CHUNI LAL SHARMA Vs. ASHOK KUMAR

JUDGEMENT

(1.) The plaintiffs' suit for rendition of a decree, for declaration besides for rendition of a decree for permanent prohibitory injunction, stood dismissed by the learned trial Court. In an appeal carried therefrom, before the learned First Appellate Court, by the aggrieved plaintiff, the latter Court dismissed his appeal besides obviously affirmed the trial Court's judgment and decree.

(2.) Briefly stated the facts of the case of the plaintiff are that the suit land was owned by his father defendant No.2 Dina Nath (stands deleted vide orders of 19.4.2000 of trial court). Defendant NO.2, through Shashi Parkash, his general power of attorney sold the suit land for an ostensible consideration of Rs.37,000.00, vide sale deed of 23.3.1991 in favour of defendant No.1. The sale deed is claimed the result of mis-representation, and fraud, played on defendant No.2, who is village simpleton. The suit land is claimed to be ancestral by the plaintiff qua the defendant No.2 and that defendant No.2 had no right, title or interest to alienate the ancestral property without legal necessity. Defendant No.2 was a Brahimn, governed by agricultural custom in the matter of alienation and ancestral property could not have been alienated without legal necessity. So, the sale deed is also against the custom, result of fraud, and, mis- representation, would not affect reversionary rights of plaintiff. The defendant is liable to be prohibited to change the nature of the suit land.

(3.) Only defendant No.1 contested the suit, whereas, defendant No.2 was proceeded against exparte. Defendant No.1, in his written statement instituted before the learned trial Court, to the plaint, has taken preliminary objections of maintainability, cause of action, locus standi, estoppel etc. On merits, he denied the suit land to be ancestral in the hands of defendant No.2 qua the plaintiff. It was claimed that defendant No.2 validly sold the suit land, through his attorney Shashi Parkash, for, a valuable consideration. The averments on custom are also denied.