N.N.TIWARI, J. - (1.) THIS second appeal is against the judgment and decree of affirmance passed in Title Appeal No. 8 of 2003 by 1st Additional District Judg, Rajmahal whereby the Court below has dismissed the appellants ' appeal and upheld the judgment and decree of the trial Court.
(2.) THE plaintiff filed Title Suit No. 26 of 1985 in the Court of Settlement Officer as per the Santhal Civils, which was transferred to the Assistant Settlement Officer. The Assistant Settlement Officer, in turn, had made a certificate and transferred the record of the said title suit to the Court of Sub -Judge -I, Sahibganj under the provision of Sec. 5 -A of the Santhal Parganas Settlement Regulations, 1872. The suit was ultimately disposed of by learned Sub -Judge -I, Rajmahal, Sahibganj. In the said suit, the plaintiff had prayed for declaration of right, title and interest and confirmation of possession over the suit property and alternatively for recovery of possession and for mense profit. The plaintiffs case is that Sarju Sharma had two sons, Sanjay Sharma and Ajay Kumar Sharma (plaintiff Nos. 2 and 3) and the family is governed by Mitakshra School of Hindu Law. Sarju Sharma, at the relevant time, was Karta of the family; the land of Plot No. 1173 measuring 2 Bighas, 11 Kattha and 8 Dhurs of Mouza Barharwa belonged to Budhu Ram Mistry. There was a partition in the family of Budhu Ram Mistry and land was allotted to different co -shares. A portion of the land was also allotted to the plaintiffs. The suit land has been marked as Plot No. 1173 C/1 and shown in red in the sketch map annexed to the plaint and has been specifically described in Schedule A of the plaint. According to the plaintiffs, they have got subsisting right, title and possession over the suit property and defendants have absolutely got no concern or any right, title, interest or possession over the same. However, a dispute arose between the parties which led to a proceeding under Sec.145, Cr PC, in which possession of defendant No. 1 was declared by the Resident Magistrate by order dated 17.9.1985, which gave rise to the cause of action for the said title suit.
(3.) THE defendants contested the suit by filing written statement. It was, inter alia, contended that the plaintiffs have got no right, title and possession over the suit property and that the defendant No. 1 was put in possession of the land by the plaintiffs in pursuance of an agreement dated 24.4.1974. According to the defendants, the plaintiffs in collusion with the persons proforma defendants tried to forcibly disturb the defendants ' possession which led to the said proceeding under Sec.145, Cr PC and the same was decided in favour of the defendant No. 1. The defendants denied the plaintiffs ' claim pleaded in the plaint. ;