BISHUN MAHATO Vs. RAHO KHALIFA

JUDGEMENT

(1.) The substantial question to be answered in this appeal is "Whether in terms of the compromise, Exhibits 5 and 7, the sale deed, Exhibit A/2, executed by defendant No. 1 in favour of defendant Nos. 2 to 4 is legal and valid?" During the course of hearing, no further substantial question of law was raised.

(2.) The dispute is with regard to 33 decimal of land (Schedule A to the plaint) having a well and house in Khata No. 167 plot No. 1326 of village - Barsot, P.S. Barhi, Hazaribagh, bounded in north by Gautam Rasul, South G. T. Road, East Rasta, West Ramchandra Mahto. The plaintiffs claim the lands on the basis of two registered sale deeds each for 16 decimals of land, Exts.3, 3/A, executed by Jangli Khalifa son of Dukhan Khalifa on 10-12-1981, for consideration of Rs. 19.000/- and possession thereof by living in the house and cultivating the land so purchased. The said land was sold by defendant No. 1, Raho Khalifa, a brother of Dukhan (father of vendors of plaintiff) by a registered sale deed to defendant Nos. 2 to 4, Dwarika Mahto and others. Thus, the suit had been filed for a declaration that the subsequent sale is not binding on the plaintiff and also for confirmation of his possession of the suit land and in alternative, for recovery of the possession. According to the plaintiffs, title to his vendor, Jangli Khalifa son of Dukhan Khalifa, had arisen out of a partition among the three brothers, when Dhukhan and his another brother, Chhedi, got 50 decimals of land in plot No. 1326 and Raho (the vendor of the subsequent sale) got his share in the other plot and after partition, his vendor's father exercised proprietary rights over his share by executing a conditional sale, which was again reconveyed to him and also by mortgaging some part of the land in his share to defendant No. 1, which was also redeemed. Thereafter, in a proceeding under Section 145 Cr.P.C. in M. Case No. 178/76, a compromise petition, Ext. 5, was filed jointly by Raho and Dhukhan. When Raho admitted that 34 decimal of land in plot No. 1326 belonged to Dukhan and whatever in that plot was sold by Dukhan to Ramchandra will remain with Ramchandra and consequently, an order under Section 145 Cr.P.C. Ext. 7, was passed, in return Raho got lands and other plots as detailed in Ext. 5 and possession of Ramchandra was declared. And this 33 1/3 decimal of land has been purchased by the plaintiff from Jangli Khalifa son of Dukhan Khalifa. Thus, according to the plaintiffs, after the compromise, as Raho, defendant No. 1, was left with no right, title and interest in the land of plot No. 1326 and thus, he could not have sold the land, the sale made by him in favour of defendant Nos. 2 to 4 was invalid, particularly when defendant No. 2 knew of the sale in favour of plaintiffs already made by Dukhan.

(3.) According to the written statement, the partition among three brothers is admitted but according to Raho Khalifa, defendant No. 1, in plot No. 1326, Raho and Dukhan, got 25 decimals of land each, as these lands were by the side of G.T. Road and Chhedi got 51 decimals of land in the plot as this was in back of the share of Raho and Dukhan, so this extra land was given to Chhedi. Thus, it was denied that Dukhan had 50 decimals of land in plot No. 1326. Plaintiffs claim that Dukhan sold 12 decimals of land to defendants No. 3-4 in plot No. 1326 was said not to be fully correct and it was stated that Dukhan sold 6 decimal on 31-3-76 in plot No. 1326, 4 decimals on 10-2-76 in the same plot and 8 decimals on 12-11-75 to defendant Nos. 3-4 and put them in possession. The proceeding under Section 144 Cr.P.C. was admitted, but regarding compromise (Ext. 5), it was said that defendant No. 1 became a victim of fraud as compromise petition was not read over to him and is not binding on defendants. In reply to Para 13 of the plaint, where plaintiff had said that Raho Khalifa got in turn lands in other plot, it was said in Para 13 of the written statement that it was false and Raho Khalifa got land to the extent of 51 decimal in plot No. 1326 and other lands stated above.