KAMALJEET AND OTHERS Vs. DHARAM DASS

JUDGEMENT

(1.) Instant regular second appeal has been filed against judgment and decree dated 4.3.2009 passed by the learned District Judge, Hamirpur, HP, in Civil Appeal No. 87 of 2007 affirming judgment and decree dated 10.5.2007 passed by the learned Civil Judge (Senior Division), Hamirpur, HP in Civil Suit No. 359 of 1999 RBT No. 30 of 2007, whereby suit of the appellants-plaintiffs (herein after referred to as =plaintiffs') for declaration has been dismissed.

(2.) Briefly stated the facts of the case as emerge from the record are that Giano Devi (deceased plaintiff No.1) and Hem Raj plaintiff No. 2 filed a suit in the Court of learned Civil Judge (Senior Division), Hamirpur for declaration that the sale deed dated 16.9.1999 (Ext. D-4) stated to have been executed by the plaintiffs in favour of the respondent-defendant (herein after referred to as =defendant') in respect of suit land denoted by Khata No. 34, Khatauni No. 45, Khasra No. 286/84 measuring 2 Kanal 6 Marla as per the copy of Jamabandi for the year 1996- 97 situated in Tikka Ghugan, PO Aghar, Tappa Mehalata, Tehsil and District Hamirpur to the extent of 5/23 share measuring 10 Marla is illegal, null and void being the result of fraud and misrepresentation with the consequential relief of permanent prohibitory injunction restraining the defendant from interfering with the suit land in any manner whatsoever. Plaintiffs averred in the plaint that they are owners-in-possession of the suit land to the extent of 44/46 shares. Plaintiff No.1 was an illiterate and Pardanasheeni woman. Defendant approached the plaintiff with the request to sell the land measuring 5 Marla out of the suit land. Plaintiff further averred that plaintiff No.1 was to sell only 3 Marla from her share and 2 Marla from the share of her son, plaintiff No. 2, for a consideration of Rs.16,500/-. Plaintiffs averred that the plaintiffs were made to sit outside the office of the Sub Registrar Hamirpur. Papers were purchased by the defendant and the plaintiffs were told that they would be selling only 5 Marla of land. The sale deed was also got written by the defendant and contents were never explained to the plaintiffs. Plaintiffs were taken inside the office of Sub Registrar Hamirpur, who also enquired from them regarding the extent of the land being sold by them and the plaintiffs specifically informed him that they were only selling 5 Marla of land. Defendant got mentioned in the sale deed that the plaintiffs had sold 10 Marla of land to the defendant, which was not correct. Plaintiffs were never explained the terms of the sale deed and plaintiff No.2 was made to consume liquor and sale deed was got executed in state of intoxication. Defendant had also agreed to pay a sum of Rs.10,000/- to the plaintiffs but this fact was also not got incorporated in the sale deed. Suit land was worth more than Rs.50,000/-. Defendant taking advantage of the sale deed was threatening to change the nature of the suit land and to alienate the same without any right to do so as such they were compelled to file suit as referred to above.

(3.) Defendant by way of written statement, refuted the claim of the plaintiffs raising preliminary objections with regard to maintainability, estoppel and plaint being bad for want of better particulars. Defendant also denied the allegations of the plaintiffs on merits by stating that plaintiff No.1 was not a Pardanasheen woman and had been managing her affairs herself. She had sold land to different persons including the defendant in the year 1990-91. Plaintiffs had received an amount of Rs.30,000/-. The sale consideration was mentioned less in order to avoid the liability of stamp duty. Plaintiffs had utilized the amount by constructing a house and the sale was for necessity. Sale deed was executed at the instance of the plaintiffs. Whole consideration had been paid and the small amount, which was agreed to be paid at the time of attestation of mutation, remained payable, which defendant was ready and willing to pay. Sale deed was explained to the plaintiffs not only by the deed writer but also by the Sub Registrar. Defendant prayed for dismissal of the suit.