SARJUG DEVI Vs. DULHIN KISHORI KUER
LAWS(PAT)-1960-5-4
HIGH COURT OF PATNA
Decided on May 09,1960

SARJUG DEVI Appellant
VERSUS
DULHIN KISHORI KUER Respondents


Referred Judgements :-

PERIAR AIYA AMBALAM V. SHUNMUGA-SUNDARAM [REFERRED TO]
BIJAI BAHADUR V. PARMESHWARI RAM [REFERRED TO]
DIGAMBER V. RAMRATAN [REFERRED TO]
PICHAIYAPPA CHATTI V. GOVINDARAJU MUDALY [REFERRED TO]
ANANTHA RAMAN V. ARUNACHALAM [REFERRED TO]
(MARAMITTATHI THERUVIL MOTHA CHETTIAM) VEETTIL KELU VS. KUTTIYIL MACHIKANDY CHAKKARA CHAPPAN [REFERRED TO]



Cited Judgements :-

R. S. MUTHUSWAMI GOUNDER VS. A. ANNAMALAI AND ORS. [LAWS(MAD)-1980-8-47] [REFERRED TO]
WASSAN SINGH VS. LAKHA SINGH [LAWS(P&H)-2013-11-17] [REFERRED TO]
MOHINDER KUMAR VS. KAMAL PARKASH [LAWS(HPH)-2019-12-79] [REFERRED TO]
JADUNANDAN MANDAL VS. HITLAL MANDAL [LAWS(PAT)-1968-5-5] [REFERRED TO]
SONA DEVI VS. NAGINA SINGH [LAWS(PAT)-1996-3-41] [REFERRED TO]
BHAVANI MUNICIPALITY VS. V.S.R. ARTHANARISAMY [LAWS(MAD)-2022-7-173] [REFERRED TO]
SARAT KUMAR PANDA VS. RAGHUNATH PATHI SASTRL AND ORS. [LAWS(ORI)-2008-2-67] [REFERRED TO]
BIPENDRA PRADHAN VS. RABINDRA NARAYAN DAS [LAWS(ORI)-1972-9-8] [REFERRED TO]
THIRUMANGAI NAIDU VS. R SRINIVASAN [LAWS(MAD)-1996-1-99] [REFERRED TO]
THE GOLDEN VALLEY EDUCATIONAL TRUST OORGAM REPRESENTED BY ITS PRESIDENT VS. THE VOKKALIGARA SANGHA REPRESENTED BY ITS SECRETARY [LAWS(KAR)-2013-9-469] [REFERRED TO]
GAURI SHANKAR SINGH VS. JADU GOPE [LAWS(PAT)-1963-3-12] [REFERRED TO]


JUDGEMENT

Kanhaiya Singh, J. - (1.)THIS is an appeal by defendant No. 1 from the decree of the Additional Subordinate Judge, Patna, dated 27th May, 1955, decreeing the plaintiff-respondents suit for possession of the disputed property. The facts of the case are a bit involved and can be summarised as follows:
(2.)THE present appeal arises out of Title Suit No. 49 of 1951. This suit and Title suit No. 57 of 1949 were brought by the plaintiffs for identical reliefs. Except for the principal defendants the parties are the same. Both the suits were heard together by the Subordinate Judge and were eventually decreed. THEre is no appeal from the decree passed in Title Suit No. 57 of 1949, and the matter ends there. No reference will be made to the lands involved therein.
The subject matter of litigation in the present action (Title suit No. 49 of 1951) was two strips of land forming part of plot No. 309 situate in village Pakhtiarpur. The first strip measures 11 kathas 16 dhurs and 16 dhurkis constituting the northern half of the eastern half and the second strip measuring 91/2 decimals, equivalent to 3 kathas 1 dhur, forms the south-eastern portion of the eastern half, of the aforesaid plot. The plaintiffs have attached to their plaint a map showing the configuration and the subdivisions of the plot. In that map the entire plot No. 309 is divided into two halves western and eastern, the eastern half is indicated by letters ABCD. The first strip of land in dispute k indicated by letters ABEF and the second by letters DFGH. At the time of hearing the defendant appellant laid no claim to the first strip measuring 11 kathas and odd. This appeal is restricted to the second strip measuring 3 kathas 1 dhur, which is shown by letters DFGH.

The suit was first filed in the Court of Munsifat Barh on 8th January, 1949. The learned Munsif held that the proper valuation of the subject-mutter of the suit was Rs. 8000 and not Rs. 1500 as stated by the plaintiffs, and, therefore the suit was beyond bis pecuniary jurisdiction. He accordingly returned the plaint on 30th March, 1951, to be presented to a proper Court. It was refiled by the plaintiffs in the Court of Subordinate judge, Patna, on 10-4-1951.

Before I proceed further, for proper appreciation of the issues involved, it will be necessary to give below a short genealogy. GHINA CHOUDHARY ______________|______________ | | | Darshan Bhikhari Hira | (died issueless) | ________|____ ____________|_______ | | | | Babulal Munu Kamleshwari Rampada rath (deft. 9) (deft. 10) (deft. 3) (deft. 4) | _________|_ _______ (defendants 9 and 10 | | | are proform defem- | Nageshwar Rajeshwar dants first party.) | (deft. 7) (deft. 8) _____________|___________ | | Rajendra Sojendra (deft. 5) (deft. 6) (defendants 3 to 8 are principle defend ants second party.) Defendants Nos. 1 and 2 are principal defendants first party and claim to have purchased the disputed land, i.e. 3 kathas 1 dhur, from principal defendants second party. Defendant No. 1 is since dead, and his widow, sons and daughters have been substituted in his stead. Defendants Nos. 11 to 15 are subsequent transferees and have been impleaded as pro forma defendants second party. China Choudhary, the common ancestor of defendants Nos. 3 to 10, is recorded in survey records as tenant in respect of plot No. 309 which has an area of 2 bighas 2 kathas. Before I state the respective cases of the parties, it will be necessary to state a few facts forming the back ground of this suit

Defendants Nos. 3, 4, 9 and 10 executed a usufructuary mortgage deed dated 16-7-1927 in favour of Mahendra Narain Singh, defendant No. 14 of pro forma defendants second party, in respect of 1 bigha 15 kathas forming the northern portion of plot No. 309.

(3.)ON the basis of a headnote, plaintiff No. 1 instituted Money suit No. 340 of 1930 in the court of the Munsif, Bihar, against defendants Nos. 3, 4, 9 and 10, i.e. against the sons of Darshan and Hira, which was decreed ex parte on 21-1-1931. The decree-holders levied execution of the decree in Execution Case No. 1264 of 1933 and purchased 1.31 acres out of plot No. 309 on 21-3-1934.
Prior to the aforesaid auction sale, on 17-7-1933 defendants 9 and 10, sons of Darshan, executed a sale deed in favour of defendant No. 15, who is the son of defendant No. 11 in respect of exactly half the area of plot No. 309 from the west. This sale deed recites that there was a partition between the sons of Darshanand Hira, and according to this partition the western half of plot No. 309 was allotted to defendants Nos. 9 and 10, which they purported to convey under the aforeasaid sale-deed and the eastern half to defendants Nos. 3 and 4 and his sons.

I may state here that the judgment-debtor filed title suit No. 19 of 1934 for setting aside the ex parte decree passed in favour of the plaintiff in Money suit No. 340 of 1930 aforesaid on the ground of fraud. This suit was dismissed on 15-5-1935, and an appeal from that decree also failed on 31-1-1936.



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