NARESH KUMAR VERMA Vs. LALJHARI DEVI

JUDGEMENT

(1.) THIS second appeal is directed against the judgment dated 22.5.86 passed by 1st Additional District Judge, Gaya, in title appeal no. 59/78 whereby the judgment of the trial court dated 31.3.78 passed by Sub -Judge, 1st Court, Gaya, in title suit no. 31/75 was confirmed. Respondent no. 3(b) of the first appeal, who is the heir of defendant no. 3 of the suit, is the appellant here.

(2.) THE case of the plaintiff -respondent no. 9 of this appeal in the lower court was that the suit plot nos. 4689, 4691, 4692 corresponding to new plot nos. 342, 344 and 345 were the lands of one Md. Hussain Khan who was the owner of the suit land and other lands and he was also recorded in the Municipal survey as such. Md. Hussain Khan died leaving behind his widow Saira Khatoon, who inherited her husband 'sproperty. Saira Khatoon died leaving behind her son Badruddin and daughter Khairun Nissa. Badruddin died during the life time of his sister. Khairun Nissa also died in the year 1936. Then her son Nasiruddin inherited the suit land and other lands of Md. Hussain Khan. Nasiruddin orally gifted the suit plots to his son Merajuddin. In the year 1967 defendant no.1 was given on lease some portion of the suit land to make the constructions with tiled roof, but in the year 1974 defendant no.1 made a pakka construction on the suit land. When the plaintiff wanted to evict the defendant no.1, he resisted his eviction and set up title in himself on the basis of a sale -deed executed by one Gopalji Upadhaya and others dated 10.2.65 in favour of defendant no.2. Moreover, defendant nos. 3 and 4 also claimed the suit land by virtue of a sale -deed dated 30.10.42 executed by Jitendra Kumar and others. The plaintiff, therefore, filed the suit seeking the relief to the effect that the sale -deeds dated 30.10.42 and 10.2.65 were void and inoperative and he also sought eviction of defendant nos. 1 and 2 from the suit land.

(3.) DEFENDANT nos. 3 and 4 filed separate written statement and their case in short, was that Md. Hussain Khan had sold part of his land to Gaya Municipality and the rest of the land to one Jogendra Kumar, from whose heirs the suit land was purchased by defendant no. 3 and mother of defendant no. 4. The suit was also barred under Section 34 of the Specific Relief Act. So, the suit was fit to be dismissed.