VISHNUDEO NARAYAN, J. - (1.) THIS appeal at the instance of defendants -appellant is directed against the judgment and decree dated 26.7.1988 and 6.8.1988 respectively passed in title appeal No. 17 of 1983 by Shri Satyendra Singh 4th Additional District and Sessions Judge, Palamau at Daltonganj whereby and whereunder the appeal was allowed and the judgment and decree dated 11.3.1983 and 24.3.1983 respectively passed in title suit No. 47 of 1979 by Additional Munsif, Palamau at Daltonganj was reversed.
(2.) THE plaintiffs -respondent had filed the aforementioned suit for declaration of their title and recovery of possession along with mesne profits in respect of the suit land fully detailed in Schedule of the plaint which is eastern 27 1/3 decimals of land of plot No. 369, khata No. 28 situate in village Marang, P.S. Panki, District Palamau. The case of the plaintiff -respondent is that plot No. 369 aforesaid appertaining to khata No. 28 having an area of 82 decimals is the raiyati land jointly recorded in the name of Jhari Teli and Bhagal Teli sons of Ramu Teli having equal share in the Survey Record of Rights (Ext. 4), It is alleged that Jhari Teli was in separate and exclusive possession of the eastern half of the said plot and Bhagal Teli was also in separate and exclusive possession of the western half of the said plot by virtue of amicable metes and bounds partition between them in respect of the said plot. It is alleged that besides the land of plot No. 369 of khata No. 28 of village Marang, Jhari Teli was also exclusively recorded as raiyat in respect of the lands of different khatas situate in village Dandar Kalian and Dandar Khurd and Jhari Teli remained in exclusive possession of the lands aforesaid and paid rent to the ex -landlord. Jhari Teli. aforesaid died on Purnmasi day of the month of Magh in the year 1959 leaving behind his widow Most Bhagi Sahun and three daughters, namely, Chutuwa, Mankuri and Kasida as his heirs and they succeeded the land left by Jhari Teli on his death including the suit land and came in possession thereof. Bhagi Sahun, the widow of Jhari Teli also died in the year 1961 leaving behind her three daughters aforesaid and after her death all her daughters exclusively cultivated the land including the suit land in equal shares and paid rent and water rates in respect thereof contributing the same in equal shares through Padarath Mahto son of Bhagal Teli aforesaid. The three daughters of Jhari Teli after the demise of their mother Bhagi Sahun, amicably partitioned the eastern 41 decimals of plot No. 369 among themselves and defendant No. 9 Kasida got 13 -2/3 decimals in the eastern portion of the said plot, Ghutuwa got 13 -2/3 in the middle and Mankuri got the western 13 -2/3 decimals and they were, accordingly, separately cultivating the suit land allotted to them in the said amicable partition. Chutuwa and Mankuri died soon after the said amicable partition and their sons succeeded the suit property on their death and there was an arrangement amongst defendant No. 7 Sedu Sao and defendant No. 8 Prabhau Sao who are the sons of Chutuwa by virtue of which 13 -2/3 decimals of land in the middle allotted to Chutuwa was exclusively given to defendant No. 7 Sedu Sao. The case of the plaintiffs respondent further is that defendant No. 9 Kasida Sahu and defendant No, 7 Sedu Sao aforesaid executed the sale deed dated 15.1.1973 (Ext. 1) for valuable consideration of Rs. 1500.00 in respect of 27 -1/3 decimals of land aforesaid in favour of the plaintiffs respondent and put them in possession thereon and the plaintiffs respondent came in cultivating possession over the same. The case of the plaintiffs respondent further is that Pathak Mosaheb Singh, a co -sharer ex -landlord of khata No. 28 aforesaid, had a greedy eye over the suit land and with a view to grab the said land he got a sham and fraudulent sale deed dated 17.3.1973 executed in respect of the entire 82 decimals of plot No. 369 executed by defendant Nos. 3 to 6 without consideration in favour of defendants appellant Nos. 1 and 2 and, thereafter, there was a proceeding under Section 144 of the Code of Civil Procedure between the parties in respect of entire land of plot No. 369 which was dropped on 25.8.1973 and, thereafter again a proceeding under Sec.144 of the Code of Civil Procedure took place between them in respect of suit land only which was converted into a proceeding under Section 145 of the Code of Civil Procedure wherein possession of the defendants appellant Nos. 1 and 2 over the suit land was declared in their favour and a revision preferred by the plaintiffs respondent was dismissed on 14.12.1978 in respect thereof and the defendants appellant Nos. 1 and 2 dispossessed the plaintiff from the suit land on 15.3.1979. It is alleged that Bhagal Teli or his descendants including defendants No. 3 to 6 have no right, title or possession over the eastern 41 decimals of plot No. 369 which include the suit land and they have no right to execute the sale deed in respect of the suit land in favour of defendants appellant Nos, 1 and 2 and the defendants 2 to 6 to can get no advantage whatsoever of the rent receipts and water rate receipts standing in the name of their father Padarath Mahto.
