RAM SAHU Vs. VINOD KUMAR RAWAT

JUDGEMENT

(1.) THE appellants/plaintiffs have filed this appeal under Section 96 of the Code of Civil Procedure (hereinafter is referred to as "CPC".) being aggrieved by the judgment and decree dated 16.4.2005 passed by the Court of X Additional District Judge, Gwalior in Civil Suit No.4 -A of 2005 whereby, the suit filed by the plaintiff deceased Shri Ram Sahu for cancellation of sale -deed dated 25.3.1995 executed by respondent/defendant no.3 in favour of respondents/defendants no.1 and 2, declaring it null and void and further seeking the relief of permanent injunction that the respondents/defendants no.1 and 2 be restrained from alienating the suit property to any other person was dismissed. In this appeal, the appellant is referred to as the 'plaintiff', the respondents no.1 and 2 as the 'defendants no.1 and 2' and the respondent no.3 as 'defendant no.3'.

(2.) THE admitted facts of the case are that Lalji Sahu alias Laljeet had two sons Ghasilal Sahu and Mangalia who passed away on 29.1.1979 and 6.9.1981 respectively. Ghasilal died issue less survived by his wife Chhimma Bai who died on 30.10.1993 whereas, Mangalia survived by his son Shri Ram Sahu the plaintiff. The registered sale deed dated 9.12.1959 Ex.D/4 of the disputed house bearing No.28/955 (Old No. -3/1582) situated at Sube Ki Paiga, Lashker is in the name of Ghasilal. Chhimma Bai filed a suit bearing No.44 -A of 2001 in the Court of VIII Civil Judge Class 1 against defendant no.3 Dileep Kumar Sahu for cancellation of registered adoption deed dated 13.5.1992 Ex.D/1. Finally, the said suit was dismissed by this Court vide judgment dated 7.9.2009 passed in Second Appeal No.315 of 2005. Similarly, Dileep Kumar Sahu defendant no.3 filed a suit bearing No.45 -A of 2003 in the court of VIII Civil Judge Class I Gwalior against the plaintiff Shri Ram Sahu for declaration that the alleged will dated 19.10.1993 Ex.P/1 by Smt. Chhimma Bai in his favour is forged and fictitious and Shri Ram Sahu has no right to deal with the disputed property left by Smt. Chhimma Bai. Finally, the said suit was decreed in favour of the defendant no.3 Dileep Kumar by this Court vide judgment dated 7.9.2009 passed in Second Appeal No.946 of 2005. The defendant no.3 sold the disputed house to the defendant no.1 and 2 vide registered sale deed dated 25.9.1995, however, the purchaser did not get the possession of the said house, plaintiff Shri Ram being in possession of the disputed property.

(3.) THE facts, in brief, of the plaint are that Ghasilal Sahu and Mangalia were members of joint family doing the business of grocery and being eldest son of the family, Ghasilal was 'Karta khandan'. It was stated by the plaintiff that out of the income of joint family, a house was purchased vide registered sale deed dated 9.12.1959 recording the name of Ghasilall Sahu as 'Karta Khandan' in the sale deed but Ghasilal and Manglia were joint owners of the same and after their death, Smt. Chhimma Bai and the son of Manglia, Shri Ram Sahu became co -owner and possessor of the said property. It was further stated by the plaintiff that he served Smt. Chhimma Bai, hence, during her lifetime, she executed a will dated 19.10.1993 in his favour pertaining to the said house, hence, he is sole owner and is in possession of the said house. The plaintiff further stated that defendant no.3 Dileep Kumar was not related to Smt. Chhimma Bai and was never adopted vide adoption deed dated 28.1.1985 by her. Smt. Chhimma Bai herself filed a suit bearing No.226A of 1994 to get the alleged adoption deed canceled against the defendant no.3 Dileep Kumar and his parents. But since the defendant no.3 Dileep Kumar executed a sale deed dated 25.3.1995 in favour of the defendants no.1 and 2 without having any title who are in turn trying to alienate the same to create third party interest, hence, the suit was filed by the plaintiff against the defendants as stated herein above.