JUDGEMENT

This Second Appeal is preferred feeling aggrieved by the judgment dated 16-11-2015 in Civil Appeal No. 33-A/2015 by the First Additional District Judge, Sagar at Camp Deori District Sagar arising out of judgment and decree dated 21-10-2011 in Civil Suit No. 4-A/2008 by the Civil Judge, Class-II, Deori District Sagar.

2. The facts in brief are that the plaintiffs/respondent Nos.1 to 3 filed suit regarding agricultural land comprising Survey No. 92/1 area 1.11 hectare, Suvey No. 76/1 of area 1.260 hectare situated at village Todri patwari halka No. 55/30 Settlement No. 204 District Sagar for declaration of title and cancellation of sale deed dated 08-12-2005 in favour of the appellant/defendant No. 6 and permanent injunction on the ground that the plaintiffs/respondent Nos. 1 to 3 and defendant Nos. 1 to 5/ respondent Nos. 4 to 8 were the members of joint family and they have joint family property. There was partition between the family members of the joint family and they were occupying separate lands. It is said that the father of respondent No. 4 to 6 Khuman has sold the agricultural lands of his share much earlier and the successors of Khuman have also sold their lands earlier. They had no properties but by a registered sale deed dated 08-12-2005, the respondent Nos. 4 to 7 have illegally sold the disputed agricultural lands to the appellant/defendant no.6. They say that as the vendors i.e. respondent Nos. 4 to 7 were not in possession, therefore, the possession has not been delivered to the appellant. They further say that the appellant was trying to forcibly take possession, therefore, filed suit.

3. The appellant/defendant No.6 submitted written statement saying that he is bonafide purchaser and he is still in possession and therefore, the suit for declaration and injunction without seeking possession is not maintainable. The respondent Nos. 4 to 8 also submitted their written statement denying the plaint allegations. The defendant Nos. 7, 8, 10 to 13 could not file the written statement therefore, their right to file the written statement was closed by the trial court. The defendant No.14 admitted the plaint allegations. The defendant Nos. 9 and 15 did not appear before trial Court therefore, were proceeded ex parte.

4 . Trial Court framed the four issues and recorded the evidence of plaintiff/respondent no.1 Halle @ Kashiram (PW-1), Rampi (PW-2), Sibbu (PW-3) and admitted the documents Ex.P-1 to P-19 on behalf of plaintiffs and evidence of defendant/appellant Chhote Singh (DW-1), Prahlad Singh (DW-2), Badri Prasad (DW-3) and admitted the documents Ex.D-1 to D-4.

5. Appreciating the evidence of both parties, Trial Court concluded that survey No.76 and survey no.92 was in the ownership of Bhawani. Bhawani had to two sons Damru and Badhai. Sibbu and Khuman are the sons of Badhai and Laxmi Bai is the daughter of Badhai. All his legal heirs will get 1/6th of share in the property inherited through Bhawani and also concluded that Sibbu, Khuman and Laxmi each inherited 1/6th share in the survey no.76 and 92 that comes to 0.26 hectare in survey no.76 and 0.29 hectare in survey no.92. Khuman has already sold 0.3 hectare area of survey no.92 and 0.3 hectare of area of survey no.76 by sale deed dated 01.08.2001 (Ex.P-1). The area sold by Khuman is in excess of his share in the property inherited from Bhawani. It is also concluded that vide sale deed date 08.09.2005 (Ex.P-2/Ex.D-4), the legal heirs of Khuman also sold the 0.32 hectare land of survey no.92/1 and thus this sale is without competence and the sale deed is null and void.

6 . Trial Court also concluded that sale deed (Ex.P-2/Ex.D-4) was executed without concurrence of co-owners on the ground that the sale is invalid. Trial Court also concluded in para-25 that land of survey no.76 and 92 is undivided ancestral property of joint Hindu family, so possession of other co-parcener will be presumed and evidence of Sibbu (PW-3) and Halle (PW-1), Rampi (PW-3) ha