Hon'ble Judges/Coram:
Kanhaiya Singh and Ramratan Singh JUDGMENT
Ramratan Singh, J.
1. The suit, out of which this appeal arises, was instituted by the plaintiff-respondent. 1st party for a declaration that a decree in small cause court suit No. 228 of 1938, obtained by defendant No. 1, Ramswarath Thakur (defendant No. 2, who is Chandradeo Sah, mentioned as a decree-holder in paragraph 7 of the plaint seems to be a mistake) and the auction sale in execution case no. 1774 of 1938 in execution of the decree and the consequent delivery of possession of the properties described in the schedules appended to the plaint are illegal and void and they may be set aside. There is also a prayer for a declaration that certain zarpeshgi bonds in favour of Lalji Sah, the defendant 2nd party, and Lauhar Singh, the defendant 4th party, are illegal and without legal necessities. The last prayer is for recovery of possession of the property described in schedule 2 to the plaint.
The plaintiff, who calls himself as Satnarain Bhagat, son of Gopal Bhagat, instituted the suit on the 26th May 1952 as a minor through his next friend Sukhat Bhagat, his father's sister's husband. But during the pendency of the suit he filed a petition that he attained majority on the 17th August 1953 and the lower court accepted him as major with effect from that date. In order to appreciate the case of the parties, it is necessary to bear in mind the following genealogical table:
Damri Mahto | _________________________________ | | Lila Mahto Nanhku Mahto | | Gopal Mahto __________________________ | | | | Sat Narain Mahto Durga Mahto Kali Mahto Musam Mahto | | Chimni Daughter Daughter Daughter Gunjri Galgodni | Son Ramayan Defdt. No. 16 It is admitted that Damri Mahto died leaving two sons, namely, Lila Mahto and Nankhu Mahto, Lila died leaving a son, Gopal Mahto in a state of jointness with Nanku, who then became the karta of the family; and both Nankhu and Gopal were recorded in the record of rights in respect of their family properties. Nanku had two sons and a daughter Musammat Chimni. The two sons, Durga and Kali, had each a daughter. Both the sons died during the life of Nanku, who also died subsequently in a state of jointness with Gopal, Nanku's daughter Chimni and the daughters of Nanku's sons are also dead. Musammat Dhanwa, defendant No. 15 described as the defendant 6th party, is the widow of Gopal. Defendant No. 16 is alleged to be the son of Chimni, but this fact is disputed by the contesting defendants 3, 17 and 18 who are the appellants in this Court. The learned advocates for the parties have agreed that it is not necessary to decide in the present case whether defendant No. 16 is the son of Musammat Chimni or not.
2. The property described in Schedule 1 to the plaint is the agricultural land measuring 6 bighas 13 kathas 8 dhurs and is the ancestral land of Gopal and Nanku. The property described in Schedule 2 to the plaint is the interest of a usufructuary mortgagee in some areas of culturable lands acquired under usufructuary mortgage bonds dated the 17th October, 1921, the 11th July, 1924 and the 23rd June 1925, respectively for Rupees 200, Rs. 220 and Rs. 227 executed by certain persons in favour of Nanku when he was alive. The properties of both the schedules are situated in village Ranpur where Gopal and Nanku lived and these are the properties w........