Arun Kumar Jha, J. – The present civil misc. petition has been filed under Article 227 of the Constitution of India, challenging the order dated 7th of July, 2017 passed by the learned Additional District Judge, Saran at Chapra in Title Appeal No. 55 of 2013/136 of 2014, by which the learned Additional District Judge, Saran at Chapra, rejected the petition dated 05.07.2017 filed on behalf of the plaintiffs/respondents/petitioners under Section 151, 152 and 153 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘the Code’) wherein a prayer was made to pass a decree with respect to recovery of possession as well.

2. The conspectus of fact as it appears from the record is that the plaintiffs/petitioners filed Title Suit No. 395 of 2008 against the defendants/respondents seeking declaration that plaintiffs were having title over the suit land as mentioned in Schedule-Ka of the plaint and also for declaration that saledeed dated 9th of June, 2008 executed by the defendant no. 5 in favour of the defendant nos. 1 to 4 in respect of Schedule-Kha land was illegal, without consideration, inoperative and was executed by a person having no title over the said land. It further appears that disputed land originally belonged to one Binda Rai, who had a daughter named Shakunti, who was invalid and died unmarried while staying with her father. After death of Binda Rai, his nephew Moharam Rai came in possession of the suit land. Moharam Rai had two sons, namely, Haneef Mian and Vakeel Mian, who came in possession over the land left by their father. In subsequent partition, the land mentioned in Schedule- Ka of the plaint has been allotted in the share of Haneef Mian, who died leaving behind his son, Md. Hasnain and widow Shahnaz Bibi, who came in possession over the Schedule-Ka land. The plaintiffs are purchasers from the heirs of Haneef Mian through different registered sale-deeds dated 03.05.2008 and 14.05.2008 and came into possession of the suit land. Thereafter, the plaintiffs came to know about the claim of the defendant nos. 1 to 4 with regard to suit land on the basis of purchase from defendant no.5 by sale-deed dated 09.06.2008.

The claim of the plaintiffs was contested by the defendants, who set up their own story in their defence. The defendants claimed that daughter of Binda Rai was not invalid and she did not predecease Binda Rai. Marriage of Shakunti was solemnized with one Olee Mohammad and she died in the year 1996. The suit property never went into possession and Moharam Rai and all documents are showy documents prepared by Moharam Rai. For this reason, no land ever came in possession of Haneef Mian and the land remained in possession of Shakunti and her husband. Shakunti had four sons, namely, Bas Mohammad, Dah Mohammad, Lal Mohammad and Sobrati. Bas Mohammad transferred his share of land which was in his possession on 09.06.2008 vide a registered sale-deed in favour of the defendants for consideration amount of Rs. 2 ½ lacs.

The learned trial court on consideration of evidence of the parties decreed the suit in favour of the plaintiffs. Being aggrieved and dissatisfied with the judgment and decree dated 15.03.2013 of the learned trial court, the defendants filed Title Appeal No. 136 of 2014 and during pendency of the appeal, defendant nos. 1 to 4 forcefully dispossessed the plaintiffs from the land as mentioned in Schedule-(Ga) on 22.01.2014. The plaintiffs filed an amendment petition seeking amendment in the plaint in first appellate court, which was allowed and new relief was added in the plaint and the details of land from which the defendants dispossessed the plaintiffs was added in Schedule- (Ga) vide order dated 11.04.2014. Thereafter, the learned first appellate court heard the parties and after going through the material available on record, dismissed the appeal vide judgment and decree dated 07.06.2017. Though the learned first appellate court mentioned in the judgment about dispossession of the plaintiffs