L.RS. OF MOTILAL Vs. GYANDUTT

JUDGEMENT

(1.) The appellants/defendants, Bhagirath S/o late Sh. Motilal and others (legal representatives of original defendant, Motilal) having lost the legal battle before the two courts below, have filed the present second appeal under Section 100 of Code of Civil Procedure, 1908, in this Court on 22.04.2011 assailing the judgment and decree dated 28.01.2011 passed by learned Additional District Judge (FT) No.2, Bikaner, whereby the learned lower appellate court below has dismissed the First Appeal No.37/2009- LR's of Motilal Vs. Gyandutt @ Gyanprakash & Anr., and affirmed the judgment and decree dated 17.12.2005 passed by learned Civil Judge (Sr. Division), Bikaner, decreeing the suit (Civil Original Suit No.103/1990-Gyandutt @ Gyan Prakash Vs. LR's of Motilal) filed by the first respondent/plaintiff, namely, Gyandutt @ Gyan Prakash S/o late Sh. Onkardutt, for seeking cancellation of sale-deed 11.01.1983 (which was registered before the Sub-Registrar, Bikaner on 19.01.1983) executed by the step brother of plaintiff, second respondent/defendant, Durgadutt S/o Onkardutt, in favour of original defendant, Motilal adopted son of Labhchand, with the suit land, which is a plot of land ("Bara") ad-measuring 240 Square Yards (2' x 2') situated at Mohalla Hamalon-Ki-Bari, Bikaner.

(2.) Briefly stated, the facts of the case are that the first respondent/plaintiff, namely, Gyandutt @ Gyan Prakash S/o late Sh. Onkardutt, filed a suit for possession and cancellation of the sale-deed dated 11.01.1983 executed by second respondent/defendant, Durgadutt S/o Sh. Onkardutt, in favour of original defendant, Motilal (who is now represented by his legal representatives). Sh. Onkardutt, father of both the plaintiff Gyandutt @ Gyan Prakash and seller-defendant Durgadut, had earlier married one Smt. Bijali, from whom the second respondent/defendant, namely, Durgadutt, was born, who was blind from the time of his birth. After death of Smt. Bijali, Sh. Onkardutt, got married to one Harpyari, who also died issue less and thereafter said Onkardutt, married Smt. Suraj Devi, from whose wedlock the first respondent/plaintiff (Gyandutt @ Gyan Prakash) and one daughter, namely, Asha were born. The first respondent/plaintiff sought cancellation of the sale-deed dated 11.01.1983 (Exhibit-7) on the basis of a Trust-deed (Exhibit-1) dated 22.09.1973 by which Trust was created in his favour by his father, late Sh. Onkardutt, which was duly registered with the Sub- Registrar, Bikaner on 01.12.1973. It is worth noting here that the then Sub-Registrar, Bikaner (Sh. Chaturbhuj Arora) also made a note on the original trust-deed to the effect that the defendant No.2, Durgadutt, who was blind by birth, was also present at the time of registration of the Trust-Deed (Ex.1), the same was read over to him and he (defendant No.1- Durgadutt) in turn agreed to the execution of the said Trust-deed in favour of his step brother, Gyandutt @ Gyan Prakash.

(3.) This Court also summoned the original trust-deed from the first respondent/plaintiff through his counsel Mr. D.D. Chitlangi, who produced the same before the Court for perusal during the course of arguments. This Court has carefully seen the said original registered trust-deed, on the back of the said trustdeed a note has been appended by the then Sub-Registrar, Bikaner. For the purposes of ready reference, the note (marked as "M" to "N") on the original Trust-Deed is quoted herein below for ready reference: -