BHAROSI SAO Vs. MANIK CHAND GUPTA

JUDGEMENT

(1.) Defendant No.1 Bharosi Sao is the appellant in this First Appeal which is directed against the judgment dated 22-3-1976 of the learned Subordinate Judge, Second Court, Gaya, passed in Title Suit No.25 of 1973, by which he decreed the suit filed by the plaintiff for declaration of subsisting title, confirmation of possession and, in the alternative, for recovery of possession over plot No.161 Khata No.192 of mauza Bara Gandhar having an area of 1.61 acres.

(2.) Facts, relevant for disposal of the limited contentions raised before this Court, may be stated as follows :- One Mosst. Ful Kuer, a widow, as a plaintiff, instituted Title Suit No.25 of 1973 on 3-2-1973 against appellant Bharosi Sao for the declaration, abovementioned. The plaintiff, besides the plot in suit, abovementioned, also owned and possessed plot No.144 of Khata No.69 of the same mauza, bearing an area of 50 decimals. There was a negotiation at her instance for sale of plot No.144 with the appellant through the intervention of one Ramsaran Sao, the plaintiff Ful Kuer being a pardanasin lady. The negotiation materialised for sale of plot No. 144 for a consideration of Rs.7000/- and the sale deed Exhibit-1, dated 24-6-1972, was executed by her. It is alleged that the plaintiff Ful Kuer came to know some time in 1973 that in spite of the agreement being only to sell plot No.144, the appellant and Ramsaran, in collusion with one another, surreptitiously, fraudulently and illegally got plot No. 161 also inserted in the said sale deed. She, therefore, filed the instant suit. Ful Kuer again fell in necessity of money and by a registered sale deed dated 30-1-1974 (Exhibit-1/A also marked as Exhibit-X for identification), she sold the property of plot No. 161, abovementioned, to one Manik Chand Gupta for a consideration of Rs.10,000/-. On 29-5-1974, Manik Chand Gupta filed a petition for being added as a co-plaintiff. This prayer was objected to by the defendant. By order No.21 dated 15-7-1974 and for the reasons stated therein, the trial Court granted the permission for addition of Manik Chand Gupta as a co-plaintiff and he was so added. The initial valuation of the suit was Rs.7000/- but the consideration of the sale deed Exhibit-1/A was Rs.10,000/-. The trial Court, therefore, asked the plaintiff to pay an additional Court fee on the remaining amount of Rs.3000/- which was paid.

(3.) Although no paper has been brought on record to show what was the subject matter of Miscellaneous Appeal No.61 of 1974 but it is undisputed that from some order passed in the instant Suit, Miscellaneous Appeal No.61 of 1974 was preferred. Plaintiff Ful Kuer died during the pendency of the instant Miscellaneous Appeal, abovementioned, leaving behind Malti Devi and Rajmani Devi, both wives of Ramchandra Sao. The lower appellate Court, in seisin of Miscellaneous Appeal No.61 of 1974, substituted the names of these two ladies in place of plaintiff Ful Kuer in the said appeal. It is not in dispute that this substitution was made in the Miscellaneous Appeal, abovementioned, within the time allowed by law. On 13-12-1975, Manik Chand Gupta, co-plaintiff, filed a petition in the instant Title Suit stating that the said two heirs of Ful Kuer, abovenamed, did not appear in the suit nor did they care to figure as plaintiff and so they should be 'transposed' as pro forma defendants. By order dated 24-2-1976, this prayer of Manik Chand Gupta was allowed and these two ladies were ordered to be 'transposed' as pro forma defendants. The hearing of the suit then proceeded.