UMAKANTA DAS Vs. PRADIP KUMAR

JUDGEMENT

(1.) Defendants 1 and 2 are the appellants against a judgment of reversal.

(2.) Plaintiffs who are the two sons of defendant No.3 being minors filed the suit through their mother guardian. The suit is one for permanent injunction restraining defendants 1 and 2 from entering upon the disputed land, for a mandatory injunction against them to remove the obstructions and for setting aside the registered sale deed dated 9-4-1965 executed by defendant No. 3 in favour of defendants 1 and 2 which is Ext.2 in the present case. The disputed land measures an area of Ac.0.03 decimals pertaining to plot Nos.49 and 59 under Khata No.30 of village Haripur. According to the plaint case, the plaintiffs had lot of ancestral properties and there was lot of surplus income out of the said properties. The disputed land was purchased by defendant No.3 under a registered sale deed dated 29-7-1937 from out of the surplus income of the ancestral property and, therefore, constitutes a part and parcel of the joint family properties of the plaintiffs and defendant No.3. Defendant No.3 had no right to transfer the said property in favour of defendants 1 and 2 without consent of the other coperceners. However, defendant No.3 executed a sale deed (Ext.2) without having any necessity for the sale in question and without receiving the consideration contained in the said deed. It has been further averred that though defendants 1 and 2 are the vendees under the sale deed (Ext.2), but they have never obtained possession of the same and the plaintiffs are continuing to possess the same. It is only on 1-2-1972 when defendants 1 and 2 started some construction on a portion of the disputed land, the plaintiffs protested and came to know about the sale in question by defendant No.3 and hence the present suit was filed.

(3.) Defendants 1 and 2 in their written statement deny the allegations made in the plaint and aver that the property in question is the self-acquired property of defendant No.3 who was the sole owner in possession thereof and as such was entitled to dispose of the same as he liked. It has also been contended by them that defendant No.3 agreed to sell that land for a sum of Rs. 555/- and to receive the consideration on the endorsement of the registration ticket and accordingly executed a sale deed on 9-4-1965 and after execution and registration did not accept the consideration money though offered to him on several occasions. But all the same, defendants 1 and 2 got possession of the disputed land and title under the sale passed unto them even though consideration has not been paid. They further aver that the necessity for the sale in question was there since defendant No.3 had started construction of a house and for that he required some money. Defendants 1 and 2 have also contended that after taking possession of the disputed land they have constructed three-roomed pucca house and are possessing the same from the date of the purchase.