JUDGMENT :

Sanjay Kumar Dwivedi, J.

Heard Mr. Rahul Kumar Gupta assisted by Mr. Anil Kumar and Mr. Arpit Kumar, learned counsel for the appellants and Mr. Manjul Prasad, learned senior counsel assisted by Mr. Baban Prasad, learned counsel for the respondents.

2. This second appeal has been filed being aggrieved and dissatisfied with the judgment dated 11.06.2013 and decree dated 17.06.2013 passed by the learned District Judge-VI, Hazaribagh in Title Appeal No. 22 of 2005 dismissing the appeal and confirming the judgment dated 30.04.2005 and decree dated 11.05.2005 passed by the learned Sub-Judge-V, Hazaribagh in Title Suit No. 33 of 1990.

3. Title Suit No. 33 of 1990 was instituted by the appellants/plaintiffs for specific performance of contract brought by the plaintiffs against the defendants for conveyance of transfer deed with respect to Schedule A property described in the plaint in light of the contract approved by Panches award dated 26.05.1974.

4. The said suit was instituted alleging therein that the plaintiffs and defendants are descendants of Dewa Mahto, Dhani Mahto and Dewa Mahto were two brothers both sons of late Kheman Mahto and governed by Mitakshara school of Hindu Law. The lands of Schedule A item No. I morefully described in the plaint is recorded in the name of Dewa Mahto and his brother Dhani Mahto having equal share. Land of Schedule-A item no.-II is the land purchased by Dhani Mahto his widow Bhugali and Aprudhi. Dhani and Dewa partitioned themselves and they came in separate possession according to their share. Dhani was also cultivating the land purchased by him and his wives. Dhani had no son only two daughters namely Sono Devi and Choho Devi. Sona was married with Laljee Mahto of village Lupung and Choho was married with Jagdish Mahto of village Dand and they were living in their respective Sasural. Dhani and his wife Aprudhi Devi were unable to cultivate their lands due to old age so original plaintiff namely Mahavir Mahto was cultivating the entire land of Dhani Mahto and Aprudhi Devi and was dealing with the Schedule-A land of the plaint. During cultivation plaintiff invested money for the development and agricultural arrangement of the land and it was agreed by Dhani Mahto and his wife Aprudhi Devi that money invested by the plaintiff in the agriculture and betterment of land will be refunded by them and unless and until the debts of the plaintiff is discharged and satisfied fully, the plaintiff shall remain in possession of the land. Plaintiff was in friendly terms with the defendants so he did not take the statement seriously, made by him in the probate case and partition suit because plaintiff and defendant were uncle and nephew in relation and their interest were not hostile to each others. Plaintiff invested rupees one lac in the reclamation and development of the suit land and it was well within the knowledge of the defendants. After the death of Dhani and Aprudhi, daughters of Dhani and Aprudhi claimed the property of their father and mother including grand sons of Dhani. At the time of claim by daughters and grand sons of Dhani plaintiff asked them for clearance of dues of rupees one lac which was debt on the land possessed by the plaintiff. Since, the dues was not cleared by the grand sons and daughters of Dhani so the plaintiff remained in possession of the land of Dhani and Aprudhi, defendant of this case namely Baleshwar Mahto also started claiming the land of Dhani and Aprudhi as a legatee on the basis of a will purported to have been executed by Dhani and Aprudhi during their life time. Since, the plaintiff was only interested in recovery of investment of rupees one lac with respect to suit land made by him, he was not very much interested in challenging the genuineness and existence of will so he has not objected the same details of investment made by the plaintiff has been incorporated in Schedule-A of the plaint and his sons year wise from 1963 to 1980. the property of Dhani was claim