VISHNUDEO NARAYAN, J. - (1.) THIS appeal at the instance of the defendant -appellant has been preferred against the impugned judgment and decree dated 4.4.1990 and 18.4.1990 respectively passed in Title Appeal No. 65 of 1988/1 of 1990 by Shri Shyama Prasad Singh, 2nd Additional District Judge, Hazaribagh whereby and whereunder the appeal was dismissed affirming the judgment and decree of the Trial Court with modification directing the defendant -appellant to execute a deed of correction and the suit of the plaintiff was decreed in full.
(2.) THE plaintiff -respondent had filed the said title suit for declaration of this title and confirmation of his possession over 2 decimals of land in the northern side in plot No. 2644 appertaining to Khata No. 170 detailed in Schedule A of the plaint and for permanent injunction restraining the defendant from alienating the suit land or any portion thereof or distributing and ousting the plaintiffs from the possession of the suit land. A further relief was also sought directing the defendant to execute a deed of correction or Bazidawa in favour of the plaintiff in respect of the suit land. The case of the plaintiff, in brief, is that defendant executed a registered sale deed on 20.7.1953 in his favour in respect of plot No. 515 of Khata No. 162 having an areas of 3 decimals, besides 4 decimals out of 9 decimals of plot No. 5881 of Khata No. 162 and northern 2 decimals out of 67 decimals of plot No. 2644 of Khata No. 170 and the defendant put the plaintiff in possession over 9 decimals of the land aforesaid and since then the plaintiff is in possession over the same continuously without let or hindrance to the knowledge of the defendant and the plaintiff has built a house on portion of the said purchased land and the rest portion is used for growing vegetable and other crops. It is alleged that plaintiff had purchased plot No. 2646 from Beni Mahto earlier and plot No. 2645 from one Bihari Mahto and he has amalgamated the 2 decimals of plot No. 2644 acquired by virtue of the sale deed dated 20.7.1953 with the aforesaid plots and has constructed a pucca well in the said 2 decimals of land of plot No. 2644 in the south western corner in the year 1954 for the purpose of drinking water and growing vegetable etc. The further case of the plaintiff is that there had been an amicable partition between the defendant and his three brothers and the defendant had got 1/4th in his share towards north west corner in plot No. 2644 and rest of the portion of the said plot was allotted to the share of his other three brothers. It is alleged that though the defendant had transferred 2 decimals of plot No. 2644 from the north western corner but either by fraud or by sheer mistake instead of mentioning plot No. 2644 inserted plot No. 2944 in the said sale deed aforesaid but in spite of that plaintiff remained in possession over 2 decimals of land aforesaid of plot No. 2644 without any interference by anyone including the defendant and in the month of November, 1983, the said mistake was detected and he approached the defendant to execute a Bazidawa or a deed of rectification to which the defendant agreed but later on retreated. It is also alleged that plot No. 2944 does not belong to the defendant rather it belonged to one Lakhan Mahto and the defendant had no right and title in respect of plot No. 2944 to execute a sale deed in respect thereof and it is an apparent mistake. It is also alleged that the plaintiff has perfected his title over 2 decimals of plot No. 2644 in remaining in possession over the same by adverse possession.
(3.) THE case of the defendant in his written statement, inter alia, is that, he has executed the sale deed dated 20.7.1953 in favour of the plaintiff in respect of 3 decimals of plot No. 515 and 4 decimals of plot No. 5881 of Khata No. 62 only and he has not executed any sale deed in respect of 2 decimals of plot No. 2644 of Khata No. 170 in favour of the plaintiff and thus the claim of the plaintiff in respect of 2 decimals of plot No. 2644 is false and baseless and the plaintiff was never put in possession over any portion of plot No. 2644. It is alleged that entire northern portion of plot No. 2644 is in his possession even today which he got in family partition in the year 1944 after the death of his father Nehal Mahto. Excavation of the well in the year 1954 by the plaintiff for the suit land has been denied. It is alleged that he and his other brothers had excavated well in the year 1942 in their respective portions of plot No. 2644 for irrigating the land. The further case of the defendant is that taking advantage of his ignorance and illiteracy the plaintiff has got plot No. 2944 inserted in the impugned sale deed dated 20.7.1953 without the knowledge of the defendant which the defendant came to know only after institution of the suit. It has further been alleged that the plaintiff had purchased only 7 decimals of land comprising of plot No. 515 and 5881 of Khata No. 162 through the sale deed dated 20.7.1953 and this defendant had never transferred 2 decimals of plot No. 2644 of Khata No. 170 by virtue of the said sale deed. Lastly it has been alleged that plaintiff has false alleged that he has approached this defendant for execution of a rectification deed or Bazidawa to his defendant for 2 decimals of land of plot No. 2644. The plaintiff has never acquired any right, title or interest in 2 decimals land of plot No. 2644 by virtue of the said sale deed and he was never in possession over the same.;