ORDER

Re: I.A. No. 02 of 2022

This interlocutory application has been filed under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure for restraining the respondents from interfering in peaceful possession of the appellant and from changing the nature of suit properties by making any construction over the suit land and to maintain status quo over the suit land as on today.

2. The instant Second Appeal has been admitted on 13.10.2023, by a Co-ordinate Bench of this Hon’ble Court and appeal notices were issued to the respondents, who appeared in this case through their learned counsel.

3. The Title Suit No. 121 of 2000 filed by the plaintiff-respondents for declaration of right and interest over the suit land.

4. The case of the plaintiff in short is that the party to the suit are patiddar and Dukhharan Mahato was resident of village Dindayalpur, who died after passing of Hindu Succession Act, 1956, leaving behind his widow Most. Tetari and two daughters, namely, Singaro Devi and Lalmuni Devi. After the death of Dukhharan Mahato, his widow, namely Most. Tetari came in possession of the property, which is 2 katha 4 dhurs of Khata No. 237, Plot No. 146 and 128 at village Dindayalpur. Most. Tetari and her husband were served by their daughter (Lalmuni Devi), who were looked after and due to the care they felt releived and being pleased with the service of her daughter (Lalmuni Devi), Most. Tetari expressed her will to gift her land to Lalmuni Devi, which was accepted by her, as such deed of gift (total area of 2 katha 4 dhurs) was executed on 28.11.1994 by Most. Tetari in favour of Lalmuni Devi and possession of the Singaro Devi and Lalmuni Devi land was also given and since the date of the execution of the deed of gift Lalmuni Devi came in possession of the gifted land. Further case of the plaintiff is that Lalmuni Devi sold the land area 1 katha 6 dhurs out of gifted land, which falls under Survey No. 146 and 128. The sale deed was executed in favour of the plaintiff for consideration money of Rs. 15,000/- (Fifteen Thousand) and possession of the land was also given, just after purchase, plaintiffs has put palani and nad khuta. The further case of the plaintiffs is that defendant also wanted to purchase the land from Lalmuni Devi but they failed to pay real price. Defendant wants to create problem, hence necessity of the suit.

5. The case of the defendant-appellant is that after the death of Dukhharan Mahato, his widow alone did not come in possession of the entire property (total area of 2 katha 6 dhurs) rather she came in possession of the property jointly with her two daughters, namely, Singaro Devi and Lalmuni Devi. Further case of the defendant is that Most. Tetari had no right to execute the alleged deed of gift to one of her daughters exceeding her share. The property left by Dukhharan Mahato divided into three parts one share to widow, namely, Most. Tetari and one-one share each to his daughters, namely, Singaro Devi and Lalmuni Devi. Dukhharan Mahato died intestate leaving total area of 2 katha 6 dhurs equals to 46 dhurs divided in 3, each share comes to 15 dhurs 3 dhurki. The further case of the defendant is that after the execution of deed of gift by Most. Tetari, the title of Lalmuni Devi remains on 1 katha 2 dhurs land over which the plaintiffs are in possession. She had already sold 6 dhurs land from her share vide sale deed dated 26.04.1993. The deed of gift could have been legal and valid only to the extent of 8 dhurs of land which could have been gifted to Lalmuni Devi by her mother (Most. Tetari). Lalmuni Devi had title only over 1 katha 2 dhurs land including the gift accuring from the actual share, so the sale deed executed by Lalmuni Devi was only for 1 katha 2 dhurs land. Plaintiff have mentioned wrong boundary in the sale deed, the suit land should only of 1 katha 2 dhurs toward Sourt-East as it will be evident from the description of the land given in the plaint by the plaintiff. The defendant claimed his ti