THAKUR RAI Vs. BHAGAT RAI

JUDGEMENT

(1.) This a second appeal by the plaintiffs from the judgment and decree of the Additional Subordinate Judge of Hazaribagh, dated 4th June, 1955, which reversed the decree of the Munsif of Giridih, dated 29th August, 1953.

(2.) The facts necessary for the disposal of the present appeal may be shortly stated as follows. The disputed lands are situate in two villages, Dewandih and Manjhidih and belong to Lekha Ram, defendant No. 18. By registered sale deeds dated 6th August, 1941, Lekha Ram conveyed these lands to Bharat Sao, defendant 19, Four years later, Bharat in his turn transferred these lands by registered sale deeds dated 3rd July, 1945, to Damini Devi, defendant 20. Subsequently, in 1950 by two registered sale deeds dated 1st March, 1950, Damint Devi in her turn transferred these lands to the plaintiffs. The plaintiffs' case was that they acquired good title to the disputed lands and entered into possession thereof, and their predecessors were, in possession before Prior to the plaintiffs purchase defendants 6 and 17 had obtained a sale deed in respect of these lands from Lekha Ram on 16th February, 1949. They asserted title to these lands on the strength of their prior sale deed from Lekha Ram, with the result that only about three months after the plaintiffs' purchase, dispute about possession arose, giving rise to serious apprehension of the breach of the peace, information whereof was lodged by the chaukidar at the Gandey police station on 24th May, 1950. A proceeding under Section 144 or the Code of Criminal Procedure was instituted, which was later converted into a proceeding under Section 145 of the Code. It was decided in favour of the defendants respondents. Hence the present suit by the plaintiffs. In their written statement, the defendants denied the title of the plaintiffs and characterised the sale deeds in their favour as farzi. They also pleaded that those sale deeds were invalid and illegal. Defendants 6 and 17, the main contesting defendants asserted their title and possession on the strength of the sale deed dated 16-2-1949 executed in their favour by Lekha Ram, I may state here that defendant 17 is the wife of Lekha Ram.

(3.) Both the Courts below held that the plaintiffs were the real purchasers and the sale deeds in their favour were genuine. On the question of the legality of the sale deeds, they differed. The defendants attacked the legality of the sale deeds on the ground of contravention of Section 46 of the Chota Nagpur Tenancy Act. Their case was that the disputed lands were situate within the police station of Gandey, that Bharat Sao had no residence therein and that, therefore, the sale deeds executed by Lekha Ram in favour of Bharat Sao, being contrary to the provisions of Section 46 of the said Act, were invalid and illegal and passed no good title to him, and consequently, the Vendee, his successor-in-interest, Damini Devi, and the plaintiffs also acquired no good title. The learned Munsif held that Bharat Sao had residence within the Gandey police station and negatived the defence. The learned additional Subordinate Judge, on the other hand, held that Bharat Sao had no permanent residence within that police station, and, therefore, the plaintiffs had not acquired good title, and accordingly dismissed the suit. Section 46 (1) of the Chota Nagpur Tenancy Act prohibits transfer by a rajyat of his right in his holding or any portion thereof by sale or gift and also by mortgage or lease for any period exceeding five years. Sub-section (4) (a) lays down one of the exceptions to this general law and permits sale of occupancy holdings between non-aboriginal occupancy raiyats, provided they are residents within the local limits of the police station within which the holdings are situate. It is in the following terms:-