THAKUR SAH Vs. SHEO PUJAN PRASAD

JUDGEMENT

(1.) This is an appeal by the defendant-appellant. The plaintiffs filed a suit for declaration of title and confirmation of possession in respect of 2 kathas 3 dhurs of land of survey plot No. 229/1022 of khata No. 286 situate in village Hansrajpur Khurd, police station Baniapur in the district of Saran after declaring that the sale deed dated 3-7-1962 executed by defendant No. 3 in favour of defendant No. 1 was a farzi and fraudulent transaction and was not binding on the plaintiffs. The plaintiffs claimed that the disputed land belonged to them and was in their possession since before the Revisional Survey. The ex-landlords filed a rent suit for realisation of rent of khata Nos. 286 and 288 and obtained a decree. The decree was put in execution and the holding was auction-sold in 1925. The original plaintiff claimed that he along with Nathuni San, father of defendant No. 1, had jointly purchased the said holding in the auction sale but in the farzi name of one Bhaju Sah who was a relation of Nathuni Sah. According to the plaintiff, Bhaju Sah did not pay any single pie in the auction purchase and never had any concern with the auction purchased land. The plaintiff continued in possession of the disputed land of khata No. 286. The plaintiff's further case is that defendant No. 1 with intent to derive illegal gain dishonestly got a sale deed executed by defendant No. 3, son of Bhaju Sah, in respect of the disputed land on 3-7-1962 without paying any consideration. The plaintiff also claimed that the suit land had been in his possession since more than 12 years openly and his title to the same had also been perfected by adverse possession,

(2.) Defendant No. 1 only contested the suit and it was contended on his behalf that the suit as framed was not maintainable and was barred by Section 66 of the Civil P. C. According to the defendant-appellant, Bhaju Sah had no concern with Nathuni Sah. The lands had been purchased by Bhaju Sah alone in the auction sale and neither Nathuni nor the plaintiff had any concern therewith. According to the defendant, the plaintiff never came in possession over the disputed land and Bhaju was not a benamidar.

(3.) The suit was decreed on contest by the trial court. The trial Court held that the auction purchase in question in the name of Bhaju Sah was benami for Nathuni Sah and that the original plaintiff, and after his death the substituted plaintiffs acquired title to the suit land by adverse possession as well. The appeal by defendant No. 1 was dismissed by the lower Appellate Court and the findings of the trial Court were affirmed.