BULLI DEVI Vs. SURAJ BHAN

JUDGEMENT

(1.) THE instant second appeal has been filed by the appellants, who are the legal heirs of the original plaintiff Late Shri Manohar Lal, challenging the judgment and decree dated 17/11/2006 passed by the Additional District Judge No. 2, Alwar (hereinafter referred to as 'the Appellate Court') in Civil Appeal No. 71/2002, whereby the Appellate Court has partly allowed the appeal and modified the judgment and decree dated 6/9/2002 passed by the Civil Judge (Junior Division) No. 3, Alwar (hereinafter referred to as 'the Trial Court') in Civil Suit No. 34/223/1995.

(2.) THE short facts, giving rise to the present appeal, are that the original plaintiff -Manohar Lal had filed the suit against the respondent No. 1 -original defendant, seeking declaration to the effect that the agreements dated 1/1/1979 and 23/6/1979 executed by the plaintiff in favour of the defendant were illegal and being barred by law of limitation could not be executed, and that the plaintiff was entitled to recover the possession of the suit premises from the defendant. The plaintiff had also sought for the mesne profits @ Rs. 250/ - per month pending the suit, and subsequently had amended the said prayer by claiming Rs. 38036 towards mesne profits for the use and occupation of the suit premises by the defendant. It was alleged in the plaint inter -alia that the suit shop was inherited by the plaintiff Manohar Lal from his father Shri Trilok Chand, and thus the suit shop was an ancestral property. It was further alleged that the plaintiff had agreed to sell the said suit shop to the defendant by executing an agreement dated 1/1/1979 for Rs. 14,700/ -, and that the defendant had paid Rs. 2,000/ - at that time of agreement, further agreeing to pay the entire consideration or before 8/1/1979. As per the said agreement, the possession of the suit shop was handed over to the defendant. Thereafter a further agreement was executed between the plaintiff and the defendant on 23/6/1979, whereby it was agreed inter -alia that the sale deed would be executed in favour of the defendant Suraj Bhan, after the dispute between the plaintiff Manohar Lal and his son's was over. The defendant Suraj Bhan further paid Rs. 3,700/ - to the plaintiff at the time of execution of the second agreement. According to the plaintiff, thereafter some litigation had pursued between him and his sons, in which the suit filed by his sons for partition was dismissed and the appeal filed against the said judgment was disposed of sometime in 1985. The plaintiff thereafter filed the suit, seeking afore -stated reliefs.

(3.) IT has been sought to be submitted by the learned counsel Mr. S.L. Songara for the appellants that both the courts below have committed serious error of law in not holding that the counter claim made by the respondent was time barred. He further submitted that the property being ancestral property, the original plaintiff Manohar Lal had no right to execute the agreement in respect of the property, in which his minor sons also had the share, more particularly when no legal necessity for selling the property was mentioned in the agreement. According to him, the Appellate Court had not raised any points of determination for deciding the appeal, and therefore had not complied with the requirement of Order XLI, Rule 31 of CPC. He further submitted that the respondent/defendant could have made the counter claim only in cases involving money claim, in view of Order VIII, Rule 6A of CPC, and therefore also the counter claim of the respondent/defendant seeking specific performance the agreements was not maintainable. Mr. Songara has relied upon the decisions of Apex Court in cases of B.V. Nagesh & Anr. vs. H.V. Sreenivasa Murthy, : 2011 DNJ (SC) 891, Narinderjit Singh vs. North Star Estate Promoters Limited, : 2012(2) WLC (SC) Civil 59 & also of the Patna High Court in case of Jashwant Singh vs. Smt. Darshan Kaur & Ors., : AIR 1983 Patna 132 & Rajasthan High Court in case of Dev Kishan & Ors. vs. Ram Kishan & Ors, : AIR 2002 Rajasthan 370 to buttress his submissions.