CAV JUDGMENT

Date : 11-01-2023

1. The present application has been filed challenging the order dated 12.03.2018 passed by learned Sub-ordinate Judge XII, Siwan in Title Suit No. 110 of 2013 whereby the amend- ment petition of the petitioner filed in the counter claim has been rejected.

2. The brief facts of the case is that Title Suit No. 110 of

2013 was filed by the plaintiff-respondent 5th set in the court of Subordinate Judge-1st , Siwan for declaration that the disputed property is the ancestral property of the plaintiff and defendant 1st set and defendant 2nd set have no concern with the property in dispute along with other reliefs. The defendants appeared and filed collusive written statement inasmuch as according to the petitioner the suit filed by the plaintiff -respondent 5th set was collusive in nature. When the petitioner came to know about the filing of the suit he immediately filed an application for adding him as party defendant in the suit in which he succeeded and was allowed to be impleaded as defendant no. 5 in the suit. 3. The petitioner / defendant no. 5 filed contesting written statement and also filed his counter claim on 27.04.2015 pray- ing therein to declare his title and possession over Schedule- 1 land described in the counter claim and also to hold that the plaintiff as well as defendant nos. 1-4 have no concern with the property in dispute. It has also been prayed to declare that the sale deed dated 13.09.1940 executed by Most. Bahora Kuer in favour of Kitabuddin and also the sale deed dated 07.03.2011 executed by Haider Ali in favour of the plaintiff and defendant 1st set as void, illegal, inoperative etc. It has also been prayed in the counter claim to declare that the sale deed dated 15.02.2011 executed by Riyazuddin Ansari as power of attorney holder in favour of Haider Ali as void, illegal, inoperative and subsequent sale deed in favour of the plaintiff and defendant nos. 1-4 be also declared as void and illegal and not binding upon the defen-

dant no. 5 / petitioner.

4. Further case of the petitioner / defendant no. 5 in the counter claim in short is that for the first time after going through the plaint the defendant no. 5 got knowledge that the plaintiff and defendant 1st set were claiming their title over the land in dispute on the basis of a forged sale deed dated 07.03.2011. After being added as a party in the suit, the defen- dant no. 5 / petitioner came to know that Riyazuddin Ansari and Juber Ansari have executed sale deed dated 15.02.2011 in favour of Haider Ali, S/o Asad Ali on the basis of power of at- torney from the defendant no. 5 with respect to the disputed land. It has also been stated that Matsira Kuer, Bahora Kuer and Manu Pandey had no relation with the defendant no. 5 neither with the disputed land and no sale deed dated 13.09.1940 was ever executed by the defendant no. 5 in favour of Kutibadin Ansari, S/o Imamudin Ansari and if any document of such na- ture is produced by the other side then the same be considered as fraudulent and without any consideration. The so-called vendee namely, Kutibuddin Ansari has got no title on that basis. Kutubuddin Ansari had two sons namely, Riyajuddin Ansari and Jubair Ansari, who had no concern with the land in question which was in exclusive possession of the petitioner and any power of attorney executed on 15.02.2011 in favour of Haider Ali, S/o Asad Ali and consequent thereto the execution of sale deed on 07/03/2011 is completely fraudulent act and has no con- cern with the petitioner and not even binding on him as the dis- puted property is the property of the petitioner and he is in peaceful possession over the land in dispute.

5. The defendant no. 5 / petitioner in the counter claim further stated that the disputed land is the ancestral property of the petitioner standing in the name of Tapeshwar Pandey and even his name was recorded in the recent Survey Khatiyan. The said Tapeshwar Pandey had mortgaged the suit property to Md.

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