BHABHUTI SINGH Vs. BHAGAUTI PRASAD

JUDGEMENT

(1.) This is a defendant's appeal. The plaintiff Bhabhutl Singh, filed a suit for cancellation of sale deed dated 14th February, 1977 with the allegation that the plaintiff and defendant No. 2. Ram Singh are real brothers and when their father became fairly old he by a family settlement dated 13th March, 1958, partitioned the entire agricultural land between his two sons, the plaintiff and defendant No. 2 and according to 1958 family settlement plot No. 657 area 87 decimal, plot No. 464 area 0.1 decimal and plot No. 466 area 04 decimal came to the share of both the brothers jointly along with plot No. 92. After the family partition of 1958 was acted upon, both the brothers are in possession on their respective plots. It is admitted case of the parties that thereafter the consolidation operation started and the plots in dispute were jointly recorded in the name of their father as at that time their father was alive. During the consolidation operation nobody, neither the plaintiff nor defendant, raised any objection that there had been family settlement and that the plots should be exclusively recorded in their names. The entries in the revenue records continued to be the same even after the death of the father, which was during the course of consolidation operation. Therefore, both the brothers have filed application for correction of revenue papers in which they have accepted the execution of family settlement and they have come to their respective possession. It was also stated that defendant No. 1. Bhagauti Prasad had full knowledge of the aforesaid family settlement but despite the knowledge defendant No. 1 has executed sale deed in favour of the plaintiff. Thus the suit that defendant be restrained from interfering with the possession of plaintiff over the plots in dispute on the basis of sale deed of the year 1977 which is said to have been executed by defendant No. 2 in favour of plaintiff which is a registered sale deed.

(2.) As against this defendants' case is that all the allegations are incorrect. They have denied that there has been any family settlement nor any partition and both the sons, namely, the plaintiff and defendant No. 1, continued to be joint owner and they were cultivating their respective plots. The document, which is said to be family settlement, is forged and fictitious document. The plaintiff and defendant No. 1 have never been in the exclusive possession of their respective plots but they were joint owners. The sale deed executed by defendant No. 1 is regarding half share in favour of the plaintiff.

(3.) The trial Court framed issues as to whether the sale deed dated 14th February, 1977 that Ram Singh has executed in favour of Bhagauti Prasad, as stated in paragraph 10 of the plaint, is liable to be cancelled which is registered sale deed and whether the plaintiffs Ram Naukar Singh has ever entered into in family settlement dated 15th March, 1958 as alleged. It is also stated that whether the Titimba (codicil) dated 4th March,-1970 between the plaintiff and defendant No. 2 is in existence and if so what is its effect. Further issues were as to whether suit is barred by Section 49 of the U. P. Consolidation of Holdings Act.