VISHNUDEO NARAYAN, J. - (1.) THIS appeal at the instance of the plaintiffs appellant has been preferred against the impugned judgment and decree of affirmation dated 5.12.1987 and 21.12.1987 respectively passed in Title Appeal No. 25 of 1985 by Shri Yugal Kishore Prasad, 6th Additional District Judge, Palamau at Daltonganj whereby and whereunder the judgment and decree dated 26.3.1985 and 10.4.1985 passed in Title Suit No. 74 of 1983 by the trial Court were affirmed and the appeal aforesaid was dismissed.
(2.) THE plaintiffs -appellant had filed Title Suit No. 74 of 1983 for declaration of their title and confirmation of possession in respect of the suit land detailed in the Schedule at the foot of the plaint and in the alternative for recovery of possession. The suit land is of plot Nos. 89, 144, 86 and 154 having an area of 7.18 acres appertaining to Khata No. 21 of village Kitta P.S. Mahuadarn District Palamau. The case of the plaintiffs -appellant in brief, is that Khata No. 21 having an area of 11.87 acres situate in village Kitta P.S. Mahuadaran District Palamau was jointly recorded in the Survey Records of Right in the names of Chotka Makri Uraon. Most. Jhari Urain, widow of Jheeru Uraon and Gholha Uraon son of Pilai Uraon and in the remark column of Khata No. 21 of the Survey Records of Right their exclusive possession was separately recorded in respect of plots of Khata No. 21 over which each of them was in exclusive possession Jheeru, Pilai Uraon Uraon and Chotka Makri Uraon are the sons of Budhua Uraon. Defendant No. 1 Kamil Uraon son of Bandhana Uraon is the defendant of Chotka Makri Uraon Gholha Uraon son of Pilai Uraon aforesaid has died issueless. Jhari Uraon widow of Jheera Uraon has a daughter named Sahbani Urain who was married with Chunni Uraon and both the plaintiffs are the sons of Sahbani Urain born of Chunni Uraon. The case of the plaintiffs further is that the suit plots aforesaid were exclusively recorded in possession of Jhari Urain and Gholha Uraon both haveing equal share and they had cultivated the suit and jointly during their life after the death of Gholha Uraon his entire interest devolved upon Jhari Urain aforesaid and she became alone entitled to hold the entire suit land and she remained in cultivating possession till her life and she died about 50 years ago. It is also alleged that there was an amicable partition by metes and bound between Chotka Makri Uraon, Gholha Uraon and Jhari Urain two or three years after the final publication of the Survey Records of Right and the suit plots were exclusively allotted to the share of Jhari Urain and Gholha Uraon and the other plots of Khata No. 21 over which the possession of Chotka Makri Uraon was recorded in the remark column were allowed to be retained by him and the said partition was acted upon. Jhari Urain aforesaid died about 50 years ago leaving behind his only daughter Sahbani Urain, Chunni Uraon, the husband of Sahbani Urain was Gar Damad and they succeeded the suit properties. Said Sahbani Urain and her husband Chunni Uraon died one after another within a span of 15 years leaving behind three sons i.e. plaintiffs Nos. 1 and 2 besides Somar Uraon. Somar Uraon has died leaving behind his three daughters who are not the heirs according to the customary law of Praon tribe and both the plaintiffs are the only owners of the suit land. The further case of the plaintiff is that defendant Kamil Uraon has ousted the plaintiff from the suit land and he does not allow the plaintiffs to remain in peaceful possession and creates disturbance in their possession on one plea or the other. However, the plaintiffs do cultivate the suit land according to their convenience and situation and the plaintiff has also filed Eviction Case No. 20 of 1982 -83 under Sec. 71 -A of the Chotanagpur Tenancy Act which was dismissed and the appeal was also dismissed with an observation that the plaintiffs may if they so like, go to Civil Court for declaration of their title over the suit land and also for recovery of possession and hence the necessity of the suit.
