RAJINDER KUMAR SHARMA Vs. NARESH KUMAR

JUDGEMENT

(1.) Three of the plaintiffs are in second appeal. They along with their brother-Ravinder Kumar Sharma, who has been arrayed as respondent No. 3 herein, had filed a suit for declaration and joint possession with consequential relief of permanent injunction. It was pleaded that they are the sons of Madan Mohan, defendant-respondent No. 2 and are Hindu & Brahmin by caste governed by Hindu Law and constitute a joint Hindu family with their father, who was karta. It was further pleaded that they along with their father had inherited the suit property as described in the plaint from Ram Singh, their grand-father after his death in the year 1946. It was averred that defendant No. 2 was managing the affairs and was utlizing the income from the suit property for the benefit of the family. It was further averred that Jayanti Parshad, who was real brother of defendant No. 2, had sold some agricultural land to Ram Chand and Dushyant Kumar which was subsequently sold to Israil and Asar Khan; that he had also sold some portion of land to Smt. Bhuro wife of Israil; that defendant No. 2 filed two suits for pre-emption with regard to the land sold to the aforesaid persons; that the same were decreed in appeal on 6.3.1992 in favour of defendant No. 2 subject to payment of Rs. 38,000/- and Rs. 20,000/-respectively; that the payment of these amounts was made out of the earnings of the joint Hindu family; that in this way, the plaintiffs and defendant No. 2 became owners in possession of the said land obtained through the decrees of pre-emption as well; that now, defendant No. 2 is under the influence of Naresh Kumar-defendant No. 1, who is the son of Jayanti Parshad; that he had no right to alienate the suit property; that being under the influence of defendant No. 1, defendant No. 2 suffered a collusive decree dated 4.8.1995 and transferred the suit property to the extent of 122/365 share out of the total 305/365 share; that the said decree was a result of fraud and misrepresentation and without any consideration; that the mutation dated 14.9.1995 sanctioned on the basis of the said decree is also illegal; that defendant No. 1 was not a member of the joint Hindu family and the alienation was without any legal necessity and consideration; that the collusive decree was obtained without impleading them as parties and that the family settlement pleaded in that suit was wrong; that the said decree could not have been recognized in law as it was never got registered and the alienation of the property worth more than Rs. 3,00,000/- was made; and that they had come to know about the illegal alienation through the collusive decree only in April,1999 when they were stopped by defendant No. 1 from removing the trees standing on the suit property.

(2.) Defendant No. 1 appeared and contested the suit, whereas defendant No. 2 filed his written statement admitting the claim of the plaintiffs in toto and pleaded that this signatures had been obtained by fraud and prayed that the collusive decree in favour of defendant No. 1 be discarded.

(3.) In his written statement, defendant No. 1 pleaded that the suit was barred by limitation; that it was not maintainable and that the plaintiffs had no locus standi to file the same. He denied that the plaintiffs were the sons of defendant No. 2 and pleaded that he & defendant No. 2 were Gaur Brahmins and were governed by the custom in the matter of alienation; and that the plaintiffs & defendant No. 2 did not constitute joint Hindu family and the suit property was not the property of joint Hindu family and defendant No. 2 was not the karta. It was, however, admitted that Jayanti Parshad son of Ram Singh had sold his share in the total land described in the plaint to Ram Chand and Dushyant Kumar which was subsequently sold to Israil, Asar Khan and Smt. Bhuro; that defendant No. 2 had filed preemption suits which were decrees in appeals, but it was pleaded that the preemption money was paid jointly by him and defendant No. 2. It was denied that the possession of the pre-empted land was taken by defendant No. 1 alone or that the plaintiffs & defendant No. 2 had become owners in possession thereof. It was pleaded that defendant No. 2 was exclusive owner of the land purchased through pre-emption and the plaintiffs had no concern with the same. It was further pleaded that in view of the fact the preemption suits had been filed jointly and the pre-emption money was paid jointly, defendant No. 2 had suffered decree dated 4.8.1995 in favour of defendant No. 1 and alienated the suit property in his favour. The parties went to trial on the following issues: