BISHEN CHAND AND ANR. Vs. LAKHAN AND ANR.

JUDGEMENT

(1.) This is a Defendants' appeal arising out of a suit for cancellation of a deed of sale dated 24 -7 -1954, to the extent of a half share in the plots conveyed thereunder, executed by the second Respondent, Sarman, in favour of the Defendant Appellants and also for joint possession over the said half share in the aforesaid plots. The Defendant -Respondent, Sarman, is the elder brother of the Plaintiff Lakhan. Both Lakhan and Sarman jointly owned the aforesaid plots which had been conveyed by the deed of sale of 1954. It was alleged by Lakhan that Sarman was not his guardian and the deed of sale was not executed with the consent of his mother who was his natural guardian. It was further alleged that Sarman had no right to deposit ten times of the land revenue on Lakhan's behalf and consequently he could not be said to be the Bhumidhar of the plots in question and they could not be transferred. It was also alleged that the sale consideration was fictitious and there was no legal necessity for the execution of the sale deed by Sarman. The claim of Lakhan was resisted by the Appellants on the ground inter alia that Sarman was the guardian of the Plaintiff Lakhan and he was the Karta and Manager of the joint Hindu family of which the two brothers were members and consequently he could execute the deed of sale for legal necessity and for the benefit of the minor. It was also contended that the suit was barred by limitation and the civil court had no jurisdiction to entertain it.

(2.) The trial court cancelled the impugned deed of sale to the extent of a half share in the plots conveyed thereunder and the Plaintiff -Respondents suit for possession over the half share in the aforesaid plots was decreed. The court below has found that (1) Sarman was not the guardian of Lakhan at the time of execution of the sale deed in question; (2) the sale deed was executed neither for legal necessity nor for the benefit of the minor and (3) the entire ten times of land revenue had been deposited by Sarman but the deposit made by one tenure holder could not be considered as a deposit by the other co -tenure holders. Therefore, Lakhan still continued to remain merely as a Sirdar and was not a Bhumidhar of the plots in question and the suit was governed by 12 years rule of limitation Under Article 144 of the Limitation Act and it was not barred by time; and (4) the suit was maintainable by the civil court. The lower appellate court dismissing the appeal preferred by the Appellants has affirmed the decree of the trial court.

(3.) Shri S.N. Agarwal, learned Counsel for the Appellants and Shri Laxmi Behari who has appeared on behalf of the Respondents have argued the case with great zest and ability at considerable length. Shri Agarwal has contended that: