BHAGYAMANI DEVI Vs. SHEO KESHARA DEVI

JUDGEMENT

(1.) THE plaintiffs have filed this first appeal against the impugned judgment and decree dated 19.6.1978 passed by Sri Brij Kishore Thakur, learned 2nd Additional Subordinate Judge, Siwan in Title Suit No. 205 of 1975 dismissing the plaintiffs appellants suit for declaration that the sale deed executed by Subhawati Devi claiming herself to be the widow of Uma Shankar is void and executed by a person without title.

(2.) THE plaintiffs case in short is that Nayak Bhagat had three sons namely Mathura, Gokul and Udham. Mathura died issueless. Gokul had three sons namely Bhuwal, Bharat and Jawahar. Bharat and Jawahar died issueless. Bhuwal had three sons namely Ram Shankar, plaintiff No.2, shiv Shankar, plaintiff No.1 and Uma Shankar. Uma Shankar died issuless in the estate of jointness with his brother. THE entire property of Nayaks family was inherited by the plaintiffs and are in possession of the same. THEy have also claimed title by adverse possession. THE further case is that the co-villager Mukhiya Bishwanath Missir with a view to grab the property got a collusive sale deed executed on 19.7.1975 for 5 bigha 19 kattha 4 dhur land in the name of his relation namely Rikheshwar Nath Tiwari, the defendant from one Subhawati Devi who executed the sale deed claiming herself to be the widow of Umashankar. THE said Subhawati executed the sale deed and claimed that she had also a daughter namely Kalindi Kumari. According to the plaintiffs Subhawati and Kalindi had no concern whatsoever with Uma Shankar and they are imposters whose identification shall be given latter on after verification. In view of the fact that Subhawati Devi or Kalindi had no relation with Uma Shankar they had no title to execute the sale deed and therefore, the sale deed is void and without consideration.

(3.) ON the other hand, the learned counsel appearing on behalf of the respondents submitted that the suit itself was not maintainable in absence of Subhawati Devi who is necessary party. The defendants produced Subhawati Devi as DW 13 in the court below. The father of the Subhawati Devi was also examined as DW 8 and the daughter Kalindi was examined as DW 12 but even then the plaintiffs did not make Subhawati Devi as party to the suit. In such circumstances, the learned court below could not have recorded a finding that she is not the widow of Uma Shankar. Particularly, when she herself claimed that she is the widow of Uma Shankar and Kalindi is her daughter. In absence of Subhawati no different finding can be recorded. Moreover the defendants have adduced oral as well as documentary evidences and the learned court below after considering the said evidences meticulously recorded a finding that Subhawati Devi is the widow of late Uma Shankar and Kalindi is her daughter through Uma Shankar. ON the basis of the above grounds, the learned counsel submitted that the first appeal is liable to be dismissed.