BADRI Vs. SANT RAM

JUDGEMENT

(1.) This second appeal has been filed against the judgment and decree dated 4.11.1987 passed by Civil Judge, Basti in Civil Appeal No. 420 of 1983 preferred against the judgment and decree dated 30.9.1983 passed by IVth Additional Munsif, Basti in Original Suit No. 519 of 1982.

(2.) The brief facts relevant for disposal of this second appeal are that one Badri had filed a suit for cancellation of a sale deed dated 4.10.1982, which was executed by one Smt. Chhotka-defendant no. 6 in favour of defendant nos. 1 to 5. In paragraph 1 of the plaint a pedigree was given, which shows that one Ramdeen was having three sons. One son Jagdutt was having a son Parag and Smt. Chhotka was wife of Parag. Parag was not having any issue and only old aged wife Chhotka was there. Parag was also an old person. It is stated in the plaint that Parag and his wife Chhotka were living with the plaintiff Badri, who was one of the sons of Katai who was also from the same family. It is stated that both the persons Parag and Chhotka were living with the plaintiff Badri and he was lookingafter and giving all the services to them and due to this services rendered by the plaintiff Badri, Parag had executed a Will dated 1.7.1982 with the consent of his wife defendant no. 6 Chhotka in favour of Badri. Parag died on 1.9.1982 thereafter the plaintiff moved an application for mutation on the basis of the said Will in his favour which was pending. In the meantime, after the death of Parag, the defendant no. 6 Chhotka was annoyed with the plaintiff Badri and taking advantage of this annoyance, when the plaintiff was busy in last rites etc. of Parag, the defendant nos. 1 to 5 got a sale deed executed from Chhotka in their favour on 4.10.1982. The plaintiff came to know about the said sale deed in the last of month of October, 1982. Immediately after coming to know about the sale deed, the plaintiff filed a suit for cancellation of the sale deed on different grounds as stated in paragraph 5 of the plaint. The defendant nos. 1 to 5 appeared in the case and filed their joint written statement wherein the plaint allegations were denied and it was stated that the plaintiff has no cause of action to file the suit against the defendant nos. 1 to 5. It was also denied that during life time Parag and Chhotka were living with the plaintiff Badri. It was pleaded that they were living separately and they were lookingafter the agricultural field separately. They were not living with the plaintiff Badri and the plaintiff Badri was not giving services to them. It was also denied that Parag had executed any Will in favour of the plaintiff Badri and if at all there is any Will deed in his favour, it is false, fabricated and does not confer any right or title upon the plaintiff. It was further stated that even during life time of Parag they had settled regarding sale deed of the disputed land with Parag and during life time, the defendant nos. 1 to 5 were making payment in installments to Parag regarding sale consideration but all of sudden Parag fell ill and has died and could not execute the sale deed. Chhotka executed the sale deed after the payment of balance amount of sale consideration on 4.10.1982 and after execution of sale deed, there was a dispute between the parties in respect of the said land. It was also stated that the sale deed dated 4.10.1982 was executed by Chhotka for which she has got every right.

(3.) On the basis of the pleadings of the parties, the learned trial court framed various issues amongst them. Issue no. 1 was as to whether sale deed was liable to be cancelled on the grounds taken in the plaint. Another issue was also framed as to whether plaintiff is the owner in possession of the land in dispute. On behalf of the parties, oral as well as documentary evidences were adduced. On behalf of the plaintiff, attesting witnesses as well as scriber of the sale deed were produced. It is noteworthy that before the trial court neither the defendant no. 6 Chhotka appeared nor filed any written statement.