RAM GOVIND OJHA Vs. KEIDAR NATH

JUDGEMENT

(1.) THIS appeal has been preferred against the judgment and decree passed by the 4th Additional District Judge, Arrah in Title Appeal No. 39/3 of 1974/76 reversing the judgment and decree passed by the Subordinate Judge, Arrah on 22.12.1973 in Title Suit No. 116/29 of 1969/73.

(2.) THE facts of the case run in the very narrow compass. The plaintiffs -appellants filed the suit for declaration of his right, title and interest over the suit property. The suit plot no. 421 measures 1.36 acres recorded in Khata no. 89 of village Randadih P.S. Shahpur and it belonged to defendant no. 1. Sukhari Tewary alias Raj Ballabh Tewary of village Belauti. A part of the suit land was mortgaged for a sum of Rs. 2800/ - by two registered deeds dated 1.8.1964 and 6.8.1965 and he further obtained a loan of Rs. 150/ - by executing a Hand -note dated 10.11.1968. But subsequently, it was agreed between the plaintiffs and defendant no.1. that the plaintiffs would purchase the suit land for Rs. 5655/ - and accordingly, a sale deed was executed on 8.12.1966 and it was registered. The plaintiffs had paid the sum of Rs. 2705/ - in cash to defendant no.1 and the sum of Rs. 2950/ - was retained by the plaintiffs for redeeming the mortgage bond and for paying the promissory note holder. According to the plaintiffs, they, subsequently, paid back the creditors and entire consideration money of the sale deed was paid off. But it would transpired (sic) afterwards that defendant no.1 executed two ante -dated sale deeds in favour of defendant no.5 for defeating the right of the plaintiffs which had already acrue to them in the suit property. The two sale deeds were fraudulent, collusive and without consideration. There was a compulsory registration case before the District Sub -Registrar, Arrah and by his order, the two sale deeds were registered. It is the further case that the plaintiffs further learnt that defendant no.4 Laungi Devi wife of defendant no.1 brought a collusive partition suit against her husband and three sons in which a compromise decree was passed showing the area of plot no.421 K to be only 45 decimals whereas its correct area was 1.36 acres and that the decree of the said suit was not binding on the plaintiffs. Therefore, the plaintiffs ' title was clouded because of the ante -dated documents and the subsequent suit filed by the wife of defendant no.1 and hence the suit was filed for declaration of right, title and interest with consequential reliefs. Defendant no.1 Sukhari Tewary alias Rajballabh Tewary filed a petition dated 18.8.1971 supporting the case of the plaintiffs. He stated that he had already given possession in favour of the plaintiffs over the suit land. Defendant no. 5 is a contesting defendant. By filing written statement, he contended inter - alia that defendant no.1 had executed a contract of sale dated 2.7.1966 for transferring the land to him for a consideration of Rs. 4000/ - and that defendant no.1 had received Rs. 800/ - as advance out of the consideration amount and after the stamps were purchased on 10.11.1966 and defendant no.1 executed two sale deeds on 21.11.1966 for Rs. 2000/ - each in favour of the contesting defendant. However, defendant no.1 did not appear before the Registrar for compulsory registration of the two deeds and ultimately, those had been registered by the Registrar. The defendants have alleged that the sale deed executed by defendant no.1 in favour of the plaintiffs is in subsequent point of time and has not conferred any title on him.

(3.) THE dispute is between the purchase of the plaintiffs and that of defendant no.5. The plaintiffs ' purchase is dated 8.12.1966. It was executed on that date and registration was also made on that date while defendant no. 5 'stwo purchase deeds are dated 21.11.1966 and those had been registered during the month of March, 1963 (sic) in the process of compulsory registerable document as contemplated under the Indian Registration Act.