MAHESH GANJHU Vs. GOPAL RAM GANJHU

JUDGEMENT

(1.) THIS appeal by the plalntiffs/appellants is directed against the judgment and decree dated 2-1-1990 passed by the 3rd Additional Judicial Commissioner, ranchi in Titlt Appeal No. 41 /1986 whereby he has reversed the judgment and decree dated 23-4-1986 passed by Additional Subordinate Judge, Ranchi in Title Suit No. 89/ 1978.

(2.) THE facts of the case lie in a narrow compass: plalntiff/appellants filed the aforementioned suit for declaration of title and recovery of possession with respect to the suit land bearing khata No. 398 situated at mouza Khunti and khata No. 6 of village kusum Toll, Khunti. PLalntiffs' cases is that they are the descendants of Bhola Ganjhu whose name was recorded in Revlsional survey records of right. The suit land are the bakast land of Bhola Ganjhu. The defendants except defendant No. 20 are the decendants of Dhuru Ram Ganjhu and ganjhu Ram Ganjhu, whereas defendandant No. 20 is stranger to the family. It was further alleged that Chamru ganjhu father of the Bhola Ganjhu executed a mortgage deed of his bakast land on 28-3-1919 in favour of Dhuru Ram Ganjhu arid ganjhu Ram Ganjhu. In spite of mortgage deed, plalntiffs alleged to have remained in cultivating possession of the suit land. In the Revisional Survey the name of zerpeshgidar was recorded in the remark column. PLalntiffs' further case is that in 1937-38 money decree was passed against the plalntiff and in execution of that money decree, all the lands of the plalntiff were put in auction. Therefore, in order to avoid auction sale of the lands plalntiff executed a deed of settlement in favour of the defendants. plalntiff ' case is that such deed of settlement was execued but that was farzi document created only to defraud the decree-holder. The deed of settlement was never acted upon and it remained all along in the custody of the plalntiff. Thereafter, mortgage deed was redeemed by the plalntiff and accordingly plalntiff remained in possession. Since Zamindari was vested in 1956, plalntiff and their ancestors who were intermediaries submitted return to the state of Bihar. As the lands were in their possession, rent was fixed in their favour and Form 'm' was granted to them. plalntiff therefore, pleaded that they became the raiyat under the State of Bihar. plalntiff ' further case is that in 1970 when defendants raised dispute with regard to possession, a proceeding under Section 144 Cr. P. C. was initiated, which was converted into a proceeding under Section 145 Cr. P. C. The Executive magistrate referred the matter to the court of Munsif, Khunti, who by order dated 27-5-1975 found that possession of the defendants over the suit land. According to the plalntiff , order passed by the Munsif is perverse in law. plalntiff ' therefore filed the instant suit.

(3.) DEFENDANTS filed their written statement and contested the suit denying and disputing the case of the plalntiff and stating inter alia that since the date of mortgage and settlement, they remain in continuous possession of the suit land.