RAM SURAT Vs. MATA PRASAD

JUDGEMENT

(1.) This is a plaintiffs' second appeal against the judgment and decree dated 2.4.2003 in civil appeal No. 36 of 2001 and 27.11.2001 passed in Original Suit No. 150 of 1995 whereby the suit for injunction filed by the plaintiffs-appellants has been dismissed. 2. The plaintiffs, six in number, filed a suit for injunction alleging that they alongwith defendant No. 4 are the owners in possession of plot No. 456 (2 bigha 12 biswa 6 dhur) (plot in dispute) from one Raj Bahadur Singh (father of defendant No. 4) pursuant to a sale-deed dated 20.8.1993, for a sale consideration of Rs. 1,17,678/- so that defendant No. 4 i.e. Ravi Shanker has 1/7 share and the remaining 6/7 share belongs to the six plaintiffs; subsequent to the sale-deed a partition was effected wherein 6/7 share of the plaintiffs was earmarked and similarly, 1/7 share was earmarked in favour of defendant No. 4 and they are in possession over their respective shares; the defendants have no concern with the plot in dispute and are threatening to raise constructions over the same; Raj Bahadur Singh-the vendor did not execute any sale-deed in respect of 1/2 share of plot No. 456 in favour of defendant No. 4, nor did he execute a sale-deed of 1/2 share of the said plot in favour of the plaintiffs, nor did he deliver the possession or took sale consideration in respect of 1/2 share and, on the contrary, the sale-deed was executed of the entire plot in dispute, in respect of 6/7 share of the plaintiffs for a sum of Rs. 1,00,866.96 p., and of 1/7 share of defendant No. 4 for a sum of Rs. 16,811.14 p. It was further stated by an amendment in the plaint that earlier a registered agreement to sell dated 17.5.1993 was executed in respect of plot No. 455 area 9 biswa and plot No. 456 in respect of 1/2 share for a sum of Rs. 88,000/- between the mother of the plaintiffs i.e. Smt. Lakhraji and Raj Bahadur-the vendor and Rs. 24,400/- was paid as earnest, and that neither defendant Nos. 1 to 3, nor wife of defendant No. 1 i.e. Smt. Meraji got a sale-deed executed in their favour in respect of 1/2 share of plot No. 456 either from Raj Bahadur Singh or from defendant No. 4 and in case there is any such sale-deed, then the same is forged and a void document, and the defendants be restrained from interfering in the peaceful possession of 6/7 share of the plaintiffs-appellants.

(2.) The suit was resisted on behalf of defendant No. 4 primarily on the ground that although Raj Bahadur (father of defendant No. 4) was the owner of plot No. 456 (area 2 bigha 12 biswa 6 dhur), but the aforesaid sale-deed dated 20.8.1993 in respect of 1/2 share of the aforesaid plot No. 456 (1 bigha 6 biswa 3 dhur) was executed in favour of defendant No. 4 on the southern side. The said defendant No. 4 also denied the claim of plaintiff-appellants that they are the owners of 6/7 share of the entire area of plot No. 456. It was further pleaded on his behalf that defendant No. 4 had executed a sale-deed in respect of his 1/2 share in favour of defendant Nos. 1 to 3 and one Smt. Meraji-wife of Mata Prasad for a sale consideration of Rs. 80,000/- on 1.7.1994.

(3.) Both the Courts below held that it was not a case where Section 45 of the Transfer of Property Act were attracted, as the sale-deed dated 20.8.1993 refers to an agreement dated 17.5.1993 executed between the mother of the plaintiffs and Raj Bahadur Singh for purchase of half share of plot No. 456 (1 bigha 6 biswas 3 dhur) for a sale consideration of Rs. 80,000/- and out of which Rs. 24,400/- was paid as earnest, therefore, a contract to the contrary within Section 45 of the Transfer of Property Act had come into existence. Resultantly, the Courts below have dismissed the suit and have held that on the basis of sale-deed dated 20.8.1993 the six plaintiffs are only entitled to half share of plot No. 456 (1 bigha 6 biswas 3 dhur) and the remaining half share belonged to defendant No. 4, on the basis of the sale-deed dated 20.8.1993.