R.N.VERMA,J. - (1.) Plaintiff/respondent has preferred this appeal against the order dated 15.01.2008 passed by Ist Additional District Judge, Latehar in Title Appeal no. 11 of 2005, whereby and where under the judgment and decree dated 22.03.2005 passed by learned Munsif, Latehar in Title Suit No. 04 of 2002 has been set aside and the matter has been remanded to the learned trial court with direction to readmit the suit, recast the issue by adding two issues mentioned in paragraph no.16 of the judgment and try all the issues by giving opportunity to the parties to recall and re -examine the witnesses and also by examining other witnesses, if any.
(2.) At the instance of present appellant, suit was instituted for declaration of his right, title and interest over the suit property and for recovery of possession of the suit property, as mentioned in the schedule of the plaint, which is one room having area 05 decimals of plot no.23, khata no.1, khewat no.3 situated at village Turam, P.S. Chandwa, district Latehar. The case of the plaintiff/appellant as pleaded in the plaint and relevant for the proper adjudication of the issue involved in this appeal, in short, is that the plot in question along with two other plots being plot nos. 21 and 24 of khata no.1, khewat no.3 situated at village Turam were recorded as 'Bakast Malik' land in the last Survey Record in the name of Basudeo Mishra. The said Basudeo Mishra died leaving behind four sons : (i) Krishna Ballab Mishra, (ii) Hari Ballab Mishra, (iii) Rama Ballab Mishra and (iv) Govind Ballab Mishra who jointly inherited the property, left by their father and came in joint possession over the same. Further pleading is that an amicable partition between the above named four sons of Basudeo Mishra was made in which 0.53 acre of lands of plot no.21, 0.54 acres of plot no.23 and 0.20 acres of plot no.24 of khata no.1 fell in the exclusive share and possession of Rama Ballab Mishra. As there was some legal necessity, Rama Ballab Mishra sold 0.54 acres of plot no.23 and 0.10 acre out of plot no.24 of khata no.1 to Prem Shankar Prasad Bhagat by registered sale deed dated 25.04.1972 for a valuable consideration and the purchaser was put in possession where after his name was mutated in the Government Serista. The said Prem Shankar Prasad Bhagat donated a portion of the land of plot no. 23 to the State for establishing a Girls High School and subsequently sold 0.45 acres of land of plot no.23 under khata no.1 to the plaintiff/appellant through registered sale deed dated 28.04.1995 and possession over the purchased land was given to the plaintiff. But there was some clerical mistake and instead of plot no.23 it was wrongly mentioned as plot no.21 and so the deed of rectification was filed and the name of the plaintiff was subsequently rectified and mutated with respect to the said land and since then the plaintiff had been paying rent regularly. So the plaintiff became the absolute owner with respect to the 0.45 acres of land of plot no.23. Thereafter, he constructed one pucca room having tiled roof over a portion of his purchased land and inducted the defendant no.1 Mahavir Sahu as a tenant in the said room on rent. The said Mahavir Sahu with some ulterior motive stopped paying rent from July. 1997, where after, Eviction Suit bearing no. 01 of 1998 was filed in the court of Munsif, Latehar for his eviction on the ground of default in payment of rent but the suit was dismissed, where after plaintiff preferred appeal, which was also dismissed, which necessitated the plaintiff to file present suit.
(3.) After appearance, the defendant filed written statement with the pleading that though 0.54 acres of land of plot no.23 under khata no.1 was recorded in the name of Basudeo Mishra, but after his death there was never any partition among his sons and also denied the fact that suit plot was alloted to Rama Ballab Mishra in amicable partition. Further pleading was that the entire suit land besides other lands of Basudeo Mishra where joint property of his four sons till much after 1972 and the Rama Ballab Mishra was never in exclusive possession over the plot no.23. Resultantly, the plaintiff who had purchased the land in question from Rama Ballab Mishra could not derive any right, title and interest over plot no.23. The plaintiff had never constructed any pucca room with tiled roof over a portion of suit plot as pleaded. Similarly, the defendant no.1 Mahavir Sahu was never inducted as tenant by the plaintiff over the suit property.;