NAMAN KAHAR Vs. KHANKHAN KAHAR

JUDGEMENT

(1.) THIS appeal at the Instance of the plaintiff -appellant is directed against the impugned judgment and decree of affirmation dated 16.5.1989 and 30,5.1989 respectively passed in Title Appeal No. 39 of 1981, by Shri Philip Topno, 1st Additional District Judge, Palamau upholding the judgment and decree dated 20.7.1981 and 14.8.1981 passed in Title Partition Suit No. 79 of 1979 by 4th Additional Sub -ordinate Judge, Daltonganj whereby the suit of the plaintiff was dismissed

(2.) THE plaintiff -appellant had filed the said title partition suit for metes and bounds partition of the suit property detailed in the scheduled at the foot of the plaint claiming half share therein and for carving out of a separate takhata of his half share in respect thereof by Survey Knowing Commissioner duly appointed by the Court.

(3.) THE case of the defendants -respondent, inter alia, is that though khata No. 23, stands recorded in the name of Jadubar Kahar in the Cadastral Survey Records of Right but all the plots of khata No. 23 except Plot Nos. 930, 936 and 937 having the total area of 24 decimals are recorded in the name of Sukan Kahar, the natural father of the defendants -respondent in his possession in the remark column of the said Cadastral Survey Records of Right and only Plot Nos. 930, 936 and 937 are in possession of Jadubar Kahar, the recorded raiyat. Their case further is that Jadubar Kahar had acquired land in village Karakat long before the Cadastral Survey and Settlement Operation and there had been a separation and both the sons of Jadubar Kahar had separated from their father and the land allotted to Aliyar Kahar, the father of the plaintiff -appellant, was recorded in khata No. 13 in the Survey Records of right in the name of Aliyar Kahar, the area of which is 11.26 acres. It is alleged that Sukan Kahar also pressed his father Jadubar Kahar for giving him land and when it was evaded by his father he forcibly took possession in the year 1908 of all the lands of khata No. 23, except the aforesaid three plots, and his possession was exclusively recorded in the Survey Records of Right and Jadubar Kahar only remained in possession of three plots i.e. Plot No. 930, 936 and 937, It is alleged that the rent payable of the land of khata No. 23 was Rs. 20/3/3 pie and it was difficult for Jadubar Kahar to pay the said rent to the landlord for possessing only 24 decimals of land of three plots aforesaid and as such only one year after the Survey and Settlement, Operation but prior to his death he surrendered the land of khata No. 23, to the landlord who after the said surrender made oral settlement of the entire land of Khata No. 23, with Sukan Kahar aforesaid and since then he had been in possession of all the plots of khata No. 23 as a raiyat and he began to pay rent to the landlord in respect thereof. The said Jadubar Kahar had died two years after the survey and after his death Sukan Kahar also took possession of the three plots aforesaid. It is alleged that since then Sukan Kahar remained in possession of the entire land of khata No. 23 to the exclusion of Aliyar Kahar and his heirs adversely to them for more than the statutory period and after him the defendants -respondent are in possession thereon perfecting their title. It is alleged that the open continuous, peaceful and notorious possession for a period much longer the statutory period of twelve years as their own right to the ouster of Aliyar Kahar and his sons, the defendants -respondent have perfected their title in respect of the suit land. Even if there had not been any surrender of the suit land by Jadubar Kahar and the raiyati settlement thereof in favour of Sukan Kahar, the rent receipts were granted by the landlord in favour of Sukan Kahar alone in respect thereof since 1922. It is also alleged that Aliyar Kahar or his son, the plaintiff -appellant, has no Interest in the suit land. Further case of the defendants - respondent is that Aliyar Kahar had sold the entire land of khata No. 13 of Village -Karakat Including his house standing on Plot No. 938 and settled to his 'Sasural ' in village - Ranka and sometimes in the year 1950 due to the difference with his maternal uncle he returned to village Karakat and he was allowed to live in the house standing over Plot No. 917, belonging to the defendants -respondent out of compassion as by then, the defendants -respondent have constructed a new house in Plot No. 918, in which they were residing and the residence of the plaintiff -appellant in the house over Plot No. 917 is mere permissive. Lastly, it has been alleged that there is no unity of ownership and possession between the parties over the suit plots and as such the question of partition of the suit land by metes and bounds does not arise at all.