MAHESH SAH Vs. SURATIA DEVI

JUDGEMENT

(1.) THIS second appeal has been preferred by the plaintiffs -appellants against the judgment dated 15.12.1989 and the decree dated 3.1.1990 passed by Sri Anant Prasad Srivastava, District Judge, Sitamarhi in Title Appeal No. 40 of 1988 reversing the judgment dated 11.8.1988 passed by Sri Ram Prabodh Singh, Subordinate Judge I, Sitamarhi in Title Suit No. 103 of 1986 whereby the learned Sub -ordinate Judge had decreed the suit of the plaintiffs -appellants.

(2.) THE brief facts of the case are as follows: The plaintiffs -appellants had preferred Title Suit No. 103 of 1986 in the court of the Subordinate Judge, Sitamarhi for declaration that the sale deed dated 19.7.1986 executed by defendant No. 2 Laxmi Sah in favour of defendant No. 1 Gauri Shankar Choudhary with respect to the suit land was a forged and fabricated document and the same was of without consideration and not binding upon the plaintiffs -appellants. They had also sought relief for issuing injunction for restraining the defendants from disturbing the possession of the plaintiffs. From perusal of the judgment of the trial court it appears that the trial court found the case of the plaintiffs correct and decreed the suit of the plaintiffs but in appeal, the appellate court reversed the finding of the trial court and held that the sale deed dated 19.7.1986 (Ext. C/1) is not a forged and fabricated document and the same is also not of without consideration. The learned first appellate court also held that the sale deed (Ext.C/1) is a valid document and the same is binding upon the plaintiffs. The learned first appellate court also held that the defendant No. 2 had full right to execute the said sale deed and that the plaintiffs are not entitled to get any relief. On the basis of the above finding, the first appellate court dismissed the suit of the plaintiffs -appellants and against the said finding, the plaintiffs -appellants have preferred this second appeal.

(3.) THE case of the plaintiffs -appellants, in brief, was that Ram Narain Sah or Narayan Sah had three sons, namely, Mahesh Sah, Kishori Sah and Laxmi Sah. The original plaintiff Mostt. Bilti Devi was the second wife of the said Ram Narain Sah. Defendant No. 2 Laxmi Sah is the son of Ram Narain Sah from second wife Bilti Devi whereas Mahesh Sah and Kishori Sah are the sons of Ram Narain Sah from his first wife Dularia Devi. The said Ram Narain Sah died in the state of jointness leaving behind him his second wife Bilti Devi (plaintiff No. 1) and his three sons, namely, Mahesh Sah, Kishori Sah and Laxmi Sah. Kishori Sah also died leaving behind him his widow Sita Devi (plaintiff No. 3) and his two sons, namely, Ram Babu Sah and Moti Sah, (plaintiff Nos. 4 and 5, respectively). The said Ram Narain Sah owned and possessed 0.03 decimals of land in Khesra No. 2995, 0.10 decimals of land in Khesra No. 3000 (total 0.13 decimals) appertaining to Khata No. 845. Besides that, he owned and possessed 0.8 decimals land in Khesra No. 5810, 0.33 decimals in Khesra No. 5835, 0.9 decimals in Khesra No. 5491 and 0.14 decimals in Khesra No. 1673 (total 0.64 decimals) appertaining to Khata No. 850. After the death of Ram Narain Sah, a family partition took place amongst the heirs of Ram Narain Sah and according to the said family partition, entire agricultural lands of Khata No. 850 measuring 0.64 decimals were exclusively allotted to the share of Laxmi Sah (defendant No. 2) while the homestead lands of khata No. 848 were jointly allotted to the share of Mahesh Sah (plaintiff No. 2) and the widow of Kishori Sah and her two sons (plaintiff Nos. 3 to 5). After the aforesaid partition, Laxmi Sah (defendant No. 2) sold 0.39 acres of land and 0.11 acres of land of Khata No. 850 by two registered sale deeds (Exts. 2 and 2/A) in favour of Sita Devi wife of Kishori Sah and Sukhi Devi wife of Mahesh Sah. He again sold remaining 14 decimals of land to one Sanjay Kumar Choudhary through sale deed dated 20.7.1983 (Ext.C) but at the instance of the vendee Sanjay Kumar Choudhary, the plaintiffs also joined as vendors in the said sale deed (Ext.C) in good faith, Thus, the defendant No. 2, who has settled in his Sasural, had sold his entire share in the property of Ram Narain Sah and nothing of his share was left in the property. Further case is that the dwelling house of the plaintiffs stands over plot No. 3000. Plot No. 2995 lies in contagious west to plot No. 3000 over which the plaintiffs have got their Sahan and Kitchen Garden. Adjacent to west to plot No. 2995, defendant No. 1 has got his land and house. Defendant No. 1 had proposed to purchase a portion of homestead land belonging to the plaintiffs but when the plaintiffs did not agree the defendant No. 1 fraudulently got a sale deed with respect to 10 dhurs of the said homestead land executed from defendant No. 2. It is said that the defendant No. 2 had no right to execute the said sale deed with respect to the homestead lands belonging to the plaintiffs and so, the plaintiffs filed the suit for declaration that the sale deed of defendant No. 1 is a forged and fabricated document and the same is without consideration and not binding upon the plaintiffs.