NARENDRA NATH TIWARI, J. - (1.) THIS second appeal by the defendant No. 1 -appellant -appellant is against the judgment and decree of affirmance dated 19 th June, 2004 passed by learned 3 rd Additional District Judge, Palamau dismissing the Title Appeal No. 32 of 2003 and upholding the judgment and decree passed by learned Sub Judge -III, Palamau in Title Suit No. 97 of 1994.
(2.) THE plaintiff had filed the said suit for the relief praying declaration that the sale deed executed by defendant No. 2 in favour of the defendant No. 1 are void, fraudulent and not binding on the plaintiff and that the plaintiff has got right, title, interest and possession over the suit land. The plaintiffs case is that one Deni Singh was occupancy raiyat in respect of the said land along with his brother Khakhanu Singh. Khakhanu Singh died issueless in the state of jointness and the suit land devolved on the surviving brother Deni Singh. Deni Singh had no male issue and had only daughters. Plaintiff is the youngest daughter. The plaintiff managed the cultivation work from the very beginning and after death of Deni Singh, inherited the properties and has been in cultivating possession thereof. The defendant No. 2 was an issueless widow who was brought by the plaintiff to live with her for keeping watch over the standing crop on the suit land. The defendant No. 1 managed to obtain two collusive sale deeds executed by defendant No. 2, without payment of a single farthing, purportedly transferring the suit land. The defendant No. 1 had also fraudulently managed to obtain permission under Section 46 of the Chota Nagpur Tenancy Act. The defendant No. 1 contested the suit. His case was that Deni Singh married thrice. His first marriage was with Tileya Devi and out of the said wedlock two daughters were born Jageshwari and Maheshwari. After death of his first wife, Deni Singh married Dukhani and out of that wedlock, he had five daughters. The plaintiff and defendants No. 6 to 8 are the daughters born out of the said wedlock. After death of second wife, Deni Singh married Anar Kuar, defendant No. 2. It has been stated that the suit land was possessed by the defendant No. 2 when Deni Singh died. The said defendant No. 2 sold the suit land to the defendant No. 1 after obtaining permission under Section 46 of the Chota Nagpur Tenancy Act and on receipt of consideration amount by virtue of registered sale deed dated 13.01.1984 (Exhibit A) and 06.02.1984 (Exhibit A/1). It has been further stated that during his lifetime Deni Singh had got the land settled in the name of his wife, defendant No. 2 by the ex -landlord. Rent receipt was also issued by the ex -landlord in the name of defendant No. 2. The said defendant No. 2 remained in continuous possession of the land. Defendant No. 1 claimed that he is the owner and has got no indefeasible right, title, interest over the suit land.
(3.) ON the basis of the said pleadings, learned Trial Court framed several issues. Both the parties led their evidences. After thorough discussion and consideration of the facts, evidences and materials on record, learned Trial Court held that the defendant No. 2, Anar Kuar had got no right, title over the suit land and the sale deeds executed in favour of the defendant No. 1 is not legal, valid and binding on the plaintiff and that the defendant No. 1 did not acquire any right, title over possession by virtue of the said colourable sale deeds. Learned Trial Court decided almost all the issues in favour of the plaintiff and decreed the suit. The defendant, thereafter, preferred appeal in the Court of the District Judge, Palamau at Daltonganj being Title Appeal No. 32 of 2003. The said appeal was heard and decided by the learned Additional District Judge -III, Daltonganj, Palamau. Learned Lower Appellate Court, in view of the grounds taken in the appeal, also, thoroughly, examined the facts, evidences and materials on record and came to the finding that the lands belonged to Deni Singh who was member of the Scheduled Tribe and the defendant No. 1 is not a member of the Scheduled Tribe and as such any transfer by a member of Scheduled Tribe in favour of a member who is not a Scheduled Tribe is not permissible in law and thus, the sale deeds executed by the defendant No. 2 in favour of the defendant No. 1 is void, fraudulent, sham and not binding on the plaintiff. The said sale deeds did not convey any right, title to the defendant No. 1. It has been further held that the plaintiff has been coming in cultivating possession of the land and she has got raiyati right over the land. Learned lower appellate Court has, thus, upheld the judgment and decree of learned Trial Court and dismissed the appeal.;