JUDGMENT :- This appeal by the plaintiff-appellant is directed against the judgment and decree dated 24-8-1990 passed by 2nd Additional District Judge, Giridih in Title Appeal No. 73/1988, whereby he has allowed the appeal and set aside the judgment and decree dated 10-5-1988 passed by Ist Additional Munsif Giridih in Title Suit No. 31/86. Consequently, the suit was dismissed. 2. Plaintiff/appellant filed aforementioned suit for declaration of title and confirmation of possession over the suit property comprised within plot Nos. 80 and 339 situated in Mouza Jahria Gadi P. S. Giridih. 3. The case of the plaintiff/appellant was that one Bulo Kumhar acquired an area of 1.30 acres of plot No. 80 and 10 acres of area of plot No. 339 through settlement from the ex-landlord. After settlement he came in possession of the same. Bulo Kumhar died leaving two sons namely, Babulal Kumhar and Mishry Kumhar (defendant Nos. 2 and 3) who inherited the property and came in possession of the same. Defendant Nos. 2 and 3 namely, Babulal Kumhar and Mishry Kumhar in order to pay debt proposed to sell the suit land to the plaintiff who agreed to purchase the same. Accordingly, the suit land was transferred in favour of the plaintiff by registered sale deed on 9-5-1974. Plaintiff after purchase came in possession of the suit land. However, on 15-10-1974 plaintiff gave chirkut to her husband defendant No. 3 to obtain sale deed from the Registry Office, Giridih. Defendant No. 2 after returning from Giridih told the plaintiff that the sale deed was not ready for delivery, he will bring the same later on. After some time, plaintiff came to know that defendant No. 2 cancelled the sale deed and executed a fresh sale deed in respect of the portion of the suit land in favour of defendant No. l. Plaintiff and her husband enquired the matter and obtained certified copy of the sale deed on 30-9-76 and applied for mutation but the same was rejected. Plaintiff, therefore, filed suit for declaration of title and confirmation of possession. 4. Defendant No. 2 Babulal Kumhar did not contest the suit by filing written statement. During the pendency of the suit defendant No. 2 died and his heirs were substituted, but they also did not file written statement. The only contesting defendant No. 1 filed written statement stating that both defendant Nos. 4. Defendant No. 2 Babulal Kumhar did not contest the suit by filing written statement. During the pendency of the suit defendant No. 2 died and his heirs were substituted, but they also did not file written statement. The only contesting defendant No. 1 filed written statement stating that both defendant Nos. 2 and 3 sold the suit property to him for valuable consideration. To save some Court-fee, the value of the property was assessed at Rs. 500/-. It was further contended that defendant No. 2 Babulal Kumhar cancelled the sale deed executed in favour of the plaintiff by executing deed of cancellation on 16-10-74. On the same day, he executed sale deed in favour of the plaintiff (sic) defendant No. 1. 5. The trial Court after hearing the parties decreed the suit holding that the sale deed executed by defendant Nos. 2 and 3 in favour of plaintiff was for valuable consideration and title passed on the plaintiff after execution of registration of sale deed. The trial Court also negatived the contention of the defendants regarding non-­payment of consideration amount. The appellate Court, however reversed the finding of the trial Court and allowed the appeal. The appellate Court recorded a finding that sale deed executed by defendant Nos. 2 and 3 in favour of the plaintiff was never acted upon and it remained a paper transaction. The appellate Court further held that plaintiff has failed to prove that sale deed executed in her favour was for a valid consideration and it was acted upon and the plaintiff came in possession. 6. This appeal was admitted for hearing on the following substantial question of law : "1. Whether in view of the fact that Babulal or his wife did not contest the suit, the defendant-respondent could have questioned the adequacy in considering the amount mentioned in the deed of sale dated 9-5-74 (Ext. 2). 2. Whether the purported deed of cancellation dated 16-10-74 executed by Babulal alone, could have been affected the title of the plaintiff derived by her in terms of the deed of sale dated 9-5-74." 7. Mr. R. N. Sahay, learned counsel for the appellant assailed the finding of the appellate Court as being wholly perverse and erroneous in law. Learned counsel submitted that the appellate Court has taken wrong approach in deciding the question of passing of title and payment of consideration. 8. Mr. R. N. Sahay, learned counsel for the appellant assailed the finding of the appellate Court as being wholly perverse and erroneous in law. Learned counsel submitted that the appellate Court has taken wrong approach in deciding the question of passing of title and payment of consideration. 8. I would first like to discuss some of the principles laid down by the High Courts in several decisions. 9. In the case of "Baldeo Singh and Ors. v. Dwarika Singh and Ors." (AIR 1978 Patna 97), a Division Bench of the Patna High Court while considering similar question has held that though sale deed may recite that the consideration has been paid, there is nothing to prevent the parties from adducing evidence to show that the recital is untrue and that, in fact, the consideration money was not paid. This will not be barred by Section 92 of the Evidence Act. 10. In the case of "Mst. Savitri Devi. v. State of Bihar and Ors." 1990 (1) BLJR 210 : AIR 1989 Pat 327 a Bench of Patna High Court held as under : "12. It is now well- known that the question as to whether a title will pass on vendee irrespective of non­-payment of consideration depends upon the intention of the parties. Such an intention can be gathered from the evidences led by the parties as well as their conduct." 