SURJA MOHAN THAKUR Vs. RAMA PRASAD PANDEY

JUDGEMENT

(1.) This is an appeal by the plaintiffs arising out of a suit instituted by them for declaration of title to and for recovery of possession of the lands in suit, which are 25 bighas in area, together with mesne profits. The suit was decreed by the learned Subordinate Judge in part by granting a decree to the plaintiffs to recover the rent entered in the Record of Rights from the defendants second party who was held to be occupancy raiyat in respect of the suit lands. The plaintiffs have preferred this appeal in which they ask for a decree for recovery of khas possession against the defendant second party also and in any case they claim a decree for mesne profits which in their contention had been wrongly refused. The defendants first party have preferred a cross-objection and by it they pray that the decree of the learned Subordinate Judge be reversed so far as it has decreed the suit in part in favour of the plaintiffs so that the suit should be dismissed in its entirety.

(2.) It will be convenient to state the facts very shortly. The case of the plaintiffs is that their ancestors had purchased 8 annas share in taluqa Masudanpur from one Mt. Sahodra, who was the proprietor at that time, by a registered deed of sale dated 22 February, 1872, and soon after the sale the vendees gave 25 bighas of land in that taluka in mokarari for life to the same Mt. Sahodra by means of an unregistered patta bearing date 18 March 1872. Mt. Sahodra having died on 1st January 1926 the plaintiffs entered into khas possession of these lands which till then were in the possession of the Musammat. Defendants 1 and 2 claiming themselves to be gotias of Mt. Sahodra cut and removed the paddy crops which had been grown on the suit lands on behalf of the plaintiffs on 18 November 1926, thereby completely ousting the plaintiffs from possession of the same.

(3.) Hence the plaintiffs instituted the present suit for recovery of possession of these 25 bighas of land after ousting defendants 1 and 2 and they claimed certain amount of mesne profits. Defendants 1 and 2 in their defence asserted that the suit was barred by limitation, that the kabuliat which had been propounded by the plaintiffs in support of the case that Mt. Sahodra was granted a mokarari enuring for her life only was not genuine, and that the disputed land was given by the ancestors of the plaintiffs in perpetual mokarari istamrari by an unregistered patta on 18 March 1872. Reliance was placed on the entry in the Record of Rights of the year 1908. These defendants also stated in their defence that defendants second party was an occupancy raiyat in possession of the suit lands and. has been so recognized in the Survey Department.