VISHNUDEO NARAYAN, J. - (1.) THIS appeal at the instance of the principal defendant -appellant Md. Sharif Mian has been preferred against the judgment and decree of affirmation dated 5.5.1990 and 21.5.1990 respectively passed in Title Appeal No. 47 of 1984 by Shri Stayendra Singh, 4th Additional District Judge, Palamau whereby and whereunder the appeal was dismissed and the judgment and decree of the trial Court passed in Title Suit No. 3 of 1983 by 4th Sub Judge. Palamau were affirmed.
(2.) THE plaintiff -respondent has filed the said title suit for a declaration that they are the owners as of their own right of the suit land measuring 2 -1/4 decimals of plot No. 688 appertaining to Khata No. 252 situate in village Hariharganj @ Satgawan, P.S. Hariharganj District Palamau shown in red and blue colour in the sketch map annexed with the plaint and more fully detailed in the schedule of the plaint and for confirmation of possession over 1 - 1/2 decimals out of the suit land shown in red colour in the sketch map and for recovery of possession with respect of 3/4 decimals of the shown in blue colour in the sketch map after evicting the Principal defendant therefrom. A further relief of arrears of rent amounting to Rs. 200.00 with interest pendenti lite till realization has also been sought besides mesne profit. The case of the plaintiffs -respondent (hereinafter referred to as the plaintiffs), in brief, is that plot No. 68 appertaining to Khata No. 252 having an area of 6 decimals is Gairmazarua Malik land recorded in the Cadastral Survey Records of Right having a house thereon in possession of Bachu Pasi and Deoki Pasi who had executed a sale deed dated 18.6.1930 in respect thereof in favour of Sk. Sukar Ali. Thereafter, Sk. Sukar Ali had executed two sale deeds dated 15.3.1943 one in favour of Sk. Tasduk Hussain in respect of 3 decimals southern portion of the said plot and the other sale deed of 3 decimals northern portion in favour of Sk. Abdul Latif, the father of the plaintiffs and they came in possession separately over the same in accordance with the sale deeds aforesaid. Sk. Abdul Latif executed a registered sale deed dated 2.11.1945 in respect of 12 cubic in length from east to west and 12 cubic in width from north to south i.e. 324 sq. ft. shown in yellow colour in the sketch map corresponding to 3/4 decimals of land out of his southern half 3 decimals of plot No. 688 in favour of principal defendant Md. Sharif Mian who came in possession over the same and started running a kirana shop thereon. The further case of the plaintiffs is that after the death of Sk. Abdul Latif the principal defendant approached plaintiff No. 1 Md. Syed Ansari in the month of May, 1978 to let out a portion of the old house lying adjoining west to his kirana shop shown in yellow colour in the sketch map in plot No. 688 to use the same for godown on rental on Rs. 10.00 per month and plaintiff No. 1 accepted the proposal of the principal defendant and let out the said portion shown in blue colour in the sketch map to the principal defendant on a monthly rental of Rs. 10.00 w.e.f. May, 1978 and the tenancy was according to the English calendar month and the principal defendant came in possession over 3/4 decimal of plot No. 688 shown in blue colour in the sketch map and he continued to pay rent to the plaintiff No. 1 up to the month of April, 1981 for which he was granted rent receipts.
(3.) SK . Abdul Latif after the purchase by virtue of the sale deed dated 15.3.1945 was mutated in the Serista of the ex -landlord and he paid rent to the ex -landlord and got rent receipts and after the vesting of the estate demand was also opened in his name in the office of the Circle Officer and he paid rent to the State and got rent receipts. It is alleged that in the rent receipt granted by the State plot number or Khata number was not being mentioned. It is alleged that the plaintiffs had also their ancestral land in village Hariharganj and a separate demand was also running in respect thereof in the office of the Circle Officer, Hariharganj in the name of Rahiman Mian, the ancestor of the plaintiffs. The plaintiffs, thereafter, filed a petition on 21.4.1981 before the Circle Officer, Hariharganj for mutation of their names in place of their father as well as for mentioning Khata number and area of land in suit for which the rent was paid and the said petition was registered as Miscellaneous Case No. 11/81 -82. The principal defendant contested the said case in which he has falsely alleged that entire northern 3 decimals of plot No. 688 belonged to him which he has purchased from Sk, Abdul Latif and produced one un - registered sale deed dated 3.11.1951 purported to have been executed by Sk. Abdul Latif in his favour in respect of the land measuring 16 Haath from west to east and 13 Haath from north to south in plot No. 688 for a consideration of Rs. 48/ -. It is alleged that at the spot no such area is available in the back of the shop of the principal defendant in plot No. 688 which the Principal defendants is said to have acquired by virtue of the unregistered sale deed aforesaid. It is alleged that the unregistered sale deed of the year 1951 is a forged and fabricated document brought into existence for wrongful gain which has never seen the light of the day prior to 1981 -82. The said mutation case was allowed mutating the name of the plaintiffs for 1 -1/2 decimals of land i.e. for the red portion of the plot shown in the sketch map only instead of 2 -1/4 decimals and allowed the mutation in the name of defendant No. 1 also for remaining 1 -1/2 decimals in the said plot. The Principal defendant filed an appeal before the D.C.L.R. Sadar, Daltonganj and plaintiffs also filed cross objection and the learned D.C.L.R., Sadar vide order dated 11.2.1982 set aside the order of the Circle Officer, Hariharganj and ordered that demand shall remain as it was before the order of the Circle Officer and directed the plaintiffs to get their right and title declared from the competent Civil Court with respect to the area of land of plot No. 688. It is also alleged that emboldened by the order aforesaid the principal defendant No. 1 has defaulted in payment of the rent since the month of May, 1981 and denied the title of the plaintiffs over the suit land shown in blue colour in the sketch map as well as the portion of the said plot shown in red colour. Hence the necessity of the suit.;