SURESH RAI Vs. NAGENDRA SAH

JUDGEMENT

(1.) Defendant No. 3 is the appellant against a judgment of affirmance. This appeal is directed against the judgment dated 24 -2 -2001 and the consequent decree passed by the learned District Judge, Vaishali, in Title Appeal No. 22 of 1999 (Suresh Rai v. Nagendra Sah and Ors.), whereby he has dismissed the appeal of Defendant No. 3 (the present appellant) and affirmed the judgment dated 27 -3 -1999, passed by the learned Subordinate Judge, 4th Court, Vaishali at Hajipur in Title Suit No. 87/95/85/95 (Nagendra Sah v. Brijnandan Sah and Ors.). We shall go by the description of the parties in the trial Court.

(2.) The plaintiff (respondent No. 1 herein) had instituted the suit for declaration of the three sale -deeds in question, executed by Defendant No. 1 in favour of the Defendant second party as null and void, inoperative, and not binding upon him, as well as for delivery of possession. The details of the sale -deeds have been mentioned in Schedule II of the plaint. A genealogical table of the family of the plaintiff and Defendant No. 1 has been appended in Schedule I of the plaint which is as follows: Perukant Umakant Ramesh Suresh Gopal Hemant Sudama Sah Sah Sah Sah Sah Sah Devi defdt. No. 3)

(3.) The case of Defendant No. 3 (the appellant herein), inter alia, is that the suit as framed is not maintainable and the plaintiff has got no cause of action. He has admitted the genealogical table given in the plaint. He has further admitted about the mutual partition of the family properties but the year of the partition has been denied. He has denied about execution of any memorandum of partition as alleged by the plaintiff. According to him, it is false that the plaintiff got 2 kathas 11 dhurs out of plot Nos. 92 and 93 in his exclusive share. The sale -deeds executed by Defendant No. 1 are genuine, valid and operative about which the plaintiff had knowledge since its inception. 3.1. According to Defendant No. 3, he sold his entire share through 3 sale -deeds in favour of Defendant Nos. 2 and 3, who thereafter came in possession over the lands under the deeds. Mohan Sah, the brother of Birju Sah, who had his share just towards north of the land of Defendant No. 1, also sold his share of land in favour of one Reeta Devi through registered sale -deed in which the plaintiff is one of the witnesses.