SANTOSH KUMAR Vs. NAGESHWAR PRASAD

JUDGEMENT

(1.) By means of this F.A.F.O., the appellant has challenged the order dated 13.1.1995 passed by Sri Bir Bhadra Singh the then learned VIIth Additional District Judge, Allahabad in Miscellaneous (Review) Case No. 12 of 1991 allowing the review application and setting aside the judgment and order dated 13.2.1991 passed by his predecessor (XIth Additional District Judge, Allahabad) in Civil Appeal No. 267 of 1987 and fixing a date for fresh hearing of the said appeal.

(2.) The facts giving rise to the present F.A.F.O., briefly stated were that the respondents Nageshwar Prasad and Smt. Gulab Kali, (hereinafter, called the plaintiffs.) filed Suit No. 770 of 1986 against appellant Santosh Kumar, (hereinafter called the defendant), for permanent injunction restraining the defendant from interfering in their peaceful possession over plot No. 287 area 11 Bigha 17 Biswas, 13 dhoors situate at village Bhalua, Tappa Manda, Pargana Khairagarh, Tahsil Meja, district Allahabad, with the allegations that Nawal Kishore was the bhoomidhar in possession of the plot in suit. The said Nawal Kishore died on 27.9.1984 leaving Smt. Sonpati, his widow as his sole heir, who became bhoomidhar of the said plot. Smt. Sonpati sold the said plot in favour of plaintiffs through a registered sale deed dated 5.6.1985 and put them in possession over it. The defendant, having no concern or connection with the plot in suit, threatened to take forcible possession over it ; hence the suit on 6.8.1986.

(3.) The defendant contested the suit mainly on the ground that Nawal Kishore had transferred the plot in suit in his favour through a registered sale deed dated 19.10.1984 for a consideration of Rs. 40,000 and put him in possession over it. Nawal Kishore had three daughters, namely. Srnt. Phool Kali married with plaintiff No. 1. Gulab Kali married with one Prem Shankar and Anar Kali married with defendant. Since, Nawal Kishore had no male issue, he and his wife Smt. Sonpati intended to sell the plot in suit, which the defendant agreed and sale deed was executed. After execution of sale deed, the defendant applied, for mutation of his name. In mutation proceeding. Smt. Sonpati admitted the execution of sale deed and possession of defendant over plot in suit. When plaintiff No. 1 came to know about the sale deed he obtained another sale deed dated 5.6.1985 in favour of him and his wife from Smt. Sonpati much after death of Nawal Kishore. Smt. Sonpati was not competent to execute sale deed and alleged sale deed had no effect on the title of defendant. He further contended that suit was barred by the provisions of Section 331 of U. P.Z.A. and L.R. Act.