MOST BABI Vs. PARASRAM OHDAR

JUDGEMENT

(1.) This appeal at the instance of defendants/appellants is directed against the judgment and decree dated 17th December, 1987 passed by Sub-Judge-II, Gumla in Title Appeal No. 120/20 of 1980/1985. By the said judgment the Sub-Judge (hereinafter referred to as the lower appellate Court) allowed the appeal and reversed the judgment and decree dated 24-6-1980 passed by Munsif Gumla in Title Suit No. 14/1972.

(2.) Plaintiffs/respondents filed the aforementioned suit for declaration of title and recovery of possession of the property comprised within Plot No. 104 under Khata No. 21 area 45 decimals situated in village Barkoili P.S. Konbir, Distt. Gumla (in short the said property). Plaintiffs' case inter alia is that the suit property was once held and possessed by one Late Budhu Munda. In the revisional survey record of right Budhu Munda and his brother Etwa had been recorded in respect of the land of Khata No. 1 besides other land. There was partition between the two brothers, whereby the suit lands were allotted to the share of Budhu Munda which was shown in the remarks column in the revenue record. Plaintiffs' further case is that Budhu , Munda surrendered his land including the suit land to the Ex-landlord by virtue of registered deed of surrender dated 2-4-1945. The landlord accepted the surrender and re-entered into the lands and thereafter settled the same with one Lalsai Sahu and in token of the said settlement Lalsai Sahu had executed a registered Kabuliyat in favour of the landlords. On 11-11-1946 and 22-12-1946 the ex-landlords granted Hukumnama to Lalsai Sahu in respect of the said lands. Lalsai Sahu came in possession of the suit land and got herself mutated in the government Sherista after vesting of the tenure in 1956. Plaintiffs' further case is that on 19-2-1968 she sold the suit lands the plaintiff No. 1 through registered sale deed. Before the said transfer plaintiff No. 1 alleged to have been coming in possession of the suit land on the basis of zarpesgi deed, dated 1-3-1963 executed by Most. Babi. In 1968, the defendants alleged to have been forcibly entered into the suit land and began to construct a wall which resulted in a proceeding under Section 144, Cr.P.C. which was later on converted into a proceeding under Section 146, Cr.P.C. It is alleged that the proceeding under Section 146, Cr.P.C. was erroneously decided in favour of the defendants/appellants and therefore instant suit was filed for declaration of title and recovery of possession.

(3.) Defendants/appellants contested the suit by filing written statement taking various pleas including under valuation of the suit and also plea of res judicata. Defendants' case is that the recorded tenant Budhu Munda had mortgaged the suit land in favour of Deotu Ohdar in 1995 Sambat. Deotu Ohdar held and possessed the land and the Zarpesgi was not redeemed. Budhu Munda by registered deed of surrender dated 2-4-1945 surrendered the suit land in favour of ex-landlords. Subsequently there was partition between the ex-landlords and the suit land fell into the share of Inder Ohdar and others. Inder Ohdar died and his son Ganesh Ohdar, instead of redeeming zarpesgi sold the suit land to Deoki Ohdar by registered deed of sale dated 22-11-1967 to the knowledge of the plaintiff and others. Defendants' further case is that Kolha Ohdar, brother of Ganesh Ohdars was away from the village and when he returned he ratified the transaction on 15-1-1968 by executing Safmama. It is alleged that plaintiffs and their men created various forged documents to oust the defendants from the suit land.