SHRITEJ PAL Vs. SMT.SHANTI DEVI

JUDGEMENT

(1.) Plaintiff/appellant is in this second appeal against the judgment and decree dated 29.04.2009 passed by the learned Court of Additional District Judge, Faridabad whereby the appeal filed by the defendant has been partly allowed to the extent that the judgment and decree dated 26.11.2007 passed by the Civil Judge(Jr. Divn.), Faridabad declaring the plaintiff to be lessee on the suit land was set aside but the judgment and decree passed by the trial court was upheld so far as it related to declaration that the defendant has no right to dispossess the plaintiff from the suit property except in due course of law.

(2.) Brief facts for proper adjudication of the case in hand are that the plaintiff/appellant has set up a case that he along with his brother Richhpal had taken on lease the land measuring 37 Kanals 16 marlas detailed in para no.1 of the plaint from its owner K.B. Sharma vide lease deed executed on 16.07.1982 and registered on 13.08.1982. He and his brother had mutually partitioned their lease hold rights and as a result, he has occupied land measuring rectangle no.40, Killa no.16(4-0), 24(6-9) and 25(8-0) (hereinafter referred to as the suit land) as exclusive lessee. Defendant/respondent Shanti Devi was widow of Nand Kishore who is the deceased brother of Richhpal and the plaintiff herein. She had purchased the entire 37 Kanal 16 marlas of land from previous owner K.B. Sharma vide sale deed executed and registered on 13.08.1982. Plaintiff claimed that the defendant was living with his brother Richhpal and she through her relatives and henchmen had asked him to surrender his lease hold rights. She threatened that she would otherwise forcibly dispossess him from the suit land. Hence, the plaintiff prayed for declaration that he is a lessee in possession of the suit land and entitled to a consequential relief of permanent injunction restraining the defendant/respondent from interfering in his possession in any manner whatsoever.

(3.) Upon notice, defendant/respondent filed written statement taking plea that the lease deed was a bogus and sham transaction, which the plaintiff and his brother Richhpal in collusion with previous owner K.B. Sharma had executed to defraud her. She claimed herself to be owner of the suit land on the basis of the sale deed dated 13.08.1982. She has further averred that she is an illiterate widow and was incapable to look after and manage her property. She had, therefore, executed a general power of attorney in favour of her Devar(husband's brother) Richhpal who, however, dishonestly used the said GPAto transfer 19 Kanal 17 marlas of suit land to his son Sameer through Sale deed dated 30.09.1994. She claimed her possession over the suit land and alleged that plaintiff/appellant has never been in possession thereof. Accordingly she prayed for dismissal of the suit.