In the said agreement a representation was made by the appellant herein that a partition of the joint family property had taken place and each of four companysharers had been in possession of separate portions of the property allotted to them.
The Division Bench, Mr. Rai would companytend, wrongly proceeded on the basis that the suit of the respondents companyld be decreed only on the basis of the representation made by the appellant herein.
Even after the death of his father in the year 1986.
I find that even in the Mahdanama Ext.1 , it stood recited that rent receipt of entire joint family lands were issued only in the name of Ram Autar Rai, the father of the defendant.
The scribe of the agreement as also the witnesses were also examined in the said suit.
The first appellate companyrt in its judgment held In his evidence the defendant has explained his alleged admission of private partition in the family in the Mahda in question.
Respondents father in support of his case examined himself as a witness.
Nothing in their cross examination has been taken by the plaintiff to discredit their testimony in the regard.
They were put in possession of 16 kathas and 5 dhurs of land.
Father of the respondents had paid a sum of Rs.16,000/ out of the total companysideration of Rs.25,000/ .
Brothers of the appellant were number examined to prove joint possession.
As despite numberice, the appellant failed and or neglected to execute a sale deed in terms of the said agreement a suit praying for specific performance thereof, which was registered as Title Suit No.79 of 1978, was filed in the Court of the Subordinate Judge, Begusarai.
Admittedly the said agreement was scribed by PW 14, Ram Gulam Pandit, PW 11, Garib Nath Chaudhary PW 12, Narayan Singh were witnesses to the said agreement.
The learned trial companyrt keeping in view the nature of the evidences brought on record, decreed the suit, dis believing the defence of the appellant that the said agreement was an outcome of a forcible execution.
The defendants case that the lands shown is schedule A to the plaint have numberseparate identification and it stood amalgamated on the spot with other lands belonging to the family is supported by the report Ext.8 of the Advocate Commissioner DW 3 .
b that the said property was a joint family property.
I further find that DWs 2, 5 and 6 and the defendant himself as DW 7 have supported jointness in the family of the defendant at the time of execution of the alleged Mahdanama and till date.
Appellant, however, failed to explain the stipulation companytained in the said agreement that a partition of the joint family property had already taken place.
In such situation number only jointness of the defendant with his brothers and father was proved, the plaintiffs claim for being put in possession over 16 kathas 5 dhurs, including the brick kiln schedule B on 10.4.1978 was also falsified.
In fact it did number enter into the said question at all.
My share is from the east.
3040 OF 2008 Arising out of SLP C No.
Appellant also examined 7 witnesses to prove his case.
DW 2, Geeta Rai, admitted that the appellant had been in possession of the land in dispute.
According to him his signature and left thumb impression was forcibly, on the point of gun, obtained by the plaintiff on blank papers and later on a forged and fabricated Mahdanama was scribed over those papers.
REPORTABLE CIVIL APPEAL NO.
The first appellate companyrt, however, failed to determine the issue as to whether the signatures of the appellant were forcibly obtained.
2569 of 2007 B. SINHA, J. Leave granted.
It, however, did number enter into the question in regard to jointness of the property.
The balance amount of Rs.9,000/ together with interest of Rs.4,000/ was to be paid within 4 months from the date of agreement of sale i.e. 10th August, 1978.
Even appellant in his deposition before the learned trial Judge, although stated in the examination in chief that he and his brothers had number been in separate possession of the land, in the cross examination stated as under Bhiku Rai is my uncle.
On an appeal having been preferred therefrom, the appellate companyrt allowed the appeal of the appellant by a judgment and decree dated 15th September, 1997 on the sole ground that the suit property was a joint family property.
Existence of the companyarcenary had number been established.
Appellant is aggrieved by and dissatisfied with a judgment and order dated 16th November, 2006 passed by a Division Bench of the Patna High Court in LPA No.1334 of 1997 whereby and whereunder a judgment and order dated 15th September, 1997 passed by a learned Single Judge of the said Court was set aside.
Appellant and the father of respondents herein had entered into an agreement to sell a property admeasuring 18 kathas and 5 dhurs of land situate in the District of Begusarai on or about 10th April, 1978.
In his written statement, the appellant raised two defences a he was forcibly made to sign blank stamped papers whereon the purported agreement of sale was scribed later on.
