RAJINDER PRASAD AND ORS. Vs. MUKESH AND ORS.

JUDGEMENT

(1.) The present second appeal is directed against the order dated 09.02.2014 passed by the first appellate court, namely, learned Additional District Judge (Central) -11, Delhi, in RCA No. 19/12 whereby the said first appeal preferred by the appellant/plaintiff has been dismissed, and the order dated 22.08.2005 passed by the trial court, namely, the Civil Judge, Delhi, in suit No. 495/04, rejecting the plaint under Order 7 Rule 11 CPC, has been upheld.

(2.) The plaintiffs/appellants filed the suit to seek the relief of declaration and permanent injunction against the defendants. A decree of declaration was sought to declare that the plaintiffs as absolute owners of the suit land measuring 17 bighas and 8 1/2 biswas forming part of khewat No. 177 to 179, khatauni No. 695 to 696 in village Bawana, Tehsil and District Delhi, as shown in Fard Khatauni of the year 1984 -85. The plaintiffs also sought delivery of possession of the said property from the defendants. An injunctive relief was sought to restrain the defendants from selling, transferring, alienating or mortgaging or cultivating the suit property or taking any compensation of any portion of the suit property being acquired by the government in respect of land admeasuring 17 bighas 8 1/2 biswas in village Bawana comprising khasra No. 22, 30 to 33.

(3.) The case of the plaintiffs was that late Shri Harphool, son of Bhola, owned and possessed 34 bighas and 17 biswas agriculture land forming part of khewat No. 177 to 179, khatauni Nos. 695 to 698 in village Bawana, Tehsil and District Delhi. In this regard, reliance was placed on jamabandi of the year 1936 -37. The plaintiffs claimed that Harphool had two sons, namely, Hira and Kishan Lal. Both of them died during the life time of Harphool. Kishan Lal died issueless. Hira was survived by his three sons, namely, Risale, Mauji and Zile. The plaintiffs claimed that Zile, son of Hira, was given in adoption according to law with complete ceremonies to one Dhanpat son of Sukh Dev in the year 1932 when Zile was hardly five years of age. Zile died on 12.12.1978. The plaintiffs claimed that on account of his adoption, Zile ceased to have any interest in the estate of his natural grandfather Harphool, or his natural father Hira. Consequently, the entire estate of the grandfather Harphool comprising of 34 bighas and 17 biswas land in village Bawana, was inherited by his only surviving grandson, namely, Risale. The plaintiffs claimed that the mutation of the entire land ought to have been carried out in favour of Risale. The plaintiffs stated that Risale was illiterate and addicted to intoxicants. The plaintiffs also claimed that the factum of adoption of Zile was kept totally concealed by the said Zile. The plaintiffs claimed that Zile took advantage of the evil habits of his elder brother Risale. The plaintiffs claimed that Zile fraudulently and in a clandestine manner, took advantage of the weakness of Risale. He kept secret his adoption by Dhanpat throughout his life, and this information was not made known to Risale. The plaintiffs sated that Zile got mutated the entire suit land of Harphool in his name and in the name of Risale equally. The plaintiffs further stated that Zile played a fraud with Risale when he fraudulently got executed a registered sale deed dated 15.02.1972, of the entire share of his brother Risale - which was 17 bighas and 8 1/2 biswas, for a petty amount of Rs. 12,000/ -. According to the plaintiffs, Risale had only mortgaged the said valuable land. The plaintiffs stated that the market value of the land admeasuring 17 bighas and 8 1/2 biswas, in the year 1972, was Rs. 2 lakhs. Risale could not have sold the ancestral land without legal necessity. The plaintiffs claimed that Risale through his life was bona fide believing that he had mortgaged his land to Zile for a petty amount of Rs. 12,000/ -, but he had no money to get the same redeemed. Consequently, the possession and control of the half share of Risale i.e. land admeasuring 17 bighas 8 1/2 biswas remained with Zile as mortgagee throughout his life. The plaintiffs stated that they also remained under bona fide belief that the said land stood mortgaged by their father to Zile. However, they did not have the money to get the same redeemed. The plaintiffs stated that the youngest son of Risale, Ajit Singh, after attaining the age of majority in the year 1996, made enquiries about the land of his father, when the fraudulent sale deed got executed from his father Risale came to notice. He then obtained certified copy of the bogus sale deed dated 15.02.1972 and filed suit No. 206/97 against the three sons of late Zile, who had died. The said suit was pending. The plaintiffs stated that during the pendency of the said suit, on further probe, the plaintiffs learnt about the adoption of Zile by Dhanpat son of Sukh Dev and, consequently, they learnt that Zile ceased to have any legal right, title or interest in the property of his natural grandfather. The plaintiffs stated that Zile kept his adoption in utter secrecy from his brother and kept getting benefits of the entire suit property of his grandfather Harphool measuring 34 bighas and 17 biswas, half as the grandson and other half having purchased the share of Risale in a fraudulent manner. The plaintiffs stated that they came to know about the fraud played by Zile when they obtained the certificate from the school authorities, dated 20.01.2000 wherein the name of the father of late Zile was given as Dhanpat son of Sukh Dev. Accordingly, an application under Order 6 Rule 17 CPC was moved in the earlier suit No. 206/97. The application for amendment -to seek a declaration of adoption in respect of Zile, was disallowed on the ground that this is a new cause of action on 24.01.2004. It was stated that the dismissal of the said application under Order 6 Rule 17 gave a cause of action to the plaintiffs to file the present suit. The plaintiffs sought a decree of declaration that they be declared as the absolute owners of the entire suit land measuring 17 bighas 8 1/2 biswas forming part of khewat No. 177 to 179, kihatauni No. 695 to 696 in village Bawana, Tehsil and District Delhi, whose number after consolidation was 127/128, shown in Fard khatauni of the year 1984 -85 on the basis that they inherited the same from their great grandfather late Shri Harphool. Consequential relief of possession was sought in respect of the said land from the defendant. The plaintiff also sought injunctive relief in respect of the suit land.