- (1.) This is an appeal against the judgment and decree dated 22.5.2000 passed by the 1st Additional Civil Judge (Senior Division), Moradabad in Original Suit No. 1260 of 1995. THE FACTS
(2.) The Plaintiff-Appellant filed a suit for declaration that he is the owner of the property in dispute and the Defendants have no concern with the same. The allegations in the plaint are as follows: Rahim Bux, father of the Plaintiff-Appellant was the owner of the property in dispute described in the end of the plaint. He had orally gifted the property in dispute to the Plaintiff on 14.8.1972. He was minor at that time and the gift was accepted on his behalf by his mother; The father of the Plaintiff was working as a labourer in the shop of Defendants No. 1 and 2 (Respondents No. 1 and 2 in the present appeal). He had developed bad habits and started taking loan from them; The Defendants No. 1 and 2 by taking undue advantage of the father of the Plaintiff, got his thumb impression on the papers by committing fraud; The Defendants No. 1 and 2 filed original suit No. 25 of 1975 against the father of the Plaintiff, which was dismissed by the trial Court on 30.11.1977. However, the appeal filed against the dismissal of the suit was allowed for alternative relief on 19.5.1978. The father of the Plaintiff had nothing to do with the property in dispute after gifting the same to the Plaintiff. However, he and Defendants No. 1 and 2 colluded with each other and the father of the Plaintiff did not look after the proceeding in the appeal properly because of which the appeal was allowed; The Defendants have illegally obtained the possession over the property in dispute; The Plaintiff was minor. He came to know about the fraudulent act when he became major and he inspected the file of original suit No. 25 of 1975. Thereafter he requested the Defendants to take the money owed by his father and return the house to him. However, it was refused then he is filing the present suit.
(3.) In the aforesaid suit, written statement was filed by Defendants No. 1 and 3, (Respondents No. 1 and 3 in the present appeal). The defence in the written statement is as follows: The Original Suit No. 25 of 1975 and Civil Appeal No. 11 of 1978 was contested by the father of the Plaintiff; The decree in the aforesaid proceedings were not satisfied by the father of the Plaintiff and thus, the execution proceeding No. 27 of 1978 was filed; In the execution proceeding, objection under Section 47 was filed. After it was rejected, the execution proceeding was finalised and auction was held. It was settled in favour of Defendant No. 3 (Respondent No. 3 in the present appeal). This auction was confirmed on 1.8.1981; The possession of the property in dispute was also handed over to Defendant No. 3 through the Court on 16.1.1981 and since then he is in possession of the property in dispute; The suit is barred by principles of estoppel and acquiescence as well as barred by time.; No cancellation of the decree in Civil Appeal No. 11 of 1978 has been sought in the suit. It is binding upon the Plaintiff. The suit is barred under Section 11 of the Code of Civil Procedure.;