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2006 DIGILAW 961 (PAT)

Shrimati Kewala Devi v. Hira Sao

2006-10-19

SYED MD.MAHFOOZ ALAM

body2006
Judgment SYED MD.MAHFOOZ ALAM, J. 1. This second appeal has been preferred by the plaintiffs appellants against the judgment and decree dated 31st August, 1989 passed by Sri Awadh Behari Srivastava, 5th Additional District Judge, Gaya in Title Appeal No. 7 of 1985/49 of 1983 D.J. confirming the judgment and decree dated 13th August, 1983 passed by Sri Ram Kumar Mishra, Munsif III, Gaya in Title Suit No. 10 of 1979/21 of 1983, whereby the learned Munsif had been pleased to dismiss the suit of the plaintiffs-appellants. 2. The case of the plaintiffs-appellants, in brief, is that the suit land measuring an area of 5 decimals appertaining to Khata No. 60 plot no. 308 of Mauza Ajmalganj Paraiya stands recorded in the cadestral survey khatian in the name of Jhagru Sao. The father of plaintiff no. 2, namely, Saman Sao orally purchased 1 decimal of land of plot no. 308 of Jhagru Sao and since then the ancestors of the plaintiffs were coming in possession of the said 1 decimal of land. After the death of Jhagru Sao, the recorded tenant, his nephew Sarjoo Sao, who was the only heir left by Jhagru Sao inherited the remaining 4 kathas of plot no. 308 and after his death, his two sons, namely, Bachu Sao and Bulak Sao inherited the aforesaid property and on 22.11.1966 the said Bachu Sao alongwith three sons of Bulak Sao sold the aforesaid 4 decimals of land to the plaintiffs. The sale deed was executed in the name of plaintiff no. 1. Thereafter the plaintiffs came in possession of the entire 5 decimals of plot no. 308 and made it in one compact block by amalgamating the previously purchased 1 decimal of land with the newly purchased 4 decimals of land and thereafter the plaintiffs constructed the house over the same. Further case is that the defendants are agnates of plaintiff no. 2 and they requested the plaintiffs to allow them to occupy the suit house temporarily and accordingly, in the month of April 1970 the plaintiffs allowed the defendants to occupy the said house. Further case of the plaintiffs is that in the month of March, 1971 the plaintiffs asked the defendants to vacate the suit premises as well as the suit land but they refused to vacate the same and denied the title of the plaintiffs over the suit property. Further case of the plaintiffs is that in the month of March, 1971 the plaintiffs asked the defendants to vacate the suit premises as well as the suit land but they refused to vacate the same and denied the title of the plaintiffs over the suit property. Thereafter the plaintiffs tried to persuade the defendants to get the suit premises vacated through the Panchayati but the defendants did not agree. There after the plaintiffs tried to get their names mutated in the revenue record but they failed in their attempt, hence the necessity of filing of the suit arose. 3. The case of the defendants-respondents is that it is true that plaintiff no. 2 and defendants nos. 1 to 3 are agnates but the grandfather of the defendants nos. 1 and 2, namely, Ganpat Sao and the father of plaintiff no. 2 Saman Sao had separated from each other before the cadestral survey of 1915-16 and the house owned and possessed by Saman Sao standing on plot no. 306 was recorded in the name of Saman Sao and the house of Ganpati Sao standing on plot no. 307 was recorded in his name. To the south of plot no. 307 there was land and house of Jhagru Sao, who sold a portion of his land towards west to Ganpat Sao before the cadestral survey and thereafter the said Ganpat Sao came in possession over the same and his name was recorded in the cadestral survey khatian under plot no. 307. Further case of the defendants is that Ganpat Sao acquired remaining 1 decimal of land of plot no. 308 with the house standing thereon and came in possession thereof and the name of Ganpat was recorded in Khas Mahal records after deleting the name of Jhagru Sao. Further case is that after acquisition of the said 1 decimal of land of plot no. 308 in the year 1918, Ganpat Sao amalgamated the said lands with his own land appertaining to plot no. 307. Thus, the defendants and their ancestors have been coming in possession of plot no. 308 since January 1918 in assertion of their own rights openly, peacefully and continuously and to the knowledge of all concerned including the plaintiffs and thereby the defendants have perfected their title to the suit land by adverse possession. Plaintiff no. 2 is a shrewd litigant. Thus, the defendants and their ancestors have been coming in possession of plot no. 308 since January 1918 in assertion of their own rights openly, peacefully and continuously and to the knowledge of all concerned including the plaintiffs and thereby the defendants have perfected their title to the suit land by adverse possession. Plaintiff no. 2 is a shrewd litigant. He started making baseless claim over the suit property and got a sham, fictitious and collusive sale deed executed in favour of his wife who is plaintiff no. 1 in the suit. The executants of the sale deed, namely, Bachu Sao and others have no concern with the property in the suit and they had neither title nor possession over the suit property. It is further stated that by virtue of the said sale deed dated 22.11.1966 the plaintiffs have never come in possession of the suit property and the case of the plaintiffs regarding possession is false and concocted and although the plaintiffs made attempt to get their names mutated but they also failed in their attempts. 4. From perusal of the judgment of the trial court, it appears that on the basis of the pleadings of both the parties, the trial court framed as many as nine issues for decision in the suit. One of the issues was with regard to the area of the suit plot bearing plot no. 308. This issue was issue no. 8 which was framed in the following manner:- "Whether the area of survey plot no. 408 is 5 decimal as alleged by the plaintiffs or 1 decimal as alleged by the defendants." 