SHAKUNTALA YADAV Vs. YADVINDER SINGH

JUDGEMENT

(1.) SHAKUNTLA Yadav widow of Lal Singh, the original owner of part of the land in dispute along with her major amd minor sons, namely, Bharat Singh Yadav, Vineet Yadav and Sharad Yadav has taken a strong exception to a decree dated 29.10.1990, said to have been passed by Shri A.D. Gaur, Sub-Judge IIIrd Class, Gurgaon in case No. 1588 of 1990 vide which the land, fully described in paras 1 and 2 of the plaint, was transferred in favour of Yadvinder Singh son of Randhir Singh. The total land described in paras 1 and 2 measuring 116 kanals 11 marlas, is detailed below :

(2.) THE suit for declaration that the decree obtained by defendant Yadvinder Singh was an outcome of fraud and deceit on the grounds that shall be fully detailed later, came to be instituted before the Vacation Judge on July 6, 1991. Accompanied with the suit was an application for entertaining the suit during vacation. It requires to be mentioned here that during summer vacation in the trial courts, insofar as civil work is concerned, the same comes to a grinding halt. There is no vacation Bench to deal with the regular civil suits and only emergent criminal work is transacted. It was, inter alia, mentioned in the application aforesaid that on the basis of fraudulent decree dated October, 29, 1990, the defendant was threatening to dispossess the plaintiffs. He was also trying to lease out the land in dispute and to create encumbrances over it and was even planning to alienate the same to the third parties. In case the defendant was to succeed in his endeavour to alienate the property, the plaintiffs would suffer an irreparable loss. The plaintiffs during the lis, sought for an injunction against the defendant as well and for that precise reason maintained an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure. It appears that the Additional District Judge entertained the suit as a vacation Judge considering it to be an urgent matter as would be clear from his interim order dated July 6, 1991 which reads thus :

(3.) AT a stage when Yadvinder Singh defendant in the civil suit referred to above as per the case of the plaintiffs with the help of government functionaries had sold or leased out part of the land and on the basis of the said sale deeds and lease deeds, the revenue officials were out to mutate the land in favour of the third parties, the plaintiffs filed Civil Writ Petition No. 2377 of 1993 in this court on March 4, 1993. It was, inter alia, pleaded in the writ aforesaid that the copy of the order of the District Judge dismissing the appeal of the plaintiffs arising from the order passed by the Sub Judge declining stay to the plaintiffs was made available and the plaintiffs approached this Court on January 27, 1993 and obtained permission of this Court for getting their Civil Revision No. 339 of 1993 fixed up on the same day before an Hon'ble Judge of this Court and after hearing the arguments, stay restraining respondents from alienating the property or creating an encumbrance over the property in dispute was granted. It has also been pleaded that the case file culminating into the impugned decree had been got misplaced by the defendant Yadvinder Singh. The counsel representing the respondents, who was watching the proceedings of the civil revision, appeared on January 28, 1993 was holiday in Haryana and on January 29, 1993 plaintiffs presented a copy of the stay at 9 a.m. to the Tehsildar-cum-Sub Registrar, Gurgaon and also to Patwari of the area. Despite that, Yadvinder Singh got the sale deeds of the property in dispute registered. These sale deeds were, however, got ante dated even though registered on 29th the date put on the sale deeds was January 27, 1993. As mentioned above, these were the circumstances that compelled the plaintiffs to file the writ petition aforesaid. The matter came up for hearing before the Division Bench of this court on March 5, 1993 when notice of motion was issued for March 19, 1993. Plaintiffs were asked to serve the respondents by Dasti Process. Status quo regarding possession over the property in dispute was ordered to be maintained. The matter was thereafter adjourned from time to time and after records of the case were complete, it came up for hearing before a Division Bench of this Court on October 11, 1993 when following order was passed :