VAKIL SAO Vs. JAMUNA NAIK

JUDGEMENT

(1.) This second appeal is against the judgment and decree dated 25.11.2006 passed by learned Additional District Judge, F.T.C. Koderma in Title Appeal No.' 3/2001 whereby learned lower appellate Court has upheld and affirmed the judgment and decree of learned Sub-ordinate Judge-l, Koderma passed in Title Suit No.31/1987. The plaintiffs are the appellants-appellants. They had filed Title Suit No. 31/1987 seeking declaration that the plaintiffs have valid right, title and possession over the suit land mentioned in Schedule 'B' of the plaint and their right and title has not been affected by the sale deeds dated 29.9.19975 and 25.6.1984. They also sought a decree for recovery of possession evicting the defendants and removing the construction, if any, from the suit land, if they are found dispossessed from the same They had also sought declaration that the Sate Deed No.19175 dated 29.9.1975 executed by the defendant No.1 in favour of the defendant No.5 and the Sale Deed No. 6365 dated 25.6.1984 executed by the defendant No.5 in favour of the defendant Nos. 2-4 are collusive, illegal and inoperative. The plaintiffs had also prayed for restraining the defendant Nos. 1-4, their agents and servants from interfering with the possession of the plaintiffs over the Schedule 'B' property and also from making any construction of wall and house thereon by appropriate order of injunction.

(2.) The land in dispute appertains to Khata No. 117, Plot No. 887 measuring an area of 16 Decimals of Village-Jaamu, P.S-Markacho, District Koderma.

(3.) The plaintiffs case was that the suit land was recorded as Raiyati in the survey records in the joint names of Bihari Naik and Churaman Naik, sons of Dulli Naik one share. Kodaba Naik and Kokil Naik, sons of Chheto Naik - one share, Kaila Naik and Lalji Naik, sons of Pritam Naik - one share, equally. Some of the lands were in possession of Raiyats and separate Khatas' were prepared in respect of those lands according to their possession. The suit land measuring 0.32 acre of Plot No. 887, Khata No. 117 was recorded as Dar-Raiyati Khata No. 61 in the name of Churaki Naik and he was in possession of the same. Subsequently, the said land was resumed by the plaintiffs ancestors evicting the Dar-Raiyat -Churaki Naik and the said land came in joint possession of the family. Lalji Naik, one of the recorded tenants, sold his entire share and interest in Khata No. 117 to his brother Kaila Naik in the year 1960, the sons of Churaki Naik wrongly claimed their right over the suit land. They filed a petition before the Anchal Adhikari, Markacho for mutation of their names in respect of the land of Plot No. 887, which was objected to by other co-sharers. The said petition was, thereafter rejected by order dated 26.10.1960. Recorded tenant Churaman Naik, who had 1/6 share in the land died leaving behind three sons, namely, Sukar Naik, Saga Naik and Ram Krishna Naik. They came in possession over the land with other co-sharers. Sukar Naik sold his share and interest to Birshi Kumari. Sona Naik sold his share of land of Khata No. 117 to his daughter-in-law Jasoda Devi measuring an area of 1.1/2 Decimals in Plot No. 887 by virtue of registered sale deed dated 3.3.1979. He also sold his lands of Chitarpur to his other daughter-in-laws. Mahabir Naik also sold his share of Plot No. 887 to his wife Chohani Devi through registered sale deed dated 6.5.1980 and put her in possession. The recorded tenant Kaila Naik died leaving behind five sons. His sons inherited him and came in peaceful possession of 1/3 share measuring 0.02 and 2/15 acres in Plot No. 887 each. There was no partition by metes and bounds among the descendants of recorded tenant, but they were in separate possession for the sake of convenience and under mutual understanding. Plot No. 887 was in separate possession of the plaintiffs. About 20 years ago, the plaintiff No.1 had constructed walls over Plot No.887. The plaintiff No.5 had also constructed walls. In January 1997. Late Munna Naik wanted to construct house forcibly over the walls constructed by the plaintiff Nos. 1 & 5. That was protested. That gave rise to a dispute leading to a proceeding under Section 144 Cr.P.C. in the said proceeding a show cause reply was filed by Munna Naik stating, inter alia, that he had executed a sale deed in the name of Prayag Naik (defendant No.5) dated 29.8.1975. Thereafter, the said land was re-transferred from Prayag Naik by virtue of a registered sale deed in favour of his son (defendant No.2) and his daughter-in-laws (defendant Nos. 3 & 4). Thereby he wanted to grab the entire land of Plot No. 887 whereas Munna Naik had only 0.2 and 2/15 Decimals in Plot No. 887. The proceeding under Section 144 Cr.P.C. was erroneously made absolute against the plaintiffs. Emboldened by the said order dated 2.4.1987, the defendant Nos.1-4 threatened to take possession of the land and construct a house. The sale deeds dated 29.7.1975 and 25.6.1984 are collusive, void illegal and inoperative and without consideration. The plaintiffs are the rightful owners of the suit land and they are in possession of the same.