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2002 DIGILAW 58 (JHR)

Ganesh Singh v. Bishram Singh

2002-01-21

GURUSHARAN SHARMA

body2002
JUDGMENT : Gurusharan Sharma, J.-Plaintiffs are appellants. One Ramjiwan Singh of village Meral, district Palamu, had five sons, narmely, Laldhari Singh, Girdhari Singh, Mana Singh, Deonath Singh and Deodhari Singh. Ganesh Singh and Kripa Singh original plaintiffs 1 and 2 were descendants of Laldhari Singh. They filed Title Suit NO.5 of 1986 for a declaration that the suit lands (54.18-1/3 acres) detailed at the foot of plaint were their raiyati lands and in case they were found to have been dispossessed therefrom, a decree for recovery of possession be granted in their favour. 2. According to plaintiffs, defendants had no right, title and interest over the suit lands. Defendants' claim to have purchased the same from one Ramsundar Singh, who had acquired it in auction sale, was incorrect and said transfer was not binding on them. 3. Defendants contested the suit, mainly on the ground that plaintiffs' ancestors Laldhari Singh and Girdhari Singh had ceased to have any concern whatsoever with the suit lands after their interest was sold in court's auction sale in the year 1938. It was followed by delivery of possession. Auction purchaser Ramsundar Singh filed Jamabandi-return at the time of vesting of Zamindari in the State Government under the provisions of Bihar Land Reforms Act, 1950.Thereafter rent for the suit lands was fixed in his name, under the provisions of sections 5, 6 and 7 of the said Act. Ramsundar Singh thereafter transferred the suit lands by registered sale deed dated 26.7.1970 to Rambriksha Singh father of defendants 1 to 3 and defendants 4 to 6. The contesting defendants also pleaded that Jagat Singh father of plaintiff no. 1 had filed Misc. Case No. 64 of 1970-71, challenging fixation of rent under sections 5, 6 and 7 of the said Act in the name of Ramsundar Singh, which was rejected on 21.9.1971 by Additional Collector, Palamu. Appeal preferred against the said order was also dismissed on 11.7.1972 and Revision too was dismissed. 4. The suit was dismissed on 29.2.1989 holding that defendants acquired valid right, title and interest over the suit lands, on the basis of purchase from Ramsundar Singh. On the contrary plaintiffs failed to substantiate their right, title and possession over the same. 5. It is not in dispute that lands of Khata No. 161 at village Meral were recorded in the name of plaintiffs' ancestor Ramjiwan Singh. On the contrary plaintiffs failed to substantiate their right, title and possession over the same. 5. It is not in dispute that lands of Khata No. 161 at village Meral were recorded in the name of plaintiffs' ancestor Ramjiwan Singh. Partition Suit No. 38 of 1927 was filed by one Fuli Singh, wherein plaintiffs' ancestor Laldhari Singh and others were defendants. A preliminary decree was passed therein and Laldhari Singh and others were allotted their shares. Accordingly, final decree was prepared and delivery of possession was effected through Court's processes and a separate joint Takhta was carved out in favour of five sons of Ramjiwan Singh. Laldhari Singh and Girdhari Singh had 2/5th share therein. 6. In a Money Decree passed against Laldhari Singh and Bhiju Singh, both sons of Girdhari Singh, aforesaid 2/5th share was auction sold and purchased by Udhojee Raja, son of Raja Ram Korha. Accordingly sale certificates dated 2.2.1938 and 30.4.1938 were issued vide Case No. 187 of 1934 in favour of aforesaid auction purchaser. By registered sale deed dated 13.12.1938, Ramsundar Singh purchased the said property from auction purchaser and thereafter obtained delivery of possession through court on 2.2.1941 and 20.2.1941. The State Government also after vesting of Zamindari recognised Ramsundar Singh as tenant and assessed rent with respect to his 2/5th share in the suit lands. After Ramsundar Singh acquired interest over2/5th share of plaintiffs' ancestors, he started dealing with it and on 4.2.1941 and 5.2.1941 executed two thika documents (Exhibits G/1 and G/2). The thikadars also executed Kabuliat on 16.12.1941, which was marked as Exhibit G. So far as plaintiffs' claim over the suit land on the basis of allotment in the final decree passed in P.S. No. 39 of 1927 was concerned, it was not disputed that all the five sons of Ramjiwan Singh had got 2/5th share in Mouza Meral and accordingly separate joint takhta was prepared in their favour. 7. The contesting defendants claimed that Raja Ram Korha had filed Money Suit Nos. 187 and 315 of 1934 against Laldhari Singh son of Girdhari Singh, which were decreed. 8. In my view the most important aspect of the matter was to establish as to who was in possession of the suit lands on the date of vesting. In this regard both defendants' vendor Ramsundar Singh as well as plaintiffs' ancestors filed Jamabandi returns. 187 and 315 of 1934 against Laldhari Singh son of Girdhari Singh, which were decreed. 8. In my view the most important aspect of the matter was to establish as to who was in possession of the suit lands on the date of vesting. In this regard both defendants' vendor Ramsundar Singh as well as plaintiffs' ancestors filed Jamabandi returns. Ramsundar Singh claimed khas possession and after vesting got rent fixed in his name under sections 5, 6 and 7 of the said Act. Plaintiffs or their ancestors never applied for fixation of rent and their objection to such fixation of rent in favour of defendants' vendor was also rejected and confirmed in Revision. 9. Parties have also adduced oral evidence to support their respective cases and claim of possession. In this regard evidence of P.Ws. 1, 2, 3, 4, 6 and 7 (plaintiff no. 1 Ganesh Singh himself) and D.Ws. 1, 2, 5, 6, 8 and 9 were considered by the trial court in detail and defendants' possession was found over the suit lands. As such I need not discuss evidence of these witnesses herein I have not found any mistake or defect in consideration of oral evidence by the trial court. 10. It is true that in the reports Exhibits E, E/1 and E/2, regarding possession, plot numbers and areas of plots were not mentioned. The reports are based on sale certificates (Exhibits C series) and the sale deed dated 12.12.1940 (Exhibit D) executed by auction purchaser in favour of defendants. Plaintiffs or their ancestors did not take any step against aforesaid auction sale. After a long lapse they advanced claim only after vesting of Zamindari in the State Government. They failed to establish that they were in actual cultivating possession of the suit lands at the time of vesting. 11. I, therefore, find no reason to interfere with the impugned judgment and decree in this Appeal. 12. In the result, this Appeal is dismissed, having no merit, but without costs. Lower court records may be sent down.