13. In terms of Section 92 of the Evidence Act, the vendor is not prevented from adducing evidences to show that recital in the said deed to the effect that consideration has been paid is incorrect and in fact no consideration was paid to him. 14. It is also now settled law that the question as to whether the parties intended that title would pass irrespective of payment of consideration or not would depend upon intention of the parties." 11. Mr. R. N. Sahay, learned counsel for the appellant put heavy reliance in the case of "Jugal Kishore Tewari and Anr. v. Umesh Chandra Tewari and Ors." (AIR 1973 Patna 352). In that case, a Bench of Patna High Court held as under : 8. I now pass on to consider whether the lower appellate Court is right in holding that no title had passed to the plaintiffs by virtue of the sale deed Ext. 1 executed in their favour on April 4, 1957. In that case, a Bench of Patna High Court held as under : 8. I now pass on to consider whether the lower appellate Court is right in holding that no title had passed to the plaintiffs by virtue of the sale deed Ext. 1 executed in their favour on April 4, 1957. This transaction was challenged by the defendants first party as illegal, fraudulent and wholly without consideration and upon a consideration of the relevant materials on record the lower appellate Court has held that the sale deed Ext. 1 was a fictitious document and without consideration and that it did not convey any title to the plaintiffs. The view of the trial Court was that defendant No. 1 being a stranger to the transaction was not competent to challenge the passing of consideration or the recitals of necessity contained in the sale deed Ext. 1. The exe-cutants of the sale deed could have challenged the passing of consideration, but although they were parties to the suit, they had not challenged the passing of consideration under Ext. 1. The trial Court summed up its conclusion on the point in paragraph 18 of its judgment in these terms : "Thus the defendant No. 1 has challenged the passing of consideration and the necessity mentioned therein of Kebala dated 4-4-1957. But the defendant No. 1 is not legally entitled to challenge the passing of consideration and necessity mentioned in sale deed. The executants can challenge the passing of consideration. The executants of the sale deed are also party to the suit, but they have not challenged the passing of the consideration. The executants had right and title over the land and they have transferred it to plaintiff by a registered sale deed. In this circumstances it is not open to defendant No. l who is the mere stranger, to challenge legally the passing of consideration and necessity mentioned in Ext. 1." The lower appellate Court is of the view that the defendants first party are not precluded from challenging the passing of consideration and the recitals of necessity contained in the sale deed Ext. 1, which is found to be fictitious and not designed to operate as a genuine transaction in order to effect a transfer of title. 1." The lower appellate Court is of the view that the defendants first party are not precluded from challenging the passing of consideration and the recitals of necessity contained in the sale deed Ext. 1, which is found to be fictitious and not designed to operate as a genuine transaction in order to effect a transfer of title. Learned counsel for the appellant has urged that the view taken by the lower appellate Court is not sound and has referred in this connection to the Bench decision of this Court in Musoramat Akli v. Mt. Daho, (9 Pat LT 308) : (AIR 1928 Pat 44) where it was held that it is well established that the passing of consideration for a transfer cannot be challenged except by the parties to the transaction or by those who claim through those parties. There the dispute was in respect of a house belonging to one Chand Sao who left behind a widow named Musammat Bifia. After his death, Bifia executed a sale deed in respect of the house in favour of the plaintiff for a consideration of Rs. 450/-. But the plaintiff was not put in possession of the house as it was found that it was actually in possession of the sister of Chand Sao and she refused to make over the possession of it to the plaintiff. Accordingly, the plaintiff instituted a suit for recovery of possession of the house on the basis of the sale deed which was executed in her favour by Musammat Bifia. One of the grounds upon which the sister of Chand Sao, who was defendant No. 1 in the suit, had resisted the plaintiff's title was that the sale deed which Musammat Bifia executed in favour of the plaintiff was without consideration. It was held by the Court that such a plea was not available to the defendant until she established "some sort of title in her as the successor-in-interest of Chand Sao who is undoubtedly the predecessor-in-interest of Musammat Bifia." It is to be noticed that in the reported case the sale deed in favour of the plaintiff was not challenged as Ext. 1 has been challenged in the present case as a wholly fictitious document or as a document which was not designed to operate as a real deed in order to effect a transfer of title. 