DURGA DUTT Vs. RAMESH DUTT

JUDGEMENT

(1.) This regular second appeal has been filed by defendant -appellant Durga Dutta against the judgments and decrees of the courts below, whereby the suit filed by the plaintiffs was partly decreed and counter claim of defendant No.1 was dismissed and the appeals filed by both the sides were dismissed by the learned District Judge and the judgments and decrees of the trial court were affirmed.

(2.) The facts, which are relevant for the decision of the present appeal, are that plaintiff Smt Chander Kanta and Ramesh Dutt had filed a suit for declaration with consequential relief of injunction against Durga Dutt defendant. In the said suit it was alleged that the civil court decree dated 26.4.1984, in the civil suit titled as Durga Dutt vs. Surat Ram, in respect of land measuring 13 biswas, comprised in Khasra No. 87 was illegal and void and not binding on the rights of the plaintiffs and that the plaintiffs and the proforma defendants were the joint owners of the suit land and the plaintiffs were in exclusive possession thereof and that the aforesaid decree passed in favour of Durga Dutt was the result of fraud and collusion between said Durga Dutt and Surat Ram, since deceased. It was further alleged that the revenue entries recorded in favour of defendant No.1 Durga Dutt, showing him in exclusive possession of the suit land, were illegal and void and not binding on the rights of the plaintiffs. The plaintiffs -appellant sought a decree for injunction and in the alternative for joint possession. The case of the plaintiffs was that the suit land was jointly owned and possessed by plaintiff No.1 Smt. Chander Kanta and Surat Ram, predecessor -in -interest of plaintiff No.2 Ramesh Dutt and proforma defendants No.2 and 3. It was alleged that the said land was joint and ancestral and was never partitioned between them and the same was in cultivating possession of the plaintiffs, by way of family arrangement. It was further alleged that defendant No.1 Durga Dutt, in collusion with aforesaid Surat Ram, who was the co -owner to the extent of Vz share in the suit land, got a bogus agreement of sale in respect of the suit land prepared, with the intention to deprive the plaintiffs of the suit land. It was alleged that the said agreement dated 24.3.1983 was illegal and void and not binding on the rights of the plaintiffs. It was alleged that Surat Ram never remained in possession of the suit land and that he did not contest the previous suit filed by Durga Dutt against him with the intention to help Durga Dutt. It was further alleged that even otherwise Surat Ram could not have transferred or agreed to transfer the land more than his V2 share in the suit land. It was alleged that the decree dated 26.4.1984 obtained by defendant No. 1 Durga Dutt behind the back of the plaintiffs was illegal and void and not binding on the rights of the plaintiffs.

(3.) The suit was contested by defendant No.1 by filing written statement, taking up various preliminary objections. On merits, it was admitted that the suit land was jointly owned by plaintiff No.1 Smt. Chander Kanta and Surat Ram aforesaid. However, it was denied that the suit land was in actual physical possession of plaintiff No.1 by way of family settlement. On the other hand, it was pleaded that the suit land was in actual possession of Surat Ram, by way of family arrangement. It was denied that the agreement dated 24.3.1983 and bogus. On the other hand, it was pleaded that infact Surat Ram was in need of Rs. 45,000/ -and he. entered into the aforesaid agreement dated 24.3.1983 for sale o the suit land because the suit land was entirely in his possession. It was alleged that since Surat Ram had refused to execute the sale deed, he (Durga Dutt) filed a suit against Surat Ram and the same was decreed by the trial Court on 25.4.1984 and it was held by the court that the entire suit land was in his (Durga Dutt) possession. It was further alleged that he (Durga Dutt) was in possession of the suit land since the year 1981 as per agreement dated 24.3.1983 and if it was found that he had not become owner of the suit land by virtue of the aforesaid agreement dated 24.3.1983 and the aforesaid decree dated 26.4.1984, in that case he had become owner of the suit land by way of adverse possession. Defendant No.1 also filed a counter claim for declaration to the effect that he was owner in possession of the suit property by way of adverse possession. He also sought a decree for permanent prohibitory injunction, restraining the other side from interfering in his peaceful possession over the suit land.