BULAKI RAM Vs. JATRU MAHALI

JUDGEMENT

(1.) THIS appeal at the instance of the plaintiffs -appellant stands directed against the impugned judgment and decree of reversal dated 31st March. 1990 and 10.4.1990 respectively passed in Title Appeal No. 32 of 1988 by Shri Shyama Prasad Singh. 2nd Additional District Judge, Hazaribagh whereby and whereunder the appeal was allowed and the judgment of the trial Court passed in Title Suit No. 116 of 1985 was set aside and the suit of the plaintiff was dismissed.

(2.) THE plaintiffs -appellant (hereinafter referred to as to the plaintiffs) had filed the said suit for declaration of their title and confirmation of the possession in respect of plot No. 1053 having an area of 10 decimals appertaining to Khata No - 12 situate in village Kurum, P.S. Ramgarh, District Hazaribagh.

(3.) THE case of the defendant -respondent No. 1 to 3 (hereinafter referred to as the defendants) infer alia, is that Khata No. 12 stands recorded in the Survey Records Right in the name of Baiju Mahli, Gangwa Mahli and Manbodh Mahli sons of Sabura Mahli in equal shares and both Gangwa Mahli and Manbodh Mahli died issueless ill the state of jointness. Baiju Mahli had two sons namely, Bhairwa and Kangli as per the genealogy given in Schedule A of the written statement and the defendants are the sons of Kangli Mahli aforesaid. Bhairwa Mahli had a son Ugan Mahli. It is alleged that about 50 years ago there had been an amicable partition amongst the heirs of the recorded tenant in which the suit plot along with other land came in exclusive cultivating possession of Kangli Mahli Jaswa Mundain along with her husband Mithu Munda. who are the residents of district Ranch! had come to village Chhattar to work as labourer and Kangali Mahli gave them land through registered sale deed dated 16.1.1947 and the said sale deed executed by Kangali Mahli was in violation of the provisions of the said Act and the said sale deed is without consideration as Mithu Munda agreed to work as agricultural labourer for Kangli Mahli and Jaswa Mundain and her husband never came in possession of the land as per the sale deed aforesaid. It is alleged that Jaswa Mundain and her husband had left the entire land of the said sale deed in order to avoid any litigation as it was found that the sale deed also included the lands of other co - sharers of Kangali Mahli and thus the sale deed was never acted upon by the parties and it remained a paper transaction. After the death of Mithu Munda, Jaswa Mundain began to lead immoral life. It is alleged that Kangali Mahli though transferred the suit plot through the sale deed along with other lands but the sale deed was never acted upon and the suit land always remained in possession of Kangali Mahli so long he was alive and it is false to say that the then landlord resumed possession over the suit land as there was none to look after the said suit land. The further case of these defendants is_ that the then landlord Mahtha Devendra Nath Singh had no right to settle the raiyati lands of Kangali Mahli in contravention of the provisions of the said Act when Kangali Mahli was himself alive and in cultivating possession of the suit land and the alleged hukurnnama is a collusive document brought in existence by Rain Prasad Singh. the vendor of the plaintiff in collusion with the then landlord who happens to be his uncle for the purpose of laying a false claim over the suit land and when Ram Prasad Singh could not succeed in taking possession over the suit land he transferred same to the plaintiffs. It is also alleged that the name of Ram Prasad Singh does not appear in the return submitted by the then landlord and the rent receipts standing in his name are collusive without any order of mutation and the averments made in the sale deed executed by Ram Prasad Singh is contrary to the pleadings of the plaintiff. Kangali Mahli filed restoration case under Section 46 of the said Act as Janodhi Mian was creating trouble in the cultivation of the suit land which was decided in favour of Kangali Mahli though he could not take possession as per order of the restoration proceeding as he died soon after the order and the plaintiffs had full knowledge of the said proceeding and the delivery of possession over the suit land also could not be effected in favour of the defendants after the death of Kangali Mahli as there was some defect in the description of the suit land and the plaintiffs have filed this suit to pressurize the defendants and the plaintiffs have no right, title, interest or possession over the suit land. Lastly it has been alleged that, thereafter, defendant also filed another land Restoration Case No. 173 of 1985 which was allowed in his favour and the possession was delivered to them.