NUNULAL KISKU Vs. HOPA KISKU

JUDGEMENT

(1.) The defendant is the appellant. The suit filed by the plaintiff having been decreed by the trial court and the decree confirmed by learned lower appellate court by the impugned judgment and decree, has been challenged in this second appeal by the defendant-appellant. The plaintiff had filed Title Suit No. 88 of 2002 in the court of learned Sub-Judge-I, Dumka seeking declaration that the plaintiff has right title and interest jointly with defendant No. 1 over the suit land and the plaintiff has got1/2 share in the same. He had further prayed for decree for declaration that for incurring expenses in litigation, no exclusive title accrued to the defendant No. 1, extinguishing the plaintiff's title and share in the suit land.

(2.) The suit property was land of Plot No. 840 measuring an area 2 bighas, 8 kathas, 15 dhurs appertaining to last settlement, Jamabandi No. 28 of Mouza-Cheharbani, P.S. Jama, District-Dumka(Old Sanathal Pargana) corresponding to new survey, plot No. 1329/840 under Jamabandi No. 16 of the said village.

(3.) According to the plaintiff, the defendant-Nunulal Kisku is his full brother. They jointly inherited the suit land, which was original recorded in the names of Soma Kisku and Sakhai Kisku sons of Chamru Kisku. The suit land was recorded as raiyati with possession of Sakhai Kisku, in the remark column of the records of right. Sakhai Kisku died leaving behind one son-Lukho Kisku. Soma Kisku died leaving behind his four sons, namely, Koria Kisku, Manjhi Kisku, Pitho Kisku Tebru Kisku. Tebru Kisku died leaving behind his three sons, namely, Babulal Kisku, Dhana Kisku and Budan Kisku. Their male lines have also extinct by now. Pitho Kisku and Manjhi Kisku died Issueless. Koria Kisku died leaving behind Barka Kisku, who died in 1990 leaving behind two sons, the plaintiff and the defendant. The plaintiff and the defendant, thus, are the surviving legal heirs of the recorded tenant. They have half share each in the suit land. In the recent survey, names of Braka Kisku, Babulal Kisku and Budan Kisku were recorded as raiyats in respect of the suit land and the suit land was shown in exclusive possession of Barka Kisku. After the death of Barka Kisku, the plaintiff and the defendant jointly inherited and possessed the land of entire jamabandi. Both the parties are in joint possession of the said land. There was no partition by metes and bounds between them. In course of survey operation, one Munshi Soren, who was stranger to the family, started claiming his possession over the suit land. The parties are Santhals and the land is non-transferable as per the provisions of Santhal Pargana Tenancy Act. The dispute raised by Munshi Soren led to a proceeding under section 145 Cr.P.C. The defendant No. 1 is the elder brother of the plaintiff and, as such, he was looking after the litigation. He was made party in the said proceeding. The Executive Magistrate erroneously decided possession of defendant No. 1 in the said proceeding. The revision filed against the said order was without any success. The defendant No. 1 on that basis started claiming the suit land exclusively. He filed a petition for demarcating the suit land before the Sub Divisional Magistrate, Dumka. The plaintiff also filed an application for demarcating the said joint land. The defendant No. 1 objected to the plaintiff's application. Learned Sub Divisional Magistrate, Dumka by order dated 5.8.1992 without interfering with the earlier position, directed the parties to take shelter of civil court. The plaintiff filed revision, which is still pending. The plaintiff, in the meanwhile, sought resort to the civil court by filing the said title suit and praying for the decree as aforementioned.