NISADA BAH DEVI Vs. STATE OF BIHAR

JUDGEMENT

(1.) This appeal is directed against the judgment and decree, dated the 1st September, 1965, passed by Sri M. A. Satlar, Subordinate Judge at Dhanbad, in Title Appeal No 56/23 and by which the lower appellate Court set aside the judgment and decree of the trial court and dismissed the plaintiffs suit with the following observation;

(2.) The facts of the case are that the plaintiff along with her co-sharer-defendants 3 to 34 owned and hold one-fourth share in plot No. 701 measuring 9.80 acres and its 'aal' bearing plot No. 700 and measuring 0.99 acres situate in mouza Kalidabar Police-station Chas in the district of Dhanbad. The subject-matter of dispute aforesaid is a tank and the plaintiff prayed for declaration of her title in the said tank and 'aal'. The interest of the plaintiff and her co-sharers had been recorded under Khe-wat Nos. 4/1 to 4/8 and in the joint Khewat No. 4/9. According to the plaintiff, her ancestors were agnates of the landlords of the village and they took reclamatory lease from the landlords in respect of large areas of parti and jungle lands in Kaliadabar and they excavated the disputed tank among others and the plaintiff's ancestors constructed a house by the side of the tank, which was thus practically a 'Khirkhibandh'. The plaintiff's case further was that when the family of the plaintiff's ancestors became large, they shifted to a house on a high danga in the extreme end of the village. Subsequently, the plaintiff's ancestors took lease of the entire village from the landlords by a deed, dated the 5th Asarh, 1264 B. S. and by another registered deed, dated the 2nd Asarh, 1288, and although the plaintiff's ancestors acquired proprietary interest in this mouza, they kept their agricultural tenancy distinct and separate from their superior interest in the village and the disputed tank being a part of the agricultural tenancy was protected against the vesting in the State.

(3.) The learned Munsif decreed the suit on the findings that the disputed tank being a part of the agricultural land of the plaintiff and her co-sharers-because saved from the vesting under the provision of Section 6 of the Bihar Land Reforms Act. Defendant No. 35 in the suit is the State of Bihar, which preferred an appeal against the decision of the trial court and the lower appellate court, as has been noticed above, did not disturb the findings of the trial Court, but on the technical ground of abatement of the appeal on account of non-substitution of the heirs of three of the defendants in the suit within the period of limitation, set aside the judgment and decree of the trial court and dismissed the suit with costs.