GAJENDER SINGH Vs. BHATERI

JUDGEMENT

(1.) By the present judgment, two appeals being RSA-729-2021 and RSA-769-2021 both titled Gajender Singh V/s Bhateri and others' are being decided. Both the aforesaid regular second appeals have been preferred by the plaintiff-appellant challenging the judgment and decree dtd. 7/8/2015 passed by the Trial Court partly decreeing the suit of the plaintiff-appellant and the judgment and decree dtd. 18/2/2020 passed by the First Appellate Court whereby the appeal filed by the plaintiff-appellant was dismissed and the appeal filed by the defendant-respondents was accepted.

(2.) Brief facts relevant to the present lis are that the plaintiff-appellant herein filed a suit for declaration to the effect that sale deed No.9196 dtd. 27/12/2010 allegedly executed by defendant-respondent No.6 in favor of defendant-respondents No.1 and 2 in respect of land to the extent of 5/33 share i.e. 5 Kanals 0 Marla comprised in Khewat No.594 Khatoni No.638 Kitta 9 total land 33 Kanals 0 Marla as per the Jamabandi for the year 200809 situated in the revenue estate of Village Gujrani, Tehsil and District Bhiwani was null and void. Further, subsequent record, if any, entered in favour of defendant-respondents No.1 and 2 on the basis of the alleged sale deed was also challenged as being illegal, null and void on the ground that the plaintiff-appellant had a preferential right to purchase the suit land from defendant-respondent No.6 on the basis of a writing dtd. 5/5/2003 executed by defendant-respondent No.6 in favour of the plaintiff-appellant. As a consequential relief, prayer for mandatory injunction was sought with the direction that defendant-respondents No.1, 2 and 6 be directed to execute the sale deed in favour of the plaintiff-appellant on the basis of the writing dtd. 5/5/2003. It was case set up by the plaintiff-appellant that in the month of January 1997 defendant-respondent No.6 was in dire need of money for his personal necessity and as such he approached the plaintiff-appellant to advance an amount of Rs.1,00,000.00 (rupees one lakh). The plaintiff-appellant acceded and paid the said amount to defendant-respondent No.6 with an assurance that if the amount was repaid within a period of three months, no interest would be charged. It was further the case that defendant-respondent No.6 failed to repay the amount and in May 2000 a total amount of Rs.1,80,000.00 (rupees one lakh eighty thousand) was due towards the plaintiff-appellant including interest. The defendant-respondent No.6 paid ?38,000 (rupees thirty-eight thousand) and a balance of ?1,42,000 (rupees one lakh forty-two thousand) remained. He is alleged to have executed a writing dtd. 5/5/2003 by virtue of which defendant-respondent No.6 entered into an agreement for sale in respect of share measuring 5 Kanals 0 Marla. It was further the case that defendant-respondent No.6 agreed and undertook in the presence of witnesses, namely, Jai Parkash son of Bhim Singh, that he shall not sell the land to any other person except for the plaintiff-appellant unless the amount taken as loan is refunded to the plaintiff-appellant and that there was a further stipulation in the writing that in case of any violation of the terms and conditions of the writing dtd. 5/5/2003, the plaintiff-appellant will have a right to file a civil suit. The plaintiff-appellant also claimed to be in possession of the suit property. The sale deed dtd. 27/12/2010 executed by defendant-respondent No.6 in favour of defendant-respondents No.1 and 2 was also challenged on the grounds firstly there was a writing dtd. 5/5/2003 in favour of the plaintiff-appellant and secondly the possession was already with the plaintiff-appellant.

(3.) Joint written statement was filed by defendant-respondents No. 1 to 5. Defendant-respondents No.1 and 2 pleaded that they were bonafide purchasers and that they enquired and checked all the revenue records and found that the revenue record stood in the name of defendant-respondent No.6 and thereafter purchase of the land was completed. Defendant-respondent No.6 filed a separate written statement raising preliminary objections qua locus standi, suit not being maintainable in the present form and suit being hopelessly time barred. On merits it was pleaded that the entire amount of ?1,42,000 (rupees one lakh forty-two thousand) along with interest had been refunded to the plaintiff-appellant in the month of November 2003 and the plaintiff-appellant delivered actual physical possession of 5 Kanals 0 Marla to defendant-respondent No.6. It is further the case that a receipt was executed qua the amount of ?1,42,000 (rupees one lakh forty-two thousand) which was paid along with interest to the plaintiff-appellant and thereafter the land was sold to defendant-respondents No.1 and 2 by way of sale deed dtd. 27/12/2010. It was further the case that there was some dispute which arose between defendant-respondent No.6 and his wife and sons due to the interference of the plaintiff-appellant and that he was ousted from his house and all the documents were in the custody of his wife and sons.