JUDGMENT :

1. This appeal has been preferred by the Defendant No.1 (LR) against the judgment of affirmation passed by District Judge-II, Palamu in Title Appeal No. 09 of 2007.

2. The plaintiffs/respondents filed the suit for declaration that schedule – B sold by Defendant No. 1 to Defendant No. 2 and 3 vide sale deed No. 321 dated 7.1.1985 be declared null and void. Schedule B is part of the land obtained by gift deed fully described in Schedule-A of the plaint.

3. The case of the plaintiff Kasida Devi is that Maheshwari Devi (Proforma Defendant No. 4 now dead) W/O Mahang Mahto acquired different plots of land by registered sale deed No.5341 dated 19.4.1968, Deed No.8295 dated 1.9.1969, Deed No.10432 Dated 22.12.69, Deed No.884 dated 17.1.72 and came in possession of them. The plaintiff acquired Title and possession over Schedule-A property from Maheshwari Devi by registered deed of Gift No. 1904 executed on 28.2.1978 (Schedule-A). Mahang Mahto had two sons Ramcharitar Mahto (Defendant No. 1) and Sukhdeo Mahto. Kasida Devi W/o Sukhdeo Mahto is the plaintiff. In pursuance to the gift deed the land was duly mutated and demand of revenue has been opened in her name. It is further case of the plaintiff that Defendant No.1 stole all the deeds by which Schedule-A land were purchased regarding which a criminal case was also registered. Defendant No.1 sold the part of Schedule-A land to Defendant Nos.2 and 3 by registered deed of 07.01.1985 vide sale deed No. 321. Purchasers of the land had however not entered into possession. The land illegally sold has been fully detailed in Schedule-B of the plaint which comprises of 58 decimals of land in Plot No. 1371.

4. Proforma Defendant No.4 Maheswari Devi filed her separate written statement in which she admitted the case of the Plaintiff. She has denied the title and possession of Defendant No.1 over the suit land.

5. The case of the contesting Defendant no.1 is that the lands in suit were not actually purchased by the parents of defendant No. 1 but by defendant No. 1 himself in the name of his father Mahang Mahto and mother Maheshwari Devi as benami and they had no title or possession over it. The registered deed of gift No.1904 dated 28.02.1978 was not according to law as Kashida Devi was not present in the Registration office and hence she never accepted the gift and has not come in possession up till now. The name of defendant No. 1 has been duly mutated. The plaintiff and defendant No. 4 had no concern over the suit land.

6. On the basis of the pleading of the parties the Trial Court framed the issues of which the following are the main issues:

(III) Is the case of the defendants that Proforma defendant No. 4 Maheshwari Devi was simply a Benamidar Farzidar and name –lender in the matter of the acquisition of the suit land for Defendant No. 1 true?

(IV) Whether the Plaintiff acquired title and possession from Proforma Defendant No. 4 by the gift deed with respect to Schedule-A land?

(V) Are the sale-deeds executed by Defendant No. 1 in favour of defendant nos. 2 & 3 void and of no legal consequence conferring no title and possession upon these defendants?

7. The Trial Court recorded a finding on these material issues that on the disputed land the plaintiff had the title and possession over the suit land, therefore, sale deed executed on 07.01.1985 vide sale deed No. 321 to Defendant No. 2 & 3 by defendant No. 1 was void and not binding. When the gift deed was executed the defendants were not in possession and six–seven years after the gift defendant No. 1 sold some portion to the defendants on the basis of which they have come into illegal possession. It has been observed in para-38 of the judgment that since no recovery of possession has been prayed for, therefore, the plaintiff after depositing the requisite Court Fees can claim the recovery of possession. The plaintiff has been given the right of recovery of possession after depositing the requisite Court Fees.

8. The learned Court of Appeal c