GANESH RAI Vs. JITENDRA GOTTAM

JUDGEMENT

(1.) This appeal has been preferred against judgment and decree dated 07.08.2006 passed by learned Sub Judge, Naugachia in Title suit no. 51/2004 by which and whereunder he dismissed the aforesaid suit ex parte without cost against defendant first party-respondent first party whereas on contest dismissed the aforesaid suit against plaintiffs-appellants.

(2.) Plaintiffs-appellants (who are hereinafter called as plaintiffs) filed Title suit no. 51/2004 against defendants-respondents seeking reliefs for declaration of the right, title and interest over the plot no. 5877, plot no. 5878, plot no. 5881, plot no. 5882, plot no. 5883, plot no. 5871, plot no. 6035 of khata no. 2896 total area and 9.42 acres. Also sought reliefs to cancel registered cancellation deed dated 31.03.2004 executed by respondent first party (hereinafter referred to call as dependent first party) as null, void, illegal and not being binding upon the plaintiffs and also for declaration that on the basis of the registered sale deed dated 14.10.2004 executed by defendant first party in favour of defendant second party is void, illegal inoperative and not affected the right, title and interest of the plaintiffs and also for issuance of injunction against defendants till the disposal of the suit.

(3.) The case of the plaintiffs is that disputed lands originally belonged to one Shyamdeo Kumer who gave a proposal to sell 2 acres 71 decimals lands to plaintiff no.1 for consideration money of Rs. 71, 600.00 which was accepted by the plaintiff no.1 and subsequently, an agreement for sale was executed by the aforesaid Shyamdeo Kumer on 05.12.1993 in favour of plaintiffs on payment of Rs 10,000.00 in advance. The aforesaid Shyamdeo Kumar often used to take sand, chips etc from plaintiff no.1 and he took the aforesaid articles of Rs 65,000.00 from plaintiff no.1 and adjusted the aforesaid amount towards consideration money of the aforesaid agreement for sale. The possession of the land was given to plaintiffs at the time of execution of agreement for sale itself. The above stated Shyamdeo Kumar, unfortunately, died before execution of absolute sale deed and thereafter, plaintiffs requested defendant no. 1(a), namely, Mostt. Usha Devi who happened to be wife of Shyamdeo Kumar, and she executed a power of attorney of her property in favour of defendant no.1, namely, Jitendra Gauttam who agreed to sell the entire 9 acres 45 dismals of lands for consideration amount of Rs 4, 71,000.00 and also agreed to adjust Rs 65,000.00 earlier paid by the plaintiffs in connection with agreement for sale dated 05.12.1993. Plaintiffs paid Rs 1, 77,000.00 through Ramesh Kumar (PW 3), Rs 1, 55,000.00 through Sajan Kumar (PW 5), Rs 20,000.00 through Akal Singh (PW 4), and again, Rs 54,000.00 through Ramesh Kumar (PW 3). Defendant no. 1, namely, Jitendra Gauttam having got the aforesaid consideration amount, executed registered sale deed of the disputed lands on 22.11.2003 in favour of plaintiffs in presence of the above stated witnesses. Plaintiffs got the possession of remaining portion of lands on the date of execution of the aforesaid registered sale deed but on 31.03.2004 defendant no. 1, illegally and fraudulently, executed registered cancellation deed in respect of the aforesaid transferred lands without giving any notice to the plaintiffs and also transferred the disputed lands in favour of the defendant second party by executing two registered sale deeds on 14.10.2004 and thereafter, defendant second party threatened plaintiffs to dispossess them from the suit lands. Thereafter, plaintiffs filed the above stated Title suit no. 51/2004.