RAMJEET MAHTO Vs. BABAN MAHTO

JUDGEMENT

(1.) This appeal at the instance of the plaintiffs appellant has been directed against the impugned judgment and decree dated 09-02-1990 and 21-02-1990 respectively passed by Shri Philip Topno, 1st Additional District Judge, Daltonganj at Palamau in Title Appeal No. 16 of 1984 whereby and whereunder the appeal filed by Rupdhari Mahto (since dead), the original defendant respondent was allowed and judgment and decree dated 08-02-1984 and 20-02-1984 respectively passed by the Additional Munsif, Daltonganj at Palamau in Title Suit No. 19 of 1981 was set aside.

(2.) The plaintiffs appellant had filed the said title suit for declaration of their right, title and interest in respect of the suit land by virtue of the registered deed of gift dated 11-04-1972 (Ext. 2) executed by original defendant respondent Rupdhari Mahto in their favour and for confirmation of their possession in respect thereof and in the alternative for recovery of possession.

(3.) The case of the plaintiffs appellant is that Khudi Mahto died leaving behind his two sons, namely Bharosi Mahto and Rupdhari Mahto and the ancestral family property recorded in his name in cadastral Survey Records of Right as well as acquired by him in his life devolved upon his two sons and they have also inherited the properties of Mohan Mahto, the full brother of Khudi Mahto on his death and, thereafter, there had been an amicable partition between Bharosi Mahto and Rupdhari Mahto in respect of the entire properties and they were coming in exclusive cultivating possession in respect of the land allotted to their respective share. Defendants respondent Rupdhari Mahto is issueless. Bharosi Mahto had four sons, namely, Achaibar Mahto, Ayodhya Mahto alias Joshi Mahto, Kauleshwar Mahto and Balkesh Mahto. Said Balkesh Mahto died in the year 1967 leaving behind his widow Phuleshari Mahtowain and two minor sons, namely, Ramjeet Mahto and Lalan Mahto. Kauleshwar Mahto had two sons, namely, Rajendra Mahto and Balaram Mahto and four daughters. Said Phuleshari Mahtowain and Kauleshar Mahto always looked after the comfort of Rupdhari Mahto and his wife Ratwa Mahtowain as well as the cultivation of Rupdhari Mahto and due to the service rendered by them Rupdhari Mahto was very much pleased and had love for the sons of Kauleshar Mahto and Balkesh Mahto, deceased and in view of the services rendered by them Rupdhari Mahto, the defendant respondent proposed to gift his entire properties to the sons of Kauleshar Mahto and Balkesh Mahto, deceased and Phuleshwari Mahtowain and Kauleshar Mahto agreed to the proposal of gift made by Rupdhari Mahto and, accordingly, the defendant respondent Rupdhari Mahto executed a registered deed of gift dated 11-04-1972 in favour of the plaintiffs appellant who are the sons of Kauleshar Mahto and Balkesh Mahto. The deed of gift was scribed at the instance of defendant respondent Rupdhari Mahto and the scribe read over and explained the contents of the gift, to him and after understanding the contents of the gift defendant respondent Ruphari Mahto executed the deed of gift and the attesting witnesses witnessed the deed of gift at his instance. It is also alleged that defendant respondent Rupdhari Mahto was a literate person and he also verified the contents of the deed of gift and he himself presented the deed of gift before the Sub Registrar, Daltonganj for registration and admitted the execution in respect thereof without any undue influence and misrepresentation and Phuleswari Mahtowain and Kauleshar Mahto the mother and father of plaintiffs appellant Nos. 1 and 2 as well as of plaintiffs appellant Nos. 3 and 4 respectively accepted the deed of gift on their behalf and came in possession of the properties covered under the deed of gift and they came in cultivating possession over the suit land. Defendant, respondent Rupdhari Mahto also handed over the registration receipt to Kaulesar Mahto aforesaid who withdrew the original deed of gift from the registration office. It is alleged that, thereafter, the plaintiffs appellant filed a case for mutation of their names in respect of the gifted properties before the Circle Officer, Patna which was allowed without any objection raised by Rupdhari Mahto and, thereafter, defendant respondent Rupdhari Mahto filed an objection at the instance of Achaibar Mahto the eldest son of Bharosi Mahto aforesaid, before the Circle Officer, Patan which was rejected and, thereafter, Rupdhari Mahto filed an appeal against the order of mutation at the instance of Achaibar Mahto which was allowed by Deputy Collector, Land Reforms, Sadar, Daltonganj and the mutation order of the Circle Officer was set aside and the revision filed by the plaintiffs appellant was allowed by the Additional Collector, Palamau and, thereafter, the defendant respondent Rupdhari Mahto filed revision before the Commissioner, Chotanagpur, South Division at the instance of Achaibar Mahto which was allowed and it was observed in the order dated 05-03-1979 by the Commissioner that the parties might seek relief in Civil Court and, thereafter, apply for mutation. It is pertinent to mention here that defendant respondent Rupdhari Mahto had made out a case before the Revenue authorities that he had intended to execute a Will and he could not distinguish between deed of Will and deed of gift and so he executed a deed dated 11-04-1972. It is also alleged that defendant respondent Rupdhari Mahto also executed a deed of cancellation dated 28-06-1973. The further case of the plaintiffs appellant is that the deed of gift is irrevocable and they have already acquired indefeasible title and possession over the suit land by virtue of the deed of gift dated 11-04-1972 and they are in possession thereof and in view of the observation of the Commissioner, South Chotanagpur Division they had filed the suit for declaration of their title in respect of the suit land and also prayed for confirmation of possession and in the alternative for the recovery of possession.