Decided on May 06,1952

ABHI SINGH Appellant
DASO BHOGTA Respondents


Sarjoo Prosad, J. - (1.) The only material point which arises for consideration in this appeal is whether the defendants are entitled to refund of the consideration money which they paid to their vendor before the sale in defendant's favour could be avoided by the plaintiffs.
(2.) The facts giving rise to this appeal are that one Dipan had two sons, Bhagirath and Megho. Bhagirath was the father of plaintiff No. 1 and Megho, the father of plaintiff No. 2. The dispute relates to khata No. 22 of village Dumaria Khalar which was recorded in the name of Bhagirath and Megho in the record of rights. The plaintiffs' case was that after the survey there was a separation between the two brothers, Bhagirath and Megho, and the lands were divided half and half between the two. It was further alleged that Megho, who worked as a labourer of the defendants and was possessed of weak intellect, executed three kabalas in favour of the defendants on the 21st of April, 26th of April and 23rd of June 1943 respectively. The plaintiffs challenged these kabalas as being without consideration, and that no title or possession passed to the defendants under them. It is stated that Megho died some three years ago, and thereafter the plaintiffs came in possession. The defendants, however, endeavoured to interfere with plaintiffs' possession which led to various litigations ending in the conviction of the plaintiffs under Section 379, I.P.C. The plaintiffs, therefore were compelled to institute the suit for declaration of title and for confirmation of possession, or for recovery of possession. The plaintiffs further alleged that they were 'Bhogtas' by caste and not 'Nayas', and that the survey entry in that connection was wrong, and they being 'scheduled caste', the sales in favour of the defendants were void ab initio.
(3.) The defence inter alia was that Bhagirath and Megho were joint and Bhagirath died in a state of jointness; and after his death Megho came in possession of his properties as Karta of the plaintiffs' family. The defendants denied that Megho was of weak mind or worked as their labourer, and that the plaintiffs were not 'Bhogtas' or scheduled caste but they were Nayas as recorded in the survey. They, therefore, contended that the kabalas were for consideration and legal necessity and conveyed a good title to them, and they also stated that they had after their purchase built a house on the land in which the plaintiffs had been allowed to reside, but the plaintiffs were not vacating the same.;

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