RAMVIJOY SINGH Vs. SAUDAGAR SINGH

JUDGEMENT

(1.) This appeal by the defendants has been preferred against the judgment and decree of the Lower Appellate Court affirming those of the trial Court.

(2.) In order to appreciate the points involved in this appeal, it will be necessary to state some material facts. The plaintiffs-respondents' case in the trial court in title suit No. 180 of 1965 in brief was that one Md. Rauf Khan was the 16 Annas proprietor of village Lautar (Tauzi No. 12730) and survey plot No. 1 measuring 42 bighas 1 kathas was recorded during the survey as gairmazrua malik land. The said 16 Annas proprietary interest of Md. Rauf Khan was in mokarrari of Md. Bibi by virtue of a registered deed executed by her husband Md. Rauf Khan. The name of Md. Bibi was recorded in the survey Khaitian as Mokarraridar. Subsequent to the survey, Md. Bibi brought the entire Survey Plot No. 1 into cultivation and converted the same into her Bakastha land. Thereafter, she sold the Bakastha land of Plot No. 1 to several persons including the defendants. Entire Tauzi No. 12730 was sold for arrears of Government revenue on the 28th March, 1947, and was purchased by one Sheo Narayan Lal. After purchase, Sheo Narayan Lal sold his entire 16 Annas share to the plaintiffs and a few others including Syed Ahmad Khan. Md. Bibi and other Mokarraridars whose mokarrari interest was annulled, resisted possession of the plaintiffs and Syed Ahmad Khan and so they brought Title Suit No. 22 of 1951 in the court of Munsif, 1st Court, Gaya, for declaration that the lands of Plot No. 1 of village Lautar were Bakastha lands of the plaintiffs and Syed Ahmad Khan and they also prayed for possession. The said suit was transferred to the Court of Munsif, 3rd Court, Gaya, where it was numbered as Title Suit No. 9 of 1954 and was decreed on the 10th of July, 1954. The judgment and decree was upheld in Title Appeal No. 53 of 1955. The plaintiffs and Syed Ahmad Khan obtained delivery of possession on the 19th of October, 1955, and since then they were continuing in possession. Subsequently, the plaintiffs and Syed Ahmad Khan under a registered sale deed, dated the 29th July, 1967, sold to the defendants out of the land comprised in Survey Plot No. 1 12 bighas equal to 8.20 acres of land by a lagga of 5 3/4 cubits prevalent in the locality, as fully described in Schedule I to the plaint. The 12 bighas sold to the defendants, which the defendants purchased in the name of defendant No. 2 was shown in yellow colour in a map attached to the plaint. Since the date of purchase, the defendants are in exclusive possession of the lands sold to them and the remaining lands of Survey Plot No. 1 were coming in cultivating possession of the plaintiffs as Syed Mohammad Khan had sold his interest to plaintiffs 1 and 2. The further case of the plaintiffs-respondents was that the outgoing Mokarraridars whose mokarrari interest was annulled and extinguished got a petition filed before the Anchal Adhikari, Imamganj, for settlement of land of Plot No. 1 on the allegation that it was gairmazrua malik land and had vested in the State under the Land Reforms Act. The Anchal Adhikari referred the matter to L. R. D. C., who by his order dated 10th April, 1957, decided that Plot No. 1 was gairmazrua malik land and had vested in the State of Bihar. The decision of the L. R. D. C., was upheld by the Additional District Magistrate, Gaya, by his order, dated the 23rd June, 1958. Thereafter, the plaintiffs and the defendants brought Title Suit No. 158 of 1959, in the Court of Munsif, 1st Court, Gaya, for a declaration that the Survey Plot No. 1 measuring 42 high as 1 katha of village Lauter was bakastha land of the outgoing landlord and was the Kastha land of the plaintiffs and defendant No. 2, and that the order passed by the L. R. D. C. and the Additional Collector were illegal, ultra vires, void and without jurisdiction. The said title suit was decreed in their favour under judgment dated 21st of August, 1962, except with regard to 7 kathas 10 dhurs of land in the eastern portion of Plot No. 1 which was used as grave-yard. It was held by the Court that the entire Plot No. 1 was the Bakastha land of the outgoing landlords and was now the Kastha land of the plaintiffs and under the Land Reforms Act, the same had not vested in the State of Bihar. The further case of the plaintiffs in Title Suit No. 180 of 1965 was that the defendants were the members of a joint Hindu family and they were bent upon vexing the plaintiffs without any rhyme and reason and were trying to take forcible possession of 1 acre of land of the plaintiffs towards north which was shown in green colour in the said map attached to the plaint. On 1st of September, 1965, the defendants went to cultivate the said 1 acre of land shown in green colour in the map, but the plaintiffs did not allow them to do so. Thereupon, the defendants engaged lathials in order to cultivate the same by force. The plaintiffs, however, resisted, but the defendants were bent upon cultivating the same by force. On these allegations, the plaintiffs, therefore, prayed for permanently restraining the defendants from taking forcible possession of the said 1 acre of land, which was situate contiguous north of the 12 bighas of land sold by the plaintiffs to the defendants. They also prayed for recovery of possession together with mesne profits in case they were found to have been dispossessed from their land. They also prayed for demarcation of their land and the land of defendant No. 2 by appointing a pleader commissioner and for fixing pillars demarcating the lands.

