RAMA KANT OJHA Vs. SHYAM BIHARI KAHAR

JUDGEMENT

(1.) HEARD Mr. Yugal Kishore for the appellant, and Mr. Viveka Nand Pathak for respondent no. 1. The appellant is one of the defendants against a judgment of reversal. This appeal is directed against the judgment and decree dated 4.6.1999, passed by the learned 2nd Additional District Judge, Bhojpur, Arrah, in Title Appeal No. 69 of 1996 (Shyam Bihari Kahar V/s. Ramakant Ojha), whereby he has reversed the judgment and decree dated 29.6.1996, passed by the learned 1st Munsif, Ara, in Title Suit No. 115 of 1991 (Shyam Bihari Kahar and others V/s. Ramakant Ojha and others). The learned trial court had dismissed the suit. We shall go by the description of the parties occurring in the plaint.

(2.) THE case of the plaintiff and defendant no. 2 is that they are full brothers. It is further said that Ram Roshan Ojha and Ram Dhari Ojha remained joint and Ram Swarup Ojha was the son of Ramdhari Ojha. Jagdish Ojha was the son of Ram Roshan Ojha, and Bhagalu Kahar, father of plaintiff and defendant no. 2, was serving them. Bhagalu Kahar was landless so Ram Roshan Ojha and Ram Swarup Ojha gave 10 decimals land out of plot no. 322 for his homestead. Accordingly Bhagalu Kahar constructed his house over this land and he made his Sahan out of it. Thereafter in recent survey three plots were carved out in this plot and plot no. 389 was carved out of 6 decimals, which was shown in the name of Bhagalu Kahar and plot no. 387 having an area of one decimal and 388 having an area of 2 decimals were also carved out. But the entire lands of these plots remained in possession of plaintiff and defendant no. 2. They have their house and Sahan and cattle shed, Nad and Peg in this land. It is further said that Bhagalu Kahar left the work of Jagdish Ojha and Ram Swarup Ojha about 24 years ago. Differences appeared between Bhagalu Kahar and Ram Naresh Ojha and Jagdish Ojha. So Ram Naresh Ojha and Jagdish Ojha got their names entered in the recent survey with respect to plot nos. 387 and 388. It is further said that when Bhagalu Kahar came to know this fact he applied for purcha in the office of Collector under B.P.P.H.T. Act and purcha was issued in respect of plot no. 387 and 388 in the name of Bhagalu Kahar through case no. 104/75 -76, but the plot number was wrongly entered as plot no. 323. So the plaintiff and defendant no. 2 filed a petition before the Collector under the said Act for rectification, the purcha was rectified through case no. 7/84 -85, and accordingly plot no. 322 was entered in the Collector purcha. The further case is that the daughter of Jagdish Ojha executed a sale deed in respect of defendant no. 1 on 21.8.1984 in respect of 1 decimal land of plot no. 388. Likewise Ram Naresh Ojha executed a sale deed in respect of 2 decimals land of plot no. 387 in favour of defendant no. 1. The defendant had no manner of concern in the said land and had never came in possession of the same and he has not acquired any right, title and interest in respect of the same and the sale deed never came in operation and the sale deed is collusive and sham, it is further said that defendant no.1 there after applied for mutation of the said land before the Anchaiadhikari and mutation case no. 19/88 -89 was started, in which case the Anchaiadhikari cancelled the purcha in the name of Bhagalu Kahar. The plaintiff and defendant no. 2 have asserted that the cancellation order is illegal, the Anchaiadhikari has no right to cancel the said purcha and the rules have not been complied with. They have further asserted that they have been in continuous possession of plot no. 387. and 388, they have also asserted that Bhagalu Kahar was Sikmidar of these plots alongwith plot no.389. They have asserted that they have acquired right, title and interest in the said land and by virtue of being privileged person and by virtue of purcha holder. Therefore, cancellation of purcha by the Anchaiadhikari is illegal and without jurisdiction.

(3.) THE lower court framed the issues and took evidence and after final hearing passed the judgment dismissing the suit of the plaintiff holding that the jurisdiction of the civil court is barred under section 18. of Bihar Privileged Persons Homestead Tenancy Act and that plaintiff and defendant no.2 are not in possession of plot no. 387 and 388 and has further held that the title suit is not maintainable. The plaintiffs preferred appeal which has been allowed by the impugned judgment. Hence this appeal at the instance of the defendants.