DHARAM PAL Vs. RAKESH KUMAR AND OTHERS

JUDGEMENT

(1.) For the reasons mentioned in the application, same is allowed and delay of 174 days in re-filing the appeal is condoned. Plaintiff-appellant has come up in regular second appeal against the judgment dated 17.04.2014 passed by the Additional District Judge, Rewari, dismissing his appeal against the judgment and decree dated 30.07.2011 passed by the Civil Judge (Junior Division), Rewari, whereby his suit has been partly decreed.

(2.) Dharampal-plaintiff (appellant herein) filed a suit for declaration and permanent injunction while claiming himself to be owner in possession of the suit property to the extent of 1/9th share. The plaintiff was aged about 80 years and on 04.06.2003, he had gone along with defendant Nos. 3 and 4 for executing a release deed in favour of defendant Nos. 1 and 2 with regard to the suit land bearing Khewat No.392, Khatoni No.481, Rect. No.59, Killa No.12/2 (1-16), Rect. No.76, Killa No.3 (8-0), measuring 16 Kanals out of his 1/8th share i.e. 2 Kanal, situated in the revenue estate of village Mayan. However, defendant Nos. 1 and 2, in collusion with defendant Nos. 3 and 4 got his thumb marked on a gift deed qua 1/9th share of the plaintiff in the suit land by fraud and misrepresentation. As per plaintiff, the said gift deed was never read over to him and the attesting witnesses of the same were from other village i.e. village Khori and not from village Mayan, in which the land was situated. The plaintiff had given his half share on batai to defendant Nos.1 and 2 and had installed a tubewell in the year 1988-89. Electricity connection of the said tubewell was in the name of the plaintiff. In the month of August, 2006, when he demanded half batai from defendant Nos. 1 and 2, they flatly refused by claiming themselves to be owners of the suit land. Consequently, the plaintiff-appellant filed this suit seeking gift deed bearing Vasika No.783 dated 04.06.2003 in favour of defendant Nos. 1 and 2 along with mutation No.1651 dated 28.08.2003 as illegal, null and void as the same were the result of fraud and misrepresentation. As per plaintiff, his thumb marks were obtained on the pretext of executing the sale deed bearing No.784 dated 04.06.2003.

(3.) Upon notice, defendants-respondent Nos. 1 and 2 filed written statement and denied the allegations of fraud and collusion in execution of gift deed bearing Vasika No.783 dated 04.06.2003. It was submitted that the plaintiff was an educated person, who had retired from the post of Deputy Director, Rajasthan Government Vetrinary Doctor. He had thumb marked the gift deed in question after understanding the contents of the same out of his free will and without any pressure. Defendant Nos. 1 and 2 were the real nephews of the plaintiff and had performed all the ceremonies in respect of their cousin sisters namely Madhu, Malti, Sushma and Neena, who were daughters of the plaintiff. Due to this reason, the gift deed and release deed had been executed by the plaintiff out of love and affection in the presence of Kalyan Singh Rathore, who was real brother-in-law of the plaintiff.