GURDEV SINGH Vs. RAGHBIR SINGH

JUDGEMENT

(1.) THIS is defendants second appeal challenging the judgment & decree dated 17.10.1981 passed by the Sub Judge IInd Class, Kaithal and the judgment & decree dated 29.1.1982 of the 1st Appellate Court affirming the aforesaid judgment & decree passed by the trial Court.

(2.) THE facts leading to the present case are that Gurdev Singh and Sadhu Singh (appellant-defendant Nos. 2 and 3), sold land measuring 12 kanals vide sale deed dated 13.12.1976 in favour of Saroop Chand (respondent No. 4/defendant No. 1) for consideration of Rs. 9000/-. Raghbir Singh and his two brothers i.e. respondent No. 1 to 3/plaintiffs filed a suit for pre-emption claiming superior right being the vendee and co-sharer in the suit land. According to respondents-plaintiffs, the appellants-defendants are the sons of their father's brother. It was also pleaded that actually Rs. 4000/- was paid as sale consideration. Defendant-Saroop Chand (vendee) filed written statement stating that he was left with no title or interest in the suit land as the sale in his favour had been declared null and void vide civil Court decree passed in civil Suit No. 428 of 1978 - titled as Gurdev Singh, etc. v. Saroop Chand, decided on 22.4.1978. The present appellants filed written statement submitting that sale deed dated 13.12.1976 for Rs. 9000/- was got written by Saroop Chand in his favour in collusion with the scribe by taking undue advantage of their illiteracy. It was alleged that the land in question had been mortgaged for a sum of Rs. 7500/- by their father Mula Singh to Smt. Pritto Devi. However, the possession remained with Mula Singh. After the death of Mula Singh, the land was inherited by both Gurdev Singh and Sadhu Singh along with their mother Jai Kaur and sister Gurdev Kaur in equal shares. Saroop Chand did not pay the entire sale consideration before the Sub Registrar and objections were raised by the present appellants. Accordingly, the present appellants challenged the sale on the basis of fraud. In the said suit, decree was passed against Saroop Chand and accordingly, the appellants paid the sale consideration along with costs to Saroop Chand and the sale was declared to be null and void. The trial Court framed several issues. However, the basic issues were as to whether the plaintiffs Raghbir Singh, etc. have a superior right to pre-emption; whether the sale was a nullity as alleged by the defendants (appellants herein); and whether the decree dated 22.4.1978 is collusive and fraudulent and what was its effect.

(3.) I have heard learned counsel for the parties and perused the material on record.