NAVEEN AND ANOTHER Vs. NARENDER KUMAR AND OTHERS

JUDGEMENT

(1.) The plaintiffs have filed this regular second appeal against the judgments of the Courts below whereby their suit has been dismissed. The plaintiffs had filed the suit for declaration to the effect that they were in possession in equal shares of land measuring 9 Kanals 12 Marlas i.e. 192/2050 share of land measuring 102 Kanals 10 Marlas fully detailed in the head note of the plaint and the judgment and decree dated 18.09.1996 passed in Civil Suit No.1421 of 1996 titled as 'Narinder Kumar etc. Vs. Dharam Pal' whereby defendant No.3 Dharam Pal transferred the aforesaid land measuring 9 Kanal, 12 Marla in favour of defendants No.1 and 2 is illegal, null and void and not binding on their rights. It was also prayed that defendants No.1 and 2 be permanently restrained from interfering in the peaceful possession of the plaintiffs over the suit land.

(2.) The plaintiffs are the sons of defendant No.3 who is their father. The case of the plaintiffs was that defendant No.3, their father, was owner of 448/2050 share in total land measuring 102 Kanal 10 Marla comprised in Khewat No.935/859, Khatauni No.1280 situated at Village Dhanger, Tehsil and District Fatehabad. It was pleaded that the plaintiffs were in possession of the suit land. The plaintiffs being Brahmin by caste were governed by Hindu Law. It was pleaded that defendant No.3 had got 1/16 share in the land i.e., 6 kanal 11 Marlas by the inheritance from his father. He had got the remaining 5/32 share i.e. land measuring 16 Kanal, 7 Marla by way of Civil Court decree suffered in his favour by his sister and mother. Thus, it was pleaded that the suit land was ancestral property in the hands of defendant No.3 in which the plaintiffs being sons had right by birth. Defendants No.1 and 2 are the sons of cousin of defendant No.3 and they had no pre-existing right in the suit land. Defendant No.3 suffered judgment and decree dated 18.09.1996, in Civil Suit No.1421 of 1996 titled as 'Narinder Kumar and others Vs. Dharam Pal' vide which he transferred 192/2050 shares i.e. land measuring 9 Kanal, 12 Marla in favour of defendants No.1 and It was pleaded that no mutation on the basis of that judgment and decree had been sanctioned till the filing of the suit. The said judgment and decree was challenged inter alia on the grounds that defendants No.1 and 2 had no pre-existing right in the suit land and that the suit land could have been transferred only by a registered instrument as the market value of the suit land was more than Rs.3, 00, 000/-. They further pleaded that the impugned judgment and decree were obtained by fraud as defendants No.1 and 2 had obtained the signatures of defendant No.3 on blank paper.

(3.) Only defendants No. 1 and 2 contested the suit. Defendant was proceeded against ex-parte as he did not appear despite service. In their written statement defendants No.1 and 2 pleaded that defendant No.3 was owner in possession of land measuring 22 Kanal 8 Marlas being 448/2050 shares in the total land measuring 102 Kanals 10 Marlas as per jamabandi for the year 1990-91. It was further pleaded that on the basis of a family and mutual settlement which took place between defendants No.1 and 2 and defendant No.3 in January 1996, defendant No.3 had transferred land measuring 9 Kanals 12 Marlas being 192/2050 shares in the suit land in favour of defendant No. 1 and 2 by way of the impugned judgment and decree and since then, they were coming owners of the same. It was further pleaded that defendant No.3 had put in appearance and filed written statement admitting the claim. He had also appeared in person before the Court and his statement was recorded on 18.09.1996 and it was then that the impugned judgment and decree were passed. It was further pleaded that defendant No.3 had not challenged the impugned judgment and decree till date and thus, there was no question of any fraud. It was further pleaded that the impugned judgment and decree did not require registration as defendant No.3 had admitted the pre-existing right of defendants No.1 and 2 in the land transferred in their favour by way of the impugned judgment and decree. It was denied that the suit land was ancestral in the hands of defendant No.3 and it was pleaded that he was absolute onwer in possession thereof. It was further pleaded that defendant No.3 was also having 1/4th share in land measuring 64 Kanals comprised in Khasra Nos. 249///6, 15, 250//1, 2, 9, 10, 11, 12 situated in village Dhanger. It was further pleaded that even if, it is presumed that the suit land was ancestral in the hands of defendant No.3, then also, out of the total land measuring 38 Kanals 8 Marlas owned by him, he had transferred only land measuring 9 Kanals 12 Marlas in favour of defendants No.1 and 2 which is within his share and on this count also, the impugned judgment and decree are legal and valid. From the pleadings of the parties, the Learned Trial court framed the following issues: