MADAN PRASAD Vs. MOSTT. MALATI DEVI

JUDGEMENT

(1.) THE defendants have filed this Second Appeal against the judgment and decree dated 16.01.2002 passed by the learned 2nd Additional District Judge, West Champaran, Bettiah in Title Appeal No.39 of 1994 whereby the Lower Appellate Court allowed the appeal and reversed the judgment and decree dated 07.06.1994 passed by learned Sub Judge I, Bettiah in Title Suit No.122 of 1991.

(2.) THE plaintiffs-respondents filed the aforesaid suit praying for declaration of title and confirmation of possession over plot no.737 and 741 detailed in Schedule I of the plaint and for permanent injunction. According to the plaintiffs, the suit plots were recorded in the name of Mahadeo Nonia s/o Bahadur Nonia in municipal survey. Mahadeo Nonia was in possession during his lifetime. He died leaving behind his son, Dhebar Mahato who came in possession over the said land. This Dhebar Mahato sold the suit plots by registered sale deed dated 20.07.1990 in favour of the plaintiff and after receiving consideration amount delivered possession thereof to the plaintiffs. However, because of mistake, instead of 8 1/2 cubits it has wrongly been mentioned as 5 1/2 cubits in the sale deed. When it was detected, Dhebar Mahato executed another deed of rectification dated 21.02.1991 and rectified the mistake on said deed of 20.07.1990. Dhebar Mahato also subsequently sold the remaining 3 dhurs to the plaintiffs by registered sale deed dated 21.02.1991 of plot no.741. THE plaintiffs amalgamated the same. THE defendants have got their double storied pucca house. THE defendant no.1 pressed hard on the plaintiffs to execute a sale deed with respect to half of the suit land but when the plaintiffs refused, the defendant no.1 disclosed that he has executed a deed of gift in respect of the suit plots in favour of his wife. THE defendant no.1 also gave Xerox copy of gift deed dated 09.02.1982 and then the plaintiffs became surprised. THE plaintiffs came to know from the contents of the gift deed that a sale deed dated 13.11.1957 was executed by Tildhari Mahato and others to Rajkali Devi, mother of defendant no.1. When the plaintiffs saw the sale deed, he found that the sale deed dated 13.11.1957 is with respect to plot no.641 and 647 measuring 3 katthas 9 dhurs of land as such, the said sale deed has got no concern with the suit plots. THE said lands mentioned in sale deed of the year 1957 were purchased by Tildhari Mahato and his brother, Rupdhari Mahato by registered sale deed dated 22.03.1939 and in fact, the sale deed is not related with the suit plot. THErefore, the gift deed is sham and furgi deed of gift wherein illegally the suit plots have been included.

(3.) SO far possession is concerned, according to the appellants, the mother of defendant no.1, Rajkali Devi applied for permission to construct house. The application has been produced by the defendant which has been marked as Exhibit G. This Exhibit G is dated 02.02.1989 filed by Rajkali Devi whereas in paragraph 9 of the written statement, the specific case of the defendant is that the mother of defendant no.1 died in the year 1970. Therefore, it appears that the defendants were forging the documents and were filing the same before the different authorities. The other documents Exhibit D, D/1, H, I, I/1, all are documents relating to the municipality which are in the name of Rajkali Devi of the year 1973, 1989 and 1990. When Rajkali died in the year 1970, there was no question of applying for permission by Rajkali Devi in the year 1989 arises.