RAM RATI AND ORS. Vs. KESHAV

JUDGEMENT

(1.) Heard Shri R.K. Ojha, learned counsel for the appellant assisted by Shri Akhilesh Kumar Singh, Advocate and Shri Vineet Kumar Singh learned counsel appearing for respondent.

(2.) The present Second Appeal has been filed by plaintiff against judgement and decree passed by Civil Judge (Senior Division) Gorakhpur in Civil Appeal No. 118 of 1991 (Keshav Singh v/s. Ramratti Devi & another) and connected Appeal No. 123 of 1991 (Ramratti & another v/s. Keshav Singh) by which allowing Civil Appeal No. 118 of 1991, and dismissing Civil Appeal No. 123 of 1991, the judgement and decree dated 2.8.1991 passed by Trial Court was set aside (by which Civil Suit No. 333 of 1991 filed by plaintiffs/appellants for cancellation of sale deed was partly decreed in respect of 1/2 share and partly dismissed in respect of rest half share in the house in suit) and suit of plaintiffs was dismissed with costs. Feeling aggrieved, the plaintiffs have preferred this Second Appeal.

(3.) The brief facts relating to the case are that the appellants Ram Ratti Devi and Smt. Bechani filed Civil Suit No. 333 of 1980 in the Court of Additional Munsiff, Gorakhpur for obtaining a decree for cancellation of sale deed dated 1.11.1973, allegedly executed by plaintiff No. 1 in favour of defendant, in respect of house in suit with the allegation that the house in suit belonged to Shyam Lal who was husband of plaintiff No. 1 Ram Ratti and father of plaintiff No. 2 and, after death of Shyam Lal on 18.8.1972, the plaintiffs became the owners in possession of house in suit; that the defendant was tenant over a portion of the house in suit since the lifetime of husband of plaintiff No. 1 and after death of her husband the defendant developed illicit relations with plaintiff No. 1; that defendant taking undue advantage of illicit and fiduciary relationship persuaded plaintiff No. 1 for execution of will of house in suit in favour of her daughter plaintiff No. 2 and took the plaintiff No. 1 to the office of Sub -Registrar on 1.11.1973 and obtained the impugned registered sale deed of the house in suit in his favour on the pretext of execution of will in favour of her daughter, plaintiff No. 2; that when the behaviour of defendant became rude towards plaintiff No. 1 she asked him to vacate the rented portion of house, on which, for the first time in the month of January, 1980, the defendant disclosed about the sale deed having been got executed by him; that upon inquiry it was found that sale deed has been obtained by defendant from the plaintiff No. 1 by playing fraud on her in the garb of and on the pretext of getting the will deed executed in favour of her daughter plaintiff No. 2; that the plaintiff No. 1 is an illiterate, ganwar and dehati woman and was under fiduciary relationship with defendant; that while the house in suit was worth Rs. 40,000/ - at the time of execution of sale deed he got the sale deed executed for a sum of Rs. 6,000/ -, only even without payment of any amount to her towards sale consideration; that the plaintiff No. 1 had only half share in the house in question and the rest half share belonged to plaintiff No. 2 and so she was not competent to execute the sale deed in respect of entire house.