A suit for a mere declaration is maintainable if the plaintiff is in possession of the property and seeks to resist interference from the defendant who has no better title.

S.K.Chattopadhyaya, J.

1. The appellant-defendant No. 1 has impugned the judgment and decree of the Courts below, by reason of which the suit filed by the plaintiff-respondent Nos. 1 to 4 for cancellation of the registered sale-deed dated 14.5.72 has been allowed.

2. The case of the plaintiffs is that one Upas Mahto @ Umesh Mahto died leaving behind his widow Sonia, three sons namely Pushu, minor Dhanu and minor Ganesh Mahto including two daughters, Mungia Mahtain and minor Jilpi Mahtain as his heirs and legal representatives, who inherited jointly the suit property having 1/9th share over the same. Besides the suit property as described in Schedule A of the plaint, said Upas also left behind some other lands and the plaintiffs are in peaceful joint possession of the property alongwith other co-sharers. All the minor sons and daughters of Upas are residing under the guardianship of their mother Sonia Mahtain. They have no concern with the defendant No. 2-second party namely Pushu. Mahto, another son of deceased Upas because being an addicted to having drinking, he does not take care of the members of the family and leading a vagabound life. Taking advantage of his alcohalic addiction, Motilal Khatik, defendant No. 1 induced Pushu Mahto to execute a deed in respect of entire 1/9th share of land of Upas, his deceased father in order to make a wrongful gain and to put the plaintiffs in wrongful loss. By this registered deed, Pushu allegedly sold entire 1/9th share land of the suit property of the plaintiffs to this defendant-first party, for which there was absolutely to talk of such sale between them and Pushu. The plaintiffs were unaware of such registration of sale-deed and only came to know for the first time when defendant-first party informed them that he had purchased the share of the plaintiffs in course of talk held by the defendant-first party from defendant-second party, Pushu. These facts were revealed towards the end of July, 1971 and being suspicious the plaintiffs enquired from the Dhanbad Sub-Registry and came to know that the defendant-first party managed to get the said deed executed by Pushu by falsely alleging him as guardian of minor plaintiff Nos. 3 and 4. No consideration was paid to the plaintiffs and the said sale-deed was a result of fraud and collusion and as such, plaintiffs sought for cancellation of the said-deed.

3. The defendant-first party, Motilal Khatik, on the contrary, has taken a stand that one Sagar Mahto, defendant No. 9, being son of deceased Ludu Mahto, has already sold his entire 1/3rd share in the suit property to him by a registered sale-deed dated 27.3.61 for valuable consideration and put the defendant in actual physical possession over the said purchased land. So far registered deed executed by defendant No. 2, Pusu is concerned, the case of the defendant is that Pusu was maintaining his brother, sister and mother as their guardian and looked after the property left by his father and more particularly the properties described in the plaint. Said Pusu was not an addicted to liquor and as Karta of the family, sold the entire 1/9th share of the property left by his father Upas Mahto by the said registered deed for valuable consideration. He sold the suit land on behalf of himself and on behalf of his brother, sister and mother for the benefit of the joint family, legal necessity and for the payment of the loan incurred by the joint family. The defendant has specifically stated that since 27.3.68 he is in peaceful physical possession over 1/9th share of the defendant No. 9 in the property mentioning in Schedule-A of the plaint, and as such, he derived right, title and interest over 1/9th share of the defendant No. 9 and as such, he has also derived right, title and possession in respect of 1/9th share of Upas since 14.5.71. Other allegations were also denied by the defendant.

4. The learned trial Court, on the basis of pleadings, framed several issues, one of which was as to whe