Ashok Kumar Verma, J.@mdashThe Defendant Appellants have filed this appeal against the judgment and decree, dated 03rd June, 1987, passed in Title Appeal No. 26 of 1977/3 of the 1982 by Additional District Judge, I, Vaishali at Hajipur, whereby the learned Additional District Judge had allowed the Title Appeal filed by Plaintiff Appellant and set aside the judgment and decree passed in Title Suit No. 196 of 1972 by Munsiff, I, Vaishali at Hajipur. The learned Munsiff had dismissed the suit of the Plaintiff bearing Title Suit No. 196 of 1972.
2. According to the Appellants the judgment of the lower appellate Court is bad in law. The substantial question of law which had been formulated in this Second Appeal is that:
(i) Whether the Court of appeal below erred in holding that the Defendant Appellants had failed to prove his possession since 1942 because of errors of record with respect of Exhibits ''E'', ''E/1'' and Exhibits ''H'', ''H/1''.
(ii) Whether the finding regarding possession is erroneous in law for non-consideration of oral evidence adduced by the Appellant particularly when the same was relied upon by the trial Court.
3. The Plaintiff had filed the title suit for declaration of title and recovery of possession. The learned Munsiff had dismissed the suit of the Plaintiff who is Respondent in this Second Appeal.
4. In short the case of the Plaintiff is that 9 dhurs of land of plot No. 364 and 5 dhurs of land of plot No. 365 of khata No. 91 of village Rambhadra Nagar, Hajipur, was of one Ramsharan Chai and his name had been entered in cadestral survey. The property was inherited by Mungia daughter of Ramsharan Chai who came in possession over it. Mungia and her husband Baijnath Mahto had one daughter Rajkuri and Rajkuri had a son Dular Chand Mahto. After the death of Mungia and Rajkuri the property passed over to Dular Chand Mahto who came in possession over it. Dular Chand Mahto was in necessity of money and he sold the land to the Plaintiff for a consideration of Rs. 500/- by registered sale deed. According to the Plaintiff, the Defendant had also tried to purchase the land but as he was not paying reasonable amount for it, Dular Chand Mahto sold the land to the Plaintiff. There after the Defendant dispossessed the Plaintiff from the land on 25.11.1972.
5. According to the Defendants, who are Appellants in this Second Appeal, Mungia Devi had four daughters Sundari Devi, Raj Kumari Devi, Mundri Devi and Dhaneshari Devi. Raj Kumari Devi and Dular Chand Mahto never came in possession over the land in suit. Dular Chand Mahto had not sold the land to the Plaintiff and Plaintiff had never come in possession over it. Dular Chand Mahto had no right to sell the land and the sale deed is forged and fraudulent.
6. Further, according to the Appellants (Defendants in Title Suit), the land in suit was of Baijnath Chai and the landlords had filed a rent suit bearing Case No. 2505 of 1941 which was decreed by the Court, and Execution Case No. 1076 of 1942 was filed. The land in suit was auction sold on 09.09.1942 and it was purchased by the family of the Defendants and Ramsevak Mahto had purchased the land in auction and the family of the Defendant came in possession over it. Maharaj Mahto, ancestor of the Defendants had four sons Nathuni Mahto, Janakdhari Mahto, Ramsevak Mahto and Devlal Mahto. Nathuni Mahto had three sons Ramdeo Mahto, Bhajan Mahto and Punit Mahto. Punit Mahto died issueless. Janakdhari Mahto had two sons Ganesh Mahto and Mahesh Mahto. Ramsevak Mahto had also sons and Devlal Mahto had also sons of the name Musan Mahto, Ramjeevan Mahto and Vishwanath Mahto. All the four sons of Mahraj Mahto were joint and the auction purchase was made in the name of Ramsevak Mahto from joint family fund. Thereafter all the four brothers separated and 2 katha 6 dhoors of land went into share of Janakdhari Mahto who came in possession over it. Janakdhari Mahto sold 1 Khatha and 3 dhoors to Nathuni Mahto by sale deed, dated 16.02.1952 and Nathuni Mahto came in possession over it. As the auction purchase was made in the name of Ramsevak Mahto and so Ramsevak Mahto was executant in the sale deed. The remaining 1 Katha 3 dhurs remained in possession of Janakdhari Mahto. Nathuni Mahto died leaving behind Ramdev Mahto and Bhajan Mahto who came in possession over 1 kahta 3 dhurs of land. The name of Janakdhari Mahto was mutated in the seriate of State of Bihar and he was paying rent to the State of Bihar. In municipal revisional survey the names of Ramdev Mahto and Bhajan Mahto was entered in respect of the land which was in their possession and new khesra No. 590 was entered and in respect of land of Janakdhari Mahto the khesra number became 589 and purchase were issued. Janakdhari Mahto, Ramdev Mahto and Bhajan Mahto have separate possession over the land.
7. Exhibit ''F'', dated 04.01.1943, is certificate of sale of land of the Court of Munsiff, Hajipur, of Execution Case No. 1076 of 1942 (Babusheetal Prasad Babu Chandi Prasad and Ors. v. Baijnath Chai). The sale certificate is in respect of land of plot Nos. 364 and 365 of khata No. 91. Exhibit 8 is certified copy of the khatiyan which shows the name of Ramsharan in respect of plot Nos. 364 and 365 of khata No. 91. D.W. 9 Sukhdeo Das has stated that Baijnath had 14 dhoors of land which was auctioned after beating of drum and the peon had written the report on which he had signed as a witness. Exhibit ''E'' is raiyati purcha of ward No. 10 of Hajipur which shows the name of Janakdhari Mahto, son of Maharaj Mahto by caste chai. Exhibit ''E/1'' is raiyati purcha of ward No. 10 of Hajipur which shows the name of Ramdev Mahto and Rambhajan Mahto sons of Nathuni Mahto by caste chai. Exhibit ''H'' is true copy of raiyati khatiyan which shows the name of Janakdhari Mahto son of Maharaj Mahto, by caste chai in respect of Khesra No. 589. It has been stated by the Defendant Appellant in the written statement that in municipal revisional survey the land in possession of Defendant No. 3 (Ramdev Mahto) and Defendant No. 4 (Bhajan Mahto) was entered as new khesra No. 590 and the land in possession of Janakdhari Mahto was entered as new khesra No. 589 and purchase were issued.
8. It was submitted by the learned lawyer for the Appellant that the finding of trial Court based on record of rights cannot be disturbed by appellate Court by ignoring that document and in support of his contention he placed his reliance on a decision of Division Bench of this Court in the case of
9. In the facts and circumstances, the judgment and decree, dated 03rd June, 1987, passed by learned Additional District Judge in Title Appeal No. 26 of 1977/3 of 1982 is not tenable in law. Accordingly, this appeal is allowed and the judgment and decree passed by the learned Additional District Judge, Hajipur, in Title Appeal No. 26 of 1977/3 of 1982 is set aside. The judgment and decree passed by the learned Munsiff in Title Suit No. 196 of 1972 is confirmed.
