RAM RATAN Vs. CHANDRA PRAKASH

JUDGEMENT

(1.) The plaintiff-appellant has preferred this Civil Second Appeal under Section 100 of the Code of Civil Procedure against the impugned judgment and decree dated 24.4.2008 passed by the Additional District Judge, Kekri (District Ajmer) in Civil Regular Appeal No.2/2006 whereby the learned appellate Court by allowing the appeal filed by the defendant-respondent-Shri Chandra Prakash set aside and reversed the judgment and decree dated 1.4.2006 passed by the trial Court i.e. Civil Judge (Senior Division) Kekri (District Ajmer) in Civil Suit No.3/1995 whereby and whereunder the learned trial Court decreed the suit filed by the plaintiff-appellant for declaration and permanent injunction.

(2.) Brief relevant facts for the disposal of this appeal are that the appellant filed a suit for declaration, cancellation of sale deed and permanent injunction with the averment that land in dispute, an agriculture land, originally belonged to his grand-fatherLate-Shri Bhura and after his death it solely devolved upon his father late Shri Narayan and mutation was also opened in his favour. It was2 also averred that his father Shri Narayan died in Samvat Year 2030 and upon his death the land in question devolved upon him, his brother defendant-Shri Nandlal and their mother-Smt.Bhuli and all of them became co-tenant and joint possessors of the same and the mutation was also opened in their favour. It was further submitted that their mother died in the year 1992 and thereafter he and his brother-Shri Nandlal became co-tenant of the land in question and since they are in joint possession of the same and it has not been divided between them. It was further submitted that his brother-Shri Nandlal without his permission and consent sold one half undivided share of the land in question by a registered sale deed dated 16.5.1995 to the defendant-respondent-Shri Chandra Prakash in lieu of sale consideration of Rs.50,000/-. It was also averred that the land in question is an ancestral property which is still undivided and it is in joint possession of him and his brother and, therefore, his brother did not have a right even to sale one half share of the same.

(3.) The respondents did not appear despite due service of notice upon them. The appeal was admitted for hearing vide order dated 20.2.2009 on the following substantial questions of law: