NARESH SINGH TOMAR Vs. DINESH SINGH

JUDGEMENT

(1.) The present second appeal under Sec. 100 of CPC has been preferred by the plaintiff/appellant against the judgment and decree dtd. 29/9/2009 passed by Additional District Judge, Gohad, District Bhind in Regular Civil Appeal No. 06/2009 confirming the Judgment and decree dtd. 19/12/2008 passed by Civil Judge, Class-II, Gohad in Civil Suit No. 44- A/2008.

(2.) The original plaintiff/appellant - Ramesh Singh Tomar (since dead and represented by LRs.) had filed this civil suit for permanent injunction, cancellation of sale deed dtd. 21/1/1987 and for declaration of judgment and decree dtd. 20/2/2003 passed in Civil Suit No. 91-A/95 in respect to the property admeasuring area 15x75=1125sqft situated at Gohad bearing Survey No.1144/2 (herein after referred as disputed property) as null and void.

(3.) For the sake of convenience Naresh (since dead and represented by Lrs) will be addressed as plaintiff, respondent no.-1 Dinesh will be addressed as defendant no.-1 hereinafter. As per the plaint pleadings the plaintiff is the owner of the said disputed property. The property was purchased after selling the ancestral property by the plaintiff as well as defendant No.1 on 26/4/1980 from one Lakhpat Singh S/o Bhagwan Singh. Hence, both plaintiff and defendant No.1 became co-owner of equal shares in that property. It is further pleaded that when the property was purchased, defendant No. 1 was minor and plaintiff was working as a driver. Thereafter, plaintiff constructed the house on the same plot. After construction, oral partition was taken place between plaintiff and defendant No.1 and plaintiff got 15x75 square feet in southern side and defendant No. 1 got 15x75 square feet in northern side. The plaintiff has been in peaceful possession of his portion since 1980. The further pleading is that the plaintiff is illiterate and addicted to consume opium for which he has valid license. Defendant No. 1 took the advantage of this habit and got executed the sale deed dtd. 21/1/1987 in his favour by fraud in shadow of registration of partition deed after feeding a lot of liquor to plaintiff. Plaintiff knew about this fact only in the year 1995 when the earlier civil suit was filed. The cause of action arose in the year 2003 when he came to know about the execution proceedings started in earlier civil suit. Thereafter, the present civil suit is filed for the aforesaid relief as referred above.