Decided on November 28,1952



Narayan, J. - (1.) This is an appeal by the defendants, and it arises out of a suit for declaration of title and recovery of possession with regard to two blocks of land, one of which has got an area of 5 bighas and other an area of 15 bighas. The Purnea Banking Corporation Ltd. are the plaintiffs, and they claim to have purchased the Schedule A land in execution of a decree against defendant 2 on 2-2-1943 and obtained delivery of possession on 26-5-1943. The plaintiffs are the proprietors of tauzi No. 290 under which the lands in suit lie, and according to the case put forward by them the Schedule A land was formerly the raiyati land of the father of defendant 1. In execution of a decree against the father of defendant 1, defendant 2 had purchased the land in or about the year 1937, and the plaintiffs as the 16 annas landlords had to institute Rent Suit No. 110 of 1941 against defendant 2 for the rent of the said holding of 5 bighas. In execution case No. 974 of 1942 the plaintiffs purchased the said holding on 2-2-1943, and the sale was confirmed on 5-3-1943. It was alleged that after the delivery of possession in their favour the defendants began to create troubles and ultimately dispossessed the plaintiffs not only from the 5 bighas which is the Schedule A land but also from 15 bighas of the plaintiffs' khas land which lies adjacent south of the Schedule A land. The defendants were further said to have cut a sesum tree lying on the suit land, and Rs. 100/-was claimed by the plaintiffs as price of that sesum tree. With regard to Schedule B land there was an alternative prayer by the plaintiffs" to the effect that if they be found to be not entitled to a decree for khas possession with regard to the same, then a decree for assessment of rent be passed with regard to it.
(2.) Defendant 1 alone contested the suit, and his defence substantially was that there was no valid sale with regard to any portion of the land; that his father had purchased the entire suit land which constituted one holding with the rental of Rs. 10/- per year from one Mr. E.L. Chapman, the executor of the estate of Mrs. H.D. Chapman in the year 1914, that though the purchase was only in the name of the father of this defendant his other brothers had also interest in the property, and that the story of possession and dispossession as put forward by the plaintiffs was absolutely incorrect. According to the allegations made by defendant 1 it was in the year 1887 that Mrs. H.D. Chapman had acquired this property.
(3.) The Court of first instance held that the 5 bighas constituted a separate holding and that the plaintiffs had acquired a valid title with regard to the same by their auction purchase. A decree for recovery of possession was accordingly passed by the learned Subordinate Judge with regard to the Schedule A land. The claim for possession with regard to Schedule B land was dismissed by the learned Subordinate Judge, but he assessed its rent at the rate of Rs. 6/4/- per bigha. Rs. 50/- was allowed to the plaintiffs as compensation for the sesumtree which was found to have been cut by defendant 1 from the 5 bighas of land after the delivery of possession to the plaintiffs.;

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