IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.5 of 2009 1. ISSU MOHAMMAD ANSARI, Son of Mohammad Jan Ansari, resident of village – Khartari Tola, Gokhula Tappa Nonaur, prg. Semraun, P.S. Chiraiya, District East Champaran …… Plaintiff / Appellant …. Appellant Versus 1. MOST.JIANI DEVI , wife of Late Ramashray Hazra 2. Rajesh Paswan 3. Rakesh Paswan 4. Nara Paswan All sons of Late Ramashray Hazra, All residents of village Khartari Tola, Gokhula P.S. Chiraiya, District East Champaran 5. Mahendra Hazra 6. Ram Ekbal Hazra 7. Ramayan Haxzra 8. Ramprit Hazra All sons of Khedu Hara, all residents of village Khartari tola Gokhula, P.S. Chiraiya, District East Champaran 9. Rampati Devi, wife of Khedu Hazra 10. Kailashiya Devi, wife of Jaga Hazara, both of village Karmawa, P.S. Dhaka, District East Champaran …..Defendants Ist Party/Respondent Ist in the courts below 11. Jagdish Hazara, son of Teni Hazra, resident of village Gokhula, P.S. Chiraiya, District East Champaran …… Defendant 2nd Party / respondent 2nd Party …. Respondents ----------- For the appellant : M/s Kumar Uday Singh and Anil Kumar, Advocates ----- 4 06.09.2010 This appeal has been preferred against the judgment and decree dated 27.9.2008 passed in Title Appeal No. 19 of 1999, whereby the appeal has been dismissed and the judgment and decree passed by the 2 Munsif, Sikrahana at Motihari in Title Suit No. 13 of 1980 has been upheld. The plaintiff –appellant had filed Title Suit No. 13 of 1980 for declaration of title over the suit land described in Schedule I of the plaint, which appertains to khata no. 367, khesara no. 6581 and also for declaration that the sale deed executed by Most. Chaiti Devi in favour of defendant no. 1 as well as the sale deed executed by Jagdish Hazara in favour of defendant no. 2 are fraudulent, illegal, void and inoperative and not binding upon the plaintiff. The case of the plaintiff is that he has purchased the suit land from one Jagdish Hajara through a registered sale deed dated 12.12.1975. He was put in possession after receiving the consideration money from the date of purchase and since then he has been coming in cultivating possession over the suit land. He has also tried to explain as to how his vendor Jagdish Hajara has got the right, title, interest and possession over the suit land and how was he competent to execute the concerned sale deed in favour of the plaintiff. The further case of the plaintiff is that the 3 defendant no. 1 Khedu Hazara is a shrewd litigant and had set up Most. Chaiti as a daughter of Akalu Hajara and brought a sale deed fraudulently in existence showing having been executed by said Most. Chaiti and further stated that Khedu Hajara has also obtained fraudulent sale deed in favour of his wife Nagiya from Jugdish Hajara in respect of 1 katha 5 dhurs of land. Since execution of two sale deeds had cast cloud over the title of the plaintiff the cause of action had arisen for filing the title suit concerned. The Title Suit has been contested by defendant no. 1 Khedu Hajara, who after filing written statement has died and his heirs have been brought on record. Defendant no. 2 Nagiya Devi has also filed written statement. The case of defendant is that the suit land had been recorded in the revisional survey khatian in the name of all the three branches separated from each other before 1956 and share of Akalu Dusadh was 2 kathas 5 dhurs towards east. Aklu died twenty years ago leaving behind a daughter Chaiti Devi, who executed a sale deed dated 11.11.1978 in respect of 2 kathas 5 dhurs in favour of Khedu Hazara, who was put in 4 possession and his name was also mutated in respect of the said land. Jagdish Hajara has got no share in the suit land as his maternal uncle Beni Dusadh had already sold the entire share for the benefit of the family. Both the courts below upon consideration of the materials on record have come to the conclusion that the plaintiff has not been able to prove that the sale deed executed in favour of the defendants is forged and fabricated document. Further, the suit filed by the plaintiff is misconceived and also that the plaintiff is challenging the sale deed of the defendant, which is prior to his sale deed and, thus, it was essential for the plaintiff to make Kedar and Lakshman Prasad as defendant but that not having been done, the suit was liable to be dismissed. The trial court has held that the evidence of plaintiff’s witnesses on the point of genealogy was based on falsehood, whereas the evidence of defendant’s witness by Ext. B/1 shows that Most. Chaiti was daughter of Aklu Hajara. It has further been held that since Most. Chaiti was daughter of Aklu Hajara, therefore, the sale deed dated 11.11.1978 (Ext. B/1) 5 executed by her in favour of Khedu Hajara, defendant no. 1, is legal and valid. According to the genealogy table, Jagdish Hajara had only 1/6th share in the suit plot measuring 6 kathas 15 dhurs 3 kathas of suit plot has already been sold by aforesaid Jagdish Hajara. By sale deed dated 10.11.1975, i.e., Ext. B, one katha of suit land was sold. Similarly by sale deed dated 9.6.1968 (Ext. 1/B) one katha of suit land was sold and similarly by sale deed dated 5.9.1972 (Ext. 1/C) one katha of suit land was sold. Thus, prior to the execution of the sale deed dated 12.12.1975 (Ext. 1) in favour of the plaintiff three kathas of suit land had already been sold by Jagdish Hajara, therefore, he did not have any land left to be transferred to the plaintiff. Therefore, it cannot be held that the plaintiff has acquired any title over the suit land by virtue of the concerned sale deed. As such, the suit was dismissed. The plaintiff – appellant preferred Title Appeal No. 169 of 1992 against the judgment and decree passed by the trial court, however, the same has also been dismissed and finding of the trial court has been upheld. Learned counsel appearing for the appellant 6 could not show any substantial error committed by the courts below. He could not demonstrate that the plaintiff’s vendor was left with sufficient land which could have been transferred by him on 12.12.1975, in favour of plaintiff. That apart, he also could not answer the question as to why the other transferees from the defendant Jagdish Hajara have not been impleaded as party to the suit and how, even in their absence, the suit of the plaintiff could have been decreed. In above view of the matter, I do not find that any error having been committed by the both courts below leading to any substantial question of law. As a result, this appeal being devoid of any merit is dismissed. Spd/- ( Dr. Ravi Ranjan, J.)