(3.) THE case of the defendant -respondent, inter alia, is that the land of Khata No. 21 aforesaid was jointly recorded in the Survey Records of Right in the name of Chotka Makri Uraon, Jhari Urain and Gholha Uraon and in the remark coloumn of the Survey Records of Right their separate possession was recorded over the plots of said Khata but in fact the separate possession did not remain the same after the survey operation and the entire land of Khata No. 21 remained in cultivation of the joint family of the recorded tenants till 1938. It is alleged that there is another Khata No. 7 consisting of plot Nos. 40, 43, 224, 225, 227 and 239 having an area of 6.27 acres in village Kuro Khurd, P.S. Mahuadaran District Palamau which was recorded jointly in the name of Most Jhari Uraon and Gholha Uraon and the land of Khata No. 21 and Khata No. 7 always remained joint property of the joint family consisting of Chotka Malm Uraon, Gholha Uraon and Jhari Urain and the ancestral house of defendant No. 1 is of plot No. 225 of Khata No. 7 in village Kuro Khurd in which this defendant resides with his family and pay chowkidari tax. It is also alleged that the land of Khata No. 7 is Class 1 paddy land whereas there is only 1.66 acres of paddy land under Khata No. 21 and the rest of the land of this Khata is tand land and Chotka Makri Uraon, Bhola Uraon and Jhari Urain lived jointly and they were in joint cultivating possession of the land of both the Khatas aforesaid. The further case of the defendant -respondent is that Jheeru Uraon, the husband of Jhari Urain and Pilai Uraon died in the state of jointness with Chotka Makri Uraon prior to the survey and thus the land of Khata No. 21 was jointly recorded in the name of Chotka Makri Uraon, Gholha Uraon son of Pilai Uraon, and Jhari Urain widow of Jheeru Uraon in the Survey Records of Right and the land of Khata No. 7 was recorded in the name of Most Jhari Urain and Gholha Uraon. Said Jhari Urain died in the state of joint ness in 1930 leaving behind his 12 years old unmarried daugter Sahbani Drain and Gholha Uraon and Chotka Makri Uraon succeeded to the entire property of both the Khatas aforesaid and Sahbani Urain was brought up by the joint family consisting of Gholha Uraon and Chotka Makri Uraon. Thereafter, Gholha Uraon died in the year 1931 and his wife also died and the land of Khata No. 21 and Khata No. 7 devolved exclusively upon Chotka Makri Uraon. It is alleged that Chotka Makri Uraon also died in the year 1933 leaving behind his , only son Bandhana Uraon who inherited the entire land of Khata Nos. 21 and 7 and he got the marriage of Sahbani Urain performed with Chunni Uraon and out of love and affection he gave the land of Khata No. 7 of village Kuro Khurd to Sabhani Uraon for her maintenance and Sahbani Uraon and her husband have died and the land of Khata No. 7 was used for her maintenance without having any legal right and title in respect thereof. Bandhana Uraon also died in the year 1937 leaving behind his only son Kamil Uraon who was then six years old. It is alleged that there had been a Rent Reduction Case No. 36 of 1940 in respect of the land of Khata No. 21 by defendant Kamil Uraon which was allowed and the rent of the land of Khata No. 21 was reduced and the plaintiffs or their mother Sahbani Urain who had died in the year 1971 did not object to the Rent Reduction proceeding nor the possession of defendant No. 1 over the land of Khata No. 21 and for the first time at the instigation of the enemies of this defendant the plaintiffs have started litigating and claiming the land of Khata No. 21 from the year 1982 i.e. after the lapse of 40 years without having any legal right. It is alleged that even the Banda purcha has been issued exclusively in the name of defendant during the recent survey. The plaintiffs have no right title and possession over the lands of both the Khatas aforesaid and no right title and possession of the land of Khata No. 21 and Khata No. 7 have ever devolved upon the descendants of Jhari Urain and the plaintiffs are not in possession of the suit land since 1940 and this defendant and prior to him his predecessors in interest were in possession of the suit land having right title and interest therein.;