OMPRAKASH GUPTA Vs. UMA DEVI

JUDGEMENT

(1.) The Plaintiffs have filed this First Appeal against the impugned judgment and decree dated 03.01.2008 passed by the learned 3rd Subordinate Judge, Gopalganj in Title Suit No. 72 of 1999/1 of 2006 whereby the learned Court below dismissed the Plaintiff's suit for partition.

(2.) The Plaintiffs-Appellants filed the aforesaid title suit for separation of their share in Khata No. 88, Plot No. 178 area measuring 1 kattha 7 dhur, the details of which has been mentioned in Schedule-I of the plaint, which has been purchased by the Plaintiffs from original Defendant No. 1, Yogendra Prasad through registered sale deed. The Plaintiffs alleged that Yogendra Prasad was the karta of his family. The Plaintiffs approached him for opening of a medical shop and it was agreed that the advanced Rs. 80,000 shall be returned by Yogendra Prasad and the Plaintiffs will be given the shop premises on rent as tenant. Accordingly, on 01.06.1985, the Plaintiffs paid Rs. 80,000 to Yogendra Prasad and after construction of shop, it was given to the Plaintiffs in December, 1985 on rent. Since then the Plaintiffs were paying rent till January, 1991. On 22.11.1991, the Plaintiffs purchased out of suit plot 43 feet length from north to south and 14 feet wide from east to west measuring 7 - dhur for Rs. 98,000 through registered sale deed. Thereafter, the Plaintiffs ceased to be the tenant and remained there as owner thereof. However, the original Defendant No. 1 and the other family members started making construction by the side of the shop premises of the Plaintiffs and dispute arose. Hence, the Plaintiffs filed the said suit for carving out the land which he purchased through sale deed.

(3.) It may be mentioned here that just after institution of the suit, the original Defendant, Yogendra Prasad died and his legal representatives were substituted. The widow of Yogendra Prasad filed the contesting written statement for self and on behalf of her minor sons. The other Defendants neither appeared nor filed written statement nor contested the suit. According to the contesting Defendants-Respondents, their case in short is that the Plaintiffs never paid Rs. 80,000 to Yogendra Prasad for construction of the shop. In the year 1991, Yogendra Prasad was not in need of money nor he sold 7 1/3 dhur on 22.11.1991 nor he gave possession to the Plaintiffs. Yogendra Prasad was drunkard, as a result of which, he was not capable of understanding the worldly affairs. The widow, Uma Devi was residing with her mother-in-law, Laldei Devi and was selling vegetables. Out of the income from the vegetable selling, the shop premise was constructed and it was given to the Plaintiffs on rent of Rs. 800 per month. When in May 1999, the Defendant went to demand rent, the Plaintiffs disclosed that he has purchased the land from Yogendra Prasad. The Defendant, Uma Devi asked her husband Yogendra Prasad who told that no money was given to him and his left thumb impression were taken on various sada papers. The land belonged to father of Yogendra Prasad, Suraj Bhagat who died in 1960 leaving behind his two sons, widow and two daughters who all have got share in the disputed property. Since it was joint family property, Yogendra Prasad had no right to sell the same without the consent of other coparceners. The left thumb impression obtained on sada papers might have been used in creating the alleged registered sale deed. The Defendant alleged that there is no L.T.I. of Yogendra Prasad on the sale deed.