JAGNARAIN SINGH Vs. KASHI NATH SHARMA

JUDGEMENT

(1.) THIS appeal at the instance of the plaintiff appellant has been preferred against the judgment and decree of reversal dated 30.11,1989 and 12.12.1989 respectively passed in Title Appeal No. 54 of 1986 by Shri Uma Shankar, 1st Additional District Judge, Hazaribagh whereby and whereunder the said appeal was allowed setting aside the judgment and decree of the trial Court as a result of which the son of the plaintiff was dismissed.

(2.) THE plaintiff appellant has filed Title Suit No. 21 of 1981 for declaration of his title in respect of the suit land which is a portion of plot No. 1216 of Khata No. 2 situated in village Ramgarh, District Hazaribagh more fully described in Schedule C of the plaint and for recovery of possession by evicting the defendant respondent therefrom and the portion of plot No. 1216 in dispute is 27 feet east and west and 23 -1/2 feet north to south bounded as north rasta, south parti kadim, east 19 feet wide east and west parti land left of Mahavir Sthan and, thereafter, gate and rasta of Kila Mandir, west shop building of the plaintiff.

(3.) THE case of the defendant respondent (hereinafter referred to as the defendant) inter alia is that Golak Nath Singh has never taken settlement of 10 decimals of land of plot Nos. 1215 and 1216 and he was never in possession over any portion of land of plot No. 1216 and the story of his settlement of the year 1943 is a cock and bull story and the paper of settlement in his favour is a forged fabricated and antedated document created for the purpose of the suit and the plaintiff has not acquired any right, title and interest in plot No. 1216 by virtue of the alleged sale deed dated 12.11.1959 purported to have been executed by Golaknath Singh in his favour and the order of mutation in his favour is a collusive one without jurisdiction and the plaintiff has obtained sanction for the construction collusively from the Cantonment Board. It is alleged that Rameshwar Prasad Singh got settlement of 7 decimals of plot No. 1216 bounded as in the north sadak, south Kila Mandir rasta, east Kila Mandir Gate and west Sardar Narain Singh on 26.11.1944 and hukumnama was granted by the State of Maharani Sahiba of Padma and Rameshwar Prasad Singh came in possession over the same and paid rent to the landlord and got rent receipts and this defendant approached said Rameshwar Prasad Singh in the year 1960 -61 for his permission to utilize the said 7 decimals of land for the purpose of motor repair work center and on his permission and on acceptance of some amount for this use a occupation this defendant constructed a temporary shed and also a temporary room for motor body repair work as well as for his residence. The further case of defendant is that Rameshwar Prasad Singh aforesaid entered into an agreement with him of the sale of the said land in the year 1963 and received Rs. 1000/ - as earnest money and subsequently he executed a sale deed on 15.1.1970 in favour of the defendant on acceptance of the balance of the consideration money in respect of 7 decimals of land of plot No. 1216 aforesaid and since then this defendant is in possession of 7 decimals of land of plot No. 1216 as of his rights and the eastern boundary given in the sale deed dated 15.1.1970 was a wrong one and was due to the confusion that at some distance on the western side from 7 decimals land of this defendant, house of Sardar Narain Singh only existed and the land in between was a no man's land. It also alleged that on the western side of the land purchased by this defendant there existed a Mahavirji Sthan 10 feet north to south and 8 feet east to west on the land within 7 decimals so purchased by this defendant and so it was specifically mentioned in the sale deed dated 15.1.1970 executed by Rameshwar Prasad Singh in his favour. His case further is that he is in possession in the northern side contiguous south to, the road one chain east to west and it extends up to 7 links north to south and, thereafter, further south to the ditch or parti kadim or gadha land. There had been a Panchayti in the month of September to November, 1971 and the panches gave their award on 25.09.1971 and 26.11.1971 and the award bears the signature of both the parties and other local persons and it was settled that out of 3 feet land on the western side of the land of defendant each party shall leave 1 1/2 feet land and, accordingly, the defendant gave a wall on the western extremity of his land which is still in existence. Lastly it has been alleged that the plaintiff is not in possession of 7 decimals of land which defendant has purchased from Rameshwar Prasad Singh.