KALAWATI Vs. DHARMENDRA

JUDGEMENT

(1.) The plaintiff is in second appeal before this Court laying challenge to the concurrent findings returned by the learned Courts below whereby vide judgment and decree dtd. 30/5/2015 passed by the learned Civil Judge (Junior Division), Rewari; which was duly affirmed in appeal by the learned Additional District Judge, Rewari vide judgment and decree dtd. 27/8/2018, the suit of the appellants/plaintiffs for possession and permanent injunction, has been dismissed.

(2.) The parties shall hereinafter be referred to as per their status before the learned trial Court i.e. the appellant is being referred to as the plaintiff whereas the respondents as defendants.

(3.) Brief facts as set out in the plaint are that defendant No. 1 and his younger minor brother namely Anil Kumar, were owner in possession of property comprised in kheat no. 12, khatoni no. 12, rect. No. 8 killa no. 18, total area 6 kanal 12 which is in the shape of plot and situated in the revenue estate of village Kalaka, Tehsil &Distt. Rewari. In this property defendant no.1 and his brother Anil Kumar were having 5/264th share which is about to 2.5 marla. Defendant no.1 and his brother were also owners in possession of khewat no.13 khatoni no.13, rect. no.8 killa no.23 total measuring 8 kanal 4 marla to the effect of 6/164th share which comes to 6 marla, total area measuring 8.5 Marlas/235 yd., and same is also situated in the revenue estate of village Kalaka, Tehsil & Distt. Rewari. A mutation no. 1057 in this regard was also sanctioned in their favour on 3/8/2004. Defendant no.3 entered into an agreement to sale regarding the aforementioned property with performa defendant no.5 Dharambir on 22/2/2010 in the sale consideration of Rs.8,93,000.00. Defendant no.3 received Rs.4,50,000.00 as earnest money. However, defendant no.3 was not owner of said property and therefore, to save himself from criminal action he got executed another agreement to sell the plot meas ring 235 Sq. yards @ Rs.3800.00 per sq. yards from it's real owners defendants no.1 and 2 in favour of plaintiff on 28/6/2010. As per the agreement defendant no.1 and 2 alongwith defendant no.3 received whole am unt of sale in the sum of Rs.8,93,000.00 from plaintiff in cash and also adjusted amount of Rs.4,50,000.00 given by the performa defendant no.5 on 22/2/2010. As per the agreement defendants no.1 to 3 handed over vacant possession of said pl t to the plaintiff at the time of agreement dtd. 28/6/2010. Vendor Anil Kumar was minor and in his place hisfather defendant no.2Rameshwar Dayalput his thumb impression as guardian of Anil Kumar and promised to get the sale deed executed after getting permission to sale from the concerned Civil Court. Defendant no.2 did not make any effort for getting the succession certificate on behalf of his minor son Anil Kumar. After the said agreement plaintiff and her son Dharambir alongwith family members got installed submersible pump on the suit property on 24/3/2010. Ceremony of Muhrat for raising construction was also performed. On 2/8/2010 when plaintiff alongwith her family members came to suit property f r laying down the foundation stone for construction, defendant no.4 alon with some other bad elements came there and asked the plaintiff to hand over possession of plot claiming that he has purchased the same from defendant no.3. Defendat no.4 also beaten the family membersf plaintiff. Husband of plaintiff made a written complaint on 15/9/2010 to PS Model Town but no action was taken. Rather police helped defendants no.3 and 4 for raisinboundary wall and installing main gate. After that plaintiff requested several times to defendants no.1 to 3 to ha d over the vacant possession but they refused on 18/12/2010, the date of arising of cause of action. The riminal complaint in the matter is pending before the Court of Ld. ACJM, Rewari. Accordingly, the present suit was filed seeking relief of possession and permanent injunction, over the disputed plot as per agreement to sale dtd. 28/6/201 .