NIRANKAR AND OTHERS Vs. MAHENDRA SINGH

JUDGEMENT

(1.) This second appeal challenges the judgment and decree dated 17.12.1994 passed by the Additional District Judge, Ghaziabad, confirming the judgment and decree dated 24.3.1988 passed by the Civil Judge, Hapur, whereby the plaintiff-respondent's suit for cancellation of sale deed dated 29.12.1980 executed by the deceased appellant No. 12 in favour of the defendant Nos. 3 to 12 and the sale deed dated 8.1.1985 and also sale deeds dated 10.9.1984, 12.9.1984 and 8.1.1985 executed in favour of the defendant Nos. 9 to 12 by the defendants 3, 5 and 6 along with the relief of declaration regarding sale certificate dated 12.12.1983 registered on 29.12.1983 as void ab initio, was decreed.

(2.) The respondent filed the suit stating that the property in question detailed in schedule of the plaint consisting of plot Nos. 117, 55, a tube well and a residential building, had been the joint property of his father, the defendant No. 1 Ram Prakash and the plaintiff. For that purpose he has relied upon a pedigree given in para-1 of the plaint. The property is joint Hindu family property since generations and was acquired through joint Hindu family nucleus. The plaintiff claimed his share in the property and has pleaded that he was doing farming in the agricultural land along with his father. The property after abolition of zamindari was also held by the plaintiff and defendant No. 1 and it was entered into records as such joint Hindu family property. The name of defendant No. 1 was recorded over it as 'karta' of the family. The property detailed in Schedule-v was earlier agreed for transfer by defendant No. 1 in favour of two persons namely Veer Pal and Bachan Pal but on objections raised by the plaintiff, the defendant No. 1 transferred only 1/2 share in the said property to those persons on 31.3.1980 and received sale consideration of Rs. 43,512.00. In an incident of marpeet, which took place in between the plaintiff's father, the defendant No. 1 and some other persons, he received some injuries but on being misguided by defendant Nos 2 to 6, he lodged a report about this incident falsely implicating the plaintiff resulting into his arrest and detention in lockup for about 21 days. The plaintiff's father developed some animosity against him and therefore, on pursuation of the defendant No. 2, the impugned sale deed dated 29.12.1980 transferring the property in dispute, was got executed in favour of defendant nos. 3 to 6. The said sale deeds are wholly void and the defendant No. 1 had no right to transfer the 1/2 share of plaintiff. No consideration passed for this transfer. The defendant No. 1 was also not in proper mental state to execute the sale deed. It is further pleaded that during the pendency of suit the defendant got the sale deed dated 10.9.1984 and 12.9.1984 executed in respect of disputed property in their favour from defendant Nos. 3 to 5, though, the defendant Nos. 3 to 5 had no right to transfer this property when the suit was already pending against them. Meanwhile during the pendency of the suit the property as detailed in schedule c was auctioned in a proceeding before the Sub-Divisional Officer, Hapur, though such auction was not legally permissible. Therefore, the sale certificate granted and possession given in respect of said land by the S.D.M. concerned was wholly illegal and void. On the aforesaid grounds, the plaintiff thus sought cancellation of sale deeds and declaration regarding the sale certificate issued by the concerned court, in the present suit.

(3.) The suit was contested and separate written statements were filed by the deceased defendant No. 1/appellant No. 12 and also by the defendant Nos. 2 to 8. The plaintiff's father, defendant No. 1 denied all the allegations of the plaint and the claim made by the plaintiff over share in the disputed property. He inter-alia pleaded that the properties detailed in schedule of the plaint were his self earned and it never had the nature of a joint Hindu family property. The plaintiff could not legally have any share in this property during his life time. The plaintiff's name was never entered over this property in revenue record before or after abolition of zamindari. He was never a tenant in common along with the defendant No. 1. Before abolition of zamindari, the defendant No. 1 was holding tenancy right in the said property and after abolition of zamindari he became Bhoomidhar thereof. It is further pleaded that the defendant No. 1 was in a perfect mental state and the impugned sale deed dated 29.12.1980 was executed after obtaining permission from the concerned authorities. Since the defendant No. 1 was the sole owner of the property, he had every right to transfer the same and the sale deed so executed by him cannot be questioned and set aside. Due consideration amount for this sale was received by the defendant No. 1.