SITA DEVI Vs. LALITA DEVI

JUDGEMENT

(1.) THIS Second Appeal by the defendants-appellants is directed against the judgment and decree passed by the 1st Addl. District Judge Palamau at Daltonganj in Title appeal No. 19/1996 whereby he has reversed and set aside the judgment and decree passed by Sub-Judge, Garhwa in Title Suit No. 37/ 66 and thereby decreed the suit filed by the plaintiffs-respondents.

(2.) THE facts of the case lie in a narrow compass: The plaintiffs-respondents filed the aforementioned suit for declaration of title of plaintiff No. 1 over the suit land described in schedule I of the plaint as occupancy raiyat and over the compensation money payable for four annas share in village Gonda. The plaintiffs also claimed title over Schedule-2 land and further for confirmation of their possession on the land where from they were allegedly dispossessed during the pendency of the suit in execution of a decree. Plaintiffs' case is that during the period between 1939 to 1945 when the suit land was under the management of the court of Wards, some of the co-sharers filed partition suit No. 6 of 1941 impleading the manager of the Court of Wards as defendant no. 8. In the said partition suit a preliminary decree was passed on 25-2-1943 holding that defendant No. 8 is entitled to four annas share. In execution of the said decree vide execution Case No. 2/7 of 1950-51 one akhouri Ramchandra Prasad purchased the entire property in a auction sale on a consideration amount of Rs. 200/- for realization of Rs. 111/- as the cost of partition. The suit property was purchased by the defendants in the name of their brother-in-law, defendant No. 1. On the basis of that auction sale the defendants took possession of the land on 28-3-1953. Plaintiffs' further case was that actually no delivery of possession was given rather it was paper transaction and the suit property all along remained in possession of the plaintiffs. The plaintiffs' after knowing about the auction sale, filed a petition under Order XXI, Rule 90, C. P. C. for setting aside the auction sale which was ultimately rejected. Then the plaintiffs filed appeal in the High Court being miscellaneous Appeal No. 367 of 1955. The auction purchaser then filed Letters Patent appeal which was also dismissed on 30-7-1958. Even the S. L. P. preferred by the auction purchaser was dismissed by the supreme Court on 7-7-1960. In the meantime, a proceeding under Section 145, cr. P. C. was initiated and the same was decided in favour of the plaintiffs. In spite of the aforesaid facts the defendants started threatening the plaintiffs to dispossess them from Schedule-2 land. The plaintiffs' case is that since the possession of the suit land was not actually delivered in favour of the decree-holders of that suit, there was no necessity of filing an application under section 144, C. P. C. for restitution of the property. However, since possession was not given to the defendants, the plaintiffs filed the aforesaid suit for declaration of their title and confirmation of possession.

(3.) THE suit was contested by the defendants-appellants on the ground, inter alia, that the suit was not maintainable and that the same was barred by limitation. It was further conten-ded that possession of the property in question was taken over by the defendants in execution of the aforesaid decree after auction purchase was confirmed by the executing Court.