BABU KHAN Vs. RAJENDRA PRASAD

JUDGEMENT

(1.) By the present second appeal, appellants are challenging the judgment and order dtd. 24/4/1995 passed by the learned Additional District Judge, Karvi in Civil Appeal No. 5 of 1990 (Babu Khan and others vs. Atul Prakash) and judgment and order dtd. 30/4/1990 passed by learned Munsif- Magistrate, Karvi, Banda in Original Suit No. 79 of 1988 (Atul Prakash vs. Babu Khan and others).

(2.) The suit was filed by the plaintiff-respondent Atul Prakash for cancellation of sale deed dtd. 28/4/1988 executed by defendant-appellant nos. 1 to 3 in favour of defendant- appellant nos. 4 to 8 and for permanent injunction restraining the defendants-appellants from raising any construction or interfering in possession of the plaintiff over the property in dispute. The Trial Court at the very initial stage, on 16/5/1988, granted an injunction order restraining the defendants-appellants from creating any hindrances. The suit was decreed and the appeal against the same was dismissed.

(3.) Brief facts of the case are that Rustam Khan was the owner of the property in question. He, unfortunately, died in the year 1964 leaving behind his widow and five sons, namely, Ramzan Khan (eldest), Nazir Khan, Babu Khan, Chand Khan and Nasim Khan. The widow of Rustam Khan also died sometime later, after which Ramzan Khan the eldest of the siblings took care of the interests of the brothers, who were all minors at that time. Ramzan Khan and Nazir Khan executed sale deed dtd. 28/7/1977 of the property in dispute on their behalf as well as in their capacity as de-facto guardian on behalf of remaining three minor brothers (first set of defendant-appellant) in favour of plaintiff-respondent. By entry dtd. 13/10/1982, name of the plaintiff-respondent was duly mutated in the revenue records and no objections against the same were filed by defendant-appellants first set, even after attaining majority. In 1987, on becoming major, defendant-appellant No. 1 and 2 filed a suit under Sec. 229B of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 19501challenging the sale deed dtd. 28/7/1977. Written statements were also filed. However, during the pendency of the said suit, defendant-appellant first set executed a sale deed dtd. 28/4/1988, for the sale of their share in the property in question, in favour of the second set of defendant-appellants (some of them have been substituted by their legal representatives in the proceedings). They also permitted the proceedings initiated under Sec. 229-B to be dismissed for non-prosecution. Respondent 1 Hereinafter referred to as the "U.P. Z.A. and L.R. Act" herein filed the present Original Suit No. 79 of 1988 against both sets of appellants praying for cancellation of the said sale deed dtd. 28/4/1988 and for relief of permanent prohibitory injunction restraining defendants-appellants from interfering in his peaceful possession over the property in question. The suit was filed on the ground that the demised property was already sold by defendant-appellant first set in favour of plaintiff-respondent by sale deed dtd. 28/7/1977. The suit was decreed in favour of the plaintiff- respondent. Aggrieved by the judgment and decree dtd. 30/4/1990, defendants-appellants filed a first appeal, which was also dismissed on 24/4/1995. Thus, they preferred present second appeal.