SWIKRIT DAS Vs. LAKHANDAS

JUDGEMENT

(1.) The substantial questions of law involved, formulated and to be answered by this Court in this defendants' second appeal are as under:-

(2.) Original plaintiff-Aktidas filed a suit for declaration of title and permanent injunction that he be declared title-holder of the suit land on the basis of adverse possession and also pleaded that he being adopted son of Jhuniya Bai and the suit property was owned to Jhuniya Bai, therefore, he is entitled for declaration of title and permanent injunction. He also claimed by way of amendment dated 8.8.96 that sale deeds dated 30.8.74 (Ex.D-1 and Ex.D-2) executed by Jhuniya Bai in favour of defendants No.1 and 2 be declared null and void, which he omitted from the plaint by order dated 6.2.2001 and ultimately, the suit was dismissed by the trial Court after full trial and appeal preferred by legal representatives of original plaintiff was also dismissed by the first appellate Court, however, the first appellate Court while dismissing the appeal has also held that Ex.D-1 and Ex.D-2, which are sale deeds executed by Jhuniya Bai in favour of defendants No.1 and 2 on 30.8.74, does not confer any title to defendants No.1 and 2 and therefore, the plaintiff is entitled for possession of suit land. Against the said decree, the appellants/defendants preferred this second appeal under Section 100 of the CPC, in which substantial questions of law have been framed by this Court, which have been set-out in the opening paragraph of this judgment.

(3.) Mr.Manoj Paranjape, learned counsel appearing for the appellants/defendants, would submit that the plaintiff did question the sale-deeds dated 30.8.74 (Exs.D-1 and D-2) executed by Jhuniya Bai in favour of defendants No.1 and 2 by amendment dated 8.8.96, thereafter he sought permission to withdraw the challenge from the plaint, which he was permitted to withdraw by order dated 6.2.2001 and therefore, the first appellate Court has no jurisdiction to grant relief, which has already been deleted from the plaint and parties did not went into trial so far as the validity of sale deeds dated 30.8.74 (Ex.D-1 and Ex.D-2) executed by Jhuniya Bai in favour of defendants No.1 and 2 are concerned. Therefore, the finding recorded by the first appellate Court deserves to be set aside.