SAHIB RAI Vs. BAHARI RAI

JUDGEMENT

(1.) This is a defendants appeal arising out of a suit for declaration of title. The facts of the case are very complicated. They may be briefly stated as follows In 1834 a certain share in the village was purchased in the names of three persons, Raghubar, Shankar and Sheo Baran. Sheo Baran's son sued for partition and separation of his share and his claim was contested not only by Raghubar's son Chit Bahal, the present plaintiffs ancestor, but also by another claimant, Padarath. Padarath put forward the claim that although his name was not entered in the sale-deed he was entitled to an equal share and that, therefore, the plaintiffs were only entitled to one-fourth and not one-third. In spite of this defence Sheo Baran's son got his one-third share separated. Subsequently Padarath and Bharosa actually brought a suit to recover one-fourth out of the entire share sold by the sale-deed against Chit Bahal. Chit, Bahal admitted the claimants right but the other defendants did not. The first Court decreed the claim of Padarath and Bharosa for one-fourth share in the entire property, principally relying on the admission of Chit Bahal. It is to be noted that Chit Bahal did not appeal from that decree but the other contesting defendants appealed. On appeal the learned Subordinate Judge, in his judgment, dated the 5 of February 1868, held that the admission of Chit Bahal was a collusive one with a view to injure Sheo Baran's heirs and that it was Chit Bahal who had got that collusive suit instituted by Padarath and Bharosa. He accordingly held that the decree against the then appellants could not be upheld, and ordered that the appeal be allowed and the suit of the plaintiffs be dismissed as against the appellants. The effect of that judgment was that although there was a clear finding in the judgment that the suit had been instituted in collusion with Chit Bahal the decree for one-eighth share against Chit Bahal was allowed to stand and the suit was dismissed as against the other defendants only. Mr. Sams the learned District Judge in the present case in his judgment has remarked: The appeal preferred by the latter was allowed with the result that Padarath and Bharosa retained only one-eighth share of the whole property that had been sold.

(2.) This entry has continued all along. On the basis of this entry these persons have even obtained decrees for profits from the revenue Court.

(3.) The Courts below have held that the effect of the findings of the Subordinate Judge in 1868 was to destroy the title of Padarath and Bharosa absolutely and that in view of the fact that the suit was a collusive one the decree in favour of Padarath and Bharosa against Chit Bahal was of no effect.