PARAS NATH DUBEY Vs. ANIL SAHU

JUDGEMENT

(1.) Plaintiff/respondent has preferred this appeal against the order dated 15.01.2008 passed by Ist Additional District Judge, Latehar in Title Appeal no. 11 of 2005, whereby and where under the judgment and decree dated 22.03.2005 passed by learned Munsif, Latehar in Title Suit No. 04 of 2002 has been set aside and the matter has been remanded to the learned trial court with direction to readmit the suit, recast the issue by adding two issues mentioned in paragraph no.16 of the judgment and try all the issues by giving opportunity to the parties to recall and re -examine the witnesses and also by examining other witnesses, if any.

(2.) At the instance of present appellant, suit was instituted for declaration of his right, title and interest over the suit property and for recovery of possession of the suit property, as mentioned in the schedule of the plaint, which is one room having area 05 decimals of plot no.23, khata no.1, khewat no.3 situated at village Turam, P.S. Chandwa, district Latehar. The case of the plaintiff/appellant as pleaded in the plaint and relevant for the proper adjudication of the issue involved in this appeal, in short, is that the plot in question along with two other plots being plot nos. 21 and 24 of khata no.1, khewat no.3 situated at village Turam were recorded as 'Bakast Malik' land in the last Survey Record in the name of Basudeo Mishra. The said Basudeo Mishra died leaving behind four sons :

(3.) After appearance, the defendant filed written statement with the pleading that though 0.54 acres of land of plot no.23 under khata no.1 was recorded in the name of Basudeo Mishra, but after his death there was never any partition among his sons and also denied the fact that suit plot was alloted to Rama Ballab Mishra in amicable partition. Further pleading was that the entire suit land besides other lands of Basudeo Mishra where joint property of his four sons till much after 1972 and the Rama Ballab Mishra was never in exclusive possession over the plot no.23. Resultantly, the plaintiff who had purchased the land in question from Rama Ballab Mishra could not derive any right, title and interest over plot no.23. The plaintiff had never constructed any pucca room with tiled roof over a portion of suit plot as pleaded. Similarly, the defendant no.1 Mahavir Sahu was never inducted as tenant by the plaintiff over the suit property.