THAKUR DASS Vs. UMA DEVI & ORS

JUDGEMENT

(1.) This regular second appeal is directed against the judgment and decree of the learned Additional District Judge, Kullu, H.P. dated 5.6.2014, passed in Civil Appeal No. 6 of 2014 (2013).

(2.) Key facts, necessary for the adjudication of this regular second appeal are that the appellant-plaintiff (hereinafter referred to as the plaintiff), has instituted a suit for declaration and injunction against the respondentsdefendants (hereinafter referred to as the defendants), stating therein that he is owner-in-possession of land measuring 162-47 hectares, being 160/1320 shares out of total land measuring 1340-39 hectares comprised of Kh. No. 999, 1232, 1233, 1234, 1235 and 1238 Khata and Khatoni No. 141/222, situated at Muhal Bhajogi Tehsil Manali, Distt. Kullu, H.P. (hereinafter referred to as the suit property. He raised a loan of rupees eight lacs in order to raise construction in the year 2004 from defendant No. 3 i.e. Bank of India. He also mortgaged the suit property in favour of defendant No. 3 in order to secure the loan. The plaintiff appointed his son, defendant No. 2 as General Power of Attorney to look after the construction work and to deal with the labour, mason, carpenter etc. The General Power of Attorney was executed on 11.4.2005. It is alleged that the plaintiff raised double storyed RCC building on the suit land. It was completed in the month of October, 2005. However, during the subsistence of the General Power of Attorney, defendant No. 1 in connivance with defendants No. 2 & 3, including the scribe and marginal witnesses got managed the sale deed No. 330 dated 27.7.2006 of the suit land in her favour and got entered mutation No. 59. According to the plaintiff, the sale deed is wrong, illegal and void and not binding upon the plaintiff and liable to be declared as such.

(3.) The suit was contested by the defendants by filing separate written statements. According to defendant No. 1, the suit property was recorded in the name of plaintiff prior to the sale. The plaintiff sold the suit property to defendant No. 1 vide registered sale deed No. 330 dated 27.7.2006 through his son, defendant No. 2, the General Power of Attorney for a consideration of Rs. 3,12,500/-. The plaintiff never disclosed that the suit property was mortgaged with defendant No. 3. There was no entry in the revenue record in this behalf. There was only dilapidated structure on the suit land, which was completely reconstructed and renovated by the defendant after purchasing the suit property. She was residing in the same with her family. Defendant No. 2 was proceeded ex-parte on 25.5.2007. Defendant No. 3, has admitted that the plaintiff has raised loan of Rs. 8 lacs for the construction and mortgaged the suit land with the defendant No. 3.