IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.13 of 2009 RAMDEO MODI, Son of Late Chinta Modi, resident of village Loha, P.S. Sono, District Jamui, at present Purani Bazar, Jhajha, P.s. Jhajha, District Jamui ….. Defendant .. Appellant .. Appellant Versus 1. CHHOTAN MODI, Son of Hri Lal Modi @ Hari Lal Modi, resident of village Charaiya, P.S. Sono, District Jamui, at present Nawadih, Purani Bazar, Jhajha, P.s. Jhajha, District Jamui 2. Debanti Devi, Wife of Chhotan Modi, D/o Chinta Modi and Muneshwari Devi of Purani Bazar, Jhajha, P.O. & P.S. Jhajha, District Jamui …. Plaintiffs . .Respondents … Respondents ----------- For the appellant : M/s Jaishankar Barnwal & Sanjay Kumar, Advocates For the Respondents : None ----- 5 02.11.2010 Heard learned counsel for the appellant. This appeal has been preferred by the defendant– appellant against the judgment and decree dated 11.9.2008 passed by the 1st Additional District Judge, Jamui in Title Appeal No. 61 of 2004, whereby he has dismissed the appeal and affirmed the judgment and decree dated 30.9.2004 passed in Title Suit No. 33 of 1995 by the Additional Munsif 1st, Jamui decreeing the suit of the plaintiff. The plaintiffs – respondents have filed the Title Suit No. 33 of 1995 for declaration that the sale deed dated 23.12.1983 executed by Yashoda Devi wife 2 of Mahadeo Modi in favour of the defendant is false, illegal, inoperative and the same did not confer any right, title and interest upon the defendant and further for declaration that the deed of gift dated 8.3.1980 executed by Dropadi Devi in favour of Muneshwari Devi is perfect, legal and operative whereby the plaintiff has acquired right, title and interest as well as possession of the suit land and the house standing thereupon. Further relief has been sought for setting aside the order of the A.D.M., Munger dated 14.3.1991 passed in Mutation Appeal No. 85 of 1987-88. The plaintiffs’ assertion is that one Bito Modi was the original owner in possession of the suit land, which stands fully described in the Schedule. He died leaving behind his three sons, namely, Mathura Modi, Mahdeo Modi and Ayodhya Modi, who inherited the property left by him. Ayodhaya Modi had one son, namely Laxmi Modi, who died unmarried, thus, issueless. Mahadeo Modi died leaving behind his widow Dropadi Devi and two daughters namely, Rukhmani Devi, who was married with Jagarnath Modi and Muneshwari Devi who was married with Chinta 3 Modi. The defendant – appellant and Onkar Modi were the two sons of Muneshwari Devi and Debanti Devi, Rambati Devi, Radha Devi and Sushila Devi were the four daughters of Muneshwari Devi. The plaintiff no. 1 has been married to Debanti Devi, whereas plaintiff no. 2 is the wife of plaintiff no. 1. It is further case of the plaintiffs that Dropadi Devi, widow of Mahadeo Modi had executed a deed of gift dated 8.3.1980 in favour of her daughter Muneshwari Devi and the plaintiff no. 1 Chotan Modi in respect of the suit property. However, description of khata number and plot number has been wrongly mentioned in the deed of gift though the boundary is correct. It is further claimed that after the deed of gift having been executed as above, the donee came in possession. Plaintiffs have further stated that it is wrong to say that Ayodhaya Modi is mischievous lady. The defendant – appellant filed written statement and contested the suit and has stated therein that Bito Modi, common ancestor of parties, had three sons, namely, Mathura Modi, Mahadeo Modi and Ayodhya Modi, Mathura Modi permanently shifted to 4 village Barhat. Thus, he did not have any share in the property situated at Jhajha. It is further stated that under the family arrangement Mahadeo Modi, the other son of Bitto Modi, had got 7 decimals out of 14 decimals, whereas third son Ayodhya Modi got 7 decimals after the aforesaid settlement and Ayodhaya came into the exclusive possession of their respective shares. It is the case of the defendant that though Laxmi Modi had died unmarried and issueless but the other son of Ayodhya Modi, namely, Mahadeo Modi died leaving behind his widow Yasoda Devi and the defendant has purchased the suit property from Yasoda Devi. The claim of the defendant is that the deed of gift, said to have executed in favour of the plaintiff no. 1 and Muneshwari Devi, is a false and fabricated document and since Dropadi Devi had already alienated her share of 7 decimals she did not have right to execute a deed of gift. The trial court upon the pleadings of the rival parties has framed altogether 11 issues and upon appreciation of pleadings and evidence led on behalf of the parties has recorded a finding that Yasoda Devi 5 was a fictitious lady and Ayodhaya Modi had only one son Laxmi Modi, who had died unmarried and issueless. It has further been held that the deed of gift executed by Dropadi Devi in faovaur of the plaintiff no. 1 and Muneshwari Devi is legal and valid. Accordingly, the suit was decreed. The defendant preferred Title Appeal No. 61 of 2004 against the judgment and decree of the trial court. However, the appellate court has also come to the conclusion that existence of Yasoda Devi could not be proved and deed of gift in favour of Chhotan Modi and Muneshwari Devi is legal and valid and, thus, the appeal was dismissed and the judgment and decree of the trial court had been affirmed. I have heard the learned counsel for the appellant. It is submitted on behalf of the appellant that a plea had been taken on behalf of the defendant – appellant that the suit would fail on account of non- joinder of necessary party and such issue was also framed, however, the same has been dealt with by the court concerned in a casual manner without any 6 discussion. Learned counsel submitted that Bitto Modi, the admitted ancestor, who was the owner of the suit property, died leaving behind three sons, namely, Mathura Modi, Mahadeo Modi and Ayodhya Modi. It is submitted that Mathura Modi also inherited property, therefore, he was necessary party and he ought to have been impleaded as a party defendant in the present suit. That having not been done, the suit fails on the ground of non-joinder of necessary party. Second contention raised on behalf of the appellant is that at the time of execution of deed of gift in favour of the plaintiff no. 1 dated 8.3.1980, Dropadi Devi, having already alienated her share, was not in possession of any further part of the suit property, thus she has executed the deed of gift without any valid title or in excess of her share. I do not find any substance in the submissions raised on behalf of the appellant. Learned counsel has produced a copy of written statement at the time of hearing of this appeal and in paragraph no. 15 of the written statement, it has been clearly stated by the defendant – appellant that first son 7 of Bitto Modi, namely Mathura Modi had permanently shifted to village Barhat, hence Mathura Modi has no share in the property at Jhajha. This fact has not been controverted by the plaintiffs also, thus, the same has become an admitted fact, which has also been noticed by the trial court. Therefore, in view of the admitted position and specific averments in his written statement this plea would not be available to the appellant at all and, thus, the same is noted only to be rejected. So far as the second contention of the appellant is concerned, since both the courts below have recorded concurrent finding that Ayodhaya Modi died leaving only one son, namely, Laxmi Modi and there was no other issue of Ayodhaya Modi. , namely, Mahadeo Modi, and also that Yasoda Devi is a fictitious lady set up by the defendant coupled with the fact that the son of Ayodhaya Modi, namely, Laxmi Modi, had also died unmarried and issueless, the property would definitely come to the branch of Mahadeo Modi as admittedly the first son, namely, Mathura Modi, had taken his share at village Barhat and he has no concern with the property situated at Jhajha. 8 In above view of the matter, the appellant could not point out any substantial error committed by the courts below, which may lead to any substantial question of law. As a result, this appeal fails and is, accordingly, dismissed. Spd/- ( Dr. Ravi Ranjan, J.)