MRITUNJAY KUMAR Vs. SRIMATI PANCHO DEVI

JUDGEMENT

(1.) THIS second appeal is directed against the judgment and decree dated 14th December, 1987 and 2nd January 1988, respectively, passed by the 6th Additional District Judge, Munger, in M.T. A. No. 3 of 1987, affirming the judgment of the trial court dated 3rd January 1986 passed by the Munsif -II, Munger. The plaintiff of that suit is the appellant here.

(2.) THE plaintiff had filed the aforesaid title suit seeking cancellation of certain sale -deeds executed by his father, defendant no. 5 of the suit in favour of defendant no. 1 and subsequently a sale - deed executed by defendant no. 1 in favour of defendant no. 2 and then defendant no. 2 executing a sale -deed in favour of defendant no. 3. All these sale -deeds were sought to be set aside on the ground that the defendant no. 5 was a profligate given to wine and women. The sale - deed executed by defendant no. 5 in favour of defendant no.1 was illegal, without legal necessity and without any consideration. The suit land was allotted to defendant no. 5 in partition among his brothers who had inherited the same from the plaintiff 'sgrand father Sadho yadav. Sadho Yadav owned and possessed 1 bigha 10 kathas and 14 dhurs bf land and on his death his sons Doman Yadav, Mahadeo Yadav along with widow of Ram Sharan Yadav inherited his property (Ram Sharan Yadav died during the life time of his father Sadho Yadav). Subsequently, Doman Yadav, Mahadeo Yadav (defendant no. 5) along with widow entered into the partition and Mahadeo Yadav got 1 bigha 10 kathas 14 dhurs. Out of the aforesaid land, defendant no. 1 obtained a void sale -deed over 1 katha of land from Mahadeo Yadav, as described in Schedule -I of the plaint for Rs. 2,000/ -. The land sold to the defendant no.1 was not properly identifiable and distinct because it was part of 5 plots in which the plaintiff 'sfather was allotted 1 bigha and odd land. Thereafter the defendant no.1 sold the suit land to defendant no. 2 for Rs. 3,000/ - in the year 1976 and subsequently defendant no. 2 sold this land to defendant no. 3 for Rs. 4,000/ - on 1st July 1982. It was the claim of the plaintiff that his father had no authority to sell the suit land, the same being coparcenary property in which the plaintiff had his share and the sale -deed was executed without any legal necessity.

(3.) I find that the trial court held that the plaintiff was not born on 16th February 1973 and, therefore, he had no right and interest in the suit property. All the sale -deeds which the plaintiff sought cancellation, were genuine and valid and, therefore the suit was dismissed. The appellate court, on the basis of evidence, upheld the finding of the trial court regarding the fact whether the plaintiff was born on 16th February 1973 or not. Since this is a question of fact and both the lower courts are concurrent in their finding I think there is no necessity for this Court to interfere with this finding. So far the genuineness of the sale -deed is concerned, the appellate court did not agree, with the finding of the trial court that the sale -deed dated 16.2.1973 (Ext -B/2) was executed for legal necessity and on the basis of consideration money paid to Mahadeo Yadav (father of plaintiff). But the appellate court maintained the decree of the trial court on the ground that since the plaintiff was not in existence on 16th February 1973, he had no right to challenge the sale - deed in question and, therefore, he had also no right to sue and, accordingly, he had no cause of action and, therefore, the suit was rightly dismissed by the trial court.