5. It has been submitted by the learned Advocate of the plaintiffs-appellants that as per the case of the plaintiffs-appellants, the total area of plot no. 308 was 5 decimals and the plaintiffs ancestor purchased 1 decimal of the said plot by virtue of the oral sale from its recorded tenant, namely, Jhagru Sao and the remaining 4 decimals were purchased by plaintiff no. 1 through registered sale deed dated 22.11.1966 from the heirs of Jhagru Sao and thus, the plaintiffs acquired title of the entire 5 decimals of land of plot no. 308. It has been pointed out by the learned Advocate of the appellants that as per the specific ease of the defendants, the area of plot no. 1 through registered sale deed dated 22.11.1966 from the heirs of Jhagru Sao and thus, the plaintiffs acquired title of the entire 5 decimals of land of plot no. 308. It has been pointed out by the learned Advocate of the appellants that as per the specific ease of the defendants, the area of plot no. 308 is only 1 decimal and according to paragraphs 9, 10 and 11 of the written statement, the father of defendant nos. 1 and 2, namely, Ganpat Sao had acquired the said 1 decimal of land of plot no. 308 and had amalgamated the same with plot no. 307 and since then the ancestors of the defendants were coming in possession of the land of plot no. 308. The learned Advocate of the appellants submitted that the trial court by giving finding on issue no. 8 regarding the area of the suit plot, held at para-17 of the judgment that the total area of plot no. 308 was 5 decimals and not 1 decimal. The learned Advocate submitted that this finding of the trial court was affirmed by the first appellate court. It has been argued by the learned Advocate of the appellants that when it is the specific case of the defendants that they had acquired only 1 decimal of plot no. 308 then the trial court as well as the first appellate court should not have dismissed the suit of the plaintiffs-appellants with respect to remaining 4 decimals of land of plot no. 308. He submitted that both the courts below did not consider this aspect of the case and as such the findings of both the courts below are perverse in the eye of law. 6. I have gone through the pleadings of both the parties as well as the judgments of both the courts below. As per the specific pleadings of the plaintiffs, the area of plot no. 308 is 5 decimals and the plaintiffs claimed that the ancestor of plaintiff no. 2 had acquired 1 decimal of plot no. 308 long long ago and remaining 4 decimals of land were purchased by the plaintiffs in the name of plaintiff no. 1 by virtue of the sale deed dated 22.11.1966 whereas the specific case of the defendants is that they acquired 1 decimal of plot no. 308 and amalgamated the same with their land of plot no. 307. 308 long long ago and remaining 4 decimals of land were purchased by the plaintiffs in the name of plaintiff no. 1 by virtue of the sale deed dated 22.11.1966 whereas the specific case of the defendants is that they acquired 1 decimal of plot no. 308 and amalgamated the same with their land of plot no. 307. The defendants have not specifically stated as to what was the total area of plot no. 308 but it appears that they asserted that the area of plot no. 308 was only 1 decimal and that is why the trial court framed issue no. 8 in this manner:- "Whether the area of survey plot no. 308 is 5 decimals as alleged by the plaintiffs or 1 decimal as alleged by the defendants?" 7. It appears that the trial court has discussed issue no. 8 at paragraphs 12, 13, 14, 15, 16 and 17 of its judgment and after elaborately discussing the oral as well as the documentary evidence of both the parties came to the conclusion that the actual area of plot no. 308 is 5 decimals and not 1 decimal. This finding of the trial court is recorded at para-17 of the Judgment and the same is being reproduced here:- "Thus the Plaintiffs have conclusively provided that the area of plot no. 308 (old) and 151 and 152 (New) is 4 decimals as per Exts. 4 and 5. Further the defendants have already admitted that 1 decimal land of plot no. 308 is amalgamated with plot no. 307 prior to cadestral survey. Thus, the total area of plot no. 308 was 5 decimals and not 1 decimal." It appears from the judgment of the appellate court that this finding of the trial court regarding the area of the suit plot was not reversed by the appellate court and as such this finding of the trial court that the actual area of plot no. 308 (suit plot) is 5 decimal and not 1 decimal as claimed by the defendants-respondents has attained finality and therefore. I find substance in the argument of the learned Advocate of the plaintiffs-appellants that when the claim of the defendants-respondents was confined to an area of only 1 decimal out of total area of 5 decimals of plot no. 308 (suit plot) is 5 decimal and not 1 decimal as claimed by the defendants-respondents has attained finality and therefore. I find substance in the argument of the learned Advocate of the plaintiffs-appellants that when the claim of the defendants-respondents was confined to an area of only 1 decimal out of total area of 5 decimals of plot no. 308 as such the trial court as well as the first appellate court should have decreed the suit of the plaintiffs-appellants with respect to the remaining 4 decimals land of suit plot i.e. plot no. 308. 8. I am of the view that the trial court as well as the appellate court have not considered this fact that when the defendants-respondents were claiming that the area of plot no. 308 was only 1 decimal but it was found that the total area of plot no. 308 was 5 decimals, as such it would be presumed that the defendants have no claim over the remaining 4 decimals of land of plot no. 308 and in that circumstance the plaintiffs suit should have been decreed in part. Since this aspect of the case was not considered by both the courts below, as such I am of the view that it is a fit case for remand. 9. In the result, this second appeal is hereby allowed and the judgment and decree of both the courts below are hereby set aside. Accordingly, the suit is remanded back to the trial court for giving fresh finding on all the issues including the issue framed below:- "Whether on the basis of the finding that the area of plot no. 308 is 5 decimal and not 1 decimal as claimed by the defendants-respondents, the plaintiffs suit with respect to the remaining 4 decimals of land of plot no. 308 can be decreed?"