Sunil Ambwani - (1.) -Heard Shri G. N. Verma, learned counsel for the appellants.
(2.) THIS second appeal arises out of judgment and decree passed by IVth Additional Munsif, Varanasi in Suit No. 721 of 1970, Lal Chand and others v. Mst. Atwari and others dated 27.1.1973, dismissing the suit for cancellation of sale deed dated 24.7.1967, executed by Jagarnath, defendant No. 2 in favour of Mst. Atwari, defendant No. 1. The plaintiffs also sought a relief that if it was found that they are not in possession, the possession of the disputed plot be given to them. The Civil Appeal No. 83 of 1973 were dismissed by Ist Additional Civil Judge, Varanasi on 19.9.1975, confirming the judgment of the trial court. The defendant No. 2 Jagar Nath is plaintiffs uncle. It was alleged that Shri Vishwanath, the plaintiff's father died leaving plaintiffs as their heirs and in possession of the properties as members of joint Hindu family. Defendant No. 2 claimed himself to be a 'sadhoo' and often lived outside the village. Whenever he visited the village Shri Ramji, the brother of defendant No. 1, visited him and together they smoked tobacco and ganja. The defendant No. 2 came under the influence of Shri Ramji, who got a sale deed dated 24.7.1967, executed from the defendant No. 2 in her favour, by exercising undue influence. The sale deed is a fraudulent document without any sale consideration and without any information to the plaintiffs. The sale deed gave to plot No. 131/1 in sale whereas it described the boundaries of plot No. 130/1. When the defendant No. 1 tried to take possession of the land in 1968 on which the plaintiffs acquired knowledge and filed the suit. The defendant No. 1 contested the suit on the ground that plaintiffs have no concern with the land and are not bhumidhar thereof. They are not in possession and have no right to file the suit. The sale deed was executed by defendant No. 2 after receiving adequate consideration and the possession was handed over to defendant No. 1. No undue influence or fraud was practiced on defendant No. 2.
(3.) THE trial court held that the sale deed is not liable to be cancelled. THE defendant No. 1 did not practise any undue influence over defendant No. 2. THE civil court has jurisdiction to try the suit for cancellation of sale deed. Shri Raja and Beepath, the other two sons of Mangroo the uncle of the plaintiffs were found to be necessary party and impleaded as defendant Nos. 3 and 4. THE suit was dismissed. In appellate court the plaintiffs alleged, that the plot in dispute is the ancestral plot of the appellants and that defendant No. 2 and the plaintiff's father were co-tenants of the plot. The sale deed for an area of only 17 decimal in favour of defendant No. 1 is void and liable to be cancelled. The oral and documentary evidence established that plot No. 130/1 was the ancestral plot with an area of 51 decimal. Mangroo and Samroo had half shares, i.e., 25-1/2 decimal each. After the death of Mangroo, Vishwanath, Raja and Beepath inherited his shares measuring 8-1/2 decimals each. Samaroo's share was inherited by Jagarnath. The oral evidence established a private partition of plot No. 130/1 in the family alongwith other properties.;