KARADIA JESING RAMA Vs. KARADIA BHIKHA RAMA

JUDGEMENT

(1.) The appellants-plaintiffs by this appeal have challenged the judgment and order dated 26.12.1979 passed by the learned Jt. Civil Judge (SD) at Junagadh in Special Civil Suit No. 111/1975, whereby the learned judge was pleased to dismiss the suit. For the sake of convenience, the parties shall be hereinafter described as plaintiffs and defendants in the present judgment.

(2.) The plaintiffs filed a suit for declaration that the suit sale-deed dated 25.1.1962 is illegal, null and void, without authority, ineffective and obtained by fraud and for partition of the suit agriculture land bearing survey no. 123 admeasuring 5 Acres, 19 gunthas and possession of 1/3rd share of each plaintiff separating the same by metes and bounds and for the mesne profits and costs of the suit. It is averred in the plaint that plaintiff no. 1 and 2 and defendant no. 1 are the real brothers, while plaintiff no. 3 is the son of deceased Vala also the brother of plaintiffs no. 1 and 2 and defendant no. 1. The defendants no. 2/1 to 2/6 are the heirs and legal representatives of deceased Rama Vala, who have purchased the suit land. It is averred that the suit agricultural land is situated in the sim of village Sultanpur of Mangrol taluka of Junagadh district which is in possession of the plaintiffs as well as defendant no. 1 and the plaintiffs were getting their share out of the yield fetched from the suit land. According to the plaintiffs, they have come to know that the defendant no. 1 has executed a sale-deed in favour of one Rama Vala by taking an undue advantage of minor age of the plaintiffs by signing for and on behalf of self and as a guardian of minor plaintiffs no. 1 and 2 for a meagre consideration amount of Rs. 25,00/, for which, in fact, he had no authority at all as their guardian. It is further the case of the plaintiffs that the defendant no. 1 disposed of the suit property without any necessity and with a view to cause damage to the right, title and interest of the plaintiffs which is the result of fraud and collusion between the vendor and vendee. According to the plaintiffs, in fact, the amount of consideration would be Rs. 25,000/ instead of Rs. 25,00/ as shown in the suit sale-deed. It is further averred that father of plaintiff no. 3 had not at all signed the suit sale-deed and even if he had signed the same, it is not binding to plaintiff no. 3 as it is against his right, title and interest. As vendee Rama Vala has expired, his heirs and legal representatives are sued in that capacity. It is finally averred that the suit sale-deed being illegal, null and void the same is not binding to them and now they do not desire to keep the property joint and hence, they are entitled to partition as well as possession of their share as well as their mesne profits.

(3.) The defendant no. 1 is duly served with the summons of the suit and has in fact, appeared through lawyer. It appears that his lawyer in fact filed number of applications for seeking adjournments to file written statement, however, no written statement is filed on his behalf. The record further reveals that the lawyer vide ex. 46 filed a pursis regarding no instructions in the matter.