A stranger to a deed, which is intended to be real and operative between the parties thereto, cannot dispute the payment or non-payment of consideration as its adequacy or inadequacy, but this principle has no bearing in a case where a deed is challenged as fictitious, never designed to operate as real deed or to effect a transfer of the title.

G.N.Prasad, J.

1. This is a second appeal by the plaintiffs who won in the trial Court but have lost in the lower appellate Court. The dispute relates to 19 1/2 kathas of land forming the southern portion of R.S. Plot No. 1920, appertaining to Khata No. 519, in village Bagant Jahanabad, Police Station Lalganj, District Muzaffarpur. The total area of plot No. 1920 is 1 bigha 19 1/2 kathas and it formerly belonged to Bishwanath Tewari and others (defendants second party).

2. In 1952, Moti Chaudhary, the predecessor-in-interest of defendants third party, instituted a money suit (Money Suit No. 4 of 1952) against the defendants second Party and obtained ,a decree for Es. 1,682/- and odd. After Moti Choudharys death, the defendants third party put the decree into execution in Execution Case No. 139 of 1954 and on January 11. 1955, they auction purchased the lands described in Schedule No. 2 of the plaint and got the sale certificate from Court on April 9. 1955. They did not, however, take steps for delivery of possession, and on April 4, 1957 they sold away their interest in the auction purchased lands to the plaintiffs under a sale deed (Ext. 1). In other words they authorised the plaintiffs to take delivery of possession over the auction purchased lands. After obtaining the sale deed (Ext, 1), the plaintiffs proceeded with the Execution case aforesaid and on June 20, 1957 they applied for delivery of possession. On September 14, 1957, when the Court peon went to effect the delivery of possession, resistance was offered by the defendants first party. The result was that possession was delivered to the plaintiffs over other lands but not over the disputed portion of plot No. 1920. Thereupon the plaintiffs instituted a miscellaneous case (Miscellaneous Case No. 198 of 1957) under Order XXI, Rule 97. Code of Civil Procedure. This miscellaneous case was decided in favour of the plaintiffs by the execution Court, but in Civil Revision No. 508 of 1959 decided by Untwalia. J. on April 12, 1960, the decision of the Executing Court was set aside and the miscellaneous case was dismissed as barred by limitation, (vide Ext. E/2). Thereupon, the plaintiffs instituted the present suit on January 7, 1961, seeking inter alia, a declaration of their title over the disputed portion of plot No. 1920 and an adjudication that the defendants first party have no right to obstruct their claim to delivery of possession over the same.

3. The suit was resisted by the defendants first party on various pleas. Their case is that they had obtained a decree for costs against the defendants second party and put the same into execution in Execution Case No. 316 of 1955. On August 7, 1956 they had auction-purchased 12 kathas forming the south-western portion of plot No. 1920 over which possession was delivered to them through Court on February 23 1957. They challenged the auction sale held in favour of defendants third party on January 11, 1955, as illegal and void, and the sale deed (Ext. 1) executed by them in favour of the plaintiffs on April 4, 1957 as a fictitious transaction, without consideration and ineffective. They, therefore, pleaded that the plaintiffs were not entitled to any relief in the suit.

4. As already stated, the trial Court accepted the plaintiffs case; but the lower appellate Court has taken a contrary view. In substance, the lower appellate Court has held that the defendants third party had neither acquired any title over the suit land by virtue of the execution sale held in their favour on January 11, 1955. nor conveyed any title therein to the plaintiffs under the sale deed (Ext. 1) executed on April 4, 1957.

5. The lower appellate Court has given two grounds for holding that no title had passed to defendants third party under the execution sale held on January 11. 1955. It has referred to the order sheet of Execution Case No. 139 of 1954 [Ext. 3) which shows that the original date fixed for the action sale was January 10, 1955, an