UDDIN ALIAS MOHAMMADIN Vs. ASIBUN NISSA

JUDGEMENT

(1.) This appeal at the instance of the plaintiffs appellants stands directed against the impugned judgment and decree dated 10-7-1989 and 20-7-1989 respectively passed in Title Appeal No. 42 of 1986 by Shri Uma Shankar, 1st 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 plaintiffs appellant (hereinafter referred to as to the plaintiffs). in brief, is that khata No. 66 of village Parana is the raiyati khata recorded in the name of Sheikh Gaffar son of Sheikh Salamuddin in the cadastral Survey Records of Right. Sheikh Salamuddin had five sons, namely Sheikh Gaffar, Sahimuddin (original plaintiff). Salim, Sattar and Siddique. Sheikh Gaffar died issueless leaving behind his four brothers aforesaid Siddique also died issueless. Thereafter, Salim and Sattar, left village Pararia for Raigarh entrusting all the properties including the lands of khata No. 66 to their brother Salumuddin the plaintiff and the entire land of katha No. 66 came in cultivating possession of the plaintiffs and the then landlord finding the title and possession of the plaintiffs in respect of the land of khata No. 66 mutated in his name and the plaintiff paid rent to the landlord and got rent receipt. Plot No. 1029 detailed in Schedule A of the plaint aforesaid was recorded in the cadastral Survey Records of Right having house thereon and the plaintiff is living in the said house with his family members and, thereafter, he extended his house over one decimal of land in plot No. 1028 having his exit and entrance by door in plot No. 1028 having an area of 13 decimals described in Schedule B of the plaint. The plaintiffs after the vesting of the estate applied for mutation of his name in respect of the land of khata No. 66 before the Anchal Adhikari and having been satisfied with the title and possession of the plaintiff mutated him in respect of the land of kahata No. 66 and the plaintiff is paying rent to the State and getting rent receipts. As usual the plaintiff and his sons had Rahar and Matar in the remaining portion of plot No. 1028 and the defendant and his sons started threatening them and a proceeding under Section 144 of the Code of Criminal Procedure was initiated between the plaintiff as 1 st party and defendant as 2nd party and the defendant in his show cause has wrongly stated that the land of Schedule B was wrongly recorded under khata No. 66 and it should have been recorded under kahta No. 107 and the plot No. 1027 having an area of 7 decimals recorded in khata No. 107 should have been recorded under khata No. 66 as it was the land of Sheikh Gaffar and also stated that plot No. 1029 was also wrongly recorded under khata No. 66. It has also been stated in the show cause by the defendant that there was an agreement between S. K. Gaffar and Rahat Ali, the ancestor of the defendants in respect of plot Nos. 1028 and 1027 in which it has been stated that these two plots were wrongly recorded in the cadastral Survey Records of Right. It is alleged that the alleged agreement is a forged and fabricated agreement. The further case of the plaintiff is that the entry in the Survey Records of Right is presumed to be correct and the ancestor of the defendant had never challenged the correctness of the said survey entry in respect of plot Nos. 1029, 1028 and 1027. It is also alleged that plot No. 1027 was parti land and people used the same for passage through that plot and the ancestor of the plaintiff had also opened a door in his house over plot No. 1029 opening towards plot No. 1027. The further case of the plaintiff is that he and his ancestors claimed the said plots as his raiyati land and has perfected his title in respect thereof by adverse possession also.