DINESH KUMAR SRIVASTAVA Vs. PRADEEP KUMAR

JUDGEMENT

(1.) Heard the counsel for the petitioners-plaintiffs (hereafter 'the plaintiffs') and perused the impugned order dated 13.9.2017 whereby the trial court has dismissed the application under Section 45 of the Evidence Act filed by the plaintiffs in a suit for declaration, partition and permanent injunction.

(2.) In the suit aforesaid filed by the plaintiffs as LRs of one Narendra Prakash in the year 2007, it was prayed that they had equal shares with the LRs of Satya Prakash, the respondents - defendants (hereafter 'the defendants') in respect of the suit property, of which they were entitled to partition. It was stated that the suit property had been orally purchased on payment of Rs. 1000/- in the aggregate - (Rs. paid 500/- by deceased Satya Prakash and the remainder Rs. 500/- paid by deceased Narendra Prakash) in the year 1960. No specific date of the purported oral sale transaction was however set out in the suit. It was stated that the registered mortgage with conditional sale purportedly executed by the erstwhile owner of the suit property one Dr. Grace Haris (since deceased) in favour of Satya Prakash on 5.5.1960 was forged and therefore, it be declared null and void and non binding on the plaintiffs. Also challenged in the suit were the 3 sale deeds being in respect of part of the suit property executed by the defendants 1 to 3 in 2006 in favour of the defendants no. 4, 5 & 6.

(3.) The suit for declaration, partition and permanent injunction elicited a written statement of denial. It was stated that the registered mortgage cum conditional sale deed dated 5.5.1960 was duly executed by Smt. Grace Haris. With efflux of time, it partook the character of an irreversible sale. The suit property then stood conveyed and in the sole possession of Satya Prakash. Oral undated purchase jointly of the suit property by Satya Prakash and Narendra Prakash vaguely stated to be in 1960 was denied. It was stated that initially Satya Prakash as absolute owner of the property allowed his brother Narendra Prakash to stay in part of the suit property, but it was subsequently vacated prior to Satya Prakash's death in the year 1968. Thereafter the defendants were in its exclusive possession and no claim of part ownership was ever made by Narendra Prakash who also died in 1981. Objection with regard to the right of the LRs of Narendra Pakash to at all lay the suit in respect of the suit property were raised. But an application under Order 7 Rule 11 CPC was however dismissed.