Sunil Ambwani - (1.) -Heard Shri R. N. Singh, senior advocate assisted by Shri V. N. Singh for appellant and Shri Sankatha Rai for respondents.
(2.) THE Second Appeal arises out of suit for cancellation of sale deed dated 16.4.1969 and perpetual injunction over plot No. 145/1 area 2.53 decimal situate in village Katesar Pargana Ralhupur, district Varanasi, executed by defendant No. 2 in favour of defendant No. 1. THE suit was decreed with the declaration that the sale is not binding on the plaintiff. THE suit for perpetual injunction, however, was dismissed. Two civil appeals were filed, one by Shri Markanday Sardar, Civil Appeal No. 301 of 1975, and the other by Girija Prasad and other, Civil Appeal No. 330 of 1975. The civil appeal filed by Markanday Sardar defendant-appellant was dismissed. The other civil appeal was partly allowed with a direction that the suit for perpetual injunction to restrain defendant No. 1 from interfering in the joint possession of plaintiff over disputed plots was also decreed. The judgment of the appellate court dated 27.5.1977 is under challenge. Briefly stated the facts giving rise to suit are that plaintiff and defendant Nos. 2 to 5 are descendants of the common ancestors. The property was acquired by two sale deeds. The share of the Prayag Sahu was 3/4th and share of Ayodhya Sahu was l/4th. The property was situate in a different village and that by mutual family settlement the property in village Katesar was exclusively given to Laxmi Narain, father of the plaintiffs, in lieu thereof the property of village Hariharpur Sahu was given to the heirs of Mathura Sahu and since thereafter Laxmi Narain was in exclusive possession of the plot, which was a 'grove'. Their father constructed a boundary wall and three rooms near the gate. After the death of their father, the plaintiff was living in the rooms. The grove was given by plaintiff's father for management to Sukhdeo Khatik, who got his name entered on the grove as a hereditary tenant, and got their father's name expunged in khatauni without their knowledge.
(3.) PLAINTIFF's father filed Suit No. 13 of 1955 in the court of Munsif, Havali, Varanasi against Sukhdeo Khatik. A receiver was going to be appointed at the instance of defendant, on which, their father withdrew the suit with permission to file a fresh suit. Defendant No. 2 had no concern with the grove. The name of Sukhdeo Khatik was expunged and the name of plaintiffs were recorded on the grove. The defendant No. 2 and his heirs also got their name mutated on the grove with the connivance of Lekhpal and that thereafter defendant 2 executed a sale deed dated 16.4.1969 in favour of Markanday Sardar-defendant No. 1, of the half share of the grove. He took forcible possession of the portion. The sale was alleged to be illegal. The plaintiff further alleged that sale deed was forged, without consideration and that no partition as mentioned in the sale deed had taken place. The defendant Nos. 1 to 4 contested the suit. They filed written statement admitting the pedigree. They, however, denied that plaintiffs are exclusive owner of the disputed property. Prayag Sahu and Ayodhya Sahu had half share each in the plot. These transfers were acknowledged in mutation proceedings between Laxmi Narain Sahu and Mahadeo Sahu in Case No. 37/27/79 of 1935. After the death of Ayodhya Sahu the property came in exclusive possession of Mahadev Sahu father of defendant No. 2. His possession was adverse to defendant Nos. 3 and 4, who did not acquire any rights but were in possession. There was no private partition or any mutual family settlement. The share of Laxmi Narain-father of plaintiff was auctioned in execution of decree passed in Suit No. 20 of 1953 and Suit No. 1 of 1954, Banaras Bank Ltd. v. Laxmi Narain and others, and therefore there was no question of giving the property of village Hariharpur in lieu of his share. After the death of Mahadeo and Laxmi Narain the plaintiff defendant No. 5 and defendant No. 2 became owners of the property in which defendant No. 2 had half share. The disputed plot was a grove from the very beginning in which Mahadeo and Laxmi Narain had planted trees and made their constructions. The defendant No. 2 Badri was a minor in 1944 and thus name of Sukhdeo Khatik was entered due to mistake and carelessness of Laxmi Narain. The record was subsequently corrected and the name of defendant No. 2 was recorded with the plaintiff. There was a private partition in which half shares towards south of the grove alongwith the constructions came to the share of defendant No. 2. The remaining share towards north was allotted to plaintiff No. 5. After the partition defendant No. 5 transferred 13 decimal land towards north to Smt. Mahadevi and Maliullah by sale deed dated 21.9.1968. Badri-defendant No. 2 was in need of money. He transferred his half share towards south to defendant No. 1 through sale deed for adequate consideration and delivered possession to defendant No. 1 who is bona fide purchaser for value. The defendants also pleaded the suit is barred by Sections 41 and 43 of the Specific Relief Act.;