KARODI Vs. DASAI

JUDGEMENT

(1.) PRESENT second appeal has been instituted against the judgment and decree dated 25-2-2004 passed by Addl. District Judge/special Judge (S. C. S. T. Act)Jhansi passed in Civil Appeal No. 95/99 Sri karodi and another v. Dasai and another. By the impugned judgment and decree learned appellate court dismissed the appeal of the appellants with costs.

(2.) THE perusal of the judgment of the court below shows that Original Suit No. 130 of 1997 Dasai v. Karodi and another was instituted for declaration to the affect that the sale deed dated 23-4-1997 is null and void and liable to be cancelled. It has been alleged in the plaint that there were three brothers of the plaintiff, namely, Shyam Lal defendant No. 3. Dasai plaintiff and Brij bhushan. That the disputed property situated at mohalla Gudari town Ranipur pargana Man District Jhansi is the ancestral property of the plaintiff and his brothers. That a partition took place of the disputed house in between of the plaintiff and his brothers in the month of September 1985 and a deed dated 29-9-1985 was also executed. Defendant No. 3 also put his signature on the partition deed. That all the brothers are in possession of their share according to the partition. A part of the house was delivered to the defendant No. 3 in the house. But defendant No. 3 with mala fide intention executed a sale deed on 23-4-1997 in favour of defendants No. 1 and 2 in consideration of Rs. 40,000/- That defendant no. 3 was neither the owner nor in possession of the house in dispute hence he was not competent to execute the sale deed. The sale deed was void and ineffective. The defendant appellants contested the suit and filed written statement and denied the contention of the plaint. It has specifically been alleged that the house in question was never partitioned in between the plaintiff and his brothers. That a document signed by Shyam lal is not a registered document. Hence the partition deed is not in accordance of law and is not binding on the appellants defendants and the partition deed is a void document. Shyam Lal defendant No. 3 also filed separate written statement and he also admitted that the property in dispute was sold to defendant by the sale deed. Both the parties produced oral as well as documentary evidence before the trial court and trial court after framing issues decreed the suit of the plaintiff-respondents and a sale deed dated 23-4-1997 executed by Shyam Lal in favour of Karodi and Pyare Lal was set asided. Being aggrieved from the judgment and decree of the trial court the appellant instituted Civil appeal No. 95 of 1999 in the court of District Judge and Addl. District Judge/ Special Judge Jhansi dismissed the appeal vide judgment and decree dated 25-2-2004 and against this judgment and decree of the appellate court this instant second appeal has been instituted.

(3.) I have heard learned counsel for the appellants Sri Arvind Srivastava and Vivek shandilya and Sudheer Shandilya Advocate for the respondents and perused the entire material on record and as well as the judgment of the courts below.