VISHNUDEO NARAYAN, J. - (1.) THIS appeal at the instance of the plaintiffs -appellant has been preferred against the impugned judgment and decree dated 28.1.1989 and 9.2.1989 respectively passed in Title Appeal No. 38 of 1984 by Shri Anil Kumar Sinha, 3rd Additional District Judge, Dhanbad whereby and whereunder the appeal was allowed and the judgment and decree of the Trial Court passed in Title Suit No. 153 of 1981 was set aside and the suit of the plaintiffs was dismissed.
(2.) THE plaintiffs -appellant have filed the said suit for declaration of their raiyati right and title and recovery of possession in respect of the suit land situate in Village -Dhokhra (No. 12), Police Station - Baliapur, District -Dhanbad fully detailed in Schedule -B of the plaint. The case of the plaintiffs -appellant, in brief, is that Raja Shiva Prasad Singh was the proprietor in respect of 82.61 acres of land situate in Village -Dhokhra and he granted permanent tenure right in respect thereof of one Bhola Prasad Singh and the land aforesaid was recorded in khewat Nos. 2 and 3 of Village -Dhokhra in his name and land of khata No. 145, was recorded as Awad Malik appertaining to khewat No. 3 (Ext. F) in the name of Bhola Prasad Singh aforesaid, who was in cultivating possession thereon. Bhola Prasad Singh aforesaid transferred the said land in favour of Harakali Bose by a registered sale deed dated 21.3.1931 (Ext. 3/A) and Harakali Bose came in possession thereof. Subsequently, Harakali Bose transferred the aforesaid land by virtue of a registered sale deed dated 16.3.1936 (Ext. 3/B) in favour of Raja Shiva Prasad Singh aforesaid, the proprietor of Jharia Raj Estate Jharia Raj Estate was an impartable Estate governed by the rule of primogeniture whereunder the eldest son of the proprietor alone is entitled to inherit the Estate and the other sons of the proprietor are entitled only to get their maintenance and said Raja Shiva Prasad Singh had five sons and Kumar Rama Prasad Singh was his youngest son and in order to provide maintenance to his youngest son, Kumar Rama Prasad Singh, Raja Shiva Prasad Singh executed a registered permanent deed to patta, dated 4.9.1936 (Ext. 4) in his favour in respect of the aforesaid land under khewat Nos. 2 and 3 measuring 82.61 acres including Awad Malik land of khata No. 145 on receipt of proper salami on a nominal rental of Rs. 1/ -per annum and put him in possession thereon and since then Kumar Rama Prasad Singh came in possession over the same and he used to cultivate the Awad Malik land of khata No. 145. Thereafter, Kumar Rama Prasad Singh while under peaceful possession thereon transferred the land of khata No. 145 detailed in Schedule -A of the plaint by executing a registered deed dated 6.6.1962 (Ext. 3) in favour of Gore Chand Mahto, the father of the plaintiff -appellant and put him in possession thereon and since then Gore Chand Mahto came in cultivating possession of Schedule -A, land of the plaint and he was mutated in respect thereof and paying rent to the State of Bihar, and in exercise of his permanent raiyati right over the same to the knowledge of the defendants -respondent and their predecessor and all concerned for more than 1 -2 years has acquired a perfect title by adverse possession and on his death in the year 1979, the plaintiffs -appellant inherited the Schedule -A, land and they continued in cultivating possession thereon and have perfected raiyati title therein. Their case further is that Harkhu Mahto, the predecessor -in -interest of the defendants -respondent who had no title or possession in respect of the land detailed in Schedule -A of the plaint or any portion thereof filed an application before the mukhiya of the local panchayat during harvesting season of 1974 claiming an interest in the suit land and his application on proper enquiry was rejected by the mukhiya and Gore Chand Mahto harvested the paddy crop from the suit land in the year 1974 which he has grown therein and thereafter he also transplanted paddy in the said land in the year 1975 and said Harkhu Mahto initiated a proceeding under Sec.144 of the Code of Criminal Procedure during the harvesting session of 1975 against Gore Chand Mahto which was subsequently converted into a proceeding under Sec.145 of the Code of Criminal Procedure which was decided against the heirs of Gore Chand Mahto, who has died during its pendency, vide order dated 20/22.4.1981 and being emboldened by the said order the defendants -respondent, have dispossessed the plaintiffs -appellant on 27.5.1981 from Sehedule -B, land of the plaint which is the subject matter of the suit. It is alleged that the defendants -appellant had set up a claim in the proceeding under Sec.145 of the Code of Criminal Procedure on the basis of alleged settlement by a sada hukumnama made in 1 '944 by Raja Shiva Prasad Singh in favour of Kartik Mahto, the father of Harkhu Mahto aforesaid followed by rent receipts and salami receipts purported to have been granted by Jharia Raj Estate.
(3.) THE case of the defendants -respondent, inter alia, Is that Ranjay Mahto, the predecessor -in - interest of the defendants -respondent was in possession of the land of khata No. 145, till his death since the time of Bhola Prasad Singh aforesaid as his bhagidar and after him his son Kartik Mahto remained in possession thereon as such and on 21.3.1944 Raja Shiva Prasad Singh made a permanent raiyati settlement of 12.01 acres of land recorded under khata No. 145 described in Schedule -M, of the written statement including the suit plots with Kartik Mahto on payment of salami of Rs. 901/ - and on annual rental of Rs. 9/8/0 besides Rs. 0/7/0 as cess and since then he remained in possession thereon as occupancy raiyat and after vesting of the Estate they are paying rent to the State of Bihar by virtue of the order passed in Case No. 19 of 1960 -61. It is alleged that the defendants -respondent being in possession of the land of khata No. 145 since then continuously, openly as of right, adversely to the knowledge of all including the plaintiffs - respondent and their predecessor -in -interest for over 12 years had acquired a perfect and indefeasible title to the land aforesaid including the suit land. The further case of the defendants - respondent is that the alleged deed of settlement dated 4.9.1936 (Ext. 4) executed by Raja Shiva Prasad Singh in favour of Kumar Rama Prasad Singh is a collusive document and a mere paper transaction which was never acted upon and further Kumar Rama Prasad Singh was a minor at that time and the said document being in favour of an unrepresented minor is void in law and under the said deed Kumar Rama Prasad Singh had neither acquired any title in respect thereof nor has ever come in possession of the land of khata No. 145. It is alleged that deed of settlement dated 6.6.1962 in favour of Gore Chand Mahto purported to have been executed by Kumar Rama Prasad Singh is a collusive deed and said Gore Chand Mahto did not acquire any right, title or interest in the suit land and he has also not come in possession thereon. It is also alleged that the suit for declaration of the raiyati right of the plaintiffs - appellant on the basis of the alleged settlement of the year 1962 from Mukraridar i.e. Kumar Rama Prasad Singh whose right has already vested under the B.L.R. Act, 1950 is not maintainable and the plaintiffs -appellant have not at all acquired any raiyati right by virtue of the settlement made in the year 1962 in their favour. The further case of the defendants -respondent is that Gore Chand Mahto with the help of the musclemen wanted to take forcible possession of the suit land which compelled Harkhu Mahto, the ancestor of the defendants -respondent to initiate a proceeding under Section 144 of the Code of Criminal Procedure bearing M.P. Case No. 1250 of 1975 which was converted into a proceeding under Sec.145 of the Code of Criminal Procedure and the possession of the defendants - respondent was declared in the said proceeding.;