VIJAY KUMAR SINHA Vs. ALATA DEVI @ AASTHA DEVI

JUDGEMENT

(1.) THIS second appeal has been filed by defendant no.1 against the judgment and decree dated 17.06.2011 passed by the learned 1st Additional District Judge, East Champaran, Motihari in Title Appeal No.31 of 2001/06 of 2010 whereby the learned lower appellate court dismissed the appeal and confirmed the judgment and decree dated 30.01.2001 passed by the learned Subordinate Judge -IV, Motihari in Title Suit No.24 of 1989.

(2.) THE plaintiff -respondent filed the aforesaid suit alleging that the partition suit between the family members was compromised and final decree was passed wherein Schedule -II land was allotted in the share of defendant 2nd set. Out of the said allotted land, the defendant 2nd set transferred some portion of plot no.319 to different persons, who are in possession. On 29.03.1988 the defendant 2nd set intended to gift the property, in suit, in favour of the plaintiff to which the plaintiff accepted, as such a registered gift deed was executed on 29.03.1988 by defendant 2nd set for 7 katha of land in plot no.319. Because of mistake, plot number was mentioned 319/318. In the deed of gift in place of 4 katha 1 dhoor wrongly it has been mentioned as 7 katha. The plaintiff came in possession over 4 katha 1 dhoor land, which was gifted by the registered gift deed. 1 1/2 feet wide land was kept by defendant 2nd set for using it as nala by different vendees. Out of the said gifted land, plaintiff sold 10 dhoors land to one Raj Kumar Singh for Rs.5,000/ - and the purchaser came in possession. The plaintiff continued in possession of remaining 3 katha 11 dhoors land. Sketch map was filed with the plaint. The defendant no.1 wanted to grab the land, therefore, he requested the plaintiff to transfer this land in his name but the plaintiff refused. Subsequently the defendant no.1 disclosed that he has obtained a registered sale deed from defendant no.2 in respect of 4 katha of land. After obtaining the certified copy of the sale deed, the plaintiff found that a collusive sale deed was executed on 02.09.1988. Because on the date of execution of the sale deed the defendant no.2 was not the owner of the property rather the plaintiff was the owner on the basis of the registered gift deed, therefore, the sale deed in favour of defendant no.1 is void document. Subsequently the defendant no.1 forcefully dispossessed the plaintiff from the suit land on 30.12.1988.

(3.) THE trial court held that the sale deed dated 02.09.1988 (Ext.A/1) is without consideration and on the basis of this sale deed no title and possession passed to the defendant no.1. The deed of gift is valid document. Accordingly, the trial court decreed the plaintiff's suit.