MD.UDDIN @ MOHAMMADIN Vs. ASIBUN NISSA

JUDGEMENT

(1.) THIS appeal at the instance of the plaintiffs appellant stands directed against the impugned judgment and decree dated 10.07.1989 and 20.07.1989 respectively passed in Title, Appeal No. 42 of 1986 by Shri Uma Shankar, Ist Additional District Judge, Hazaribagh whereby and whereunder appeal was allowed and the judgment and decree passed in Title Suit No. 89 of 1982 by Munsif, Hazaribagh was set aside and the suit of the plaintiff was dismissed.

(2.) THE plaintiffs -appellant have filed Title Suit No. 89 of 1982 for the declaration of their title and confirmation of possession and in the alternative for recovery of possession in respect of Schedule A and Schedule B property of the plaint. Schedule A of the plaint is in respect of Plot No. 1029 appertaining to Khata No. 66 having an area of 4 decimals and Schedule B is in respect of Plot No. 1028 appertaining to Khata No. 66 having an area of 13 decimals.

(3.) THE case of the defendant -respondent (hereinafter referred to as the defendant), inter alia, is that Plot No. 1028 together with 1 -1/2 decimals of Plot No. 1029 and the southern portion of Plot No. 1116 stand amalgamated and the same is Bari land of the defendant in his possession which is explicit from the map enclosed with the written statement and the total area of the enclosed block is about 16 -1/2 decimals and it is in cultivating possession of the defendant since the time of his ancestors openly and adversely for several years beyond the statutory period and there are several trees thereon besides cluster of bamboos and north of the said amalgamated plot is situated Plot No. 1027 and part of Plot No. 1029 having the house and Bari of the plaintiff and it is false to say that the plaintiff has extended his house in or about one decimals of land in Plot No. 1028 and has his exit or entrance by door in Plot No. 1028. It is alleged that the house of the plaintiff on portion of Plot No. 1029 is his ancestral house and is in the same condition as it was before and about 1 -1/2 years ago the plaintiff surreptitiously opened the door towards east in the portion of his house of Plot No. 1029 and on the intervention by the local Panchayat the said door was fenced and it was never used and the plaintiff has got his exit and entrance doors towards east and west in his house. The specific case of the defendant is that the land mistakenly numbered as Plot No. 1027 measuring 7 decimals actually belonged to and was in possession of Sk. Gaffar and it should have been included under Khata No. 66 in the cadastral Survey Records of Right in his name and likewise the land mistakenly numbered as Plot No. 1028 together with the southern portion of Plot No. 1029 was in possession of Rahat Ali, the ancestors of the defendant, at the time of the cadastral Survey Records of Right and it should have been recorded under Khata No. 107 in the Survey Records of Right in the name of Rahat Ali and when the said mistake was detected by the recorded tenants aforesaid of Khata No. 66 and Khata No. 107 though after the expiry of the period of limitation for correction of the entries of the Survey Records of Right they amicably agreed due to their relationship to put the record straight in the shape of a written agreement or ekrarnama dated 19.03.1919 whereby they had mutually agreed to maintain their respective possession over the respective parcel of lands without any dispute. It is alleged that Sk. Gaffar had small house on northern portion of Plot No. 1029 in his occupation and in his life time he had extended that house towards west within Plot No. 1027 and the said house is still in existence and the southern part of Plot No. 1029 stands amalgamated with the other lands of the defendants who are continuing in open and exclusive possession over the same for more than 50 -60 years. There had been a demarcation case bearing No. 1 of 1981 and the report of the Anchal Amin also clarifies the mistake in numbering of the respective plots. Lastly it has been alleged that the agreement referred to above is genuine and it reflects the realities and has been all along accepted and acted upon by the parties to this suit and the boundaries as mentioned in the Survey Records of Right of the aforesaid two plots is correct which thereof states the wrong numbering of the aforesaid two plots. The plaintiff or his ancestors were never in possession of any inch of Plot No. 1028 amalgamated with 1 -1/2 decimals of Plot No. 1029 and question of the plaintiff acquiring title by adverse possession is equally false.