VISHNUDEO NARAYAN, J. - (1.) THIS appeal at the instance of the plaintiffs appellant stands directed against the impugned judgment and decree dated 25.01.1989 and 06.02.1989 respectively passed in title appeal No. 21 of 1987 by Shri Uma Shankar Prasad, 3rd Additional District Judge, Palamau whereby and whereunder the judgment and decree dated 30.06.1987 and 13.07.1987 passed in title suit No. 64 of 1983 by Shri Tabarak Hussain, Munsif, Palamau were affirmed and the appeal was dismissed.
(2.) THE appellants had filed the said suit for declaration of their title in respect of the suit land as their raiyati land and confirmation of their possession and in the alternative for recovery of possession detailed in the schedule at the foot of the plaint situate in village Bakaskhap PS, Lesliganj, District Palamau. The suit plot Nos. 17 and 18 having an area of 1.22 acres and 0.2 acres appertain to Khata No. 11. The case of the appellants is that late Prasana Singh, the father of the original plaintiff Badri Narain Singh (since dead) and the father 'sfather of the appellants was the co -sharer landlord having 3 annas 10 pies interest as proprietor along with other co -sharers landlord in village Bakaskhap, PS, Lesliganj, District Palamau and Khata No. 11 having an area of 1.14 acres consisting of the suit land was the raiyati khata recorded in the name of Ram Rup Singh, the ancestors of the respondents in the cadastral Survey Records of Right and few years after the cadastral survey Ram Rup Singh aforesaid had left village Bakaskhap and settled in village Basaura after constructing a house there and he had abandoned the said suit land and late Prasana Singh and other co -sharer landlords treated the suit land as abandoned and came into the possession of the suit land jointly as their bakast land. There was a partition suit filed by aforesaid late Prasana Singh against the co -sharers landlord for partition of their proprietary interest vide partition suit No. 945 of 1922 and in the said partition suit the suit land was exclusively allotted to the share of late Prasana Singh as his bakast land along with other lands and said late Prasana Singh came in exclusive possession of the suit land after getting delivery of possession and he continued to remain in cultivating possession thereon till his death i.e. 1952 and, thereafter, the original plaintiff (since dead) and, after him the appellants are continuing in cultivating possession over the same and after the vesting of the State the appellants are paying rent to the State. The further case of the appellants is that there had been a partition between original plaintiff Badri Narain Singh and his bother proforma defendant No. 4 Jagdish Singh in the year 1955 and the suit land was exclusively allotted to Badri Narain Singh the father of the appellants and the appellant 'sare in possession thereof. Return was also filed by the original plaintiff under the provisions of the Bihar Land Reforms Act, after the vesting of the State in which the suit land was shown as his bakast land and, thereafter, rent was assessed in respect of the suit plot as per the provisions of the said suit and jamabandi was opened in his name and rent was paid by the appellants in respect thereof. The appellants on return to his village on 07.10.1979 from outside came to know in the village that some Government officials had come to the suit land to held the respondents to take possession of the suit lad and on enquiry it transpired that the respondents had filed a case under Sec. 71 -A of the Chottanagpur Tenancy Act (hereinafter referred to as the said Act) before the Deputy Commissioner, Palamau for restoration of their possession over the suit land on the ground that the appellants were in possession over the suit land recorded in the name of the paternal grandfather of the respondents and the said case was allowed ex parte vide order dated 15.09.1971 without any notice to these appellants. It is alleged that the suit land having been abandoned by the recorded tenant the landlord resumed possession over the same and the suit became the bakast land of the landlords in cultivating possession of the late Prasana Singh which was subsequently allotted to his share as bakast land by virtue of the partition of the proprietary interest as per partition suit of 1922 and thus the provisions of Sec. 71 -A of the said Act has no application and the Deputy Commissioner, Palamau has no jurisdiction to make an order for restoration of the possession in favour of the respondents. Having a cloud cast on their title the appellants filed title suit No. 69 of 1979 but it was withdrawn with a permission to file a fresh suit after giving notice under Section 80 of the Code of Civil Procedure to Deputy Commissioner, Palamau and, thereafter, the suit at hand was filed.
(3.) THE case of the respondents, inter alia, is that their ancestor Ram Rup Singh was the recorded tenant of Khata No. 11 of village Bakaskhap and it is not a fact that he had ever left village Bakaskhap abandoning the suit land soon after the cadastral survey. It is alleged that so long he was alive he lived in his village Bakaskhap and after his death his descendants are living therein. It is alleged that village Basaura is at a distance of only 200 yards from his residential house in village Bakaskhap and Tima Singh the son 'sson of the recorded tenant aforesaid took settlement of some land in village Basaura and he constructed a house thereon about 35 years prior to this suit after the death of his son believed to have been caused by ghost in the ancestral house situate in village Bakaskhap and he started residing with his family members in the said newly constructed house. It is alleged that so long Ram Rup Singh was alive he remained in cultivating possession of the suit land and after his death his descendants are in cultivating possession of the suit land and there is a distance of only 100 yards between the residential portion of both the villages and the suit land is at a very little distance from the house of the respondents and there is no difficulty for. them in cultivating the suit land. The further case of the respondents is that Tima Singh, the father of the respondents fell in need of money about two and half years prior to 1970 and he approached Badri Narain Singh, the father of the appellants, to provide him a loan of Rs. 25/ - only and said Badri Narain Singh and Proforma defendant No. 4 agreed to advance the said loan to him if he gives temporary possession of the suit land to them till the loan amount is paid and Tima Singh took the loan of Rs. 25/ - and handed over the possession over the suit land to Badri Narain Singh aforesaid and, thereafter, Tima Singh refunded the loan amount to him but he refused to re -deliver possession to Tima Singh over the suit land which compelled him to file a case under Sec. 71 -A of the said Act and the possession was restored to him by the order of the Deputy Commissioner in the said proceeding.;