RAJESH Tandon, J. - (1.) Heard Shri S. K. Jain, Counsel for the appellants and Shri Ramji Srivastava, Counsel for the respondents.
(2.) BY the present second appeal filed under section 100 of Code of Civil Procedure, the appellants have prayed for setting aside the judgment and decree dated 15. 10. 2003 passed by the Additional District Judge, Dehradun in Civil Appeal No. 6 of 1998. Second appeal was admitted on the following substantial questions of law:- 1. Whether Court has got jurisdiction to declare the validity of the decree passed in suit No. 377 of 1953 Kundan Lal v. Rajendra Dutt and others after a long period of 41 years and whether the above decree is beyond jurisdiction. 2. Whether the present suit is barred by section 41 (a) and (h) of the Specific Relief Act? 3. Whether the plaintiffs have got any cause of action to file the present suit? Whether the plaintiffs have got any share in the property in question?
(3.) WHETHER the finding of the first appellate Court that in case the entries of defendant No. 1 in the revenue records against the decree passed in suit No. 377 of 1953 is illegal, void and ineffective, is wholly perverse and illegal? 4. Briefly stated, a suit being suit No. 54 of 1994 was filed for permanent injunction restraining the defendant from selling any portion of the land which has been given to the plaintiffs in the decree of suit No. 377 of 1953. According to the plaint averments, the plaintiffs No. 1 and 2 are the sons of (late) Shri Kundan Lal, and the plaintiff No. 3 is the widow of (late) Shri Ravindra Dutt Kuthari. Shri Kundan Lal died on 13. 2. 1960. The defendant No. 1 Sri Rajendra Dutt Kuthari and late Shri Kundal Lal Kuthari had joint holdings in various villages in Parwadoon including Mauja Dhoran-khas. Late Shri Kundan Lal had 2/3 share in the aforesaid holdings and he filed suit No. 377/1953 for partition claiming 2/3rd -share in the Court of Munsif, Dehradun which was transferred to the Court of the Additional Civil Judge (2), Dehradun and vide judgment and decree dated 20. 5. 1969, late Kundan Lal was declared owner of 2/3rd share in the land in suit and Rajendra Dtott Kuthari was declared owner of l/3rd share in the land in suit. It has been stated that the 2/3rd share of the land in suit was finally separated by the Court by passing a final decree whereby kurra No. 2 was given to the plaintiffs and kurra No. 1 was given to the defendant No. 1 Sri Rajendra Dutt. It has been stated that after the partition the plaintiffs and the defendant No. 1 took over the possession of their respective shares of the property. It has been alleged that the defendant No. 1 took advantage of the ignorance of the plaintiffs and made incorrect entries in khatauni in collusion with the lekhpal of the area and got his name recorded with regard to the land of the plaintiffs. In paragraph 12 of the plaint, the plaintiff has stated as under :- " 12. That the defendant No. 1 has struck a deal with the defendant No. 2 who is a property dealer, to sell the land of khasra No. 526/1 area 0. 65 H (0. 16 acre) and khasra No. 528 M area 0. 085 H (0. 21 acre) in village Dhoran-Khas in Parwadoon, which land does not belong to him at all nor is he in possession of the same. The defendant No. 1, on 11 November, 1993 has, with a view to sell the land of the plantiffs, given a general power of attorney in favour of the defendant No. 2, authorizing him to sell the land and got the sale deed registered. " 5. The plaintiffs have claimed the following reliefs: (A) That the defendants be restrained by means of a permanent injunction, directing them, their legal representatives, and assigns from not selling any portion of the land which has been given to the plan-tiffs in the decree of suit No. 377 of 1953 "kundan Lal v. Rajendra Prasad and others", in village Dhoran-khas, Pargana Parwadoon in District Dehradun and which land has been detailed in para 5 of this plaint. j. (B) Any other relief as may be considered just and proper by this Hon'ble Court. (C) Costs of the suit be awarded against the defendants. The defendants have filed a written denying the averments made in the plaint. It has been submitted that the father of the plaintiffs namely late Kundan Lal, late Brajlal and father of the defendant No. 1 namely Hansram were the joint bhumid-hars of various land including the land in dispute and before the enactment of the U. P. Z. A. and L. R. Act, Kundan Lal was having l/3rd share over the property in dispute and late Brajlal and Late Hansram was having joint ownership over the 2/3rd property of the dispute and all of them were in possession of their respective kur-ras. After the death of Hansram, the defendant No. 1 became his sole heir. After the death of Brajlal, the defendant No. 1 succeeded the ownership of the property of Hansram and Brajlal. In paragraph 20 of the written statement, the defendants have stated as under : ....Vernacular Text Ommited....;