MUNAZRI AND OTHERS Vs. MOHAMMAD AKIL AND ANOTHER

JUDGEMENT

(1.) Heard Sri Anand Saurabh learned counsel for the appellants and Sri Om Prakash, learned counsel for the respondents.

(2.) This is a defendant second appeal against judgment and decree dated 01.09.1992 passed by Sri Janardan Singh, 11th Additional Chief Judicial Magistrate / Additional Civil Judge, Meerut in Civil Appeal No.45 of 1986 whereby appeal was dismissed and judgement and decree dated 31.01.1986 passed by Sri O. P. Goel, Munsif, Court no.1, Meerut in Original Suit No.315 of 1984 was confirmed.

(3.) The plaintiff's' case is that they and defendant no.2 are real brothers and they are sons of Nasir; that defendant no.1 Munazri is wife of defendant no.2; Nazir, their father, was Bhumidhar in possession of plot nos.638, 640, 1186; that parties are residents of village Laliyana, District Meerut where the land in dispute is situated; that plaintiff no.1 used to do cultivation in village Shujlu, District Muzaffarnagar and plaintiff no.2 does the work of motor mechanic at Meerut; that defendant no.2 resides in village Laliyana; that plaintiffs' also used to look after land in dispute occasionally and Nasir lived with them; that about 2 to 3 months back Nasir expressed his willingness to go to village Laliyana and plaintiff no.1 took him to the village; that Nasir started living in the village and got severely ill and became unable to move and died on 14.09.1981; that defendants did not behave properly with Nasir nor ever looked after him during his illness nor made any arrangement for his treatment; that defendants took him to Meerut on the pretext of treatment and got a sale deed of plot nos.638 and 640 executed in favour of defendant no.1 from Nasir; that sale consideration of Rs.38,000/- was shown to be paid and sale deed was executed in the presence of witnesses Taufiq, real brother-in-law of defendant no.1 and Ausaff who is "Samdhi" of Taufiq; that disputed sale deed was executed on 26.6.1980 and on the same date agreement to sale of plot no.1186 was also executed for an amount of Rs.20,000/- in favour of defendant no.1 out of which Rs.10,000/- was stated to have been paid; that on account of old age Nazir was not in a position to understand the implication of the documents nor he got any money for the same; that he had no need of selling the land which belonged to all of his three sons; that both the plaintiffs reside out side their village and therefore, they are unable to look after their land in village; that when they expressed their intention to sell the land of their share, defendant no.1 expressed his willingness to purchase the same so that the land remains within the family, that defendant no,2 purchased the plot no.1186 from the plaintiffs' for an amount of Rs.20,000/- by way of sale deed dated 5.5.1982 but defendants never informed about the earlier sale deed of other plots and the agreement to sell got executed by defendant no.1 from Nazir; that defendant no.1 got her name mutated over land in dispute on the basis of disputed sale deed on 19.05.1982 which they came to know in March, 1994; that they filed an application for setting aside of the mutation order on 15.03.1984, which was allowed on 15.07.1984; that they came to know about the fraudulent agreement to sell got executed by defendant no.1 from Nazir, which has become ineffective after sale deed of the land of plot no.1186 in favour of defendant no.1 by the plaintiffs; that sale deed of plot no.638 and 640 is without consideration and void; that plaintiffs requested the defendants to get the aforesaid sale deed cancelled but in vain and hence the suit was instituted.