RAJEEV GUPTA Vs. PRASHANT GARG

JUDGEMENT

(1.) Heard Sri Nipun Singh, learned counsel for the appellants and Sri Krishna Mohan Tripathi, learned counsel appearing on behalf of contesting respondent no. 1 and perused the lower court record.

(2.) This second appeal has been preferred by the defendant nos. 2 to 4/appellants against the judgement and decree dtd. 4/3/2017 passed by Additional District Judge, Court No. 1, Muzaffarnagar in Civil Appeal No. 17 of 2015 (Prashant Garg Vs. Rajeev Gupta and others) arising out of judgement and decree dtd. 25/2/2015 passed by Civil Judge (Senior Division), Court No. 1, Muzaffarnagar in Original Suit No. 117 of 2003 praying for cancellation of sale deeds dtd. 16/6/1992 and 29/6/1992 executed in favour of the defendant nos. 2 to 4/appellants by Ramesh Chand Garg (brother of plaintiff no. 1) and also for delivery of possession of property in dispute.

(3.) The plaintiffs instituted an Original Suit No. 117 of 2003. The plaintiffs' case is that Dr. Babu Ram Garg was the owner of House No. 49B, Vakil Road, New Mandi, Muzaffarnagar, measuring 960 sq. yards. He acquired other properties also during his lifetime. He had three sons, namely, Ishwar Chand Garg, Ramesh Chand Garg and Dr. Karam Chand Garg. Dr. Babu Ram Garg executed a will dtd. 17/10/1951 which was duly registered and he died in the year 1958. By virtue of will, the western part of House No. 49B aforesaid was bequeathed to Ishwar Chand Garg and eastern part thereof, area 515 sq. yards went to Dr. Karam Chand Garg. The business of pharmacy left behind by late Dr. Babu Ram Garg in the name and style of "The Sewak Pharmacy" exclusively went to his third son, Ramesh Chand Garg, along with a sum of Rs.5,000.00 in cash. Ramesh Chand Garg was not given any right, title or interest in the House No. 49B. In the year 1992, Dr. Karam Chand Garg, owner of eastern part of House No. 49B, on the basis of will of his father, instituted an Original Suit No. 458 of 1992 praying for a decree of permanent injunction on 15/6/1992 in the court of Civil Judge, Muzaffarnagar, against Ramesh Chand Garg and legal heirs of late Ishwar Chand Garg. Initially an ex-parte injunction order was granted to the plaintiff on 15/6/1992 but Ramesh Chand Garg executed two sale deeds of the property in favour of defendant nos. 2 to 4/appellants and subsequently wife and son of late Ishwar Chand Garg and plaintiff, late Dr. Karam Chand Garg entered into a compromise and the Original Suit No. 458 of 1992 was decided vide judgement and decree dtd. 13/10/1992 in terms of aforesaid compromise. Despite the decree of injunction, Ramesh Chand Garg executed sale deeds dtd. 16/6/1992 and 29/6/1992 in favour of the defendant nos. 2 to 4/appellants. The defendant nos. 2 to 4/appellants were fully aware that Ramesh Chand Garg had no right to execute the sale deeds. The original plaintiff died during the pendency of suit and his son was substituted in his place. His daughters were impleaded as defendant nos. 8 and 9 in the suit and they did not claimed any interest in the suit property. During the pendency of suit, the defendant no. 1, Smt. Meena Kumari died on 25/3/2005 leaving behind the defendant nos. 2 to 5 as her legal heirs. The legal heirs of deceased Smt. Meena Kumari are not in possession over the suit property but if their possession is found, the plaintiffs are entitled to get possession of the same. The defendant nos. 2 to 4/appellants refused to get the sale deed executed by Ramesh Chand Garg in their favour cancelled as the suit was instituted by the plaintiffs.