BACHAN Vs. MUNESHARI

JUDGEMENT

(1.) Defendant-appellant Bachan, born out of wedlock of Jagardeo and Smt. Muneshari, has filed the present second appeal, challenging the judgment and decree passed by the trial court in Original Suit No.390 of 1981 dated 18.3.1983, affirmed in appeal vide order dated 30.4.1986, decreeing plaintiff's suit for cancellation of gift deed dated 5.2.1959.

(2.) Original suit has been instituted on 11.9.1980 by Jeodhan Prasad, the original plaintiff, (hereinafter referred to as 'plaintiff') for cancellation of gift deed dated 5.2.1959 executed in favour of eldest sons of his three daughters, namely Bachan son of Smt. Muneshari, Kamta son of Smt. Duleshari, Kunj Bihari son of Smt. Shanti Devi. In the suit Kamta, Bachan and Kunj Bihari were the once arrayed as defendants. As per plaint, the suit property consisted of residential house constructed by plaintiff. It is stated that one of the daughters of plaintiff, namely Smt. Shanti Devi, had got a gift deed executed from the plaintiff on 4.3.1980, in respect of part of agricultural land of the plaintiff, while the plaintiff had gone to execute a will. When such fact came to the notice of the plaintiff, he asked his daughter Smt. Shanti Devi to get the gift deed cancelled, but she refused to do so, and she also stated that plaintiff no longer has any concern or ownership over the house and that he may disassociate himself from the house also. Plaintiff alleges that he was shocked and on a necessary inquiry, he came to know from the office of Sub Registrar that in the year 1959 when he had gone to executed a will, the respective mothers of the defendants had got a gift deed executed on 5.2.1959. Consequently, plaintiff instituted two suits on consecutive dates i.e. Original Suit No.295 of 1981 was filed on 10.9.1981 for cancellation of gift deed dated 4.3.1980, executed in favour of Smt. Shanti Devi, whereas Original Suit No.390 of 1981 was filed on the very next day on 11.9.1981 for cancellation of gift deed dated 5.2.1959. The Original Suit No.295 of 1981 was dismissed by the trial court, but has been decreed in Civil Appeal No.292 of 1982, against which Second Appeal No.1939 of 1986 has been filed, whereas Original Suit No.390 of 1981 has been decreed by both the courts below, against which the present Second Appeal No.1736 of 1986 has been filed. Both the appeals have been heard together and are being decided by separate judgments delivered in respective appeals.

(3.) The Second Appeal No.1939 of 1986 has been decided first, vide order of date, observation made by this Court, while deciding the aforesaid appeal, have material bearing upon disposal of the present appeal as well inasmuch as plaint of the present suit refers to filing of previous suit and, as such, para 10 to 13 of the said judgment are reproduced:-