BATASHI Vs. SHYAM BEHARI

JUDGEMENT

(1.) The present appeal has been filed by the plaintiffs against the judgment and decree passed by the courts below dismissing their suit. Three plaintiffs filed the suit for cancellation of sale deed executed in favour of the respondent No. 1 by one Shiv Nath Singh. The admitted case of the parties is that the plaintiffs Nos. 2 and 3 and Ram Singh were co-tenure holders. Smt. Bhagwani inherited the property on death of Ram Singh as married sister under Section 171 U. P. Zamindari Abolition and Land Reforms Act. Both the courts below have given a finding of fact that appellant No. 1 Smt. Batashi had no right or title in the disputed land. On the other hand plaintiffs Ram Gopal and Chaturi are admitted to be co-tenure-holders with Ram Singh having equal shares. After death of Ram Singh his sister Smt. Bhagwani inherited his l/3rd share under Section 171 U. P. Zamindari Abolition and Land Reforms Act. Shiv Nath Singh giving out to be son of Ram Singh executed a sale-deed in respect of l/3rd share in favour of respondent No. 1, main contesting defendant. Smt. Bhagwani was also made a party who in law inherited the share of Ram Singh. She did not contest the suit nor was she examined by any party. The courts below have dismissed the suit on the ground that plaintiff No. 1 was not the sister of Ram Singh. Their finding is a finding of fact and we need not go into the same.

(2.) Regarding the plaintiffs Nos. 2 and 3, the courts below have held that Smt. Bhagwani could have objected to the sale deed but these persons who were mere co-tenants with her had no right to object.

(3.) The learned counsel for the appellants argued that admittedly the plaintiff-appellants Nos. 2 and 3, were co-tenure holders and had a right to occupy each and every inch in the disputed property. It has been found by both the courts below that Shiv Nath Singh has no right or interest in the disputed land nor was he the Bhumidhar. Only a Bhumidhar could transfer his share or right. Consequently the defendant No, 1, by transfer, in his favour could not get any right higher than that Shiv Nath Singh, his transferor, had. The learned counsel for the appellants argued that Section 41 of the T. P. Act had no application to the instant case.