RAMSWAROOP Vs. RAMJILAL

JUDGEMENT

(1.) THIS appeal by plaintiff is directed against the judgment and decree dated 28/1/2010 in Civil Appeal No. 12 -A/2009 confirming the judgment and decree dated 18/9/2008 in Civil Suit No. 6 -A/2008. Plaintiff's suit for declaration and permanent injunction has been dismissed.

(2.) PLAINTIFF filed a suit inter alia contending that the plaintiffs father and defendant no. 2 are real brothers and sons of Late Badriprasad. The suit land as described in para 3 of the impugned judgment is said to be an ancestral land. As defendant no. 2 was elder to plaintiffs father, therefore, suit land was mutated in his name, but the same continued to be the ancestral properties. Defendant no. 2 was issueless. After death of plaintiffs father, plaintiff used to live with defendant no. 2 and look after him. Therefore, under the Hindu Succession Act plaintiff is entitled to succeed the suit property being the sole heir after death of defendant no. 2. It is submitted that defendant no. 1 emotionally manipulated defendant no. 2 and got the sale deed dated 22/2/1999 executed in his favour in respect of the suit land without payment of consideration, however, on receiving information about the aforesaid act of defendant no. 1 manipulating the sale deed plaintiff objected to mutation in revenue records. The objection was not entertained and the plaintiff was directed to seek declaration that the aforesaid sale deed is null and void. That led to filing of instant suit seeking declaration and permanent injunction.

(3.) ON aforesaid pleadings, trial court framed issues and allowed the parties to lead evidence. Trial Court upon critical evaluation of evidence on record dismissed the suit. Plaintiff questioned the judgment and decree of trial court by preferring an appeal before the first appellate court. During pendency of the appeal, plaintiff filed an application under Order XLI Rule 27 of CPC to bring on record the Will dated 7/1/2008 allegedly propounded by Late Babulal -defendant no. 2 in favour of plaintiff after execution of sale deed in favour of defendant no. 1. The first appellate court with reasonings as given in para 9 of the impugned judgment has rejected the same, as the aforesaid application was lacking in material particulars: as to why the aforesaid Will was not produced by the plaintiff before the trial court; as to when the aforesaid Will came to the knowledge of the plaintiff; and, that even otherwise the aforesaid Will said to have been propounded on 7/1/2008 after execution of sale deed dated 22/2/1999 was found to be not relevant for delivery of judgment. On merits, the first appellate court re -appreciated the entire evidence on record and found that plaintiff failed to establish the suit land to be an ancestral property. As a matter of fact, the suit land has been found to be of the ownership of defendant no. 2 already been transferred in favour of defendant no. 1 by execution of sale deed dated 22/2/1999 and that defendant no. 2 himself has never challenged the sale deed. The instant suit having been filed after eight years of execution of sale deed was held to be rightly dismissed by the trial court, as to seek declaration for sale deed dated 22/2/1999 as null and void, the suit ought to have been filed within three years and there is no explanation as to why with such delay the suit was filed. The first appellate court has further found that as a matter of fact, the claim of plaintiff seeking declaration as regards sale deed dated 22/2/1999 to be null and void and that he be declared as successor of defendant no. 2 was filed within the lifetime of defendant no. 2 and, therefore, the claim for succession was totally misconceived and, hence, yet on other ground the suit was found to be rightly dismissed by the trial court. With the aforesaid findings, the first appellate court has dismissed the appeal confirming the findings of the trial court.