SUTHARA Vs. BIBI SAMSUNISHA

JUDGEMENT

(1.) This second appeal is directed against the judgment dated 11.3.1983 and the decree based thereon passed by Sri Aditya Saran, 2nd Additional Subordinate Judge, Chapra in Title Appeal No. 26/47 of 1977/1981, whereby the learned Subordinate Judge has reversed the decree dated 29.11.1976 passed in Title Suit No. 81 of 1970 by Sri Brij Nandan Prasad Singh, Munsif IVth Court, Chapra, who had decreed the suit.

(2.) The appellants herein and respondents second set, who are the descendants of Bipati, whose son had instituted the suit seeking the reliefs (with regard to 1 Bigha 9 kathas and 9 dhurs land appertaining to plot No.127 and 153 of khata No. 48 of village Narayan Palia), namely, that it be declared that they had got title over the land and the defendants (respondents here in) had no right in that land and that a sale deed, which had been executed by one Janki Devi (originally respondent No. 12 in this appeal but now dead) in favour of defendant No. 1 Bibi Shamshun Nisha, whose heirs are respondents herein, was illegal and void conferring no title to the purchaser and that the defendants be directed to hand over the original mortgage deed, which had been executed on 7.8.1954 by Janki in favour of Shamshunnisha and hand over possession of the land in question after accepting the mortgage money.

(3.) It is not disputed that the land previously belonged to Janki Devi (defendant No. 3 in the suit, who did not contest) and she had executed, on7.8.1954, a mortgage deed in favour of Bibi Shamshunnisha (Respondent No. 1) and on the basis of the mortgage, which was a usufructuary mortgage, the contesting respondents had come in possession of the land in question. It seems that Most. Janki also executed a sale deed in favour of Bipati,mother of the plaintiffs, on 23.8.1957 marked as Ext. A/1 and in that sale-deed it was stated that the consideration money of rupees two thousand (Rs.2,000/-) was kept in deposit by the purchaser for payment to the mortgagee. Subsequently, Janki Devi executed a deed of cancellation (Ext. D) on 20.12.1957 and thereafter executed a sale-deed in favour of Shamshunnisha. The case of the appellants in brief was that by virtue of the sale-deed (Ext. A/1) executed on 23.8.1957 by Most. Janki, they acquired title over the land and right to equity of redemption and they had right to obtain possession of the land after tendering the mortgage money, which had been kept in deposit by them when the sale deed had been executed by Janki, and were entitled to the reliefs as claimed by them (already noticed above).