RATTI RAM Vs. SAT NARYAIN

JUDGEMENT

(1.) this is plaintiff's second appeal whose suit for possession by way of pre-emption had been decreed by both the Courts below. Since the decree had been passed subject to the rights of the mortgagee, they felt aggrieved and filed the appeal before the lower appellate Court where the decree of the trial Court was maintained and dissatisfied with the same, they have filed this second appeal in this Court.

(2.) The plaintiffs are the sons of the vendors. The sale deed is dated December 17, 1973. Prior to the said sale, both the vendors executed mortgage deed May 14, 1973 for 24 kanals 10 marlas of land in favour of Phusa Ram, defendant No. 6. On that very day, he also entered into the agreement to sell 21 kanals and 18 marlas of land. By virtue of the sale deed dated December 17, 1973, the land measuring 19 kanals 6 marlas was sold which is the subject-matter of the present suit. According to the learned counsel for the plaintiffs, the said mortgage was executed in favour of Phusa Ram, defendant, who is the grandfather of the vendees and not only that, on that very day, the agreement to sell was also executed by the vendors in favour of the vendees. Thus from the facts and circumstances of the case, if was amply proved that the mortgage was a fictitious transaction and that the same was made to defeat the rights of the pre-emptors.

(3.) After hearing the learned the learned counsel for the appellant, I do not find any merit in this appeal.