RAM CHANDRA RAI AND OTHERS Vs. STATE

JUDGEMENT

(1.) Heard, Sri Yogendra Prasad Sinha-1, learned counsel for the appellant. This Title Appeal is directed against the Judgment/Decree dated 31.08.1990/15.09.1990 passed in Title Suit No. 345 of 1985/21 of 1988, where under the learned Sub-Judge-Vth, East Champaran, Motihari decreed the suit of plaintiffs/respondents first party declaring the sale deed dated 09.09.1985 executed by the Defendant No.2/Respondent no.4 in favour of Defendant No.1/appellant illegal, void and not binding upon the plaintiffs/respondents first party.

(2.) In brief, the case of Respondent 1st Party/plaintiffs is that Pirtan Rai was ancestor of plaintiffs, who died before the recent survey leaving behind his two sons, Jhapas Rai and Tokhan Rai. Jhapas Rai died leaving behind two sons Maharaj Rai and Heman Rai, Tokhan Rai also died before the recent survey leaving behind his two sons namely Sheo Rai and Bhajan Rai. The Khatiyan stands recorded in the name of Jhapas Rai having one share and one share in names of Sheo Rai and Bhajan Rai in respect to the land of family including the land in dispute detailed in Schedule-1 of the pliant. After few years of recent survey, two branches of Jhapas Rai and Token Rai partitioned the family property by metes and bounds. Maharaj Rai and Heman Rai, son of Jhapas Rai were living jointly and with the property including the land as detailed in Schedule-1 of the plaint. Heman Rai and his wife both died issueless in the year 1934 in a state of jointness with Maharaj Rai and his interest in the property devolved upon his brother Maharaj Rai. Further, Maharaj Rai died 30 years ago leaving behind two sons namely, Saryug Rai and Chulhai Rai/plaintiff no.1. Saryug Rai also died about 10 years ago leaving behind his two sons namely Ram Ishwar Rai, plaintiff no.2 and Raj Ballam Rai, plaintiff no.3. As such, plaintiffs are still joint and all the property of Jhapas Rai including the land detailed in Schedule-I of the plaint are jointly owned and possessed by the plaintiffs. The defendant no.1, who is shrewd and litigant, used to give pressure to the family of the plaintiffs either to give the suit land in exchange or by way of sale as the plaintiff's Pattidar land was purchased by the family of the defendant no.1, but the plaintiffs were not ready. Thereafter, defendant no.1 managed to bring into existence a registered sale deed dated 09.09.1985 with respect to land in dispute executed by Ram Janam Rai, defendant no.2, resident of a different village. The appellant/defendant no.1, being armed with aforesaid sale deed, started to create trouble in peaceful possession of the plaintiffs over the land in dispute. The plaintiffs came to know about the aforesaid sale deed on 10.09.1985, obtained the certified copy of the sale deed and arranged the Panchayat, in which people asked to defendant no.1/appellant to execute the deed of Ladafi in respect to the suit land, contained in the sale deed dated 09.09.1985, but he refused. Thus, in order to clarify the doubt created by the aforesaid sale deed, the plaintiff filed the aforesaid appeal.

(3.) While defendant nos.1 and 2 filed their separate written statement but the contents of both the written statements are almost similar. In the written statement, the genealogy, as stated by the plaintiffs in the plaint, has not been disputed but the case of the defendants is that Heman Rai separated to his brother Maharaj Rai in the Fasali 1346 (year 1939) and he died in the year 1959 leaving behind his wife and four daughters namely, Dhania Devi, Pania Devi, Pasia Devi and Kushami Devi. Marriage of Dhania Devi was performed in village Harser, marriage of Pania Devi was performed with Feku Rai of village Dumarbanha, marriage of Pasia Devi was performed with Bilas Rai of village Raipur. The marriage of Kushami Devi was performed with Kapildeo Rai of village Nakardowa and defendant no.2 is the son of Kushami Devi. After the death of Heman Rai, his property was acquired by his four daughters and the defendant no.2, being the maternal-grand-son (Naati) of Heman Rai came in possession as he used to reside with Heman Rai since his life time. As such, defendant no.2 had right title in respect to suit land and has executed the sale deed dated 09.09.1985 in favour of defendant no.1 on receiving the consideration. The Jamabandi is still in the name of Maharaj Rai but Heman Rai used to give half of the rent of his share to Maharaj Rai who used to get the rent receipt.