ARUN KUMAR TIWARI Vs. DEEPA SHARMA

JUDGEMENT

(1.) This is an appeal against the order dated 24.11.2004 passed by Sri M.A. Abbasi, then learned Addl. Civil Judge ( Senior Division ), Allahabad in original suit no. 415 of 2003, Smt. Deepa Sharma and others Vs. Smt. Raj Kumari Devi and others.

(2.) The facts giving rise to this appeal are that the plaintiff-respondents no. 1 to 5 filed original suit no. 415 of 2003 in the court of the Civil Judge ( Senior Division ), Allahabad against the defendants no. 1 to 4 ( respondents no. 6 to 9 ) and defendant no. 5 ( appellant in the present appeal ) with these allegations that about 32 years ago, two rooms on the first floor of house no. 296 ( new number 383/96 ) situate at mohalla Mumfordganj, Allahabad, specified at the foot of the plaint, were let out to Basudeo Sharma, husband of the plaintiff no.1, father of plaintiffs no. 2 to 4, and father-in-law of plaintiff no. 5, by late Rajendra Singh who was husband of defendant no. 1, father of the defendants no. 2 and 3 and uncle of defendant no. 4. The rent was Rs.60/- per month. Rajendra Singh was exclusive owner of the house. He executed a registered will on 29.4.1986 in favour of defendants no. 1 to 4. He thereby created a life interest only in their favour and restrained them from transferring the house in any manner. Inspite of this bar, defendant no. 1, in collusion with defendant no. 5, sold this house to him vide a registered sale deed dated 28.4.2003. The defendant no.1 had no right to execute the sale deed. The above sale deed is completely void, inoperative and ineffective. However, on the basis of that sale deed, defendant no. 5, who is an Advocate, was pressurizing the plaintiffs to vacate the disputed rooms and on 30.7.2003 he tried to get the plaintiffs forcibly evicted. Hence, the plaintiffs filed this suit for permanent injunction to restrain defendant no. 5 from evicting the plaintiffs forcibly and illegally from the rooms in question. This relief was valued at Rs.720/- being the amount of annual rent as per plaint allegations. The plaintiffs also prayed for a declaratory decree to the effect that the sale deed dated 28.4.2003 executed by the defendant no. 1 in favour of defendant no. 5 be declared as illegal, ineffective and inoperative. This relief was valued at Rs.24,41,000/-.The plaintiffs also prayed for interim injunction to restrain defendant no. 5 from evicting them forcibly from the disputed rooms during pendency of the suit.

(3.) The defendant no. 5 contested the suit. He filed the written statement in which he stated that no allotment order was passed in favour of Basudeo Sharma, and so no valid tenancy could be created in his favour. He had forcibly occupied the rooms, and so no tenancy rights were inherited by plaintiffs no. 1 to 4. Plaintiff no. 5 Smt. Manjul Sharma could not be the heir of Basudeo Sharma as she is not a member of his family. The rate of rent is not Rs.60/- per month but Rs.400/- per month. There was no restriction in the will upon sale of the property. Defendant no.1 had the right to transfer the property and she validly executed the sale deed in favour of defendant no. 5 for valuable consideration of Rs. 15 lacs. None from the family of late Rajendra Singh objected to the sale at that time. The suit is under valued. The plaintiffs had not paid any court fee for relief 'B'. The court fee paid on the relief 'A' was also insufficient as the rate of rent was Rs.400/- per month. The plaintiffs were not residing in the disputed rooms. They were residing in a house in Govind Pur colony. Defendant no. 5 never pressurized the plaintiffs to vacate the house. The plaintiffs have illegally kept the disputed rooms locked and they have actually shifted from these rooms.