PURENDRA SHEKHAR BHATTACHARYA Vs. RAJENDRA KUMAR YADAV

JUDGEMENT

(1.) This is a plaintiffs' second appeal arising out of suit for cancellation of sale-deed as well as for permanent injunction restraining defendants from interfering in peaceful possession of property in dispute. Brief facts stated in the plaint by plaintiffs are that from July, 1973, plaintiffs are tenant of House No. D-34/47 situated in Mohalla Ganesh Mahal, district Varanasi on monthly rent of Rs. 80/-. Aforesaid house in dispute belongs to one Raj Laxmi Mukherjee wife of late Khagendra Nath Mukherjee. Earlier they were paying Rs. 80/- per month but subsequently Rs. 100/- was paid for which receipts were always being issued and sometimes rent was being sent by money order. Defendants No. 1 to 3 are powerful persons of the city and they wanted to grab the property and has threatened plaintiffs in the year 3992 to take forcible possession of property, as such, plaintiffs filed Suit No. 91 of 1992 which was decided on 16.2.1993 restraining defendants not to dispossess plaintiffs forcibly. On 29.8.1992, defendants forcibly wanted to take possession of property and the son of plaintiff was beaten, so an FIR to that effect was also lodged. During pendency of Suit No. 91 of 1992, plaintiffs sent a notice to landlady and requested that, in case, she wanted to sell the property, they are ready to purchase the same. Smt. Raj Laxmi Mukherjee has informed that whenever this property is sold, it will be sold to plaintiffs. Subsequently, an offer to purchase the house in dispute was made and plaintiffs went to Calcutta and landlady Smt. Raj Laxmi Mukherjee agreed to sell the said house in Rs. 40,000/-. A registered sale-deed was got executed on 12.8.1993. After purchasing the property they are living as a owner of the said house. They also made an application for expunging the name of Smt. Raj Laxmi Mukherjee with an 'No Objection Certificate' of landlady concerned but an objection to that effect was raised that as registry was done at Calcutta therefore, a verification by the S.D.M. (Finance) is necessary. Plaintiffs after verification from S.D.M. concerned submitted it to Nagar Nigam. Then it came to knowledge of plaintiffs that one Rajendra Kumar Yadav S/o Bachau Lal Yadav has also made an application for expunging the name of Smt. Raj Laxmi Mukherjee and to record his name on the basis of some sale-deed.

(2.) Plaintiffs received a notice on 28.9.1995 by Nagar Nigam, then they inquired into the matter and came to know that sale-deed was not executed by Smt. Raj Laxmi Mukherjee and alleged sale-deed was executed by her son Sri Nirmal Kumar Mukherjee on the basis of power of attorney. It has also been stated that defendants have filed an application for restoration of the order dated 16.2.1993 in Case No. 91 of 1992. In that Smt. Raj Laxmi Mukherjee filed an application that she has not executed any sale-deed in favour of Rajendra Kumar Yadav and if some document has been filed that is a forged document. Hence, suit for cancellation and injunction has been filed.

(3.) Defendant Nos. 1 and 2 filed their written statement denying claim of plaintiffs stating therein that there is no dispute to this effect that Smt. Raj Laxmi Mukherjee is the owner of the house. Aforesaid House No. 34/47 has been sold by Smt. Raj Laxmi Mukherjee by registered sale-deed dated 21.12.1991 on a price of Rs. 70,000/- in favour of defendant No. 1 and possession has also been given and he is the owner of the property. Alleged sale-deed dated 12.8.1993 is a forged document being fact that plaintiffs were having full knowledge regarding sale-deed dated 21.12.1991. Further averment was made in written statement that defendants have purchased the property in dispute after payment of Rs. 70,000/-. Rs. 30,000/- was given by Banker's cheque dated 19.12.1991 and rest of the amount was paid in cash to Smt. Raj Laxmi Mukherjee. After execution of aforesaid sale-deed, Smt. Raj Laxmi Mukherjee was not the owner of the property, therefore, she had no right and title to execute sale-deed in favour of plaintiffs dated 12.8.1993. Power of attorney dated 16.12.1991 has never been cancelled and there is no challenge by anybody except plaintiffs in the present suit regarding validity of sale-deed dated 21.12.1991 in favour of defendants. Sale-deed has been accepted by competent authority and on the basis of sale-deed, he has submitted an application for mutation before Nagar Nigam in which plaintiffs have filed an objection. Plaintiffs are the tenant of a portion of the house in dispute and earlier they were ready to vacate the said premises but subsequently they refused to do so and on the basis of forged sale-deed dated 12.8.1993, this case has been filed.