RAM CHANDER PRASAD Vs. SITAL PRASAD

JUDGEMENT

(1.) The appeals have been heard together and they will be governed by this judgment. The second Appeal No. 717 has been preferred, by Munshi Earn Chander Prasad, defendant 1, impleading defendants 2, 3 and 4 as respondents. This relates to Title Suit No. 160/30 of 1939/1941 in the Court of the Additional Munsif, Gopalganj. The second Appeal No. 718 has been preferred by Mangla Prasad, uncle and heir of Bacha Babu, defendant 1 and Jai Narain Pandey, defendant 2, impleading defendants 3 and 4 as respondents and relates to Title Suit No. 186/31 of 1939/1941 of the Court of the Additional Munsif, Gopalganj. The two suits, 160/30 and 186/31, hereinafter referred to as suits 160 and 186 respectively, were filed under the provisions of Order 21, Rule 103, Civil P.C. Title suit No. 160 arose out of Miscellaneous Oases Nos. and 175 and Title Suit 186 arose out of Miscellaneous Case No. 1731 Lala Sital Prasad is the common plaintiff in both the suits in which he sought to set aside the orders passed in the above named miscellaneous cases and to have his title declared in respect of the disputed properties and his possession either confirmed or restored.

(2.) The history behind these litigations is shortly as follows: The plaintiff, Sital Prasad, filed Bent Suit No. 57 of 1933 against one Akloo Bhar and Rent suit No. 38 of 1933 against Harangi and Barho. Akloo held two tenancies, one sikmi and the other occupancy. The sikmi tenancy consists of sikmi Khata No. 2 in village Ratanpura, and the occupancy in Khata No. 95 in village Belwar. These two tenancies held under one consolidated rental at an annual jama of Rs. 9-4-6 were recorded within the mokarrari of Mathura Prasad and Jasoda Nandan Prasad. Bent suit No. 38 was in respect of a holding comprised in Khata No. 63 in village Barachap. This holding similarly appertained to the estate of Mathura Prasad and Jasoda Nandan Prasad. It is alleged that there was a partition between Mathura Prasad and his nephew Jasoda Nandan Prasad by virtue of which the tenure relating to the tenancies in suit fell to the share of Mathura Prasad. Mathura Prasad, it is alleged, gifted away all his properties to the plaintiff, Sital Prasad, and on the strength of this title, he claimed to recover the rent in respect of the disputed holdings. Both these suits along with a number of other suits were tried together and Sital Prasad obtained decrees. In execution of the decrees, Sital brought the disputed three holdings to sale and himself became the auction- purchaser. He took out dakhaldehani on 30-4-1938, whereupon Ram Chander Prasad, son of Jasoda Nandan Prasad and nephew of Mathura Prasad, filed an objection in respect of the holdings Nos. 95 and 63 on the allegation that they had been abandoned by their holders in favour of Mathura Prasad, and that on the death of Mathura Prasad, Jasoda Nandan and after him Earn Chander was in possession. Chandershekhar and Jai Narain filed objections under Order 21, Rule 100, Civil P.C. claiming possession over Sikmi Khata No. 2 as purchasers at a sale held in execution of a certificate issued against Earn Chander Prasad, son of Jasoda Nandan. The miscellaneous cases were decided in favour of the claimants. Hence, Sital Prasad, the decree-holder, filed the suits, as already stated. Second Appeal No. 717 is in respect to the two occupancy khatas preferred by Earn Chander Prasad and S.A. No. 718 is by Jai Narain Pandey and Mangla Prasad.

(3.) The plaintiff-respondent bases his title on the deed of gift from Mathura Prasad, while Earn Chander claims it on the basis that his father and after him he himself was in possession of the properties as heir or survivor of Mathura Prasad.