JUDGMENT :

SANJAY KUMAR DWIVEDI, J.

1. Heard Mr. Birendra Kumar, learned counsel appearing for the appellants and Mr. Arvind Kumar Sinha, learned counsel appearing for the respondents.

2. This second appeal has been filed being aggrieved and dissatisfied with the judgment dated 13.12.1991 and the decree signed on 16.01.1992, passed in Title Appeal No. 09 of 1989, by the learned 3rd Additional District Judge, Jamshedpur, whereby dismissing the appeal and affirming the judgment and decree dated 21.01.1989 passed by learned Munsif, Jamshedpur, in Title Suit No. 82 of 1982.

3. By the judgment dated 21.01.1989, the suit was decreed with cost against defendant Nos. 1, 3 and 4 and ex-parte against defendant No. 2, it was declared that Schedule-A, the plaintiff is entitled to leasehold over the suit house property described in Schedule-A and declared and the defendants are directed to vacate the suit house described in Schedule-A of the plaint and hand over its khas possession to the plaintiff within sixty days of the order. The plaintiffs were further directed to return the moveable articles described in Schedule-B of the plaint within the said period of sixty days, failing which, the plaintiff shall be entitled to recover the possession of the suit house through the process of the court and also to recover the price of the household articles amounting to Rs. 2985/-.

4. Aggrieved by this, the appellants-defendants filed Title Appeal No. 09 of 1989 and by judgment dated 13.12.1991, the learned appellate court has dismissed the appeal and has affirmed the judgment of the learned trial court. Against the judgment of the learned appellate court, the present second appeal has been filed.

5. Learned counsel appearing for the respondents submits that the substituted respondent No. 1(i) and 1(iii) have left for their heavenly abode.

6. In view of his such submission, so far against respondent Nos. 1(i) and 1(iii) are concerned, this second appeal is already abated, as against them, as no substitution petition has been filed on behalf of the appellants till date.

7. The suit was instituted by the appellants defendants for declaration of title and restoration of possession of Schedule-A and B properties prescribed in the plaint.

8. The plaintiff's case is that he is the lessee under Tata Iron & Steel Company Ltd. with respect to a piece of land measuring 30' x 30' with a mud built house country tiled roof situated at Sonari, at Holding no. 714 P.S. Sonari. Plaintiff now a retired employee of TISCO since dead during service on 13.3.1939 was allotted the said piece of land by TISCO for residential purpose over which he constructed the house consisting of two rooms, one verandah described in Schedule 'A' of the plaint. The plaintiff after his retirement in the year 1971 visited his native village in Madhya Pradesh' periodically to look after his family so he contemplated to sell out the suit property to defendant No. 2 his co-villager and co-employee under Tisco, who offered to purchase it for Rs.2000/-and it was agreed upon that the consideration money of Rs.2000/-will be paid on plaintiff's return to his house on the date after execution and registration of the sale deed. In the evening of 18.10.75 after registration of Sale Deed the plaintiff money which was deferred by defendant No. 2 to be paid after his return from his native place as money was lying with his wife there. Due to long association of plaintiff with defendant no. 2 he had full confidence on him and could not suspect any faul play. Defendant no. 2 did not return from his village for a month giving rise to doubt in the mind of plaintiff about the fraud practiced upon him. It was pleaded that the plaintiff is a simple man who relied upon defendant no. 2 and endorsed the registration receipt in the name of scribe of the Deed and he believes that original Sale Deed has yet not been delivered to the defendant no. 2 from the Registration Office and the plaintiff did not deliver the possession