CHULHIYA Vs. NANIPAT DASS

JUDGEMENT

(1.) This appeal by defendants Nos. 1 and 2 (defendants first party) arises out of a suit for declaration that 4 kathas 18| dhurs of land appertaining to plots Nos. 767, 768. 771 & 790/1489 of Khata No. 88. in village Chak Jahangir Roza were the self-acquired properties of the plaintiffs and that the sale deed (Exhibit A) dated the 27th July, 1951, executed by the defendants second party (respondents Nos. 5. 6 and 7) was sham and without consideration and no title passed thereunder to the appellants. The further prayer of the plaintiffs was for recovery of possession, in case they were dispossessed during the pendency of the suit.

(2.) According to the case of the appellants the land in suit belonged to one Palat Das who died leaving behind two sons, Budhu Das (the original plaintiff) and Kamal Das. Budhu and Kamal separated from each other and partitioned the joint family property between them, each getting one-half share, i. e., 4 kathas 18J dhurs of land. Kamal Das died in the year 1951 leaving behind his widow Mt. Pathli (respondent No. 5) and two minor sons Harihar Das and Dhanichand Das (respondents Nos. 6 and 7). After the death of Kamal Das. his widow Mt. Pathli. for self and as guardian of her two minor sons aforesaid, sold the said 4 kathas 18 1/2 dhurs of land along with the trees standing thereon to the defendants first party for a sum of Rs. 300/- by sale deed dated the 27th July. 1951. The case of Budhu Das. the original plaintiff, was that the property in suit was his self-acquired property which he had acquired after separation from his brother Kamal Das.

(3.) There were a number of litigations concerning the suit property which it is not necessary to refer. It may, however, be stated that the Courts below decreed the suit of the plaintiffs in its entirety. Learned Counsel for the appellants does not challenge the findings arrived at by the two Courts below on the basis of which the suit has been decreed except the finding as to whether the suit had abated as a whole. The suit was filed on the 7th October, 1961. The defendants first party-appellants filed their written statement on the 14th May, 1962. Budhu Das the original plaintiff, died on the 14th August 1965. A petition was filed on behalf of his two sons Nani-pat Das and Narsingh Das (respondents Nos. 1 & 2) on the 11th September, 1965, stating that they and their two minor sons (respondents Nos. 3 and 4) were the only heirs of the original plaintiff Budhu Das and should be substituted in his place. The substitution was done accordingly. A supplementary written statement on behalf of defendant No. 2 (appellant No. 2) was filed on the 22nd January. 1966, in which it was specifically stated that the case of respondents Nos. 1 and 2 that Budhu Das died leaving behind only two sons and two grandsons was palpably false. The real truth was that he left behind four daughters also, viz, Mt. Paria. Mt. Bhusia, Mt. Reshma and Mt. Asharfi. The learned Munsif recast the issues on the 22nd January, 1966. Issue No. 8 ran as follows: