NARESH KUMARI Vs. GARIB DASS AND OTHERS

JUDGEMENT

(1.) Plaintiff No.1 is the appellant, who after having lost before both the learned Courts below, has filed the instant appeal. The parties hereinafter shall be referred to as the plaintiffs and defendants.

(2.) Briefly stated the facts of the case are that the plaintiffs filed a suit for declaration along with consequential relief of injunction against the defendants alleging therein that they are owners in possession of the land comprised in Khata No.15, Khatauni No. 63, Khasra No. 1357, measuring 0-01-96 HM, situated in Village Kehrian, Tehsil Jawali, District Kangra, H.P. (hereinafter referred to as the suit land). It was averred that defendant No.1 had filed a Civil Suit No. 185/86 titled as 'Garib Dass versus Situ' in the Court of learned Sub Judge, Nurpur for specific performance of contract regarding the suit land. Situ, father of defendants No.2 to 4 and maternal grandfather of plaintiff No.1 died during the pendency of the said suit, as such, defendants No.2 to 4, widow of Situ and two daughters Soma Devi and Jahlli were brought on record as legal representatives of Situ. It was further averred that Jahlli was shown as defendant No.6 in the said civil suit and she was deaf and dumb and was of very feeble mind and due to this reason she was called as Jahlli, whereas, her name was Radha. She was incompetent to look after her interest, as such, Court guardian was required to be appointed to look after her interest. It was also averred that the fact that Jahlli was of unsound mind was concealed from the Court and as such decree was passed against her. Jahlli died during the execution proceedings and her legal representatives were not properly represented by any person. It was further averred that the sale deed executed by the nominee of Court on 10.03.2004 was thus got executed by practising fraud upon the Court. The said judgment and decree is void, wrong, illegal and is not binding upon the rights of the plaintiffs and, as such, the same is liable to be set aside and subsequent sale deed dated 10.03.2004 is also liable to be declared null and void. It was also averred that the plaintiffs are owners in possession of the suit land and the defendants have no right to interfere with the suit land in any manner. Defendant No.1 in the second week of May, 2004 interfered in the suit land and thereafter the plaintiffs came to know about the fraud committed by defendant No.1. Lastly, the defendants refused to admit the claim of the plaintiffs, hence the suit.

(3.) Defendant No.1 contested the lis by filing written statement and had taken preliminary objections qua maintainability, cause of action, res judicata etc. On merits, the defendant admitted about the filing of earlier civil suit, however, contended that the same was decided by this Court and no such objection was taken at any stage. It was averred that even during the execution proceedings due opportunity was afforded to the parties, but not objection was raised, as such, the plaintiffs have no right to challenge the judgment. The plaintiffs had filed the suit with an intention to prolong the litigation by pleading false facts. The sale deed was validly executed in compliance of the judgment of the Court. The defendant denied the remaining averments and prayed for dismissal of the suit.