MUNGESHWAR SAHOO,J. - (1.) THE defendants have filed this First Appeal against the Judgment and Decree dated 16.03.1988 passed by Sri Madhvendra Saran, the learned Subordinate Judge IInd Court, Patna in title suit No.68 of 1984 decreeing the plaintiffs-respondents' suit.
(2.) THE plaintiff-respondent filed the aforesaid title suit No.68 of 1984 for declaration of the plaintiff title and / or recovery of possession of the suit property and in the alternative prayed for partition to the extent of 1/4th share. According to the plaintiff's case, Gyani Yadav and Akbar Yadav were brothers. Akbar Yadav died leaving behind his widow Mostt. Mangari. Gyani Yadav died leaving two sons and a daughter, namely, Kuldeep Yadav, Bharosa Yadav and Panbatiya Devi. The names of Kuldeep, Bharosa and Panbatia were recorded in the cadastral survey record of right. Although name of Panbatiya was recorded but she had no interest or right in the suit property. Kuldeep Yadav had a son Rameshwar Yadav from his first wife and two sons Hari Yadav and Neta Yadav from second wife. Neta Yadav died issueless in the year 1943-44. The defendants are the sons of Rameshwar Yadav s/o of Kuldeep Yadav. Bharosa Yadav had separated 40-45 years. On his death, his 4 daughters became the owner of his property, therefore, they transferred the property of Bharosa Yadav. Hari Yadav and Rameshwar Yadav s/o Kuldeep Yadav also separated from each other 16 years ago but their laggit remain joint. However, when Hari Yadav fell in need of money, he transferred the Schedule (ka) lot No.1 land to the plaintiff No.1 and Mahant Yadav father of the plaintiff No.3 by registered sale deed dated 14.7.1970. The remaining land of Hari was transferred by his son Ram Naresh Yadav through registered sale deed dated 16.11.1974 in favour of the plaintiff. Ram Naresh Yadav Sasural was at Bharatpur, therefore, after selling the property, he started living in Sasural. In 144 Cr. Proceeding which was converted to a proceeding under Section 145 Cr.P.C., the possession of the defendants was declared. But, in fact, the plaintiffs are in cultivating possession of the suit lands. The defendants filed contesting written statement. Besides taking various legal please, their main contention is that Kuldeep never married second wife. After death of first wife, he kept a concubine who had come to live with him with a child named Hari who was not the son of Kuldeep. Neta was the son of Kuldeep who died issueless in the year 1943-44. Panbatiya was not the daughter of Gyani Yadav rather Pankuri Devi was the daughter of Gyani Yadav and Panbatiya Devi was the daughter of Akbar Yadav. On the death of Mangri, Panbatiya had no share but to avoid future complication, her son executed registered deed of gift dated 12.9.1974 with respect to his interest in favor of defendants. Therefore, on the death of Kuldeep, the defendants became the absolute owner of the entire property. The sale deeds executed by Hari or his sons in favour of the plaintiff are illegal, void, ab initio without consideration and no Takabjul Badlen was performed and moreover vendors had no title to the property, therefore, no title conferred on the plaintiffs through the sale deeds. The plaintiffs are not in possession of the property nor they ever tried to come in possession of the property nor their name is mutated. The defendants have also purchased the property from 4 daughters of Bharosa on 8.2.1974 through registered sale deeds. On the basis of the aforesaid pleadings the following issues were framed by the trial Court :- (i) Is the suit as framed maintainable? (ii) Have the plaintiffs any cause of action for the suit? (iii) Is the suit barred by law of limitation and adverse possession? (iv) Is the suit barred by estoppel, acquiescence and waiver? (v) Is the suit barred u/s 34 of Special Relief Act? (vi) Is the suit undervalued and court fee paid insufficient? (vii) Whether Hari Yaav and Neta were sons of late Kuldeep Yadav. (viii) Are the sale deeds dated 14.7.1970 and 16.11.1974 in question legal, valid and for consideration? (ix) Whether Panbatia wasdaughter of Gyanti? (x) Are the sale deeds in question legal, valid and for consideration and whether the plaintiffs acquired title to and possession over the suit land? (xi) To what other relief or reliefs the plaintiffs are entitled? After trial, the trial Court considering the oral as well as documentary evidences recorded a finding that Panbatiya was the daughter of Gyani Yadav. The trial Court also came to the conclusion that Hari Yadav was the son of Kuldeep Yadav and the sale deeds are legal, valid and for consideration and plaintiffs are in possession of the property and, therefore, decreed the plaintiff's suit.
