ALAKHRAJ DEVI Vs. RAM SURITH SINGH

JUDGEMENT

(1.) This second appeal is directed against the judgment dated 27th July, 1987 passed by the Sub -Ordinate Judge - IV, Aurangabad, in Tittle Appeal No. 13 of 1982/1 of 1987, whereby the learned Sub -ordinate Judge confirmed the judgment passed by the Additional Munsif, Aurangabad, in Title Suit No. 105 of 1979/136 of 1980. The plaintiffs of the suit were the appellants in the lower Court and they are the appellants before the Court as well.

(2.) The case of the plaintiff -appellants, in substance, was that Plot Nos. 315, 323,324 and 325 were the lands of one Lakhmini Kuer, mother of the plaintiffs. She transferred 1 Katha 1 Dhur and Dhurki of land out of Plot No. 315 to Jagdeo Singh, father of defendant Nos. 1 and 2, who has joint with his brother Hit Narayan Singh. She also transferred 3 Katha 15 Dhurs of land out of plot Nos. 323, 324 and 325 to the joint family of Jagdeo Singh and his brothers and the aforesaid land was in possession of defendant Nos. 1 to 3 who are in the descendants of Jagdeo Singh. However, the defendants encroached upon the suit land which was described in Schedule -1 of the plaint and this encroachment was over 3 decimals of Plot No. 315, 5 decimals of Plot No. 323 and half decimal of Plot No. 325. So ail the plaintiffs had filled the suit seeking injunction against the defendants from making any construction over the suit land and from digging the earth from the same.

(3.) Case of the defendant -respondents is that, of course, their family had acquire : 1 Katha, 1 Dhur and 6 Dhurkies of Plot No. 315 and they had acquired 3 Katha 15 Dhurs of plot Nos. 323, 324 and 325. However, their further case was that Jagdeo Singh had purchased 5 decimals of land from Plot No. 323 towards west and 5 1/2 decimals in Plot No. 324 towards east and 1 decimal in Plot No. 325 towards west. The joint family of the defendants consisting of Jagdeo Singh, Hit Narayan Singh and Mukhdeo Singh (whose heirs were later impleaded as defendant Nos. 7,8 and 9) had acquired 3 1/2 decimals of land over Plot No. 324 from Lakhmini Kuer before 1947 orally towards west of the said plot on payment of Rs. 50/ -. Jagdeo Singh acquired 8 decimals at two places of Plot No. 315 in the year 1955 from Chendradeo Singh, Kesho Singh and Ramraj Singh, sons of late Mungeshwar Singh and in lieu of aforesaid lands, Jagdeo had given 3 decimals to them from Plot No. 333. Since the aforesaid land of plot No. 315 was agricultural land and 3 decimals land of Plot No. 333 was homestead, the exchange in this connection was affected between the parties and the value of aforesaid lands was less than Rs. 100/ - and, therefore, the exchange was oral. There was separation in the family consisting of Mungeshwar Singh, Ram Autar Singh and Ram Janam Singh and on account of family arrangement Chandradeo and his brothers had got 8 decimals of land at two places from Plot No. 315. So the aforesaid exchange took place between them on the one hand and the defendants family on the other. Thus, the case of the defendants was for acquisition of more lands from the plaintiffs' family than the same as averred by them and, accordingly, they pleaded that there was no encroachment by them as alleged by the plaintiff and so they further pleaded that they were in possession over the suit land, and hence, the suit was prayed to be dismissed.