(3.) Whereas, the case of the defendants in brief was that the suit as framed was not maintainable and the plaintiffs had no cause of action. The suit was barred by estoppel, waiver, acquiescence and limitation. Their further case was that the plaintiffs and Syed Ahmad Khan had sold 12 bighas of land equivalent to 8.28 acres under sale-deed dated the 29th of July, 1957 (Ext. 1) in Survey Plot No. 1 to defendant No. 2 over which defendant No. 2 was in possession. The boundary and description of the said 12 bighas of land as given in the plaint was wrong and the sketch map forming part of the plaint and showing the said 12 bighas in yellow colour was also wrong. The defendants have also attached a map to their written statement wherein the said purchased land measuring 12 bighas in survey Plot No. 1 has been shown in red colour. According to the defendants, the location of the 12 bighas as given by the plaintiffs was wrong. In fact, the location of 12 bighas which was sold to defendant No. 2 was at the place shown in red colour, in the map which the defendants had attached to their written statement. Their further case was that the land towards south of the area purchased by defendant No. 2 in Plot No. 1 was of Kuldip Singh as Mokarraridar and the said area was always remembered in the name of Kuldip Singh though the mokarrari was annulled and extinguished. Apart from that Kuldip Singh's land was actually towards south of the portion of land purchased by defendant No. 2 in Plot No. 1. Plots Nos. 3, 5 and 6 which were to the further south of Plot No. 1 were not of Kuldip Singh, The eastern portion of Plot No. 3 was of Sheo Narayan Singh alias Shiv Singh and the western portion of defendant No. 1, Plot No. 5 was of Akash Kuer and others at the relevant time, namely, in the year of the purchase. Plot No. 6 was of Rajpati Singh whereas Plot No. 4 was of Karu Mahto. Therefore, according to the defendants, Plots Nos. 3 to 6 have been wrongly shown in the map attached to the plaint by the plaintiffs towards south of 12 bighas of land which was purchased by defendant No. 2. According to the defendants to the south of the land purchased by defendant No. 2 was a portion of the Plot No. 1 itself. In order to fix the location, defendants' further case was that the land purchased by defendant No. 2 was in the western side of Plots Nos. 43, 44, 46 and 52 and a major portion of Plot No. 53 which were Jagir and were also called Mafidar-lands. According to them, the land purchased under Ext. 1 began from the south-west corner of Plot No. 44 and extended upto the major portion of Plot No. 53. To the west of the land purchased by the defendants, were the lands known as Takhta Kapildeo Singh and the lands comprised under Plot No. 1/144. According to them, since after the purchase (vide Ext. 1), defendant No. 1 was in possession of the 12 bighas of the land shown in red colour in the map attached to the written statement. Prior to the annulment of Mokarrari, defendant No. 1 was in possession of this very area as Mokarraridar. According to them, the area of the land shown in green colour in the map attached to the plaint was, therefore, in possession of defendant No. 2 from the time of the purchase of the land under Ext. 1. In other words land shown in green colour in the map attached to the plaint, was part and parcel of the land contained in Ext. 1. Therefore, according to the defendants, there was no question of their taking possession of the said land by force. The plaintiffs, according to them, were not entitled to the same being demarcated through the court and the plaintiffs had no cause of action and, therefore, the suit be dismissed.