(3.) THE learned senior counsel, Mr. Sidheshwari Prasad Singh appearing on behalf f the appellant submitted that the plaintiff had admitted that Rameshwar Yadav was the son of Kuldeep Yadav, therefore, the right interest of the defendant's ancestor has been admitted by the plaintiff. THE plaintiff's case is also that Rameshwari Yadav and Hari Yadav were joint in Laggit and there is no evidence regarding partition between them and in fact, alternatively, the plaintiffs also claimed 1/4th share which shows that the plaintiffs are trying to grab the joint family property. THE plaintiffs being the purchaser cannot have the better title than their vendor. Being the stranger, they cannot be allowed to say that Mangari had no share in the property, therefore, even if it is admitted that Hari was a son of Kuldeep then also plaintiffs are entitled for 1/6th share. THE vendor, Ram Naresh Yadav was alive on the date of filing the suit who was necessary party but because he was not made defendant, the suit is bad for non-joinder of necessary party. He was the person who would have supported or denied the execution of the sale deed or passing of consideration. THE plaintiff also not examined him as witnesses in support of their case. No witness of the village has been examined in support of the execution of the sale deed of the year 1970 and 1974 and in fact original sale deed were not produced. Certified copies of the sale deeds have been produced. THE learned counsel next submitted that the original sale deeds never seen in the light of the day and it is clear that the remaining amount of consideration of Rs.2,000/- is of ext.1/B to 1/H has not been paid and there is no evidence at all in support of the payment of the remaining consideration amount. Mere execution of sale deeds will not confer title as possession was not delivered. THE possession of the defendants was declared in 145 Cr.P.C. proceeding on 15.4.1975 whereas the suit has been filed in the year 1984, therefore, the suit itself is barred by law of limitation. THE learned counsel further submitted that the order passed under 145 Cr.P.C. proceeding will be valid till the order is set aside by competent Civil Court and the presumption of possession is forward and backward both, therefore, the plaintiff or their vendors were never in possession of the property. According to Article 113 of the Limitation Act read with Section 27 of the Limitation Act, the plaintiff's suit is barred. THE learned Court below has not considered the oral and documentary evidences properly and relied upon wrongly the documentary evidences ext.2, 11, 12 12A and 13. THE trial Court also wrongly relied upon ext.10 series and 8 series. THE learned counsel next submitted that the plaintiffs intentionally withhold the original sale deed; therefore, they played fraud upon the Court. In such circumstances, when fraud is played on the Court in view of the decision of the Apex Court reported in A.I.R. 1994 SC 853 (S. P. Chengalvaraya Naidu vs. Jagannath.), the plaintiff's suit should have been dismissed on that ground alone but the learned Court below did not consider this aspect of the matter. In support of the contention that there is presumption of possession forward and backward, the learned counsel relied upon the decision of the Apex Court reported in A.I.R. 1966 SC 605 (Ambika Prasad Thakur & Ors. vs. Ram Ekbal Rai). On behalf of the appellant, a written argument has also been filed which is on record. On the other hand, the learned senior counsel, Mr. Dwivedi appearing on behalf of the plaintiff-respondent submitted that once it is held that Hari Yadav is the son of Kuldeep Yadav then automatically, the plaintiff has purchased the property from either Hari Yadav or his son Ram Naresh Yadav, therefore, it cannot be said that the plaintiff have no title on the suit property nor it can be said that the transaction is void. The defendants are nobody to challenge the passing of consideration because according to the defendants themselves, Ram Naresh Yadav was alive in the year 1984 when the suit was filed. The sale deeds are of the year 1970 and 1974 but during this long period, the vendor or his successor in interest never challenge the title and possession of the plaintiff nor passing of consideration nor exchange of registration receipt. The vendor of the plaintiff or their successor have only the right to challenge all these matters which the appellant are now raising, therefore, no such defence is available to the defendants-appellants. It is not the case of the defendant that Hari or his son sold even the lands of Rameshwar Yadav or that they sold the entire family property. So far fraud is concerned, also it is not their case that fraud was played on them. Therefore, this defence also not available to them. If in fact fraud is played on Court then it is between the Court and the plaintiff, therefore, the defendants have got no locus standi and on this ground, the Judgment cannot be said to be vitiated. So far consideration of evidence is concerned, the plaintiffs have adduced oral evidences as required under Section 50 of the Evidence Act in support of the relationship of Hari with Kuldeep and also produced very old documentary evidences and considering these evidences, the trial Court has recorded the finding to the effect that Hari was the son of Kuldeep Yadav. There is no reason as to why this finding should be interfered with. So far the suit being barred by law of limitation is concerned, the learned counsel submitted that Article 113 of the Limitation Act is not applicable in the present case because the plaintiffs have filed the suit under Article 65 of the Limitation Act and, there is no pleading about adverse possession by the defendant. ;