JUDGEMENT
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(1.)This appeal by special leave is directed against a judgment, dated November 9, 1967, of the Patna High Court decreeing the plaintiff's suit after reversing the judgment of the Additional District Judge, Dumka.
(2.)One Ebad Sheikh, the predecessor-in-interest of the respondents herein, instituted a suit in the Court of Subordinate Judge at Pakur in 1960 for a declaration that the Hibabil-Ewaz, dated February 9, 1959, executed by him, was void and inoperative due to fraud and misrepresentation proceeding from the donee, Afsar Sheikh, original defendant No, 1 (appellant No, 1 herein). Ebad claimed a further declaration, confirming his possession over the suit lands, which were the subject of the Hiba. In the alternative, he prayed for possession thereof.
(3.)The plaintiff's case as laid in the plaint is that he is an illiterate, simple villager, aged about 90 years. On April 2,1957, one Saifuddin fraudulently got executed and registered a will, dated April 2, 1957, by the plaintiff in favour of the former and his wife in respect of the suit lands. When this fraud was discovered by the plaintiff, he brought it to the notice of Afsar-appellant, a distant relation who was in his confidence and used to help him in cultivation of his lands. Afsar then on February 3, 1959, took the plaintiff to Pakur for execution and registration of a deed cancelling the Will. A cancellation deed was drawn up and executed by the plaintiff, but it could not be presented for registration on that date on account of some delay. On February 9, 1959, Afsar again took the plaintiff to Pakur and represented that the cancellation deed, which was prepared on February 3, 1959, had been misplaced and lost and consequently, it was necessary to execute a fresh. deed of cancal1ation. With this misrepresentation, Afsar got executed and registered in his favour a Hiba-bil-Ewaz purporting to be a transfer of 12 1/2 Bighas of lands by the plaintiff. Thereafter, Afsar sold some of the land which he had obtained under the Hiba-bil-Ewaz to defendant-appellant 2. This sale-deed executed by Afsar was bogus and without consideration and did not confer any title or interest on the transferee.