Suraj Bali Thakurai first party, Jai Mungal and three others second party and Rozan Cbaudhri third party. The allegations contained in the plaint are that the ancestors of the plaintiffs hypothecated a 2-anna 2-pie share in Mouza Mohnapur to Bacha Thakurai and three others, ancestors of defendants. One-fourth of the consideration, it is said, belonged to the ancestors of defendants first party, one- half to the ancestors of the defendants second party and the remaining one-fourth to the ancestors of defendants third party. Defendants second and third parties obtained sale-deeds of the entire mortgage share amounting to a 2-anna 2-pia share of the consideration of the document already mentioned. Subsequently defendants first party brought a suit for the recovery of their 1/4th amount of the consideration under the same document. Defendants first party got a decree on the 28th of May 1907 for sale of a 6|-pie share out of the property in possession of defendants second and third party, but by some mistake a 2-anna 2-pie share was entered in the decree instead of the 6? pie share. On the basis of this wrong decree defendants first party got this entire 2-anna 2-pie share sold by auction, but defendants second and third party got the decree subsequently modified and the 6| pies, substituted.

(2.) Mutation proceedings followed and on the 6th of April 1910 the Collector of Basti decided that the names of defendants first party be removed against the 62- pie share and that defendants second and third party must have their names recorded against the remaining 1-anna and 7?-pie share.

(3.) The plaint goes on to say that when the defendants second party, which I shall call for the sake of brevity Jai Mangal and others, saw that a 6?-pie share out of the property mentioned in the sale-deed would pass out of their possession and be recorded in the name of Lakh pat Thakurai, they won over defendants first and third parties and by fraud got the name of Lakhpat Thakurai recorded against the 6?-pie share standing in the name of Jai Mangal and others and got his name entered against another 6?-pie share, which was neither charged under the decree nor sold at auction, and further got the names of the plaintiffs removed therefrom. They then in order to strengthen their fraudulent and collusive steps made Lakhpat Thakurai file an application for partition of the said 6?-pie share as against Jai Mangal and others and Rozan third party and also as against the plaintiffs and others share-holders of a 5-anna 4-pie share. Jai Mangal and others did not apply for partition.