BANSHILAL Vs. OM PRAKASH & ORS

JUDGEMENT

(1.) Although the case is listed for confirmation of stay, yet with the consent of the learned counsel for the parties, this case is being decided finally. The plaintiff-appellant, Banshilal, has challenged the judgment and decree dated 22.9.2009, passed by the Additional District Judge, Phalodi, District Jodhpur, whereby the learned Judge has dismissed the suit filed by the plaintiff-appellant.

(2.) Briefly, the facts of the case are that the plaintiffappellant had filed a suit for cancellation of sale-deed, and for specific performance. According to him, he and the respondent-defendants No. 1 to 6 are real brothers. Their father, Ballabh Das, had certain immovable property consisting a few shops, constructed on the ground-floor, and the house which was constructed on the first floor. On 27.3.1990, Ballabh Das, executed a Will in favour of his children. Ballabh Das expired on 25.6.1992. According to the Will, he bequeathed his shops to his children. However, he imposed a condition that in case, any one of the children wanted to sell the shop, which fell in his share, he would first make an offer to his other sibling and will not sell the shop to a stranger and to a third party. However, notwithstanding the condition imposed by Ballabh Das, on 8.7.2005, the respondent-defendants sold a shop for Rs. 1,31,000/- to respondent No.1, Om Prakash. The said saledeed was subsequently registered on 14.7.2005. Hence, the suit for cancellation of the sale deed on 8.7.2005, and for possession of the shop. The respondent-defendants filed a written statement, and denied the averments made in the plaint. On the basis of the pleadings, the learned trial court framed four issues including the issue of relief.

(3.) In order to buttress its case, the plaintiff -appellant examined two witnesses. In turn, the respondent-defendants examined three witnesses. After going through the oral and documentary evidence, vide judgment dated 22.9.2009, the learned Judge dismissed the suit. Hence, this first appeal before this Court.