PATHAK TRIBHUVAN SINGH Vs. KAMESHWAR SINGH

JUDGEMENT

(1.) THIS appeal at the instance of defendants -appellant is directed against the judgment and decree dated 26.7.1988 and 6.8.1988 respectively passed in title appeal No. 17 of 1983 by Shri Satyendra Singh 4th Additional District and Sessions Judge, Palamau at Daltonganj whereby and whereunder the appeal was allowed and the judgment and decree dated 11.3.1983 and 24.3.1983 respectively passed in title suit No. 47 of 1979 by Additional Munsif, Palamau at Daltonganj was reversed.

(2.) THE plaintiffs -respondent had filed the aforementioned suit for declaration of their title and recovery of possession along with mesne profits in respect of the suit land fully detailed in Schedule of the plaint which is eastern 27 1/3 decimals of land of plot No. 369, khata No. 28 situate in village Marang, P.S. Panki, District Palamau.

(3.) THE case of the defendants appellant Nos. 1 and 2 and their vendor 3 to 6 inter alia is that the land of khata No. 28 was recorded jointly in the name of Jhari Teli and Bhagal Teli both sons of Ramu Teli in the Survey Record of Rights and they were the member of Hindu Mitakshara joint family and they were in joint cultivation of plot No. 369 till the life time of Jhari Teli who died in the year 1934 and it is false to say that Jhari Teli and Bhagal Teli had separate cultivation half and half and Jhari Teli cultivating the land towards east and Bhagal Teli cultivating the land in the west of the said plot and the case of separate cultivation as alleged by the plaintiffs respondent is totally false. Their case further is that Jhari Teli had two wives, namely, Bhago Sahun and Jathai Sahun and he had four daughters born of Bhago Sahun and one daughter born of Jathai Sahun and Chutuwa Sahun had died in the life time of Jhari Teli and his remaining four daughters were alive at the time of his death and both the wives of Jhari Teli had predeceased him. The specific case of the defendants appellant in that Jhari Teli was a man of advance age and there was nobody to look after his affairs and take care of him so Jhari Teli reunited with his brother Bhagal Teli and put all his land and other properties in possession of Bhagal Teli about 12 years before his death and since then the entire property became the joint family property of Jhari Teli and Bhagal Teli under the management of Bhagal Teli. It is alleged that Jhari Teli died in the year 1934 in the state of jointness with Bhagal Teli and the entire joint properties including the lands recorded in the name of Jhari Teli has developed upon Bhagal Teli by the principle of survivorship and Bhagal Teli came in possession thereof including the land of plot No. 369 and after his death it was inherited by the descendants. The further case of the defendants -appellant is that defendant Nos. 3 to 6 for their personal necessity executed a sale -deed dated 17.3.1973 for Rs. 5500.00 in respect of 82 decimals of plot No. 369 of khata No. 28 besides 22 decimals of land of village Dan -dar Khurd, of khata No. 35 in favour of defendants appellant Nos. 1 and 2 and put them in possession thereof and since then defendant Nos. 1 and 2 are coming in peaceful cultivating possession over the same. The defendants appellant have also denied that the widow and daughter of Jhari Teli had ever paid rent or water rates through Padarath Mahto rather it was Padarath Mahto and, thereafter, his sons are paying the entire rent of the land of khata No. 28 and the daughters of Jhari Teli are never the co -owners with Padarath Mahto or his sons. It has further been stated that the daughters of Jhari Teli had neither right, title or interest nor possession over the suit land and they have no right to execute the sale -deed in favour of plaintiffs -respondent. Lastly it has been alleged that the defendants of Bhagal Teli has executed several sale -deeds in respect of the land of village Dandar Khurd and Dandar Kalian recorded in the name of Jhari Teli in favour of several other persons who are in cultivating possession in respect thereof as per Schedule B of the written statement.