JAI NANDAN YADAV Vs. SAHAJA YADAV

JUDGEMENT

(1.) THE defendants have filed this First Appeal against the Judgment and Decree dated 16.03.1988 passed by Sri Madhvendra Saran, the learned Subordinate Judge IInd Court, Patna in title suit No.68 of 1984 decreeing the plaintiffs-respondents' suit.

(2.) THE plaintiff-respondent filed the aforesaid title suit No.68 of 1984 for declaration of the plaintiff title and / or recovery of possession of the suit property and in the alternative prayed for partition to the extent of 1/4th share.

(3.) THE learned senior counsel, Mr. Sidheshwari Prasad Singh appearing on behalf f the appellant submitted that the plaintiff had admitted that Rameshwar Yadav was the son of Kuldeep Yadav, therefore, the right interest of the defendant's ancestor has been admitted by the plaintiff. THE plaintiff's case is also that Rameshwari Yadav and Hari Yadav were joint in Laggit and there is no evidence regarding partition between them and in fact, alternatively, the plaintiffs also claimed 1/4th share which shows that the plaintiffs are trying to grab the joint family property. THE plaintiffs being the purchaser cannot have the better title than their vendor. Being the stranger, they cannot be allowed to say that Mangari had no share in the property, therefore, even if it is admitted that Hari was a son of Kuldeep then also plaintiffs are entitled for 1/6th share. THE vendor, Ram Naresh Yadav was alive on the date of filing the suit who was necessary party but because he was not made defendant, the suit is bad for non-joinder of necessary party. He was the person who would have supported or denied the execution of the sale deed or passing of consideration. THE plaintiff also not examined him as witnesses in support of their case. No witness of the village has been examined in support of the execution of the sale deed of the year 1970 and 1974 and in fact original sale deed were not produced. Certified copies of the sale deeds have been produced. THE learned counsel next submitted that the original sale deeds never seen in the light of the day and it is clear that the remaining amount of consideration of Rs.2,000/- is of ext.1/B to 1/H has not been paid and there is no evidence at all in support of the payment of the remaining consideration amount. Mere execution of sale deeds will not confer title as possession was not delivered. THE possession of the defendants was declared in 145 Cr.P.C. proceeding on 15.4.1975 whereas the suit has been filed in the year 1984, therefore, the suit itself is barred by law of limitation. THE learned counsel further submitted that the order passed under 145 Cr.P.C. proceeding will be valid till the order is set aside by competent Civil Court and the presumption of possession is forward and backward both, therefore, the plaintiff or their vendors were never in possession of the property. According to Article 113 of the Limitation Act read with Section 27 of the Limitation Act, the plaintiff's suit is barred. THE learned Court below has not considered the oral and documentary evidences properly and relied upon wrongly the documentary evidences ext.2, 11, 12 12A and 13. THE trial Court also wrongly relied upon ext.10 series and 8 series. THE learned counsel next submitted that the plaintiffs intentionally withhold the original sale deed; therefore, they played fraud upon the Court. In such circumstances, when fraud is played on the Court in view of the decision of the Apex Court reported in A.I.R. 1994 SC 853 (S. P. Chengalvaraya Naidu vs. Jagannath.), the plaintiff's suit should have been dismissed on that ground alone but the learned Court below did not consider this aspect of the matter. In support of the contention that there is presumption of possession forward and backward, the learned counsel relied upon the decision of the Apex Court reported in A.I.R. 1966 SC 605 (Ambika Prasad Thakur & Ors. vs. Ram Ekbal Rai). On behalf of the appellant, a written argument has also been filed which is on record.