Decided on December 12,1952



Sinha, J - (1.) THIS appeal is on behalf of the defendants first party. The suit had been brought for declaration of title to and recovery of possession of lands measuring 4 bighas, according to the cadastral survey, and 3 bighas 5 kathas and 17 dhurs according to the revisional survey, together with mesne profits.
(2.) THE plaintiff's case is that the suit lands are comprised in tauzi no, 3368 in village Amnaur Sultan. THE ancestor of the defendants second party had given a zarpeshgi in favour of plaintiff 1 in respect of a part of this land for Rs. 250/-on 22-6-1901. THEre was a simple mortgage bond executed by the said ancestor of defendants second party in favour of plaintiff 1 on 17-6-1911 for Rs. 200/-. On 19-7-1915, another zarpeshgi deed was executed in respect of the lands in question for Rs. 600/- by the defendants second party in favour of plaintiff 2. It further appears that on 24-7-1902, a simple mortgage bond had been executed by the defendants second party and their ancestor in favour of defendants first party, the appellants in this Court, who brought a suit on the mortgage (Mortgage suit no, 156 of 1915) for recovery of their mortgage money by sale of the mortgaged property, but in that mortgage suit the present plaintiffs were not impleaded. On 17-11-1917, there was a rehan 'majeed' in respect of these very lands in favour of the plain-tiff's by the defendants second party. THE mortgage suit ended in a decree, and in execution thereof there was a sale of the mortgaged lands on 12-9-1927, and the defendants first party purchased the mortgaged property. THEre was delivery of possession to the appellants on 29-6-1928, which was followed by an application for mutation of their names in the Land Registration Department. One Anjodhya Prasad, who had purchased the tauzi at revenue sale on 26-3-1909 objected to the mutation of the appellants' names. THE result was that the application for mutation by the appellants was rejected. In J.930, the appellants filed a title suit. Title Suit No. 41 of 1930, which was re-numbered as title suit no. 47 of 1931 for declaration of their title to and recovery of possession of the mortgaged property which had been purchased by them on 12-9-1927, and in that suit plaintiff 2 and the father of plaintiffs 9 to 11 of the present suit were impleaded as defendants. THE suit was decreed and delivery of possession was given on 2-3-1932. THEreafter there was a theft case brought by defendant 3, one of the appellants here, against plaintiff 2 and plaintiff 9 for cutting paddy in one of the plots in question. Plaintiffs 2 and 9 were convicted on 3-7-1942, and the appeal from the conviction was dismissed on 10-8-1942. THE plaintiffs alleged that they were dispossessed soon after the decision in the criminal case from the lands in question on the 1st of Asin, 1350 Fasli by the defendants first party, and hence this suit. A number of defences were raised by the contesting defendants, the appellants before this Court. They contended that the mortgage deeds referred to above in favour of the plaintiffs by the defendants second party or their ancestor were all sham and collusive transactions without consideration, that after the delivery of possession to the defendants on 29-6-1928, they were in possession of the lands in suit, and that the suit was barred by 'res judicata' on account of the decree in their favour in title suit no. 41/47 of 1930/31. The bar of limitation was also pleaded on the ground that the suit had not been filed within 12 years from the date of the first delivery of possession.
(3.) THE learned Munsif found that the plaintiffs' mortgage deeds were all genuine, valid and for consideration; that the plaintiffs were in possession of the lands in dispute all along in spite of the mortgage and the title suits mentioned above, and the two dakhaldehanis effected in consequence of the 'decrees in those two suits; that as a matter of fact the plaintiffs were dispossessed, as alleged, on the 1st of Asin, 1350 Fasli, and that the decree in the title suit could not operate as 'res judicata'.;

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