DOLI JAWAHAR Vs. JOSEPH JAWAHAR

JUDGEMENT

(1.) Heard Mohammad Samiuzzaman Khan, learned Counsel for appellant and Syed Wajid Ali, learned Counsel for respondent on the admission of appeal. This is defendants' second appeal challenging the judgment and decree, whereby suit for cancellation of sale-deed has been dismissed.

(2.) Joseph Jawahar (respondent) instituted Original Suit No. 30 of 2009 for mandatory injunction and a permanent injunction alleged that defendants (appellants) are his real brothers, and he alongwith 25 persons bought a plot in dispute measuring 1500 sq. meters under a registered sale-deed (total area being 1158.04 sq. meters and after allocation of 341.96 sq. meters land for road, plaintiff was given ownership rights over 44.54 sq. meters of plot), over which he constructed a house and municipal number assigned. It was alleged that as said property was purchased by his own personal funds, a request was made by defendant to stay in the said property, as licencee was accepted, but upon a request made for vacation of the said property, as they refused to vacate and deliver possession thereof, hence the suit. The defendants resisted the claim on the ground that plaintiff was not the owner of the property in dispute and plea of alleged licence was denied. It was further stated that the funds were provided by father of defendants/plaintiffs for purchasing the property in dispute in the name of father, but the same was fraudulently purchased in the name of plaintiff. Defendants claimed ownership of the property in dispute on the basis of Will dated 31.5.2007 executed by their late father. Doli Jawahar and Benet Jawahar also instituted Original Suit Nos. 139 of 2009, for cancellation of sale-deed dated 11.9.1979 in favour of plaintiff on the ground that the same was an outcome of fraud, as the sale-deed was to be fraudulently executed in the name of their father, but the same was executed in the name of plaintiff, Joseph Jawahar. Both suits were consolidated, pleadings exchanged and evidence led. The Trial Court decreed O.S. No. 30 of 2009 and dismissed the connected suit. Accordingly, two First Appeals were preferred, i.e., First Appeal No. 84 of 2011 (arising out of O.S. Nos. 30 of 2009) and First Appeal No. 85 of 2011 (arising out of O.S. No. 136 of 2009). Both the appeals were heard together and dismissed by the judgment and decree, which is impugned herein.

(3.) No evidence was adduced by appellants/defendants that prior to filing of the suit for cancellation, late father of the parties during his life time initiated any proceedings for cancellation of the registered sale-deed dated 25-11-1979 (Paper No. 11-C). It was highly improbable that a registered sale transaction, acted before the Municipal Authorities would go unnoticed for as many as 20 years without being brought to the notice of other members of the family.