(3.) THE case of the defendants appellant Nos. 1 and 2 and their vendor 3 to 6 inter alia is that the land of khata No. 28 was recorded jointly in the name of Jhari Teli and Bhagal Teli both sons of Ramu Teli in the Survey Record of Rights and they were the member of Hindu Mitakshara joint family and they were in joint cultivation of plot No. 369 till the life time of Jhari Teli who died in the year 1934 and it is false to say that Jhari Teli and Bhagal Teli had separate cultivation half and half and Jhari Teli cultivating the land towards east and Bhagal Teli cultivating the land in the west of the said plot and the case of separate cultivation as alleged by the plaintiffs respondent is totally false. Their case further is that Jhari Teli had two wives, namely, Bhago Sahun and Jathai Sahun and he had four daughters born of Bhago Sahun and one daughter born of Jathai Sahun and Chutuwa Sahun had died in the life time of Jhari Teli and his remaining four daughters were alive at the time of his death and both the wives of Jhari Teli had predeceased him. The specific case of the defendants appellant in that Jhari Teli was a man of advance age and there was nobody to look after his affairs and take care of him so Jhari Teli reunited with his brother Bhagal Teli and put all his land and other properties in possession of Bhagal Teli about 12 years before his death and since then the entire property became the joint family property of Jhari Teli and Bhagal Teli under the management of Bhagal Teli. It is alleged that Jhari Teli died in the year 1934 in the state of jointness with Bhagal Teli and the entire joint properties including the lands recorded in the name of Jhari Teli has developed upon Bhagal Teli by the principle of survivorship and Bhagal Teli came in possession thereof including the land of plot No. 369 and after his death it was inherited by the descendants. The further case of the defendants -appellant is that defendant Nos. 3 to 6 for their personal necessity executed a sale -deed dated 17.3.1973 for Rs. 5500.00 in respect of 82 decimals of plot No. 369 of khata No. 28 besides 22 decimals of land of village Dan -dar Khurd, of khata No. 35 in favour of defendants appellant Nos. 1 and 2 and put them in possession thereof and since then defendant Nos. 1 and 2 are coming in peaceful cultivating possession over the same. The defendants appellant have also denied that the widow and daughter of Jhari Teli had ever paid rent or water rates through Padarath Mahto rather it was Padarath Mahto and, thereafter, his sons are paying the entire rent of the land of khata No. 28 and the daughters of Jhari Teli are never the co -owners with Padarath Mahto or his sons. It has further been stated that the daughters of Jhari Teli had neither right, title or interest nor possession over the suit land and they have no right to execute the sale -deed in favour of plaintiffs -respondent. Lastly it has been alleged that the defendants of Bhagal Teli has executed several sale -deeds in respect of the land of village Dandar Khurd and Dandar Kalian recorded in the name of Jhari Teli in favour of several other persons who are in cultivating possession in respect thereof as per Schedule B of the written statement.;