MOHINDER PAUL Vs. SHAMBHU RAM AND OTHERS

JUDGEMENT

(1.) By way of this appeal, the appellant has challenged the judgment and decree passed by the Court of learned District Judge, Mandi, in Civil Appeal No. 87 of 2006, dated 09.04.2007, vide which learned Appellate Court while dismissing the appeal filed by the present appellant/plaintiff upheld the judgment and decree passed by the Court of learned Civil Judge (Junior Division), Court No. III, Mandi, in Civil Suit No. 62/2001 dated 06.07.2006, whereby learned trial Court had dismissed the suit for declaration and possession filed by the present appellant/plaintiff.

(2.) Brief facts necessary for adjudication of the present case are that the appellant/plaintiff (hereinafter referred to as the plaintiff), filed a suit that land comprised in Khewat No. 75, Khatauni No. 83, Khasra No. 193 measuring 2-1-11 bighas situated in Muhal Nalsar/283 Illaqa Rajgarh/Balh, Tehsil Sadar, District Mandi, H.P., was earlier owned and possessed by Chinhu son of Balu, which land was obtained in exchange by Chinhu from Makku son of Todar and in lieu of the same, Chinhu had in exchange given his ancestral property comprised in Khewat Khatauni No. 169/ 209, Khasra No. 504, measuring 3-17-14 bighas, situated in Muhal Kehar/290, Tehsil Sadar, District Mandi, to Makku vide mutation No. 677. According to the plaintiff, said land measuring 2-1-11 bighas was inherited by defendant No. 2 from late Chinhu who was grandfather of the plaintiff vide mutation No. 242. Old Khasra No. 193 measuring 2-1-11 bighas was converted into Khasra No. 238 during consolidation proceeding and out of Khasra No. 238 land measuring 0-2-0 bigha was sold by defendant No. 2 to defendant No. 1 vide registered sale deed No. 677 dated 14.06.1994 which land thereafter was mortgaged by defendant No. 1 for Rupees Two Lacs, though the value of the suit land was only Rs.10,000/-. As per the plaintiff, suit land measuring 2 biswas was the Joint Hindu coparcenary property of defendant No. 2 as well as proforma defendants after the death of Chinhu and defendant No. 2 was not competent to alienate the same without the consent of the plaintiff and proforma defendants, except for legal necessity, as the suit land was Joint Hindu coparcenary property in the hands of defendant No. 2 after the death of Chinhu. It was further the case of the plaintiff that defendant No. 1 was well aware that the suit land was the Joint Hindu coparcenary property and he was also aware that there was no legal necessity with defendant No. 2 at the time of execution of sale deed to have sold the same. As per the plaintiff, his grandfather during his life time had laid foundation for the construction of a building on the suit land and defendant No. 1 despite being fully aware that defendant No. 2 was not competent to alienate the suit land, in connivance with the bank officials had mortgaged the same with defendant No. 3 to defeat the rights of the plaintiff and proforma defendants. It was on these basis that the suit was filed praying for a decree in favour of the plaintiff and proforma defendants declaring sale deed No. 677 dated 14.06.1994 to be null and void as well as decree for possession in favour of the plaintiff and proforma defendants and further that the loan if any raised by defendant No. 1 from defendant No. 3 against the suit land, be declared as null and void.

(3.) Though defendant No. 2 (father of the plaintiff) by way of his written statement admitted whatever was stated in the plaint, however, defendant No. 1 contested the same.