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1. Some of the defendants of first, second and ninth parties are appellants in this appeal. The plaintiffs and other defendants are the respondents. The original suit was for declaration of title, and recovery of possession with mesne profits in respect of 134 bighas of land in village Pursotimpur in tauzi No. 11840 in the district of Muzaffarpur. All the plaintiff did not claim interest in all the suit lands. Different items were mentioned in schedule 6 of the plaint to show which portions of the suit lands were claimed by which of the plaintiffs. It was alleged that the plaintiffs had been dispossessed by the defendants first party following a judgment passed in a case under Section 145, Criminal Procedure Code, on the 13th of July 1950 in which the present plaintiffs and defendants first to sixth parties were involved. 175 bighas of lands were the subject-matter of that proceeding and possession in that was found by that Court to be with the present defendants first, second and third parties. It will be convenient to indicate here the groups of the defendants in the present suit; Defendants first party-defendants 1 to 21a, defendants second party-defendants 22 to 29a, defendant third party-defendant No. 30, defendants fourth party-defendants 31 to 37, defendants fifth party-defendant No. 38, defendants sixth party-defendant No. 39, defendants seventh party-defendant No. 40, defendant eighth party-defendant No. 41 and defendants ninth party-defendants 42 and 43.

14. First, the question is, if the lands of Warispur and Dayalpur settled with the plaintiffs by Baijnath Prasad Singh (P. W. 6) were at all in existence. If they were not, then the likely presumption would be that the settlor could have no intention to convery any title in any such nonexistent lands to the settlees. The deeds of settlement [Exts. 1(b) and 1(c)] in favour of plaintiffs 9 and 10 included 10 dhurs out of plot No. 151 of khata No. 8 in village Warispur pargana Bisra tauzi No. 22325. The Barwarda in respect of 16 annas share in mauza Warispur Touzi No. 2541 was proved in evidence and marked as Ext. 22. That includes plot No. 151. From the seal on its certified copy it appears that the copy was obtained in 1921. So the Barwarda must have been prepared before that Tauzi No. 2541 is different from tauzi No. 22325 mentioned in the deeds of settlement which were executed in February 1947.

It is not unlikely that a parent tauzi is some-times divided into different tauzis bearing different numbers in a partition. Allotment of tauzi numbers is a matter of apportionment and collection of land revenue and for the record of Register D in the Collectorate of a district. From the Barwarda (Ext. 22), it clearly appears that there were four cosharers in mauza Warispur bearing the parent tauzi No. 2541 and the lands in the different pattis of those cosharers were separately mentioned. A Barwarda is a rough estimate of the area of lands in a mauza. Plot No. 151 lay in the allotment of Brij Bihari Singh. By Ext. 1 (u), a perpetual mukarrari patta dated the 2nd. July, 1921, Baijnath Prasad Singh obtained a settlement of Brij Behari's interest in Warispur Mahal Tauzi No. 22325. Thus there cannot be any doubt that plot No. 151 in Warispur, portions of which were settled with plaintiffs 9 and 10 under Exts. 1(b) and 1(c), was in existence. Baijnath Prasad Singh also was the tenant for that plot as Brij Bihari Singh, the proprietor, had given a permanent lease of all his interest in Warispur Mahal bearing tauzi Nos. 22325 and 22326 by Ext. 1(u).

15. Similarly, in the deeds of settlement, 1(f) in favour of plaintiff No. 4, Ext. 1(g) to plaintiffs 5 and 6, Ext. 1(h) to plaintiffs 2 and 3, Exts 1(i) to plaintiffs 7 and 8 and 1 (j) to plaintiff No. 13, portions of plot No. 107 of khata No. 1 in village Uayaipur under tauzi No. 25878 lying in the patti of Baijnath Prasad Singh were mentioned, Ext. F is the khesra for Dayalpur Ratan bearing tauzi No. 3576. It includes plot No. 107 bearing an area of 14 dhurs but the name of a tenant has been shown in column 4. This khatian was of 1896 when the cadastral survey settlement was held. There is no evidence what happened to this land since then. If the defendants would have specifically pleaded about the absence of existence of this land or its ownership with Baijnath Prasad Singh at the time when he settled the land with the plaintiffs, it might have been possible for the plaintiffs to adequately meet that challenge.