SUDHIR KUMAR THAKUR Vs. SAHEB MANDAL

JUDGEMENT

(1.) THIS second appeal has been preferred against the judgment and decree dated 19.2.1990 passed by Sri Anant Prasad Shrivastava, District Judge, Sitamarhi in Title Appeal No. 35 of 1989 whereby he has been pleased to set aside the judgment and decree dated 12.7.1989 passed by Sri Narendra Mishra, Subordinate Judge III, Sitamarhi in Title Suit No. 15/87/10/89 by which judgment he had decreed the suit of the plaintiffs.

(2.) THE brief facts of the case are as follows: '' Appellant Sudhir Kumar Thakur had filed Title Suit No. 15 of 1987 in the Court of Subordinate Judge, Sitamarhi for declaring that the sale deed dated 30.12.1986 executed by Ram Rakshi Devi defendant no. 2 in favour of defendant no. 1, Saheb Mandal, is fraudulent, illegal and without consideration and not binding upon him and for declaration that by execution of the said sale deed, defendant no. 1 had not derived right, title and interest in the suit land. The suit was decreed by the Subordinate Judge III, Sitamarhi on 12th July, 1989. Against the said judgment and decree, the defendants filed appeal which was numbered as Title Appeal No. 35 of 1989. In the said appeal, judgment was delivered on 19.2.1990 and by the said judgment, the appeal was allowed and the judgment and decree passed by the Subordinate Judge No. Ill was set aside. Against the said judgment and decree the plaintiff - appellant has preferred this second appeal.

(3.) BOTH the defendants appeared in the suit and filed joint written statement according to which the case of the defendants is as follows: '' The suit is not maintainable, the same is barred by law of limitation and principle of estoppel and waiver and is also not maintainable for non -joinder of the necessary parties. The heirs of Nirsu Thakur and Shiv Nandan Thakur have not been made party to the suit. The suit is also not maintainable due to the operation of the consolidation scheme in the Mauza where the suit property is situated. Further case of the defendants is that the brothers of the plaintiff&aposs father were joint and it is not true that they all had separated amongst themselves prior to the revisional survey. Muneshwar Thakur died prior to revisional survey in the state of jointness and at that time Ram Sewak Thakur, the husband of defendant no. 2, was minor and Jagarnath Thakur was living in village Sarhachiyan alongwith his father&aposs sister (Faff). After the death of Muneshwar Thakur, Ram Chandra Thakur became the karta of the joint family consisting of all the sons of Muneshwar Thakur. It is incorrect to say that the suit land was acquired by the father of the plaintiffs together with one Guja Thakur from his own income rather Ramchandra Thakur being the karta of the joint family had acquired the suit land out of the income of the joint family fund and as such, all the three sons jointly came in possession of the Schedule I land and accordingly, the revisional survey khatian was prepared in the names of three brothers showing half share to the branch of Muneshwar Thakur and half share to Guja Thakur. Further case is that the sons of Muneshwar Thakur had separated amongst themselves in the year 1970 -71 and Jagarnath Thakur left his share to his two brothers through a deed of gift and himself settled in village Sarhachiyan. Hence Ramchandra Thakur and Ram Sewak Thakur partitioned amongst themselves all the properties belonging to the joint family of Muneshwar Thakur and they came in possession accordingly. In Schedule I land measuring 30 decimals, the land measuring 15 decimals from the east was allotted to Ram Sewak Thakur and 15 decimals of land from the west were allotted to Ramchandra Thakur on partition. The land was accordingly divided by a ridge which is still present. The defendants have denied this fact that Ram Chandra Thakur was in exclusive possession of Schedule I land and had grown trees over the same and had also cut the old trees standing over the said land. The defendants have also claimed that the sale deed dated 27.9.1986 executed by the plaintiffs&apos mother is a fraudulent document and the same is without consideration. The defendants have also denied that the sale deed executed by defendant no. 2 in favour of defendant no. 1 was brought in existence by playing fraud and the same is of without consideration. The defendants have claimed that the deed of ladavi dated 21.12.1973 is a collusive and fraudulent deed. The lands given in the said Ladavi deed have not been properly described and the same were not of the share of Jagarnath Thakur and it is not correct to say that in the consolidation proceeding, the lands were recorded in the names of the plaintiffs and the plaintiffs were paying rent to the State of Bihar. It has been asserted that the sale deed executed by defendant no. 2 in favour of defendant no. 1 is a valid and genuine document and the plaintiffs have no right to challenge the said sale deed and so, the suit is fit to be dismissed with cost.