Mungeshwar Sahoo, J. – The defendants 2nd party have filed this First Appeal against the judgment and decree dated 31.5.1979 passed by the learned 3rd Additional Subordinate Judge, Sitamarhi in Title Suit No.122 of 1966/8 of 1979 decreeing the plaintiff-respondent’s suit.

2. The plaintiffs-respondents filed the aforesaid suit praying for declaration of title and recovery of possession over 8 katthas 11 dhurs land with structure thereon. The plaintiffs prayed for the aforesaid relief alleging that the plaintiff nos.1 to 3 and 5 and one Narain Prasad Daruka had filed Money Suit No.195 of 1950 in the court of Sub Judge, Darbhanga for recovery of Rs.10,000 against the defendants 1st party wherein the suit properties were attached before judgment. The said suit property belonged to defendants 1st party. Ultimately, the suit was decreed on 16.5.1952 for Rs.11,896 and odd. In Execution Case No.73 of 1955, the Schedule I property were auction sold and the decree holder purchased the same for Rs.8,800 on 22.5.1957 and he got delivery of possession through court on 19.5.1957.

3. The further case is that the defendant no.1 fraudulently got a rent suit filed against himself by the landlord in the court of 2nd Munsif being Rent Suit No.459 of 1951. A collusive decree was obtained in the said suit which was executed in Execution Case No.401 of 1954 and the Schedule I property was auction sold which was purchased by Jainandan Singh but he could not deposit the balance of purchased money. The defendant no.1 deposited the decreetal dues and the execution was dismissed. Again, the defendant no.1 got another rent suit filed in the court of Munsif II being Rent Suit No.1027 of 1954 against himself by bringing the Amlas of Malik in his collusion and again obtained a collusive decree against him on 25.11.1954. The said decree was executed in Execution Case No.15 of 1955 which was dismissed and ultimately Execution Case No.153 of 1956 was filed and the suit property was auction sold on 24.7.1956. The defendants 1st party purchased the same in the name of the defendants 2nd party. The rent suit, execution cases, the auction sale and delivery of possession were obtained collusively and notices were suppressed. The plaintiffs had no knowledge of the same. The defendant no.1 got another rent suit filed against himself being Rent Suit No.559 of 1956 which was dismissed when a petition was filed by defendant no.2 stating full satisfaction. The defendants 1st party fraudulently got the name of defendants 2nd party mutated over the suit land. According to the plaintiff, he is coming in possession and the defendants 2nd party never came in possession. At the time of revisional survey, the defendant put a false claim and refused to vacate a portion of the suit properties. Therefore, the suit was filed. During the pendency of the suit, the defendants 2nd parties have dispossessed the plaintiffs on 5.2.1979 after an order was passed in a proceeding under Section 144 Cr.P.C.

4. The defendants 2nd party only contested the suit. Besides taking various pleas, the main defence put fourth by the defendants 2nd party is that the allegation of attachment before judgment is false and incorrect. In fact, no order for attachment before judgment was passed. Any report about the service of notice of attachment before judgment was collusive. On the date of alleged purchase by the plaintiffs, the property had already been sold to defendants 2nd party who had already come in possession of the same. The defendants 2nd party had already purchased the Schedule I land in Execution Case No.153 of 1956 and the auction sale was confirmed. The defendants 2nd party also obtained delivery of possession on 9.10.1956 and since then the defendants 2nd party are coming in possession over the Schedule I land. They have filled up the ditch and have constructed a temple and Fush house. Their names have been mutated and they are paying rent for 8 katthas 11 dhurs land. Subsequently, they purchased