LALA VISHAMBHAR DAYAL Vs. ISHWAR SINGH AND OTHERS

JUDGEMENT

(1.) HEARD Sri K.M. Garg learned counsel for the plaintiff-appellant and Sri Anupam Kumar learned counsel for the defendant-respondent. Point Nos. 7 and 8 framed in the Memorandum of Appeal are the substantial questions of law required to be considered. Learned counsel for the parties agree that this second appeal be decided today itself.

(2.) ACCORDING to Sri K.M. Garg, the plaintiff is the grandfather of Sachin and Smt. Sarla Devi is the grandmother of Sachin. Admittedly, Sachin has already died. Smt. Sarla Devi had purchased the property in question from one Sri Shyam Lal by a registered sale deed dated 14.6.1989 in the name of Sachin (minor) described as son of late Sunil Kumar. Since Sunil Kumar had predeceased Sachin, a dispute arose after the death of Sachin relating to the succession of the plot in question. It is admitted between the parties that half portion of the plot in question was purchased by Naresh Kumarwho was son of the plaintiff-appellant and brother of late Sunil Kumar. The other half portion was purchased in the name of Sachin (minor) as already indicated above. After the death of Sachin, it appears that Naresh Kumar got his name mutated in the Revenue Records and therefore claimed to be the owner of the entire plot and he executed a registered sale-deed dated 4.2.2004 in favour of the defendant-respondent. The plaintiff who was the grandfather of Sachin filed the suit for cancellation of the sale-deed dated 4.2.2004. According to Sri Garg, the Trial Court upon perusal of the evidence believed the description of parentage of Sachin given in the registered sale-deed, dated 14.6.1989 and disbelieved the entry of Naresh Kumar as father of Sachin made in the Revenue Records after the death of Sachin on the ground that there was no order or reasons shown as to how such an entry of Naresh Kumar has been made alleging him to be the father of Sachin when in the registered sale-deed dated 14.6.1989, late Sunil Kumar was described as father of Sachin. The Trial Court, therefore, found that the sale-deed dated 4.2.2004 insofar as it related to the half share in the plot in question belonging to Sachin required to be set aside/cancelled since Naresh Kumar was not competent to alienate the share of Sachin.

(3.) SRI Anupam Kumar who has put in appearance on behalf of both the defendant-respondents by caveat has raised a preliminary objection to state that the sale-deed dated 4.2.2004 was executed by Naresh Kumar and Naresh Kumar was not made a party in the suit and hence the suit was bad for non-joinder of necessary party. He has supported the findings recorded by the First Appellate Court on the issue of Order 7 Rule 11, CPC and that Naresh Kumar was the father of Sachin in view of the Revenue Entry made in his favour after the death of Sachin.