BALMIKI MAHTO Vs. KISHUN MAHTO

JUDGEMENT

(1.) THIS second appeal has been preferred by the plaintiffs - appellants against the judgment and decree dated 31.5.1990 passed by Sri Eric Mechyari, 5th Additional District Judge, Saran at Chapra in Title Appeal No. 61 of 1981 reversing the judgment and decree dated 31.3.1981 passed by Sri Chandeshwar Mochi, 1st Additional Munsif, Chapra in Title Suit No. 60 of 1969.

(2.) THE brief facts of the case are as follows:

(3.) ORIGINAL defendant no. 2, Kabutri Devi and defendant nos. 3 and 4. who are purchasers of the suit property from defendant no. 1 filed separate written statements whereas defendant no. 1 Kishun Mahto adopted the written statement filed by defendant nos. 3 and 4. The case of the defendants is that Laljee Mahto, who was the husband of defendant no. 2 Kabutri Devi, was the son of Jiut Mahto. The said Jiut Mahto was the son of Chart Mahto who was son of Pargari Mahto and not Gudar Mahto. The original plaintiff had no concern with the family of Laljee Mahto. Defendant No. 1 Kishun Mahto was the son of brother - in -law of Laljee Mahto, who used to look after Laljee Mahto and the said Laljee Mahto had also love and affection with Kishun Mahto (defendant no. 1). Out of love and affection and being pleased with the service of Kishun Mahto, Laljee Mahto executed a deed of gift in favour of Kishun Mahto on 29.1.1944 with respect to the suit property which was accepted by Kishun Mahto and thereafter Laljee Mahto put Kishun Mahto in possession of the suit property. It is further said that the deed of gift became operative and Kishun Mahto came in possession of the gifted property. It is further stated that at the time of gift, Kishun Mahto was minor and was under the guardian of his mother Pan Kuer who, in the capacity of guardian of Kishun Mahto, executed a sale deed on 22.1.1946 in respect of 7 kathas 11 dhurs of land out of the land gifted to Kishun Mahto by Laljee Mahto through the gift deed. The said sale deed was executed in favour of Hoti Raut for valuable consideration of Rs. 660/ - who came in possession of the said land and has been coming in possession of the same. It is stated that the recital of the sale deed dated 22.1.46 will show that defendant no. 1 had acquired the said property through the gift deed dated 29.1.1944. It will further show that L.T.I. of Pan Kuer was attested by no other person than Laljee Mahto himself. Further case is that defendant no. 1 Kishun Mahto used to reside in tne house of Laljee Mahto and the original deed of gift was in his custody but somehow the same had lost. It is further said that prior to his death, Laljee Mahto had lost his power of understanding and became incapable of understanding things properly due to illness and old age. It is further said that during his illness the plaintilt took Laljee Mahto to Marhowrah on his bullock -cart for the purpose of his treatment and obtained L.T.I. of Laljee Mahto on some blank stamped paper which was later converted into a deed of cancellation. It is said that Laljee Mahto never executed the deed of cancellation nor he was mentally sound to execute the same nor he had right to execute the deed of cancellation. Further case of the defendants is that Kishun Mahto sold all the lands of Laljee Mahto except the house and homestead land to defendant nos. 3 and 4, namely, Jamuna Singh and Etwar Mahto, respectively and they are in possession of the lands sold to them. The plaintiff in collusion with the Amalas of the ex -landlord might have forged and fabricated some documents in his favour which are not binding upon the defendants and the sale deeds executed by defendant no. 1. are valid documents as the same were executed after obtaining permission of the authority concerned. The defendants have also denied that after death of Laljee Mahto, Kabutri Devi had married with another man. It has further been stated that on the strength of the sale deeds executed by defendant no. 1, defendant nos. 3 and 4 came in possession of the lands sold to them whereas Hoti Mahto has also come in possession of the land sold to him. He also got his name mutated after the purchase. However, it appears -that Mahabir Mahto (substituted defendant no. 2) has supported this fact that after the death of Lalojee Mahto, Kabutri had performed second marriage with his father Nona Mahto and thus, Kabutri Devi was his step mother. He has also supported this fact that after the death of Laljee Mahto the plaintiff came in possession of the property left by Laljee Mahto.