L. Singh Panta J. - (1.) THIS appeal has been filed by the appellants against the final judgment dated 06.01.1999 of the learned Single Judge of the High Court of Judicature at Patna, Ranchi Bench, Ranchi, whereby the Regular Second Appeal No. 59 of 1983 filed by the appellants challenging the judgment and decree dated 03.03.1983/11.03.1983 of the Additional District Judge, 3rd Court, Dhanbad, in Title Appeal No.20 of 1980 was dismissed.
(2.) THE appellants are the plaintiffs and the respondents are the defendants in Title Suit No.206/74 and 1968/76 and for the convenience, they are referred to as such in this judgment. Briefly stated the facts giving rise to the filing of this appeal are that one Sriram Mahto had two sons, namely, Kinu Mahto and Richu Mahto and one daughter Chandwa Mahatain. Sriram Mahto owned and possessed raiyati lands in Mouza Garga. Chandwa Mahatain (defendant No.7) was married to Churu Mahto, the father of defendant Nos.1 and 2 and grandfather of defendant Nos.3 to 6. As the Defendant No. 7 was married in a poor family, Sriram Mahto, finding his daughter (defendant No.7) in financial stringency, gave some lands to his daughter Chandwa and her husband Churu Mahto with clear understanding that they would not acquire any permanent right therein. Sriram Mahto died much before the publication of the record of rights. During the last cadastral survey operation, the lands belonging to Sriram Mahto had been recorded in raiyati Khatiyan No.2 of Mouza Garga. Chandwa Mahatain and Churu Mahto both died before the survey operation leaving behind four sons, namely, Mani Mahto (defendant No.1), Fadu Mahto (defendant No.2), Chhutu Mahto (defendant No.3) and Bandhu Mahto (defendant No.4). Kinu and Richu, two sons of deceased Sriram Mahto, allowed the sons of their sister to occupy the lands bearing Plot Nos.139, 140, 142, 208, 209 and 243. During the survey operation, the said plots were shown in the names of the defendants in the remark column as "Bhagina Raiyat". After the survey operation, the defendants became solvent and gave up the possession of the plots described in Schedule 'A' of the Plaint and since then Kinu and Richu came in khas (actual) possession of the same and enjoyed the usufruct without any hindrance from any quarter. Kinu and Richu constructed a tank on Plot Nos.110, 128, 131, 132, 207, 208 and 213. For the construction of tank, they took the lands from Magan Mahto, Churu Mahto, Manga Ram and Chhotu Dobi through oral sale and all the said vendors put Kinu and Richu in possession thereof. One portion where the tank was excavated has been described in Schedule 'C' of the Plaint. Jatali Mahatain, widow of the son of Kinu Mahto, sold her 1/6th share in favour of Babulal Mahto, father of plaintiff No.2. Richu died about 39 years before the filing of the suit, leaving plaintiff No.10 as his sole heir. Defendant Nos.1, 2, 3, 5 and 6 purchased Plot No.139 and some portion of Plot Nos.140 and 142. Defendant No. 3 also purchased a portion of Plot No.245 and those defendants constructed a residential house on Plot No.139. Except the aforesaid lands, other lands including the tank remained in possession of the plaintiffs. The land described in Schedule C and C-1 of the Plaint had all along been shown in possession of the plaintiffs and defendant No.7. However, some time in 1968, the defendants dispossessed the plaintiffs. On these premises, the plaintiffs filed Suit No. 206/74 and 1968/76 on the file of the Court of Munsif, Second Court at Dhanbad for a declaration of title over the lands reflected in Schedule 'A' and 'C-1' of the Plaint and for recovery of khas possession by eviction of the defendant Nos. 1 to 6 from the lands described in Schedule 'C' and 'C-1' of the Plaint and further seeking a decree for permanent injunction restraining the defendants from disturbing the possession of the plaintiffs. The defendants in their written statement pleaded that late Sriram Mahto gave the land in dispute with a constructed house to his daughter Chandwa and son-in-law Churu by way of permanent tenancy and after the death of Chandwa and Churu, their four sons inherited the said property. Their specific defence was that there was no question of giving up possession of Schedule 'A' land by the sons of Chandwa and Churu to Kinu and Richu as claimed by them and the plea of their being in possession of the land was false and fabricated. The claim of Kinu and Richu showing sympathy to their Bhaginas was categorically denied by the defendants. The defendants asserted that their predecessor excavated the tank in question and had been in khas possession of the same. The defendants asserted that late Sriram Mahto had given the lands to his daughter permanently and the sons of deceased Chandwa had constructed their residential house on Plot No. 139 and their names were recorded in the record of rights in respect of the said house. Mani, Chhotu, Khedu, Tahlu and the other defendants in the suit, constructed a residential house on Plot No.140 and as such, all the defendants are in possession of the plot in exercise of their heritable rights. The defendants pleaded that they were misled and duped by the plaintiffs in getting formal sale deed executed in respect of Plot Nos.139, 140 and 142 without paying any consideration by the plaintiffs.
(3.) ON the controversial pleadings of the parties, the trial court framed as many as six issues, which need not be reproduced herefor unnecessarily burdening the records. Issue Nos. 3, 4 and 5 were decided jointly and findings thereon were given in favour of the plaintiffs and against the defendants. Feeling aggrieved, the defendants filed Title Appeal No.20/80 before the First Appellate Court challenging the impugned judgment and decree of the trial court. The learned Additional District Judge, after hearing the parties and re- appreciating the entire evidence on record, reversed the finding of the trial court and, accordingly, dismissed the suit of the plaintiffs. The plaintiffs, aggrieved, have filed Second Appeal before the High Court. The Second Appeal came to be admitted by the learned Single Judge of the High Court on 31.10.1984 on the following substantial question of law: "Having held that the plaintiffs' predecessors-in-rights was the owner of the lands in dispute, was it open to the court below to throw out the plaintiffs' case on the grounds stated by it?" ;