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2002 DIGILAW 52 (JHR)

Raju Tiwari v. Sakru Rajwar

2002-01-18

GURUSHARAN SHARMA

body2002
JUDGMENT : Gurusharan Sharma, J.-Defendents are appellants. Plaintiff filed Title Suit No. 17 of 1987 against defendants for declaration of title, confirmation of possession or in alternative for recovery of possession over the suit land, described in Schedules A and B to the plaint. 2. According to plaintiff, Ritu Mandai, son of Govind Mandai, Padu Mandai, Chetu Mandai and Banshi Mandai sons of Shibu Mandai and Kishun Mandai were recorded tenants of the lands' of Khata No. 146, situated in Village-Bandhejih, District Hazaribagh (now Bokaro). 3. On 19.2.1991, plaintiff claimed to have purchased 63 decimals land of plot no. 2547, appertaining to khata no. 146 from Padu MandaI. Again by registered sale deed dated 23.5.1956, 64 decimals land of the said plot, was purchased by plaintiff from him just adjacent north of the land purchased in the year 1951 and constructed residential house over about 10 decimals thereof. 4. Plaintiff's further case was that by registered sale deed dtd. 13.2.1956, Kishun Mandai son of Ritu Mandai sold 1.27 1/2 decimal land of plot no. 2547 to Pachkari Tiwari and Sadhu Tiwari, ancestors of the defendants, which was just adjacent north of the portion of said plot no. 2547 purchased by him. Subsequently, plaintiff sold 5 decimals land, out of 64 decimals, which he had purchased on 23.5.1956, to Basudeo Rajwar and further 10 decimals to Ratan Singh. However, in the meantime, it was found that defendants had encroached upon part of land and made certain constructions thereon. The encroached portion of plot no. 2547 at two different places measuring respectively 10 decimals and 29 decimals were described separately in Schedules A and B. 5. Defendants contested the suit on the ground that their ancestors Pachkari Tiwari and Raghunath Tiwari were Kulpurohit and Shibu Mandai, who some time in the year 1936-37 had made an oral gift of 40 decimals land towards northern portion of his share of plot no. 2547, which was just on the southern portion of share of Ritu Mandai and put them in khas possession thereof, Banshi Mandai and Chetu Mandai, both sons of Shibu Mandai, the recorded tenants enjoyed khas possession adversely, peacefully and continuously to the knowledge of plaintiff and his ancestor and the whole world for more than 12 years and perfected their title by adverse possession over the said 40 decimals land of plot no. 2547. 6. 2547. 6. Trial court decreed the suit holding that story of gift as well as story of adverse possession over the suit land set up by defendants were false. On the other hand, plaintiff proved his subsisting title over the suit land. 7. Defendants claimed that subsequently they amalgamated the suit land, which was orally gifted to them with their Gairmajrua land and put a compound wall over the same. In this regard a survey knowing Amin, D.W. 7 was deputed by the Court, who after scientific measurement of the land found that lands of plot no. 2547, measuring 1.73 acres was within one compound and as such defendants' claim of amalgamation of suit land with their Gairmajrua land was not established. 8. Plaintiff purchased land from Sahru over which there was a house standing. This fact was not denied by defendants, rather they admitted it in their evidence. 9. Mr. Chandra Sbekhar Prasad, counsel for appellants submitted that besides acquisition of suit land by oral gift, defendants also perfected their title over it by adverse possession. 10. In this regard it is relevant to state that in their pleadings and evidence defendants claimed their interest over the suit land on the basis of oral gift by both sons of Shibu Mandai and having come in possession thereof accordingly. Surprisingly in paragraph no. 8 of their written statement itself defendants also pleaded adverse possession from the date of gift. Defendants' case of acquisition of title by adverse possession was, therefore, not acceptable. 11. I find no reason to interfere with the impugned judgment and decree. There is no merit in this Appeal. It is, accordingly dismissed, but without costs.