VISHNUDEO NARAYAN, J. - (1.) THIS appeal has been preferred at the instance of plaintiff -appellants against the impugned judgment and decree dated 6.7.1988 and 18.7.1988 respectively passed in Title Appeal No. 4 of 1987 by Shri Jugal Kishore Prasad, VIth Additional Sessions Judge, Palamau whereby and whereunder the said appeal was dismissed affirming the judgment and decree passed in Title Suit No. 25 of 1986 by the 1st Additional Munsif, Daltonganj.
(2.) THE plaintiff -appellants had filed Title Suit No. 25 of 1986 for declaration that the defendant -respondents have no right to demolish any portion of the construction existing on plot No. 82 of khata No. 17 as well as on plot Nos. 83, 84 and 85 of khata No. 35 of village Badaulla and the defendant -respondents have also no right to construct the road over the aforesaid plots besides restraining them by issuance of permanent injunction from demolishing the said house and from constructing road over the same. The case of the plaintiff -appellants, in brief, is that plot No. 32 appertaining to khata No. 17 having an area of 25 decimals stands recorded in the Survey Record of Rights as "Bakast Lagan Panewala" and the said khata No. 17 is under khewat No. 10 standing in the name of Ranglal Pathak, the father of plaintiff -appellant No. 1. It is alleged that plot No. 83 having an area of 6 decimals, plot No. 84 having an area of 94 decimals and plot No. 85 having an area of 26 decimals appertain to khata No. 35 and the said khata is "Gairmazarua Malik, Samilat Malik" and it is under khewat No. 15 and there were several landlords under the said khewat including Ranglal Pathak aforesaid who had 10 anna share in the land under khata No. 35 and there was a partition between co -sharer landlords just after the cadastral survey and Rangalal Pathak aforesaid got a separate Thakhta of his 10 anna share who was in actual khas cultivating possession over the lands of khata No. 35 allotted to him in the said partition and at the time of vesting of the estate the plaintiff -appellants No. 1 filed the return under the 20/5provisions /2014 Page 64of the bihar Land Reforms Act (hereinafter referred to as the Act) as his father Ranglal pathak had died in the year 1935 of 1936 showing the lands of khata No. 35 as his Bakast land and finding the plaintiff -appellant No. 1 in Khas possession of the lands of khata Nos. 17 and 35 aforesaid, fair rent was fixed in the case bearing No. A/R 63 of 62 -63 and the fair rent was fixed in the name of plaintiff -appellant No. 1 and since then he is paying rent in respect thereof. Schedule "A" of the plaint contains the details of plot No. 82 of khata No. 17 and plot Nos. 83 and 84 of khata No. 35. It is further alleged that the co -sharer landlords of khata No. 35 under khewat No. 15, namely, Jagtanand Pathak and Gokulanand Pathak, both sons of Thakur Prasad Pathak having one anna and six pai share therein sold their six pai share of village Badaulia vide registered sale deed dated 7.7.17 (Ext. 2/A) in favour of Gangadhar Mishir in respect of several plots of khata No. 35 including 3 -1/2 decimals of land of plot No. 83. The said Gangadhar Mishir died issueless and his nephew Ramchandra Mishir son of Pandit Deodut Mishir executed a sale deed dated 26.3.1957 (Ext. 2) in respect thereof showing plaintiff -appellant No. 1 as their proprietor and the remaining half share remained in the possession of plaintiff -appellant No. 2. Kameshwar Mishir fully detailed in Schedule "B" of the plaint. Plaintiff -appellant No. 1 settled several plots including plot No. 84 having an area of 60 decimals fully described in Schedule "C" in favour of plaintiff -appellant No. 3 Shyama Devi on 30th Jeth 1351 FS and she was mutated in respect thereof in the Sherista of the C.O., Hussainabad on the basis of the return filed by plaintiff -appellant No. 1 and she is in possession over the same. Plaintiff -appellant No. 4, Fui Kuer Devi being a landless lady constructed her house over an area of 3 decimals of land of plot Nos. 82 and 83 as shown in Schedule "D" and she is residing in the said house and she was granted parcha in her favour in respect thereof under the Bihar Privileged Persons Homestead Tenancy Act, 1947. It is alleged that the State Government has not acquired the suit lands for any purpose under the provisions of the L.A. Act but defendant -respondents No. 3 Executive Engineer in conspiracy with defendant -respondent No. 4 Ajit Singh, the contractor bringing the defendant -respondent No. 2 in their confidence is bent upon to construct a road running from the village Akhauri Khap to Badaulia Nagar, through the plot Nos. 82, 83 and 84 aforesaid which are the raiyati lands of the plaintiff - appellants after demolishing the residential houses of the plaintiff -appellants which resulted in a proceeding under Sec.144 of the Code of Criminal Procedure on the basis of the report dated 3.2.1984 of the C.O., Hussainabad, The C.O., Hussainabad reported to the Sub -Divisional Magistrate, Sadar, Daltonganj on 22.2.1984 that the land of plot No. 85 is Gairmazama Malik land upon which the then landlord constructed Aahra for irrigating their lands and there are houses over plot Nos. 83 and 84 of the plaintiff -appellants and the proceeding under Sec.144 of the Code of Criminal Procedure was decided in favour of the plaintiff -appellants and against the defendant - respondents and there was again a proceeding under Sec.144 of the Code of Criminal Procedure but that proceeding did lapse. The plaintiff -appellants have absolute ownership and title and possession over the suit land and defendant -respondents have no right to construct the road over the aforesaid plots.
(3.) THE case of the defendant -respondent Nos. 1 to 3, inter alia, is that the plaintiff -appellants have no right title and possession over the land of fchata Nos. 17 and 35 especially over which the village road is to be constructed and the house of plaintiff -appellant No. 3 over plot No. 82 is not being affected by the construction of the village road. It is alleged that the proposed village approach road running from Akhauri Khap to Badaulia is to be constructed on government land of plot Nos. 83, 84, 85 and 126 which are all Gairmozarua land and, therefore, there is no need of any acquisition of the said land and there is also no house of plot No. 85 aforesaid.;