HARNANDAN SINGH Vs. SMRAMANANDDI KUER

JUDGEMENT

(1.) This is a defendants second appeal in a suit instituted by plaintiff 1, the admitted proprietor of the land, and plaintiff 2, settled under plaintiff 1 from the year 1938, for declaration of title to and recovery of possession of a piece of homestead land bearing plot No. 594 khata No. 73 in Qila Mahi Khandak tauzi No. 11088 within the limits of the Bihar Municipality. In the record of rights the plot is recorded as gairmazrua malik. The plaintiffs trace the cause of action for their suit to their dispossession from the land in suit on account of the warning notice and several acts of possession exercised by the defendant-appellants, such as, t planting of bamboos, cutting of neem tree and appropriating the same, storing bricks thereon and carrying away stones and khowa that were on the land, to their house. With these allegations the reliefs prayed for are that it may be adjudicated that the land in dispute constituted the interest of plaintiff 2 by virtue of settlement, and that the plaintiffs always remained in possession and occupation thereof, that the defendants had no title to the land in dispute, that neither the defendants nor their ancestors ever came into possession thereof in any capacity, that the possession of the defendants over the land in dispute is wrongful, that plaintiff 2 may be put in possession by ejecting the defendants therefrom, that if for any reason there may be difficulty in-passing a decree in favour of plaintiff 2, a decree for recovery of possession may be awarded in favour of plaintiff 1 and that a decree for damages of Rs. 5 in favour of plaintiff 2 being the-price of stones and khowa and Rs. 10 being the price of neem tree cut and appropriated by the defendants be granted. The date of dispossession as stated in the plaint para. 22 is the 26 March 1941 the date of notice of the order under Section 144, Criminal P.C., and possession of defendant 1 over the property in suit.

(2.) The defend ant appellants resisted the suit on the ground that they have been in possession of the land in dispute from the 29 Asarh 1317. Fasli when a hukumnama was granted by Babu Alakh Prakash Singh alias Babu Rashbihari Singh, an ancestor of plaintiff 1, to the father of defendant 1 and that since then neither the plaintiffs nor their predecessors-in-interest were in possession of the same. They thus urged that the plaintiffs suit was barred by limitation having been brought on 26 March 1941, more than 12 years after the date of the hukumnama

(3.) The trial Court disposed of the suit disallowing the claim of plaintiff 2 on the finding: "Plaintiff 2 has not taken a valid settlement of the land and is not entitled to any relief" and decreed the suit in favour of plaintiff 1 only, for recovery of possession by eviction of the defendants with the modification that the claim for damages was disallowed. Plaintiff 2 did not agitate against the order of dismissal of his suit which order, therefore, is final for the purpose of this litigation as between the contending parties. The defendants preferred an appeal against the decree passed by the trial Court.