RAGHUNATH BALI Vs. PANDIT SRINIWAS

JUDGEMENT

(1.) This appeal is directed against the judgment and decree dated 2-6-1976, passed by IV Additional District & Sessions Judge Saharanpur in Civil Appeal No. 152 of 1975 and the judgment and decree dated 31-3-1975, passed by Munsif Roorkee in Suit No. 264 of 1969. Briefly stated the facts of the case giving rise to this second appeal are that plaintiff-respondent Pandit Sriniwas, since deceased and represented by Legal Representatives respondents 1/1 to 1/4 his sons and respondents 1/5 to 1/8 his daughters, has filed suit for specific performance of contract as well as for possession of the property detailed in the plaint. The original owner of the disputed properties was Pir Onkar Nath, the disciple of Pir Ganesh Nath, who belonged to Darshni Ascetic Nath Panth. The disputed property is said to be the property of Gaddi and thus being the Mahant of that Gaddi Onkar Nath was the owner of the same. The said Onkar Nath excuted a sale-deed in favour of defendant No.1, Raghunath Bail in respect of the disputed property for a consideration of Rs. 1,500/-. The same day an agreement of reconveyance was executed by defendant No.1 in favour of Onkar Nath conferring on the executant of sale deed a right to repurchase the transferred property within ten years from the date of the execution of the sale deed i.e. 7-9-1959 after return of the sale consideration. By a deed dated 13-3-1961 Onkar Nath transferred his right of repurchase in favour of plaintiff for a consideration of Rs. 500/-. Thus the plaintiff claims to have become entitled to reconveyance of the property in his favour on payment of sale consideration of Rs. 1,500/- from defendant No.1. After getting the said deed in his favour plaintiff claims to have served a number of notices on defendant No.1, intimating him the fact that the rights of reconveyance were purchased by the plaintiff from Onkar Nath and he was prepared to pay sale consideration and to fulfill all the terms of the contract of reconveyance and thus called upon defendant No.1 to execute the sale deed in his favour. A notice is also alleged to have been served on behalf of Onkar Nath on defendant no.1 intimating that the rights of reconveyance were transferred by him in favour of the plaintiff. Inspite of service of these notices defendant No.1 did not execute the sale deed in favour of plaintiff and later transferred the disputed properties in favour of defendant No.2 just to defeat the rights of the plaintiff.

(2.) The defendants filed separate written statements in the suit. Defendant No.1 denied plaint allegations and asserted that Onkar Nath was not competent to transfer his right of reconveyance in favour of the plaintiff and the right of reconveyance had virtually extinguished. He claims to have transferred the disputed property in favour of defendant No.2 through registered sale deed dated 30-4-1969 in good faith. Plea of limitation had also been raised in defence. It was further asserted by defendant No.1 that he was originally tenant of disputed property from 1940 on behalf of Pir Ganesh Nath and he continued as such till the date of the suit. Pir Ganesh Nath is said to have died in the month of May 1957 and after that he claims to be paying rent of the disputed property to defendant Nos. 2 and 3 and other sons of Pir Ganesh Nath. He claims to have purchased the said property from Onkar Nath under misconception that Onkar Nath was the full owner of the property in dispute but later on it was intimated to him by defendants 2 and 3 that Onkar Nath had only 1/5th share in the disputed property and was not the owner of the whole property in suit.

(3.) The defendant No.2 in her written statement also denied plaint allegations and had raised almost the same pleas. It was stated by her that Pir Ganesh Nath was the owner of the disputed property who died on 30-5-1957 leaving behind herself and other sons and daughters including Onkar Nath. She also asserted that Onkar Nath's share in the disputed property was only one-fifth. She claims to have purchased the disputed property from defendant No.1 bonafide for consideration without any knowledge of earlier agreement of reconveyance in favour of the plaintiff.