VIJENDRA KUMAR & ANOTHER Vs. DALIPA & OTHERS

JUDGEMENT

(1.) This appeal under Section 96 of the Code of Civil Procedure 1908 has been preferred by defendants/appellants against a judgment and decree dated 25th September 2003 rendered in Civil Suit No. 39A/2002 by the Third Additional District Judge, Vidisha (M.P.) nullifying thereby agreement to sell executed by defendant No.2-Gyarsa in favour of Brijendra (defendant No.1) in respect of the suit land (agricultural land comprised in Survey No. 392 having an area of 1.045 hector out of total area of 1.839 hector which is situated in village Gitola, Tahsil Kurwai) and subsequent saledeed of land under suit executed in favour of Jagdish and directed both the defendants Brijendra and Jadgish (appellants herein) for handing over possession of the suit land to the plaintiffs. Till the date of handing over the possession of the suit land, the defendants/appellants were further directed to pay mesne profit of Rs. 4000/- yearly to above plaintiffs (Respondents).

(2.) The facts, necessary for adjudication of this appeal , are that one Halke was the original owner of the and in possession of the land pursuant to lease granted by the State. He left behind four sons, namely, Gumna, Somtia,Tulaiya and Gyarsa. It is alleged that after death of Halke, Gyarsa got the land under dispute on the basis of sole successor of deceased Halke. It is not disputed that the plaintiffs/respondents No. 1 to 3 are sons and plaintiff/respondent No.4 Smt. Lalatabai is wife of Gyarsa. It is stated that on 15th May 1995 Gyarsa executed a sale-deed in relation with the land comprised in Survey No. 392 of area 1.045 hector out of total area of 1.839 hector situated in village Gitola for consideration of Rs. 37,000/- in favour of defendant No.1 Brijendra (appellant herein). Subsequently, the suit land was transferred by executing another sale-deed dated 6th September, 1996 in favour of Jagdish for consideration Rs. 34,500/-. The lands under suit were claimed as ancestral properties of Gyarsa and his heirs. The plaintiffs being Hindu Scheduled Caste are governed by Hindu Laws. It is also pleaded that by deceitful means, the defendant/appellant Brijendra grabbed the land by converting the loan transactions made between him and Gyarsa and pursuant thereto a sale deed was executed in his favour. So, the plaintiffs filed this present suit for cancellation of sale- deeds executed by Gyarsa, in favour of Brijendra by contending that Brijendra subsequently sold the part of his purchased land by another registered sale deed in favour of one Jagdish. Under these circumstances, the suit was instituted by the plaintiffs for delivery of possession of sold lands, which was decreed in their favour, as mentioned above. The purchasers/appellants being aggrieved by the findings contained in the judgment and decree passed against them, have submitted the instant appeal.

(3.) The appellants inter alia contended that the judgment and decree under appeal is manifestly illegal and against the evidence as adduced by the parties to the present case, hence, same is liable to be set aside. It is submitted that the plaintiffs failed to prove the fact that the property belong to joint family and that deceased Ghyarsa had no right to execute the sale-deed in favour of Brijendra. Learned counsel invited attention of this court to this respect on the evidence of wife of deceased Gyarsa (PW-1) who stated that the property under dispute fell in share of the deceased after partition and the other three sons of deceased Halke after receiving their shares had sold their properties. It is therefore submitted that for want of absolute evidence, the learned trial court has committed an error that the property was a joint family property. The trial court further failed to consider that the suit property was sold for necessity of the family on valid consideration paid to the vendor by a registered sale deed. After sale transaction, the property was validly transferred in favour of the vendee. After death of Halke, (father of Gyarsa), Gyarsa became the absolute owner of the land and he validly sold the lands in favour of purchaser Brijendra and at subsequent stage Brijendra transferred the part of his purchased land by a registered sale deed in favour of Jagdish. It is thus submitted that no cogent ground for cancellation of the sale deed executed by the father of plaintiffs for valid consideration arose against the defendants/appellants. Apart the aforesaid, it is also contended that the suit itself was not maintainable being barred by time. In support of his contentions, learned counsel placed reliance on the decisions of this court in the cases of Chain Singh Vs. Ramchandra and others,1992 RN 277) and Anil and another Vs. Gattulal and others,2004 RN 109) to contend that findings are based on wrong application of legal principles and therefore same are not sustainable. Therefore, it is prayed that by allowing the appeal, the judgment and decree assailed herein may be set aside.