GIRDHARI LOHAR Vs. ANAND LOHAR

JUDGEMENT

(1.) This appeal has been preferred by defendants Nos. 1 to 3 and it arises out of a suit instituted by the plaintiff for declaration of title to and for recovery of possession of the property involved in this litigation. The plaintiff's case is as follows:--It is said that the property in suit had belonged to one Indrajit Lohar, who had a son named Ramnichhatar and a daughter named Ramrajia. The son was married to one Mosst. Sahaji. Ramrajia was married to Rajbansi Lohar. Ramrajia died in the lifetime of her father, leaving behind a son named Anand, who is the plaintiff in this suit. Ramnichhatar died leaving no issue, and after his death, when Ramrajia was also dead, Indrajit got Sahaji married to Rajbansi When Indrajit was alive, he and Sahaji jointly executed a deed of gift on the 22nd November, 1965, in favour of Anand giving him Indrajit's property including the disputed land. Before this deed of gift could be registered, Indrajit had died. The document was registered after his death. Thus, according to the plaintiff, he had come in possession of the property of Indrajit and the defendants started to interfere with his possession, with the result that a proceeding under Section 144 of the Code of Criminal Procedure had commenced. This proceeding had ended in the plaintiff's favour. Thereafter, it appeared that in the Government Serishta, the name of Dhanushdhari, original defendant No. 1, was mutated in collusion with the Karamchari and the plaintiff was dispossessed from the disputed land in Baisakh 1365 Fasli. Thus, this suit had to he instituted for possession with mesne profits. According to the plaintiff, who is a minor, his step-mother Mosst. Sahaji was not well disposed towards him with the result that his father. Rajbansi had adverse interest to the minor and. therefore, the suit had been instituted with the uncle as the minor's next friend.

(2.) The substance of the defendants' case is as follows: The relationship of the plaintiff with Indrajit Lohar was denied and the validity of the deed of gift has been challenged. According to a separate genealogical table given by the defendants. Indrajit and the defendants had descended from a common ancestor. It was admitted that Indrajit had a son named Ramnichhatar, but it was denied that he had any daughter at all. According to the defendants, after the death of Ramnichhatar, his widow, Sahaji had married Rajbansi, father of the plaintiff. Rajbansi's first marriage was with a lady of some other village and the plaintiff is the son of Rajbansi and that wife. It was denied that the plaintiff was the son of Rajbansi and Ramrajia, daughter of Indrajit Lohar. Thus, according to the defendants, they were agnates of Indrajit and the plaintiff was unconnected with his family. It is alleged that the present suit has been collusively brought and a deed of gift has been fabricated. The defendants claimed to be in possession of the disputed property after Indrajit's death.

(3.) On a consideration of the materials on record, the suit was decreed by the trial Court and an appeal was carried in the Court of appeal below by the present appellants. The appeal has failed. The trial Court had held that the plaintiff was the daughter's son of Indrajit and the Court had also upheld the validity of the deed of gift dated the 22nd November, 1955. The plaintiff's title and possession until dispossession by the defendants were accepted. But, it was held that the defendants were agnates of Indrajit, as was their case in the Court of appeal below, all the findings of the trial Court have been affirmed, except that the learned Subordinate Judge has held that the defendants-appellants have failed to prove that they were agnates of Indrajit Lohar. That is why in the order portion of the judgment of the Court of appeal below it has been mentioned that the judgment and decree of the trial Court are affirmed, but with modification. The real effect of the decree of the appellate Court is that the decree of the trial Court has been upheld in full.