RAM DEYAL SINGH Vs. INDRASAN KUER

JUDGEMENT

(1.) This second appeal by the plaintiff arises out of a suit for declaration of title to an area of about 12 bighas of culturable land, on the basis of a sale deed, dated the 1st February 1945, executed by two brothers, named Rajkishore and Nandkishore, who were, admittedly, the raiyats of the land, which is situated in three contiguous villages. A portion of the suit land had been given in usufructuary mortgage to some persons by Rajkishore and Nandkishore a few years before 1945-In respect of that area, which is recorded in silvery plot No. 4026, the plaintiff has sought a relief for redemption of the mortgage. Further, the plaintiff has also sought for confirmation of possession or, in the alternative, recovery of possession of the suit land. There is another prayer for adjudication that the two sale deeds, apparently dated the 12th January, 1945, one in favour of defendant No. 2 and the other in favour of the husband of defendant No. 1, were antedated, fraudulent and collusive.

(2.) The case of the plaintiff was that, on the 31st January, 1945 a contract for sale of the suit laud for Rs. 9,000/- between him and the two vendors was entered into and the vendors purchased requisite stamps for the sale deed on the same day. On the 1st February 1945, the sale deed was drawn up and executed by the vendors, who made over the same to the plaintiff. According to the plaintiff, Rs. 1,000/- out of the consideration money had been paid earlier by instalments, Rs. 5,724/- was paid to the vendors in cash at the time of the execution of the sale deed and Rs. 2,276/- was left by the vendors with the vendee in deposit for redemption of several usufructuary mortgage bonds in respect of the lands described in Schedule II of the plaint. On the 5th February, 1945, the plaintiff presented the sale deed for registration before the Sub-Registrar, Siwan. On the same day, the two executants filed an" application alleging that no cash consideration had been paid to them at any time in respect of the sale deed. The two vendors also filed a petition of complaint before the Sub-divisional Magistrate, Siwan, making the same allegations, but it was dismissed. On the 23rd February, 1945, the plaintiff made an application before the Sub-Registrar for compulsory registration; and, as the executants did not contest that application, the sale deed was compulsorily registered on the 3oth January, 1946. About three years later, on the 30th Jeth, 1949 there was a tender by the plaintiff of Rs. 100/-to defendants 3 to 9, who are defendants second party, for redemption of plot No. 4,026, These defendants refused to accept the money and then the plaintiff filed Redemption Suit No. 5 of 1950. On the plea of these defendants in that suit that the zarpeshgi bond in their favour in respect of the plot had been redeemed by the defendants first party, who had taken two sale deeds from Rajkishore and Nandkishore on the 12th January, 1945, the suit was dismissed. According to the plaintiff, this dismissal cast a cloud on his title with regard to the land purchased by him under the sale deed dated the 1st February, 1945. Hence, the suit, out of which the present appeal arises. The defendants third party, most of whom were formerly zarpeshgidars of portions of the suit land, have since purchased a major portion of the suit land from the defendants fust party, who kept only 14 kathas of the suit land in themselves after these transfers.

(3.) All the three sets of defendants contested the suit and their defence was common. They asserted that the sale in favour of the defendants first party was a genuine transaction and that the sale deed in favour of the plaintiff was fraudulent and antedated. They further alleged that the plaintiff did not get possession of any portion of the land covered by his sale deed, which was without consideration. They also took a plea that because of the decision in Redemption Suit No. 5 of 1950, the present suit was barred by res judicata.