VISHNUDEO NARAYAN, J. - (1.) THIS appeal at the instance of the defendants appellant has been preferred against the impugned judgment and decree dated 24.02.1988 and 29.2.1988, respectively passed in Title Appeal No. 53 of 1985 by Shri Baleshwar Prasad Singh, 1st Additional District Judge, Giridih whereby and whereunder the appeal was allowed and the impugned judgment and decree passed in Title Suit No. 18 of 1982/2 of 1985 by Shri Ranjit Prasad Singh, 3rd Additional sub - Judge, Giridih were set aside and the suit of the plaintiffs respondent was decreed and title of the plaintiffs respondent and proforma defendant Nos. 15 to 21 was declared and their possession over the same was confirmed.
(2.) THE plaintiffs respondent have filed the said suit for declaration of their title along with proforma defendant Nos. 15 to 21 and confirmation of their possession and in the alternative for recovery of possession in respect of the suit plot Nos. 33, 35, 36, 38 and 39 appertaining to dar -raiyat khata No. 4 under raiyati khata No. 6 situate in Village Bamandiha, P.S. Gande, District Hazaribagh now Giridih. The case of the plaintiffs respondent, in brief, is that the suit plots aforesaid appertain to ratyati khata No. 6 which stands recorded in the name of Gangu Mian, their ancestors and khata No. 4 in respect of the aforesaid plots is the dar -raiyati khata recorded in the name of Lalu Mian and Jairam Mian having equal rights under raiyatt khata No. 6 and the defendant appellant are the descendants of Jairam Mian aforesaid Lalu Mian aforesaid has died issueless without any heirs and after his death his half interest in respect of the suit plots under the dar -raiyati khata No. 4 came in direct possession of Gangu Mian, the recorded tenant of khata No. 6 and he continued in possession over the same and, therefore, Jairam Mian due to his inability to pay the rent regarding his share in the suit plots orally surrendered the said plots in favour of Gangu Mian who resumed possession over the suit plots and became the absolute owner of the entire suit plots and he paid the rent of the entire suit plots to the then landlord till his life and got rent receipts and remained in possession there on peacefully openly continuously, adversely and as of right and he exercise various acts of possession over the same and after the death of Gangu Mian his only son Ramjan Mian succeeded the suit plots and continued in possession over the same exclusively openly, continuously peacefully and as of right and he paid the rent to the then landlord and got rent receipts and after the vesting of the estate, he paid rent to the State and got the rent receipts in respect of the suit plots. After the death of Ramjan Mian his heirs, i.e. plaintiffs respondent succeeded the suit plots besides other plot of khata No. 6 and came in possession over the same and they have converted Partikadim plot No. 36 into 1st class paddy field and Dhani land Nos. 3 and 2 of plot No. 38 and 35 respectively into class I paddy field by their hard labour and huge expenses about 30 years ago and Ramjan Mian in his life time had also converted and land of suit plot Nos. 39 and 33 into class I paddy filed and the descendants of Ramjan Mian remained in possession of all the suit plots continuously, openly, peacefully as of right and to the knowledge of the defendants appellant and to the knowledge of the whole world and they have also perfected their title by adverse possession and they have also paid rent to the State of Bihar and got the rent receipts Parmali Mian one of the sons of Ramjan Mian had sold the land of his share of khata No. 6 by virtue of a registered sale deed dated 18.2.1965, in favour of Mangru Mian and Khalil Mian and the vendees aforesaid came in possession over the same and they stand mutated over the same and they are paying rent in respect thereof and getting rent receipts and after the death of the vendees their descendants are In possession of the said land. The further case of the plaintiffs -respondent is that Wazir Mian, the other son of Ramjan Mian aforesaid, has transferred his interest in the suit land in favour of proforma defendant respondent Bibi Lal Banu In lieu of her dower debt by virtue of a registered deed dated 2.3.1976, and said Bibi Lal Banu also stands mutated in respect thereof paying rent to the State of Bihar and getting rent receipts. It is also alleged that dar -raiyati right is neither heritable nor transferable under the provisions of the Chottanagpur Tenancy Act and there is also no custom in village Bamandiha or in the neighbouring villages of the said village to the effect that after the death of the recorded dar -raiyati his interest shall devolve upon his heirs and legal representatives and thus the descendants of Jairam Mian aforesaid did not acquire any right and title in the dar -raiyati suit plots. There was a proceeding under Sec.144 of the Code of Criminal Procedure at the instance of original defendant appellant No. 1 Ashim Mian (who has died during the pendency of this appeal) between the parties and said proceeding has terminated in favour of the of the defendants appellant and against the plaintiffs respondent and proforma defendants respondent and a clog has been cast on the title of the plaintiffs respondent and hence this suit.
(3.) THE case of the defendants appellant, inter alia, is that the suit plots stands recorded in the name of Lalu Mian and Jairam Mian in dar -raiyati khata No. 4 under raiyati khata No. 6 and Lalu Mian aforesaid died few years after the cadastral survey settlement operation in jointness with Jairam Mian who being a co -sharer came in cultivating possession over the entire share of Lalu Mian and began to cultivate all the suit plots recorded under the dar -raiyati khata No. 4 and he continued in cultivating possession over the same openly peacefully without any let or hindrance from any corner to the knowledge of the whole world including Gangu Mian and as of his right and he used to pay rent to Gangu Mian and got rent receipts and he has perfected his right and title over the same for being in possession for more than 12 years and it is false to say that Gangu Mian, the recorded tenant of khata No. 6 had come in possession of half of the land of the aforesaid suit plots after the death of Lalu Mian. It is also false to say that Jairam Mian had surrendered his share in the suit plots at any point of time to Gangu Mian and the case of possession of Gangu Mian as set up by the plaintiffs respondent is totally false. It is alleged that after the death of Jairam Mian his descendants are in cultivating possession of all the suit plots. Their further case is that as per the custom prevalent in village Bamandiha and the surrounding villages, the dar -raiyati interest in the lands of dar -raiyat is heritable and as such the descendants of Jairam Mian came in possession over dar -raiyati suit plots of khata No. 4 and they also remained in cultivating possession over the suit plots openly, peacefully, continuously to the knowledge of the whole world including the plaintiffs respondent and as of their own rights and they have perfected their title in respect thereof any they have paid rent to Gangu Mian and after the vesting they are paying rent to the State and getting rent receipts. Their case further is that the recorded dar -raiyats in their life time have reclaimed the lands of suit plot Nos. 36,39,33 and 38 after investing a huge amount and labour and the heirs of Jairam Mian after his death completed the work of reclamation by dint of their labour at the expense of huge amount and have converted these plots into paddy growing lands and thus they have acquired raiyatt kaiyami kodkar rights also in respect thereof. Their further case is that the sale deed dated 18.2.1965, and registered deed of Dan Mohar dated 2.3.1967, are simply paper transactions and the transferees are not in possession over the suit plots under the aforesaid deeds. The further case of the defendants appellant is that the suit is barred by law of limitation, adverse possession ouster, acquiescence and res judicata and the suit of the plaintiffs respondent is one in the series of the coercive measures which the plaintiffs respondent have been adopting in the time of their predecessors since last 36 years and in all such litigations they have failed in their attempt and the defendants appellant are in peaceful possession over the suit plots and prior to them their ancestors were in possession over the same, lastly it has been contended that the proceeding under Sec.144 of the Cr PC was initiated at the instance of the plaintiffs respondent which has been decided in favour of the defendants appellant.;