Mungeshwar Sahoo, J.

1. The defendants have filed this First Appeal against the Judgment and Decree dated 16.03.1988 passed by Sri Madhvendra Saran, the learned Subordinate Judge IInd Court, Patna in title suit No.68 of 1984 decreeing the plaintiffs-respondents’ suit.

2. The plaintiff-respondent filed the aforesaid title suit No.68 of 1984 for declaration of the plaintiff title and / or recovery of possession of the suit property and in the alternative prayed for partition to the extent of 1/4th share.

3. According to the plaintiff’s case, Gyani Yadav and Akbar Yadav were brothers. Akbar Yadav died leaving behind his widow Mostt. Mangari. Gyani Yadav died leaving two sons and a daughter, namely, Kuldeep Yadav, Bharosa Yadav and Panbatiya Devi. The names of Kuldeep, Bharosa and Panbatia were recorded in the cadastral survey record of right. Although name of Panbatiya was recorded but she had no interest or right in the suit property. Kuldeep Yadav had a son Rameshwar Yadav from his first wife and two sons Hari Yadav and Neta Yadav from second wife. Neta Yadav died issueless in the year 1943-44. The defendants are the sons of Rameshwar Yadav s/o of Kuldeep Yadav. Bharosa Yadav had separated 40-45 years. On his death, his 4 daughters became the owner of his property, therefore, they transferred the property of Bharosa Yadav. Hari Yadav and Rameshwar Yadav s/o Kuldeep Yadav also separated from each other 16 years ago but their laggit remain joint. However, when Hari Yadav fell in need of money, he transferred the Schedule (ka) lot No.1 land to the plaintiff No.1 and Mahant Yadav father of the plaintiff No.3 by registered sale deed dated 14.7.1970. The remaining land of Hari was transferred by his son Ram Naresh Yadav through registered sale deed dated 16.11.1974 in favour of the plaintiff. Ram Naresh Yadav Sasural was at Bharatpur, therefore, after selling the property, he started living in Sasural. In 144 Cr. Proceeding which was converted to a proceeding under Section 145 Cr.P.C., the possession of the defendants was declared. But, in fact, the plaintiffs are in cultivating possession of the suit lands.

4. The defendants filed contesting written statement. Besides taking various legal please, their main contention is that Kuldeep never married second wife. After death of first wife, he kept a concubine who had come to live with him with a child named Hari who was not the son of Kuldeep. Neta was the son of Kuldeep who died issueless in the year 1943-44. Panbatiya was not the daughter of Gyani Yadav rather Pankuri Devi was the daughter of Gyani Yadav and Panbatiya Devi was the daughter of Akbar Yadav. On the death of Mangri, Panbatiya had no share but to avoid future complication, her son executed registered deed of gift dated 12.9.1974 with respect to his interest in favor of defendants. Therefore, on the death of Kuldeep, the defendants became the absolute owner of the entire property. The sale deeds executed by Hari or his sons in favour of the plaintiff are illegal, void, ab initio without consideration and no Takabjul Badlen was performed and moreover vendors had no title to the property, therefore, no title conferred on the plaintiffs through the sale deeds. The plaintiffs are not in possession of the property nor they ever tried to come in possession of the property nor their name is mutated. The defendants have also purchased the property from 4 daughters of Bharosa on 8.2.1974 through registered sale deeds.

5. On the basis of the aforesaid pleadings the following issues were framed by the trial Court :-

(i) Is the suit as framed maintainable?

(ii) Have the plaintiffs any cause of action for the suit?

(iii) Is the suit barred by law of limitation and adverse possession?

(iv) Is the suit barred by estoppel, acquiescence and waiver?

(v) Is the suit barred u/s 34 of Special Relief Act?

(vi) Is the suit undervalued and court fee paid insufficient?

(vii) Whether Hari Yaav and Neta were sons of late Kuldeep Yadav.

(vii