Judgment

R. B. Misra, J.:- These two connected appeals are directed against a common judgment dated 28th of Feb., 1968 of the Patna High Court,* the first one by certificate, and the second by special leave.

* Reported in AIR 1968 Pat 463.

2. Bhaiya Rudra Pratap Deo was the holder of an impartible estate, known as Nagaruntari estate, in the district of Palamau. The succession to the estate was governed by the rule of lineal primogeniture. Under the said rule the eldest male member of the eldest line was to succeed to the estate while the junior members of the family were entitled only to maintenance grants subject to resumption on extinction of an heir in the male line of the eldest branch.

3. It appears that the estate was accorded protection under the Chota Nagpur Encumbered Estates Act, 1876, on the application of Bhaiya Rudra Pratap Deo as per notification dated 17th March, 1932 published in the Bihar Gazette dated 23rd March, 1932 and after liquidation of debt it was released from the operation of Chota Nagpur Encumbered Estates Act in October 1945. Eventually the estate vested in the State of Bihar under the Bihar Land Reforms Act, 1950 in pursuance of a notification dated 5th of Nov., 1951. Harihar Pratap Deo, who was the younger brother of Bhaiya Rudra Pratap Deo, had died in a state of jointness with his brother Bhaiya Rudra Pratap Deo in 1934 leaving behind his son Lalu Maheshanuj Pratap Deo alias Nila Bacha, and one other step son who also died in 1937 unmarried. Lalu Maheshanuj Pratap Deo demanded land for khorposh (maintenance) from Bhaiya Rudra Pratap Deo in 1950. Bhaiya Rudra Pratap Deo executed a deed of maintenance on 14th of April, 1952 in respect of eight villages in favour of Lalu Maheshanuj Pratap Deo. A dispute, however, arose between the parties in respect of the plots of village Sigsigi which culminated in a proceeding under Sec. 144, Cr. P. C. The proceedings were, however, later converted into proceedings under Section 145, Cr. P. C. which ended in favour of Lalu Maheshanuj Pratap Deo on 4th of July, 1955. Bhaiya Rudra Pratap Deo feeling aggrieved by the order filed a suit which has given rise to the present appeals and which was later on numbered as Suit No. 16 of 1955, against Lalu Maheshanuj Pratap Deo alias Nila Bacha in respect of the agricultural plots of village Sigsigi and the grain in the custody and control of the police, Bisrampur, district Palamau.

4. The case of the plaintiff is as follows : After the vesting of the estate in the State of Bihar the defendant approached him with a request that the plaintiff should give him the villages Bhojpur, Jaungipur, Chitri Rohila, Bhandar and Khundra but the plaintiff declined to do so as Section 12-A of the Chota Nagpur Encumbered Estates Act and the provisions of the Bihar Land Reforms Act stood as a bar. The defendant, however, implored and wanted to take a chance and try his luck. On the beseechment of the defendant the plaintiff allowed him six villages only, namely Bhojpur, Jaungipur, Chitri Rohila, Bhandar and Khundra subject to acceptance of the State of Bihar. There was neither any proposal for villages Sigsigi and Patihari nor had the plaintiff ever agreed to give these two villages to the defendant. A formal unstamped and unregistered deed of Khorposh (maintenance) was no doubt created in respect of only six villages on 14th of April, 1952 subject to the approval of the authorities. The defendant, however, in collusion with the plaintiffs employees and exemployees and without the knowledge and information of the plaintiff managed to use the plaintiffs signature and manufactured evidence to show that the two villages Sigsigi and Patihari had also been included in khorposh grant and included these two villages in the formal deed dated 14th of April, 1952 in collusion with the typist and designing persons by perpetrating fraud on the plaintiff.

5. When the plaintiff came to know of the fraud and fabrication of the defendant he lodged protest befor