Smt. Biro Devi and Smt. Bhagi Devi and Others vs Smt. Hardai and Others

Mahesh Grover, J.—This common judgment will dispose of the above mentioned two Regular Second Appeals which have been directed against judgments and decrees dated 12.8.2005 and 19.9.2007 passed respectively by the Civil Judge (Junior Division), Fatehabad (hereinafter referred to as `the trial Court'') and the Additional District Judge, Fatehabad (described hereinafter as `the First Appellate Court'') whereby the suit of plaintiff-Mani Ram (since deceased) now represented by his legal heirs, was decreed and the appeals preferred by the defendants- appellants were dismissed.

Mani Ram had filed a suit for declaration to the effect that he was owner in possession of plot No. 18 measuring 18'' x 14'' i.e. 28 square yards, situated in New Mandi Township, Bhattu Kalan, District Fatehabad, (hereinafter described as `the suit property'') on the basis of sale deed dated 7.7.1969. A consequential relief of permanent injunction was also prayed for restraining Smt. Biro Devi and her sons, who were impleaded as defendants, from alienating the suit property on the basis of conveyance deed dated 25.3.1997. They were also sought to be restrained from interfering in his possession over the suit property.

It was pleaded by Mani Ram that the suit property was purchased by Rampat son of Bihari, resident of Thuian, District Fatehabad, who was predecessor-in-interest of the appellants, in an open auction from Colonization Department. After his death, Smt. Biro Devi and her sons, namely, Ajmer Singh, Karam Singh, Mahinder Singh and Subhash Chand, inherited the suit property and it became joint Hindu family property. It was further pleaded that Smt. Biro Devi as owner, on her own behalf and on behalf of her minor sons as their guardian, sold the suit property to Mani Ram vide registered sale deed dated 5/7.7.1969 for a consideration of Rs. 2000/- and after its purchase, he was stated to have raised construction of shop and chobara thereon. According to Mani Ram, the suit property was let out by him to various persons at different points of time. It was further alleged that now, Smt. Biro Devi and her sons had started claiming the suit property as theirs on the basis of a conveyance deed dated 25.7.1997 got executed by them in their favour from Market Committee, Bhattu Kalan, which had superseded the Colonization Department from whom the suit property had been purchased by Rampat. It was averred By Mani Ram that Smt. Biro Devi and her sons had started threatening to alienate the suit property on the basis of the said conveyance deed, although they had no right to do so because of the existing sale deed in his favour.

Smt. Biro Devi and her sons filed a joint written statement contesting the suit. It was pleaded that the sale deed dated 5/7.7.1969 was null & void and without consideration and the result of fraud. It was alleged that the sale deed in question was not bearing the thumb impression of Smt. Biro Devi. It was also alleged that Mani Ram had taken advantage of the death of Ram Pat, husband of Smt. Biro Devi and got her signatures on blank papers. It was further pleaded that even otherwise, the sale was null & void because on 7.7.1969, Smt. Biro Devi and her sons were not owners in possession of the suit property because according to the Colonization Department, it was not recorded in their favour as there was no sale deed to that effect. Besides, it was pleaded that Ajmer Singh, Karam Singh, Mahinder Singh and Subhash Chand were minor at that time and no permission from the competent Court for selling the suit property on their behalf was obtained and in this manner, their interests were jeopardized. It was also pleaded that the suit property was purchased by Ram Pat on 23.12.1997 for a sum of Rs. 1700/- and it was he who had raised construction thereon by spending Rs. 15000/-. It was next pleaded that Smt. Biro Devi and her sons had a valid conveyance deed in their favour. The other averments raised by Mani Ram were also denied.

The parties went to trial on the following issues:

Whether the plaintiff is owner in possession of the suit property vide registered sale deed No. 1572 dated 7.7.1969 and is entitled to the relief of injunction as prayed for?OPP

Whether the suit of the plaintiff is not maintainable in the present form?OPD

Whether the plaintiff has no locus standi to file the present suit?OPD

Whether the suit of the plaintiff is bad for non-joinder of necessary parties?OPD

Whether the plaintiff has committed fraud as alleged in para No. 8 of preliminary objections. If so, its effect?OPD

Whether the suit of the plaintiff is not within limitation?OPD

Whether the defendants are owner in possession of the property in question on the basis of conveyance deed?OPD

Relief.

During the pendency of the suit, Mani Ram expired and his legal representatives were brought on record.

After appraisal of the entire evidence brought before it, the trial Court decreed the suit by holding that there was a valid sale deed in favour of Mani Ram which was a registered document. The plea raised by Smt. Biro Devi & her sons was negatived.

Against the judgment and decree of the trial Court, two appeals were preferred - one by Smt. Biro Devi and the other by four brothers, namely, Ajmer Singh (now dead and represented by his legal heirs), Karam Singh, Mahinder Singh and Subhash Chand. While upholding the findings recorded by the trial Court, the First Appellate Court dismissed both these appeals.

Hence, these two separate Regular Second Appeals.

Learned Counsel for the appellants contended that the findings recorded by the Courts below are perverse as they have been arrived at by ignoring cogent evidence on record. It was further contended that the sale deed in favour of Mani Ram was the result of fraud which was adequately proved and in this view of the matter, the Courts below ought to have dismissed the suit instead of decreeing it.

I have thoughtfully considered the contentions of the learned Counsel for the appellants and have perused the impugned judgments.

The sale deed, Exhibit P1, was registered on 7.7.1969 which reflects that Smt. Biro Devi had executed the same on her own behalf and on behalf of her minor sons for a consideration of Rs. 2000/- and the entire amount was received by her at her residence and the possession of the suit property was delivered. The factum of the possession was known to the appellants for all these years, but no attempt was made to challenge the sale deed on the ground of fraud till the year 1997. A plea of fraud was set up on behalf of the appellants, but evidence on record regarding registration of the sale deed points to the contrary. To establish the sale deed in question, Mani Ram had appeared in the witness box as PW1. Besides, marginal witness, namely, Phool Singh and Deed Writer -Dayanand had been examined as PW11 and PW2. They proved the registered sale deed beyond doubt and, therefore, the plea as raised by the appellants is without any merit.

That apart, there is no evidence on record which could establish the plea of fraud which has been sought to be raised by the appellants belatedly after a period of more than three decades.

In so far as the plea of the appellants which has been raised regarding the property of minors being alienated without any legal necessity and without the permission of the competent Court, the same is also meaningless. If such a sale of property of a minor is effected, then the same has to be challenged within a period of three years from the date such minor attains majority because as has been rightly noticed by the First Appellate Court that such a sale is voidable. The suit not having been filed within three years by the minors on attaining majority, the plea of the appellants on this score fails.

No substantial question of law has been shown to have arisen for determination in these appeals which are held to be totally devoid of any merit and are dismissed.