BASDEO SINGH Vs. SM SUBHADRA KUER

JUDGEMENT

(1.) This is an appeal by defendant No. 1 against the judgment and order of the Additional Subordinate Judge, Third Court, Patna, who set aside the judgment and decree of the fourth Additional Munsiff Barh and remanded the case for trial of the remaining issues.

(2.) The facts relevant to the present appeal may shortly be stated as follows. One Jhuman Singh had two sons, Kamlapat Singh and Kuldip Singh. Mt. Lalwati Kuer, widow of Kamlapat Singh died on the 13th of January 1943, leaving behind her daughter, the present plaintiff. The other son of Jhuman Singh, namely Kuldip Singh, had a son Tilakdhari Singh who is defendant No. 2 to the present action. On the 29th of September 1931, Tilakdhari Singh defendant No. 2 sold to Basdeo Singh defendant No. 1, appellant, certain lands including the lands in dispute. On the 13th of January 1941, Mt. Lalwati Kuer executed a registered sale-deed in favour of one Gulab Singh in respect of some lands included, in the sale-deed of the present appellant, Basdeo Singh. In 1943, Gulab Singh filed Title Suit No. 134 of 1943 for a declaration of his title, and for confirmation or, in the alternative, for recovery, of possession of the lands purchased by him on the ground that Kamlapat Singh had died separate from the branch of Kuldip Singh and his properties including the properties purchased by him had been inherited by Mt. Lalwani Kuer who had every right to execute the sale-deed in his favour. In that suit he had impleaded Srimati Subhadra Kuer, the present plaintiff, also as a party-defendant along with Tilakdhari Singh and Basdeo Singh. The case of Tilakdhari Singh and the present appellant in Title Suit 134 of 1943 was that Kamlapat Singh had died joint with Tilakdhari Singh who had come in possession of the entire properties left by Jhuman Singh by survivorship and as such Gulab Singh had derived no title by his purchase from Mt. Lalwati Kuer. The suit filed by Gulab Singh was dismissed on the 13th of December 1946. It was held in that suit, in the presence of the present plaintiff, that Kamlapat Singh had died as a member of the joint family with Tilakdhari Singh. The judgment and decree of the trial Court was upheld up to this Court in S.A. No. 2603 of 1947. The Title Suit No. 135 of 1943 out of which the present appeal arises was instituted by Srimati Subhadra Kuer on the 20th of August 1943 for a declaration of her title and confirmation or, in the alternative for recovery, of possession of about 3.19 acres of land which had been purchased by the present appellant along with other lands by the registered sale-deed, dated the 20th of September 1931. The case of the plaintiff was that her father, Kamlapat Singh, had separated from Tilakdhari Singh and the latter had no right to execute any sale-deed in respect of the lands in dispute which belonged to the former and as such Basdeo Singh had derived no title to it by the said sale-deed, dated the 29th of March 1931. In this Title Suit, Tilakdhari Singh also was impleaded as defendant No. 2 to the action. The suit was contested by defendant No. 1 who pleaded that the present plaintiff was the daughter of Bajrangi Singh, another brother of Kamlapat Singh. According to him, Kamlapat Singh had died in a state of joint-ness with Tilakdhari Singh who had every right to execute the sale-deed in his favour. Defendant No. 1 had further pleaded that the present suit was barred by limitation.

(3.) Before the trial Court various issues issue were framed including Issues No. 2 and 6 which ran as follows: "Issue No. 2: Is the suit barred by res judicata? Issue No. 6: Has the plaintiff her alleged title in the suit land?"