REKHRAJ AND ORS. Vs. ROSHANLAL AND ORS.

JUDGEMENT

(1.) THE petitioners, Rekhraj, Sumer Singh and Manmohan, all sons of Sh. Madanlal Kachhawaha, had filed the present suit for possession against their own brother, namely, Roshanlal, (respondent No. 1 herein) and Smt. Kalawati W/o Roshanlal. The said suit was numbered as Civil Original Suit No. 28/2013 -Rekhraj & Ors. v. Roshanlal & Anr., which is pending adjudication before the learned Additional District Judge No. 3, Jodhpur Metropolitan. The plaintiffs claimed that their father Sh. Madanlal Kachhawaha, had executed a registered gift -deed in their favour with respect to suit house in question situated at Pata "C" Road, Jodhpur, on 14.03.2012 and on the basis of said registered gift -deed executed in their favour, the plaintiffs filed the suit for possession against their fourth brother, Roshanlal.

(2.) IN the said suit, the defendants/respondents No. 1 and 2, namely, Roshanlal and his wife, Smt. Kalawat, filed a counter claim alleging therein that the father of respondent No. 1, Sh. Madanlal, had already executed an Agreement to Sell the said suit house in his favour on 01.12.2005 and thereafter through the power of attorney executed by Sh. Madanlal Kachhawaha, in favour of his daughter -in -law, Smt. Kalawati, wife of Roshanlal Kachhawaha, even a registered sale -deed has been executed by Smt. Kalawati in favour of her husband, Rohshanlal on 05.04.2012 and, therefore, the possession suit filed by other three brothers was liable to be dismissed and said gift -deed itself was liable to be cancelled. Challenging the said counter -claim filed by the defendants, Roshanlal Kachhawaha and Smt. Kalawati, under which the defendants claimed cancellation of gift -deed executed in favour of three sons (petitioners/plaintiffs herein) filed an application under Order 7 Rule 11 CPC before the learned trial court, which came to be rejected by the learned trial court of A.D.J. No. 3, Jodhpur Metropolitan vide the impugned order dated 19.11.2014. The reasons given by the learned trial court in the impugned order are quoted herein below for ready reference: -

(3.) MR . Om Mehta, learned counsel for the petitioners/plaintiffs submitted that mere existence of an Agreement to Sell executed by father Madanlal Kachhawaha, in favour of his son Roshanlal on 01.12.2005, does not undo the registered gift -deed dated 14.03.2012, which is a valid conveyance of immovable property in question in favour of petitioners and unless the defendants sought the enforcement of Agreement to Sell dated 01.12.2005, for which they could have filed a suit for specific performance, but Roshanlal could not file such a counter claim in the present suit filed by the plaintiffs/petitioners for possession seeking declaration or cancellation of the gift -deed dated dated 14.03.2012 in favour of plaintiffs. He relied upon following judgments in support of his contentions: