GAYA MAHTO Vs. LILA DEVI

JUDGEMENT

(1.) THIS appeal at the instance of the defendant -appellant has been preferred against the impugned judgment and decree dated 23.9.2002 and 25.11.2002 respectively passed in Title Appeal No. 24 of 1994, 24 of 2001 by Shri Ashok Kumar Chand, 6th Additional District Judge, Hazaribagh whereby and whereunder the judgment and decree of the trial Court passed in Title Suit No. 76 of 1999 were set aside and the appeal was allowed and the case was remitted to the trial Court fora fresh decision.

(2.) THE plaintiff -respondent had filed the said title suit for declaration of his title in respect of 1 -2/3 decimals of land out of Plot No. 415 appertaining to Khata No. 53 situate in Village - Okni, PS -Sadar, District -Hazaribagh and also for a declaration that the sale deed dated 28.5.1982 in favour of defendant No. 1 executed by Defendant Nos. 2 to 5 in respect of entire five decimals of land of Plot No. 415 aforesaid is null and void besides issuance of permanent injunction restraining the defendant from interfering in her possession over the suit land.

(3.) THE case of the defendant No. 1, inter alia, is that it is false to say that Utiman Bibi had executed an unregistered deed of gift in favour of Md. Ismail and Abdul Subhan and the said deed of gift dated 10.8.1962 is an antedated, forged and fabricated document and Utiman Bibi did not derive one -third interest in the land of Khata No. 53 and she has also no right to execute such a deed of gift. It is alleged that the land of Khata No. 53 was never partitioned by metes and bounds between the legal heirs of the recorded tenants and it is still joint. Her further case is that the registered deed of gift dated 6.3.1976 executed by Ismail Mian in favour of his son Eqbal Hussain has never been acted upon and similarly the sale deed dated 27.6.1955 executed by Sukar Mian in favour of his son Suleman Mian in respect of his one -third interest in the land of Khata No. 53 has also not been acted upon. Ismail Mian has never derived title in respect of one -third interest in the land of Khata No. 53 alone and hence he had no right to execute the deed of gift to the extent of his one -third interest in favour of his son Eqbal Hussain and the deed of gift is invalid, inoperative and void and thus Eqbal Hussain has no right to execute the sale deed in favour of plaintiff which is invalid, inoperative, void and without consideration and plaintiff has never come in possession over the suit land nor has she derived any right, title and interest therein. The defendant has also denied the construction of one room by the plaintiff over the suit land. The further case of the defendant No. 1 is that she has acquired entire five decimals of Plot No. 415 by virtue of the sale deed dated 28.5.1981 executed by defendant Nos. 2 to 5 and defendant No. 8 for a consideration of Rs. 15,000/ - and she is in possession over the Plot No. 415 and she stands mutated in respect thereof and paying rent to the State and defendant Nos. 2 to 5 and defendant No. 8 has full right to transfer Plot No. 415 in favour of defendant No. 1.