1 has been challenged in the present case as a wholly fictitious document or as a document which was not designed to operate as a real deed in order to effect a transfer of title. Therefore, in my opinion, the principle laid down in 9 Pat LT 308 : (AIR 1928 Pat 44) can be of no avail in the present case which is one of an entirely fictitious transaction. Where a sale deed is challenged as s fictitious document which was never designed to operate as a genuine sale deed in order to effect the transfer of title, the principles which are applicable are those laid down in two Bench decisions of the Calcutta High Court. In Kamini Kumar Deb v. Durga Charon Nag, (AIR 1923 Cal 52) if the Subordinate Judge had found that there was no passing of consideration under a conveyance dated the January 18, 1917 and that the transaction was fictitious and that title was not intended to pass. Under those circumstances it was held by Sri Asuthosh Mookerjee, with whom Rankin, J. (as he then was) agreed that the principles enunciated by the Judicial Committee in Lal Achalram v. Raja Kazim Hussain, (1905) 32 Ind App 113 (PC) to the effect that a stranger to a deed which is intended to be real and operative between the parties thereto, cannot dispute the payment or non-payment of consideration as its adequacy or inadequacy has no bearing in a case where a deed is challenged as fictitious, never designed to operate as real deed or to effect a transfer of the title. The same view was taken by B. K. Mukherjee, J. (as he then was) sitting with Blank, J. in Sardindu Mukherjee v. Kunja Kamini Roy, AIR 1942 Cal 514. 9. In the instant case, the finding of the lower appellate Court as the final Court of fact is clear and categorical that the sale deed Ext. 1 was fictitious and not designed to convey any title to the plaintiffs and, therefore, the principles of the two Calcutta decisions referred to above must apply to the facts and the circumstances of the present case. I, therefore, agree with the lower appellate Court that the defendants first party are not debarred from challenging the passing of consideration under the sale deed Ext. 1." 12. I, therefore, agree with the lower appellate Court that the defendants first party are not debarred from challenging the passing of consideration under the sale deed Ext. 1." 12. Considering the series of decisions of various High Courts the conclusion that may be arrived at is that the question as to whether title passes in execution of the sale deed on payment of consideration depends on the facts and circumstances of each case and the intention of the parties. It can also be concluded that a stranger to the sale deed can also challenge the sale deed on the ground of non-payment of consideration and also on the ground that same was farzi transaction. 13. In the light of the settled principle of law, I shall now consider the facts of the instant case. 14. Admittedly, plaintiff/appellant is the wife of defendant No. 3 and defendant Nos. 2 and 3 are brothers. Although defendant Nos. 2 and 3 executed sale deed in favour of the plaintiff who is wife of defendant No. 3 but the sale deed was subsequently cancelled and the suit property was transferred to defendant No. l for valuable consideration. When the suit was filed by the plaintiff, defendant Nos. 2 and 3 did not contest the suit by filing written statement. This goes to show that in the event plaintiff succeeds, the property will again come in the hands of the plaintiff who is noneelse but the wife of defendant No. 3. The appellate Court noticed a very important fact that defendant No. 3 sold portion of the same plot to one Mohar Mahto by virtue of registered deed of sale dated 21-6-74 and again sold o. 28 acres of land of plot No. 80 to Parsadi Yadav by registered deed of sale dated 11-6-74. Similarly, defendant No. 2 also sold portion of the same plot to Jhari Yadav by registered sale deed dated 20-9-76. Both the purchasers have been exercising their right, title, interest and interest over their respective lands purchased from defendant Nos. 2 and 3. One more important fact which has been noticed by the appellate Court is that defendant No. 3 husband of the plaintiff admitted that he sold the land to different persons who are in possession of their respective lands and further that contesting defendants are in possession of the land sold to them. 2 and 3. One more important fact which has been noticed by the appellate Court is that defendant No. 3 husband of the plaintiff admitted that he sold the land to different persons who are in possession of their respective lands and further that contesting defendants are in possession of the land sold to them. Moreover, when sale deed executed in favour of the plaintiff in respect of the same land which was sold by defendant No. 2 was contested by defendant No.l nothing has been brought on record by the plaintiff to show that sale deed executed in her favour by defendant Nos. 2 and 3 was for valuable consideration. Considering the relationship of the plaintiff with defendant Nos. 2 and 3 and also the fact that portion of the same lands have been sold to different persons whose title and possession remain unchallenged, the appellate Court has rightly held that plaintiff has failed to prove her case of acquisition of title and possession by virtue of sale deed. The appellate Court has also rightly held that the sale deed executed by defendant Nos. 2 and 3 in favour of plaintiff was never acted upon and it was a farzi transaction. 14A. For the aforesaid reasons, I do not find any merit in this appeal, which is, accordingly, dismissed. Appeal dismissed.