SANJOGIA AND ORS. Vs. VIJAY YADAV AND ORS.

JUDGEMENT

(1.) THE petitioners who are the heirs of the original plaintiff, are aggrieved by the judgment and decree dated 21.3.2009 passed by learned Additional District Judge -cum -Fast Track Court -IV, Siwan in Title Appeal No. 54 of 1993, whereby he has set aside the judgment and decree dated 19.5.1993 passed by learned 5th Sub -Judge, Siwan in Title Suit No. 276/1978; in the present second appeal under Section 100 of the Code of Civil Procedure. Learned Trial Court had decreed the suit holding the title of the original plaintiff over the suit, property. Briefly stated, the facts of the case are that one Ram Ekbal Choudhary had two, daughters, Dhanwatia and Rajwatia (the plaintiff). Munari was the wife of Ram Ekbal Choudhary. The parents of the original plaintiff were originally residents of Village -Hathauri. They however settled at Village -Mahpur. The original plaintiff (Rajwatia) was married from that village (Mahpur) and her sister Dhanwatia got married with the cousin of the plaintiff's husband, of the same village i.e. Kaushar. The defendants 1st set/Respondent 1st set are the heirs of said Dhanwatia, as Dhanwatia at the time of institution of the suit was no more. Plaintiff's case before trial court was that parents of the plaintiff and said Dhanwatia had no male issue and after marriage of both the sisters i.e. Dhanwatia and Rajwatia (Plaintiff), there was no person left at Village -Mahpur to look after and take care of their mother Munari. Munari is. said to have donated, as per plaintiff's case, her entire landed property admeasuring 4 Bighas 15 Kathas and 10 Dhurs to both the sisters by a deed of gift executed on 31.1.1951 and put them in possession over the said property. There is no dispute between the parties up to this stage. The dispute arises thereafter.

(2.) PLAINTIFF 's further case was that she and her husband, after some time, left their Village -Kaushar and settled at Village -Mahpur to serve her parents. Dhanwatia, the plaintiff's sister, however remained at Village -Kaushar and never came in possession over the gifted property. The original plaintiff asserted that she took her parents for pilgrimage and performed last rites of her mother at her own expense. The plaintiff further pleaded that after death of Dhanwatia in 1968, her husband attempted to grab certain part of the gifted property, leading to a Panchayati held in the year 1972 wherein it was decided that the plaintiff, in fact, had served her mother, incurred all expenses of pilgrimage, funeral and last rites and she had been in continuous physical possession of the entire gifted land included the part gifted in favour of Dhanwatia and therefore, the property should go to the plaintiff; but since gift deed was executed in name of plaintiff and her sister Dhanwatia both, so as to quell the matter, some amount should be given to the defendant 1st Set. It was decided in said Panchayati to pay a sum of rupees two thousand to the defendant 1st set which amount was paid. It was also case of the plaintiff that the plaintiff's sister Dhanwatia had already relinquished her right by executing a deed of relinquishment in favour of the plaintiff.

(3.) IT appears that the parties adduced oral as well as documentary evidence in support of their respective case. Learned trial Court on analysis of the evidence accepted the story of Panchayati and payment of money by the plaintiff to the defendant and refused to accept the plea of the defendant with respect to exchange of property of Kaushar with Mahpur between the plaintiff and her sister Dhanwatia. The Court came to a finding that after execution of the deed of gift dated 3.1.1951, the original plaintiff came in possession over the entire land and she dealt with the said property, whereas the heirs of Dhanwatia never came in possession over the property transferred to her through the deed of gift.